EXHIBIT 10.1
________________________________________________________________________________
ASSET PURCHASE AND SALE AGREEMENT
Between
BONGIOVI ENTERTAINMENT, INC., A NEVADA
CORPORATION
Seller
And
Xxxxxxx Xxxxxxxx, Xx., Xxxxxx X. Xxxxxxx, Xxxxxxx Xxxxxxxx and Xxxxxx X. Xxxxxx,
Xx., Greyfield Consulting
Buyers
DATED AS OF JUNE____, 2004
ASSET PURCHASE AND SALE AGREEMENT
This ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of
June___, 2004, between Bongiovi Entertainment, Inc., a Nevada corporation
("Bongiovi" or the "Company" or "Seller") and the parties named on the attached
SCHEDULE A (individually, a "Buyer" and collectively "Buyers"). Capitalized
terms used in this Agreement shall have the meanings ascribed thereto in this
Agreement.
RECITALS
WHEREAS, the Company and the Buyers entered into an agreement and plan of
reorganization dated as of September 10, 2002 (the "Reorganization"); and
WHEREAS, as a part of the Reorganization, the Company signed a note in the
amount of $600,000 dated September 10, 2002 in favor of Samartan Development
Ltd. (the "Note"), which Note is unpaid and outstanding as of the date hereof;
and
WHEREAS, the Seller desires to sell to the Buyers and the Buyers desire to
purchase from the Seller, those assets and property of Seller and those
liabilities of Seller specified herein, on the terms and conditions contained in
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS; PRICE
1.1 PURCHASE AND SALE OF ASSETS. Seller shall sell, assign, and deliver to
Buyers and Buyers shall purchase and accept, on the closing date, all the assets
and properties listed on SCHEDULE 1.1, attached hereto and incorporated by
reference (collectively, the "Transferred Assets" or "Assets") other than the
Excluded Assets (as defined in section 1.2 hereof).
1.2 EXCLUDED ASSETS. Notwithstanding any other provision of this Agreement, the
Seller shall retain and shall not transfer to the Buyers any of the assets
contained on SCHEDULE 1.2 (the "Excluded Assets").
1.3 PURCHASE PRICE.
1.3.1 PURCHASE PRICE. As the aggregate consideration for the
Transferred Assets, Buyers shall transfer to Seller 16,000,000
shares of Bongiovi, currently owned by Buyers.
1.3.2 ASSUMPTION OF LIABILITIES. Buyers accept the grant,
conveyance, assignment and transfer of the Assets as provided
in Section 1.1 and as additional consideration for Seller's
transfer of Assets, the Buyers agree to irrevocably
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and unconditionally assume any and all of the liabilities
(including taxes) of Seller and its subsidiary incurred or
accrued up to the date of Closing, except those liabilities
described on the list attached as Schedule 1.3.2 (the
"Excluded Liabilities").
1.4 PAYMENT. At the Closing, as defined in Article 7 hereof, the Buyers shall
deliver to the Seller the agreed upon Purchase Price pursuant to Section 1.3(1)
of this Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
The parties intend that the sale of the Transferred Assets shall be
"where is, as is" and that the representations and warranties of the Seller
shall be limited in accordance with such intent; the Seller therefore makes only
the following limited representations and warranties:
2.1 ORGANIZATION, OUTSTANDING SHARES AND GOOD STANDING. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, as evidenced in the certificate of good standing
attached hereto under Schedule 2.1. The total number of shares of common stock
of the Seller issued and outstanding as of the date hereof is 20 million.
2.2 AUTHORIZATION, ETC. The Seller has the power and authority to enter into
this Agreement, to perform its obligations hereunder, to transfer the
Transferred Assets, and to carry out the transactions contemplated hereby and
thereby. This Agreement has been duly executed and delivered by the Seller, and
this Agreement is the legal, valid, and binding obligation of the Seller
enforceable according to its terms, except (a) as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, general
principles of equity, or similar laws now or hereafter in effect relating to
creditors' rights and (b) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding may be brought.
2.3 NO VIOLATION. To the best of Seller's knowledge, none of the execution and
delivery of this Agreement by Seller, the performance by Seller of its
obligations hereunder or thereunder, or the consummation of the transactions
contemplated hereby or thereby will (a) violate any provision of the charter
documents of Seller, (b) violate, or be in conflict with, or permit the
termination of, or constitute a default under or breach of, or cause the
acceleration of the maturity of, any contract, debt, or other obligation of
Seller, which violation, conflict, default, breach, termination or acceleration,
either individually or in the aggregate with all other such violations,
conflicts, defaults, breaches, terminations and accelerations, would have a
material adverse effect on the business, assets or financial condition of
Seller, (c) require the consent of any other party to, or result in the creation
or imposition of any lien upon any property or assets of Seller under any
agreement or commitment to which Seller is a party or by which Seller is bound,
or (d) violate any statute or law or any judgment, decree, order, regulation, or
rule of any court or governmental authority to which Seller is subject.
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2.4 LITIGATION. Except as described on Schedule 2.4 attached hereto, Seller has
no knowledge of any action pending or threatened against Seller, or any
properties or rights of Seller, that questions or challenges the validity of
this Agreement, nor any action taken or to be taken by Seller pursuant hereto or
thereto or in connection with the transactions contemplated hereby or thereby,
and Seller does not know of any such action that may be asserted. Seller does
not have any knowledge of any default on its part with respect to any judgment,
order, writ, injunction, decree, award, rule or regulation of any court,
arbitrator or governmental agency or instrumentality.
2.5 NO LIENS. Except as described on SCHEDULE 2.5 attached, Seller has no
knowledge of any perfected liens or perfected security interests encumbering any
of the Transferred Assets.
2.6 NO REMOVAL OF ASSETS. Prior to Closing, Seller will not transfer or remove
any of the assets contained on Schedule 1.1 from the Company, without the
express written consent of Buyers.
2.7 BROKERS' FEES. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any person
acting on behalf of, or representing, the Seller as a broker, finder, investment
banker, financial advisor in any similar capacity. No broker or finder has acted
directly or indirectly for the Seller in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commission in respect thereof based in any
way on the actions or statements of, or the agreements, arrangements, or
understandings made with Seller; and no person (other than the Buyer) currently
has any right or option of any type to acquire, directly or indirectly, any
interest in the Transferred Assets.
2.8 EXCHANGE ACT FILINGS. Except as set forth in Seller's Schedules, Seller has,
in all Exchange Act filings, complied in all material respects with the
reporting requirements of the rules and regulations of the Securities Exchange
Act of 1934. The information contained in each Exchange Act filing of the Seller
is true and correct in all material respects as of the date thereof, and no
reporting act document contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading as of the date thereof. To the best knowledge
of current management of the Seller, there is no outstanding negative matters
which are outstanding concerning reports filed with the SEC by Seller prior to
the Closing hereof.
2.9 FINANCIAL STATEMENTS. All the financial statements included in the SEC
reports filed by Seller after September 10, 2002, have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved. The Seller balance sheets present fairly as of
their respective dates the financial condition of Seller.
1. The books and records, financial and others, of
Seller are in all material respects complete and
correct and have been maintained in accordance with
good business accounting practices;
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2. Seller has no liabilities with respect to the payment
of any federal, state, county, local or other taxes,
current or accrued (including any deficiencies,
interest or penalties);
3. As of the date of Closing, as defined herein the
Seller has: (i) no receivables; (ii) no accounts
payable; (iii) except as stated herein or in the
Seller Schedules, no liabilities, whether absolute,
accrued, known or unknown, contingent or otherwise,
whether due or to become due, including, without
limitation, liabilities as guarantor under any
guaranty or other governmental charges;
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Each Buyer, jointly and severally, represents and warrants to Seller as
follows:
3.1 OWNERSHIP OF STOCK. Buyers are the lawful owners of all of the shares of
Common Stock to be transferred to the Seller, which shall be free and clear of
all liens, encumbrances, restrictions and claims of every kind and character,
other than any of the foregoing arising from actions by Seller as of the Closing
Date or restrictions imposed by federal and state securities laws. The delivery
to Seller of the Stock pursuant to the provisions of this Agreement will
transfer to Seller valid title thereto, free and clear of any and all
Encumbrances.
3.2 AUTHORIZATION, ETC. The Buyers have full power and authority to enter into
this Agreement to perform their obligations hereunder, and to carry out the
transactions contemplated hereby. The Buyers have taken, or will take before the
Closing Date, all actions required by law or charter document to authorize (a)
the execution and delivery of this Agreement, and (b) the performance of their
obligations hereunder. This Agreement has been duly executed and delivered by
the Buyers and this Agreement is the legal, valid, and binding obligations of
the Buyers enforceable according to its terms, except (a) as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium, general
principles of equity, or similar laws now or hereafter in effect relating to
creditors' rights and (b) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding may be brought.
3.3 NO VIOLATION. To the best of Buyers' knowledge, none of the execution and
delivery of this Agreement by the Buyer, the performance by the Buyers of their
obligations hereunder or thereunder, or the consummation of the transactions
contemplated hereby or thereby will (a) violate any provision of the charter
documents of any Buyer, (b) violate, or be in conflict with, or permit the
termination of, or constitute a default under or breach of, or cause the
acceleration of the maturity of, any contract, debt, or other obligation of any
of the Buyers, which violation, conflict, default, breach, termination or
acceleration, either individually or in the aggregate with all other such
violations, conflicts, defaults, breaches, terminations and accelerations, would
have a material adverse effect on the business, assets or financial condition of
the Buyers, (c) require the consent of any other party to, or result in the
creation or imposition of any lien upon any property or assets of the Buyers
under any agreement or commitment to which any Buyer is party or by which any
Buyer is bound, or (d) to the knowledge any Buyer, violates any statute or law
or any judgment, decree, order, regulation, or rule of any court or governmental
authority to which any Buyer is subject.
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3.4 LITIGATION. There is no action pending or threatened against any Buyer, or
any properties or rights of any Buyer, that questions or challenges the validity
of this Agreement, nor any action taken or to be taken by any Buyer pursuant
hereto or thereto or in connection with the transactions contemplated hereby or
thereby, and no Buyer knows of any such action that may be asserted.
3.5 BROKERS' FEES. Neither this Agreement nor the consummation of the
transactions contemplated hereby was induced by or procured through any person
acting on behalf of, or representing, the Buyers or any affiliate of the Buyers
as a broker, finder, investment banker, financial advisor in any similar
capacity; and no broker or finder has acted directly or indirectly for the
Buyers or any affiliate of the Buyers in connection with this Agreement or the
transactions contemplated hereby, and no broker or finder is entitled to any
brokerage or finder's fee or other commission in respect thereof based in any
way on the actions or statements of, or the agreements, arrangements, or
understandings made with Buyers or any affiliate of the Buyers.
3.6 LIABILITIES. As of the date of Closing, as defined herein, Bongiovi
Entertainment, Inc. has no accounts payable and except as stated herein or in
the Schedules, no liabilities, whether absolute, accrued, known or unknown,
contingent or otherwise, whether due or to become due, including, without
limitation, liabilities as guarantor under any guaranty or other governmental
charges.
ARTICLE 4
CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of the Buyers under this Agreement to consummate the Closing
on the Closing Date shall be subject to the satisfaction, on or before the
Closing Date, of each of the following conditions:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the
Seller contained herein (including, without limitation, all exhibits hereto and
thereto), and in all certificates and documents delivered by the Seller shall be
true and accurate in all material respects as of the Closing Date, except for
changes permitted or contemplated by this Agreement.
4.2 PERFORMANCE. The Seller shall have performed and complied in all material
respects with all agreements, obligations, and conditions required by this
Agreement to be performed or complied with by the Seller on or before the
Closing Date.
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4.3 DOCUMENTS DELIVERED. The following documents have been or will be delivered
in connection with the Closing:
4.3.1 XXXX OF SALE. Buyers shall have received the Xxxx of Sale dated as
of the Closing Date, substantially in the form of SCHEDULE 4.3.1, duly executed
by the Seller.
4.3.2 APPROVAL OF BOARD OF DIRECTORS OF SELLER. Buyers shall have received
a copy of minutes of the Seller's Board of Directors approving this Agreement
and the sale of assets contemplated herein and the determination of the Board of
Directors that the price for the assets was fair.
4.4 SEC FILINGS. The Seller shall have filed a report on Form 10-KSB for the
fiscal year ended December 31, 2003 with the Securities and Exchange Commission
prior to the Closing Date.
4.5 IRS TAX RETURNS. The Seller shall have filed all required tax returns with
the Internal Revenue Service prior to the Closing Date, and copies of which
shall be provided at the Closing (for the fiscal years 2002 and 2003).
4.6 NO UNPAID LIABILITIES. The Buyers shall pay for all incurred and accrued
liabilities of the Company as soon as practicable after the Closing Date,
including but not limited to any accrued and outstanding legal fees, accounting
fees or transfer agent fees.
4.6 NAME CHANGE. The Seller shall change its name from "Bongiovi Entertainment,
Inc." to another name of its choice within 30 days from the Closing Date if all
the conditions of this Article 4 are satisfied as of the Closing Date.
ARTICLE 5
CONDITIONS TO SELLER'S OBLIGATIONS
The obligation of the Seller under this Agreement to consummate the Closing
on the Closing Date shall be subject to the satisfaction, on or before the
Closing Date, of each of the following conditions:
5.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of the
Buyers contained herein (including, without limitation, all exhibits hereto and
thereto), and in all certificates and documents delivered by the Buyers shall be
true and accurate in all material respects as of the Closing Date, except for
changes permitted or contemplated by this Agreement.
5.2 PERFORMANCE. The Buyers shall have performed and complied in all material
respects with all agreements, obligations, and conditions required by this
Agreement to be performed or complied with by the Seller on or before the
Closing Date.
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5.3 RESIGNATIONS. The Buyers agree to resign from their respective positions as
officers and directors of the Seller as of the Closing Date and appoint the
designees of Samartan Developments, Ltd. as their respective successors. The
respective resignations of the Buyers shall be tendered to the Seller at the
Closing.
5.4 DOCUMENTS DELIVERED. The following documents have been or will be delivered
in connection with the Closing:
5.4.1 SHARE CERTIFICATES. The Buyers shall deliver to Seller's
representative the share certificates representing the purchase
price, medallion guaranteed and free and clear of all liens,
encumbrances, restrictions and claims of every kind and character,
other than any of the foregoing arising from actions by Seller as
of the Closing Date or as a result of restrictions imposed by
federal or state securities laws.
ARTICLE 6
CLOSING; CLOSING DATE
The closing (the "Closing") will be held on or before May 15, 2004, or at
such other time and place as the parties hereto may mutually agree upon in
writing (the "Closing Date"), at which Closing the documents and instruments
referred to in Articles 4 and 5 will be delivered by the parties.
ARTICLE 7
CERTAIN POST-CLOSING COVENANTS
7.1 TRANSITION. Seller shall, after the Closing Date, provide reasonable
cooperation with Buyers to insure an orderly transition of the Transferred
Assets to Buyers and Seller shall use its commercially reasonable best efforts
to assist Buyers to obtain any required consents to any assignment.
7.2 MAINTENANCE OF RECORDS. Subsequent to the Closing Date, the Seller shall, at
the Buyer's expense, permit the Buyers, from time to time, to inspect and copy
such books of account and other records relating to the Transferred Assets and
to utilize the services of the Buyer's employees, all as may be necessary or
convenient to enable the Buyers to prepare and file tax returns. Until the sixth
anniversary of the closing Date, the Seller shall not, without the prior written
consent of the Buyers or its successors in interest, destroy or dispose of any
records. In addition, Buyers shall provide to Seller subsequent to Closing all
information necessary to allow Seller to properly prepare and file all reports
required to be filed pursuant to the Securities act of 1933 or the Exchange Act.
7.3 SEC FILINGS. Form 10-KSB shall be filed by the Closing Date. The Buyers and
the Seller will fully cooperate in preparation of Form 10-QSB for the quarter
ended March 31, 2004, and make all the necessary records available.
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7.4 FURTHER ASSURANCES. Before and after the Closing Date, each party hereto
shall execute and deliver such instruments and take such other actions as any
other party may reasonably request for the purpose of carrying out the intent of
this Agreement. Prior to Closing, each party hereto shall use its best efforts
to cause the transactions contemplated by this Agreement to be consummated and,
without limiting the generality of the foregoing, to obtain all consents and
authorizations of government agencies and third parties and to make all filings
with and give all notices to government agencies and third parties that may be
necessary or reasonably required to effect the transactions contemplated by this
Agreement. The Seller shall give prompt notice to the Buyers, after receipt
thereof by the Seller, of (a) any notice of, or other communication relating to,
any default or event that, with notice or lapse of time or both, would become a
default under any indenture, instrument, or agreement material to the Seller, to
which the Seller is a party or by which the Seller is bound, and (b) any notice
or other communication from any third party alleging that the consent of such
third party is or may be required in connection with the transactions
contemplated by this Agreement. Each party shall deliver to the other by the
Closing Date appropriate evidence of the approval of its partners, board of
managing directors, and board of directors, as the case may be, of this
Agreement and the transactions contemplated hereby.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION BY BUYERS. The Buyers, their successors, and assigns shall
indemnify and hold the Seller and its successors and assigns (including its
officers and directors appointed or elected following the Asset Purchase)
harmless in respect of any and all damages incurred by the Seller and its
successors and assigns in connection with each and all of the following:
8.1.1 Any claim by any person or other entity for any broker's or
finder's fee or similar fee charged for commission that arises
from any action, statement, or commitment made by the Buyers or
their agents or any affiliate of the Buyers.
8.1.2 Any breach or other failure to perform any covenant, agreement, or
obligation of the Buyers contained in this Agreement or any other
instrument executed by Buyers in connection herewith.
8.1.3 Any breach of any representations or warranty by the Buyers
contained in this Agreement or any other instrument contemplated
hereby or thereby, in particular (but not by way of limitation),
Sections 3.4 (litigation) and 3.6 (liabilities) and any schedules
related thereto.
8.1.4 Any claim or cause of action arising out of or as a result of the
actions or omissions of any of the Buyers while acting in their
capacity as officers and directors of the Seller prior to the
Asset Purchase.
The representations and warranties of Buyers herein will survive the
Closing for one year; provided however, that any claim for which written
notice has been given under Section 8.3 and 10.3 within one year of Closing
will survive until resolved by settlement or adjudication.
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8.2 NOTICE AND DEFENSE OF CLAIM. Whenever any claim shall arise for
indemnification hereunder, the party entitled to indemnification (the
"Indemnified Party") shall provide written notice to the other party (the
"Indemnifying Party") within sixty (60) days of becoming aware of the right to
indemnification and, as expeditiously as possible thereafter, the facts
constituting the basis for such claim. In connection with any claim giving rise
to indemnity hereunder resulting from or arising out of any claim or legal
proceeding by a person who is not a party to this Agreement, the Indemnifying
Party, at its sole cost and expense and upon written notice to the Indemnified
Party, may assume the defense of any such claim or legal proceeding with counsel
reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be
entitled to participate in the defense of any such action, with its counsel and
at its own expense. If the Indemnifying Party does not assume the defense of any
such claim or litigation resulting therefrom, the Indemnified Party may, but
shall not be obligated to, defend against such claim or litigation in such
manner as it may deem appropriate including, but not limited to, settling such
claim or litigation, after giving notice of it to the Indemnifying Party, on
such terms as the Indemnified Party may deem appropriate and no action taken by
the Indemnified Party in accordance with such defense and settlement shall
relieve the Indemnifying Party of its indemnification obligations herein
provided with respect to any Damages resulting therefrom.
ARTICLE 9
TERMINATION
9.1 TERMINATION. This Agreement may be terminated at any time before the Closing
Date:
9.1.1 by mutual consent of the Buyers and the Seller;
9.1.2 by either the Buyers or the Seller if the Closing has not occurred
on or before May 15, 2004, provided that this provision shall not
be available to the party who fails or refuses to consummate the
transactions contemplated herein or to take any other action
referred to herein as necessary to consummate the transactions
contemplated hereby in breach of such party's obligations
contained herein, and
9.1.3 by either the Buyers or the Seller if there has been a material
breach on the part of the other party in any material
representation, warranty or covenant set forth in this Agreement.
9.2 EFFECT OF TERMINATION. In the event of termination of this Agreement as
expressly permitted under Section 9.1, this Agreement shall forthwith become
void and there shall be no liability on the part of either the Seller, the
Buyers, or their respective officers, directors or affiliates; provided,
however, that if such termination occurs pursuant to Section 9.1.3 and resulted
from the material misrepresentation or material breach by a party of the
covenants of such party contained in this Agreement, such party shall be fully
liable for any and all damages sustained or incurred as a result of such breach.
In the event of termination hereunder before the Closing, each party shall
return promptly to the other party all documents, work papers, and other
material of the other party furnished or made available to such party or its
representatives or agents and all copies thereof.
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ARTICLE 10
MISCELLANEOUS
10.1 AMENDMENT AND MODIFICATION; WAIVER OF COMPLIANCE. Subject to law, this
Agreement may be amended, modified, and supplemented only by written agreement
signed by the Buyers and the Seller. Any failure by any party to this Agreement
to comply with any obligation, covenant, agreement, or condition contained
herein may be expressly waived in writing by the other party hereto, but such
waiver or failure to insist upon strict compliance shall not operate as waiver
of, or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in a manner consistent with the requirements for a waiver
of compliance as set forth in this Section 10.1.
10.2 FEES AND EXPENSES. Except as otherwise provided herein, each of the parties
hereto will pay its own fees and expenses (including attorneys' and accountants'
fees, legal costs, and expenses) incurred in connection with this Agreement and
the consummation of the transactions contemplated hereby and thereby.
10.3 NOTICES. All notices, requests, demands, and other communications required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered by hand, overnight courier, telefax, or mailed certified or
registered mail with postage prepaid as to Buyers or the Seller, respectively at
the addresses indicated on the signature page.
10.4 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interest, or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other party.
10.5 GOVERNING LAW. This Agreement will be governed as to validity,
interpretation, construction, effect and all other respects by internal laws of
the State of Nevada. The Buyers and Seller agree that any legal suit, action or
proceeding arising out of or relating to this Agreement shall be instituted
exclusively before the American Arbitration Association for arbitration in its
offices in Orange County, California. The arbitrators shall render a written
opinion. Any award the arbitrators make shall be final and binding on both
parties, and judgment on it may be entered in any court having jurisdiction. The
arbitrators are authorized to award attorneys' fees and expenses to the
prevailing party in any such arbitration.
10.6 COUNTERPARTS. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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10.7 HEADINGS. The headings contained in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
10.8 ENTIRE AGREEMENT. This Agreement, including the appendices and exhibits
hereto and other documents referred to herein which form a part hereof, embody
the entire agreement and understanding of the parties hereto in respect of the
subject matter contained herein and supersede all prior agreements and
understandings between the parties with respect to such subject matter,
including, by way of illustration and not by limitation, any term sheet or
letter of intent agreed to by the parties hereto prior to the date hereof. There
are no restrictions, promises, warranties, covenants, or undertakings other than
those expressly set forth or referred to herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above stated.
SELLER:
BONGIOVI ENTERTAINMENT, INC.
/s/Xxxxxx X. Xxxxxxx
By: ________________________________
Title: President
BUYERS:
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
__________________________________
Xxxxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx
__________________________________
Xxxxxxx Xxxxxxxx
/s/ Xxxxxx X. Xxxxxx, Xx.
__________________________________
Xxxxxx X. Xxxxxx, Xx.
ACKNOWLEDGED BY:
SAMARTAN DEVELOPMENT, LTD.
By:_____________________________
Its:____________________________
SCHEDULE A
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Number of Shares of
Name, Address Bongiovi
Common Stock
Xxxxxxx X. Xxxxxxxx, Xx. 3,984,558
c/o Bongiovi Entertainment, Inc.
Xxxxxxx Xxxxxxxx 3,984,558
c/o Bongiovi Entertainment, Inc.
Xxxxxx X. Xxxxxxx 3,984,558
c/o Bongiovi Entertainment, Inc.
Xxxxxx X. Xxxxxx, Xx. 3,984,558
c/o Bongiovi Entertainment, Inc.
Greyfield Consulting 61,768
c/o Bongiovi Entertainment, Inc.
SCHEDULE 1.1
TRANSFERRED ASSETS
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All Capital Stock of Bongiovi Entertainment, Inc., a Florida corporation
("Bongiovi-Fl"), including all the assets and properties owned by Bongiovi-Fl or
in which Seller and Bongiovi- Fl have any right, title, or interest inchoate or
otherwise, of every kind and description, wherever located, including all
property tangible or intangible and real or personal, good will, processes,
supplies, equipment, inventories, goods, chattels, contract rights, customer
lists and lists of potential customers, employees, investors, vendors,
trademarks, patents and provisional patents, business processes, research and
development projects, designs, accounts receivable, bank accounts, cash,
securities, claims, web sites, and other intellectual property rights, contract
rights, the right to use the name Bongiovi Entertainment (any other trade name
or xxxx) or any similar name or names in connection with this Asset Purchase and
Sale Agreement, and all other names, trademarks, or copyrights used by Seller
and Bongiovi-Fl in connection with Bongiovi-Fl regarding Bongiovi-Fl's business
or products, as well as any assets, properties, projects, etc. that may have
been developed by, prior to, during or after the original merger closed as of
September 22, 2002.
SCHEDULE 1.2
EXCLUDED ASSETS
---------------
Those assets not contained in Schedule 1.1.
SCHEDULE 1.3.2
EXCLUDED LIABILITIES
--------------------
$600,000 8% Convertible Promissory Note between the Company and Sarmatan
Developments, Ltd. dated as of September, 2002 together with all accrued
interest and penalties (as of the Closing Date).
Schedule 2.1
Certificate of Good Standing
SCHEDULE 2.4
LITIGATION
----------
None.
SCHEDULE 2.5
LIENS
-----
None.
SCHEDULE 4.3.1
XXXX OF SALE
XXXX OF SALE
------------
WHEREAS, pursuant to the Asset Purchase and Sale Agreement, dated _____, 2004
(the " Purchase Agreement"), between Seller and Buyers, Seller agrees to sell,
assign, transfer and deliver to Buyers, and Buyers agree to purchase and accept,
the "Transferred Assets" as referred to in the Purchase Agreement; and WHEREAS,
Seller is executing and delivering this Xxxx of Sale to Buyers for the purpose
of selling, assigning, transferring, delivering to, and vesting in, Buyers, the
Transferred Assets.
NOW, THEREFORE, in consideration of the premises and of the payment by Buyers of
the purchase price and other good and valuable consideration, receipt of which
is hereby acknowledged, Seller by these presents does sell, assign, transfer and
deliver to, and vest in, Buyers, its successors and assigns forever, all of
Seller's rights, title and interests, legal and equitable, in and to each and
every one of the Transferred Assets, free and clear of any liens, claims,
encumbrances or restrictions of any kind, including without limitation the
Transferred Assets as listed on Schedule 1.1 of the annexed Asset Purchase and
Sale Agreement. Buyers may, at their sole discretion, exclude any or all of the
property described in this paragraph or in Schedule 1.1 from the Assets to be
transferred pursuant to this Xxxx of Sale, as disclosed herein.
TO HAVE AND TO HOLD all the Assets unto Buyers, their successors and assigns
forever.
Section 1. Seller hereby constitutes and appoints Buyers, their
successors and assigns the true and lawful attorney and attorneys of Seller with
full power of substitution in their name and xxxxx, but on behalf and for the
benefit of Buyers, their successors and assigns, to demand and receive any and
all of the assets, properties and rights assigned or to be assigned to Buyers
pursuant to the Asset Purchase and Sale Agreement and to give receipts and
releases for and in respect to the same or any part thereof, to endorse any
claim or right of any kind in respect thereof and to do all acts and things in
relation to the above-mentioned assets, properties and rights which Buyers,
their successors or assigns may deem desirable, Seller hereby declaring that the
foregoing powers are coupled with an interest and are not revocable and shall
not be revoked by Seller for any reason whatsoever.
Section 2. Seller hereby authorize Buyers, their successors and assigns
to receive and open all mail, telegrams and other communications, and all
express, or other packages, addressed to Seller, and to retain the same insofar
as they relate to the Assets, but any such mail, telegrams, communications or
express or other packages (or copies thereof) not relating primarily to the
Assets shall be forwarded forthwith to Seller. The foregoing shall constitute
full authorization to the postal authorities, all telegraph and express
companies, and all other persons to make delivery of such items to Buyers.
Section 3. Nothing in this Xxxx of Sale, express or implied, is
intended or shall be construed to confer upon or give to, any person, firm or
corporation other than Buyers and Seller and their respective successors and
assigns, any remedy or claim under or by reason of this Xxxx of Sale or any
term, covenant or condition hereof, and all the terms, covenants and conditions,
promises and agreements contained in this Xxxx of Sale shall be for the sole and
exclusive benefit of Buyers and Seller and their respective successors and
assigns.
Section 4. Seller for itself, its successors and assigns hereby
covenants and agrees that, any time and from time to time forthwith upon the
written request of Buyers, Seller will, at Buyers' expense, do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or
delivered, all and every such further acts, deeds, assignments, transfers,
conveyances, powers of attorney, and assurances as may be reasonably required by
Buyers in order to sell, assign, transfer, and convey to, and vest in, Buyers,
their successors and assigns, or to aid and assist Buyers in reducing to
possession any or all of the Assets assigned or to be assigned to Buyers.
Section 5. This Xxxx of Sale is executed by, and shall be binding upon, Seller,
its successors and assigns, for the uses and purposes above set forth and
referred to, as of the effective date thereof. Section 6. Seller shall be bound
by its covenants, representations and warranties contained in the Purchase
Agreement as if recited in full herein. IN WITNESS WHEREOF, Seller have duly
executed this Xxxx of Sale as of the date first above written. Seller:
Bongiovi Entertainment, Inc.
Xxxxxx X. Xxxxxxx
By:______________________
Its: President
