EXHIBIT 10.5
STOCK PURCHASE AND SALE AGREEMENT
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THIS AGREEMENT is entered into this 19th day of October, 2009 by and between
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx, 00 E-07180 Nova Santa Ponsa de Mallorca, Balearic
Islands, Spain, (the "Buyer"), Selling Shareholders, as set forth on Exhibit A
(the "Sellers") and Apollo Entertainment Group, Inc., a Florida corporation with
an address of 0000 XX 00xx Xxxxxx Xxx A Plantation, Fl. 33313 ("the Company"),
all in accordance with the terms and conditions herein..
RECITALS
WHEREAS, the Sellers are the legal or beneficial owners of 15,950,237
shares (the "Securities") of common stock of the Company which represents 95.82%
of the issued and outstanding shares of common stock of the Company; and
WHEREAS, Sellers desire to sell and transfer to Buyer and Buyer desires
to purchase in accordance with the terms and conditions set forth herein, a
total of 15,950,237 shares of common stock out of the total 16,644,659 issued
and outstanding shares of common stock at time of closing in the Company; and
WHEREAS, it is in the best interest of the Company and its continued
operations to enter into this transaction.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties intending to be legally
bound agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms have the meanings
specified or referred to in this Article 1: -
"BEST EFFORTS"--the efforts that a prudent Person desirous of achieving
a result would use in similar circumstances to ensure that such result is
achieved as expeditiously as possible, provided, however, that an obligation to
use Best Efforts under this Agreement does not require the Person subject to
that obligation to take actions that would result in a materially adverse change
in the benefits to such Person of this Agreement and the Contemplated
Transactions.
"BREACH"--a "Breach" of a representation, warranty, covenant,
obligation, or other provision of this Agreement or any instrument delivered
pursuant to this Agreement will be deemed to have occurred if there is or has
been (a) any inaccuracy in or breach of, or any failure to perform or comply
with, such representation, warranty, covenant, obligation, or other provision,
or (b) any claim (by any Person) or other occurrence or circumstance that is or
was inconsistent with such representation, warranty, covenant, obligation, or
other provision, and the term "Breach" means any such inaccuracy, breach,
failure, claim, occurrence, or circumstance.
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"DEFAULT"- the failure to pay any portion of the Purchase Price within
the time frame set forth in this Agreement or the failure to deliver the common
stock as required in the agreement.
"PROCEEDING"--any action, arbitration, audit, hearing, investigation,
litigation, or suit (whether civil, criminal, administrative, investigative, or
informal) commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
"THREATENED"--a claim, Proceeding, dispute, action, or other matter will
be deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing), or
if any other event has occurred or any other circumstances exist, that would
lead a prudent Person to conclude that such a claim, Proceeding, dispute,
action, or other matter is likely to be asserted, commenced, taken, or otherwise
pursued in the future.
ARTICLE II
PURCHASE AND SALE OF SECURITIES AND SECURITY
Section 2.1 SALE OF SECURITIES: Subject to the terms and conditions set
forth in this Agreement, Sellers shall transfer and convey the
Securities to Buyer, free and clear of any and all liens,
claims, and encumbrances, except for any restrictive legends
appearing on any of the stock certificates.
Section 2.2 CONSIDERATION:
(a) As payment for the transfer of the Securities by Sellers to
Buyer, Buyer shall deliver the sum of Two Hundred Sixty-one
Thousand Three Hundred Sixty-five and 37/100's Dollars
($261,365.37) (the "Purchase Price"), and Sellers shall deliver
the Securities (15,950,237 shares) to the escrow agents as more
fully set forth below.
It is agreed and understood that the Selling Shareholders shall
not be required to transfer any portion of the Securities unless
and until the required consideration has been paid in full.
Section 2.3 ESCROW: All funds shall be paid to Xx. Xxxxxxx X. Xxxxxx, Esq.
as Buyer's Escrow Agent (the "Xxxxxx Escrow"). All share
certificates shall be delivered to Mr. Xxxxxxx Xxxxx, Esq. as
Seller's Escrow Agent (the "Xxxxx Escrow"). Prior to closing,
Buyer shall deposit Two Hundred Sixty-one Thousand Three Hundred
Sixty-five and 37/100's Dollars ($261,365.37) into the Xxxxxx
Escrow with instruction that such sum be paid to the Xxxxx
Escrow which will subsequently distribute the funds to Sellers
at Closing. Prior to closing, Sellers shall deposit with Xxxxx
Escrow Agent, 15,950,237 shares of common stock with instruction
that such certificates be delivered to the Xxxxxx Escrow which
will subsequently deliver the certificates to Buyer at Closing.
All share certificates to be delivered with a medallion
signature guaranteed stock power for transfer of such shares to
Buyer.
Section 2.4 PAYMENT AND DELIVERY:
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ARTICLE III
PRECONDITIONS TO CLOSING/DUE DILIGENCE
Section 3.1 CONDITIONS TO CONSUMMATION OF THE TRANSACTION: The respective
obligations of the parties with respect to this Transaction
shall be subject to satisfaction of conditions customary to
transactions of this type, including without limitation, (a)
execution of this Stock Purchase and Sale Agreement by all
parties; (b) absence of pending or threatened litigation,
investigations or other matters affecting the Sellers, the Buyer
or the Transaction; and (c) satisfactory completion by the Buyer
and the Sellers of due diligence investigation of the other
party.
Section 3.2 DUE DILIGENCE: Buyer shall be provided with access to the
Companies books, records, financial statements, shareholder
lists and other information as may reasonably be necessary to
complete due diligence on, or before the Closing date. (the "Due
Diligence Review Period").
Section 3.3 CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE: Buyers
obligation to purchase the Securities and to take the other
actions required to be taken by Buyer at the Closing is subject
to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Buyer, in
whole or in part):
(a) All representations and warranties of the Sellers contained
herein being true at the time of Closing;
(b) Since the date of this Agreement, there must not have been
commenced or threatened against Buyer, or against any person
affiliated with Buyer, any Proceeding (i) involving any
challenge to, or seeking damages or other relief in connection
with the contemplated Transaction, or (ii) that may have the
effect of preventing, delaying, making illegal, or otherwise
interfering with the contemplated transactions.
Section 3.4 CONDITIONS PRECEDENT TO SELLERS OBLIGATION TO CLOSE: Sellers
obligation to sell the Securities and to take the other actions
required to be taken by the Sellers at Closing is subject to the
satisfaction, at or prior to Closing, of each of the following
conditions (any of which may be waived by the Sellers, in whole
or in part):
(a) All representations and warranties of Buyer contained herein
being true at the time of Closing;
(b) Buyer shall have tendered the consideration as specified for
Closing.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLERS
THE SELLERS REPRESENT AND WARRANT THAT:
Section 4.1 MARKETABLE TITLE: The Sellers shall convey to Buyer good and
marketable title in and to the Securities, free and clear of any
and all liens, claims and encumbrances, including, but not
limited to, any and all pledges and security interests, and all
other defects of title of any type whatsoever except for any
restrictive legends which may appear on certain certificates as
more fully set forth in Exhibit A.
Section 4.2 AUTHORITY: The Sellers have the right, power, legal capacity and
authority to enter into and perform its respective obligations
under this Agreement and no approvals or consents of any persons
or entities are necessary in connection with it;
Section 4.3 OUTSTANDING CLAIMS, SUITS OR ACTIONS: Sellers, individually and
jointly are not aware of any outstanding claims, suits or
actions or potential claims, suits or actions in connection with
the contemplated sale of the common stock.
Section 4.4 CONTRACTS: The Sellers are not party to any agreement, contract,
or understanding, oral or written, express or implied, which
would prevent them from lawfully entering into this Agreement or
which would create an obligation upon any of them as a result of
this transaction.
Section 4.5 NO IMPLIED WARRANTIES OR REPRESENTATIONS. Except as set forth
herein, the Sellers have made no other representations or
warranties to the Buyer with respect to the Securities or the
transaction.
ARTICLE V
REPRESENTATION AND WARRANTIES OF THE COMPANY
Representations, Warranties Covenants, Obligations and General Provisions: The
Company represents and warrants to Buyer as of the date hereof and as of the
Closing Date:
Section 5.1 INCORPORATION, AUTHORITY AND QUALIFICATION OF THE COMPANY. The
Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Florida. The
Company has all necessary corporate power and authority to carry
on the business now being conducted by it. The Company is duly
qualified to do business, and is in good standing, in each
jurisdiction, if any, where the character of its properties
owned, operated or leased or the nature of its activities makes
such qualification necessary. The Company is authorized to issue
100,000,000 common shares, par value $0.001 per share. There are
16,644,659 shares are issued and outstanding. No other classes
of stock are authorized or issued. There are no outstanding
options, warrants, rights or otherwise. All options, warrants,
rights or otherwise have either expired or been exercised in
accordance with the governing terms of their contracts. There
are no agreements to redeem any outstanding securities. The
Company's transfer agent is Florida Atlantic Stock Transfer,
Inc.
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Section 5.2 ENFORCEABILITY OF AGREEMENT AGAINST THE COMPANY. The Company has
all necessary power and authority to enter into this Agreement
and the Related Documents to which they are parties, to carry
out their obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. This Agreement
has been, and each Related Document to which the Company is a
party will be, duly executed and delivered by the Company. Such
execution and delivery, and the performance by the Company of
this Agreement and such Related Documents, and all transactions
contemplated hereby and thereby, have been duly and validly
authorized by any necessary corporate actions on the part of the
Company. This Agreement constitutes, and each Related Document
to which the Company is a party will constitute, the legal,
valid and binding obligations of the Company, enforceable
against it in accordance with the respective terms, except as
the same may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws affecting the rights
and remedies of creditors generally and the application of
general principles of equity.
Section 5.3 SHARES. No Person has any preemptive right to purchase any
shares or any other ownership interest in the Company. There are
no contracts, arrangements, commitments or restrictions relating
to the issuance, sale, transfer or purchase or obtaining of
shares or other ownership interests in the Company, except for
this Agreement.
Section 5.4 SUBSIDIARIES. With the exception of Alpha Music Group, Inc., the
Company does not have any direct or indirect equity investment
in any other individual, partnership, corporation, association,
joint stock company, trust, joint venture, unincorporated
association, governmental unit, or any department, agency or
political subdivision, (herein, "Person"). The Company is not a
party to any agreement to own or control, nor does the Company
have the direct or indirect right to acquire an ownership
interest in any other Person.
Section 5.5 NO CONFLICT. The execution and delivery by the Company of this
Agreement and each Related Document to which the Company is a
Party has been obtained and all filings and notifications
required by law, agreement or otherwise have been made, the
performance by the Company of this Agreement and each Related
Document to which they are parties will not:
(a) Violate or conflict with any term or provision of the
articles or certificate of incorporation (or other charter
documents) of the Company;
(b) Conflict with or violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award
applicable to Company;
(c) Conflict with, result in any breach of, constitute a default
(or event which with the giving of notice or lapse of time, or
both, would become a default) under, give to others any rights
of termination, amendment, acceleration or cancellation of, or
result in the creation of any lien on any of the assets pursuant
to, any assigned contract or any licenses;
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(d) Without limiting the generality of the foregoing, result in
the termination, denial or impairment of any material contract,
arrangement or benefit granted with respect to the Company's
business, or require the payment of any fees, taxes or
assessments, pursuant to any federal, state or local program
relating to minority-owned businesses.
Section 5.6 CONSENTS, APPROVALS AND NOTIFICATIONS. The execution and
delivery by the Company of this Agreement and each Related
Document to which the Company is a Party does not, and the
performance by the Company of this Agreement and such Related
Documents will not, require any consent, approval, authorization
or other action by, or filing with or notification to, any
Governmental Authority or any other Person.
Section 5.7 FINANCIAL STATEMENTS. The Company's Audited Financial Statements
(a) have been prepared in conformity with GAAP applied on a
consistent basis from year to year (except as noted otherwise
therein); and (b) assuming the Company will continue as a going
concern, are true and correct and present fairly in all material
respects the financial condition of the Company and the results
of operations and changes in cash flow of the Company for the
periods to which each relates. To the knowledge of the Company,
the Interim Financial Statements, (a) have been prepared in
conformity with GAAP applied on a consistent basis from year to
year (except as noted otherwise therein), subject to normal
recurring year-end adjustments (the effect of which will not,
individually or in the aggregate, be material) and the absence
of notes (which, if presented, would not differ materially from
those included in the Audited Financial Statements), and (b)
assuming the Company will continue as a going concern, are true
and correct and present fairly in all material respects the
financial condition of the Company and the results of operations
and changes in cash flow of the Company for the periods to which
each relates.
Section 5.8 LITIGATION. There is no claim, action, investigation,
arbitration or proceeding pending or, threatened against the
Company of any kind whatsoever, or against or relating to any of
the assets or the ability of the Company to perform their
obligations hereunder, before any arbitrator, judge, court or
governmental authority. Company is not subject to any order,
writ judgment, injunction, decree, determination or award of any
arbitrator, judge, court or governmental authority.
Section 5.9 CONTRACTS. To the extent applicable, Exhibit "B" contains an
accurate and complete list of all written and oral agreements
and contracts in effect on the date of this Agreement to which
the Company is a party in connection with the business
operations or by which any of the Company's properties or assets
relating to the operation are bound. The are no contracts in
formation or which are capable of subsequent formation as a
result of future satisfied conditions. The Company has made
available to Buyer true and complete copies of the contracts
(including any amendments or modifications thereto).
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Section 5.10 ENVIRONMENTAL MATTERS. In addition to any other express
agreements of Company contained herein, the matters set forth in
this paragraph constitute representations and warranties by
Company which will be true and correct on the date of this
Agreement and as of the date of closing. In the event that,
during the period between the execution of this Agreement and
the closing, Sellers learn, or have reason to believe, that any
of the following representations and warranties may cease to be
true, Company hereby covenant to give notice thereof to Buyer
immediately:
(a) Company has not received notice from any governmental agency
pertaining to the violation of any law or regulation of toxic
hazardous substances or dangerous wastes and affecting any
Company property, and Company has no knowledge of any facts
which might be a basis for any such notice.
(b) No toxic or hazardous substances have been improperly
generated, treated, released, stored or disposed of, or
otherwise deposited in or on any Company property, including
without limitation, the surface waters and subsurface waters
thereof, no underground tanks have been located on any Company
property, and there have not been nor are now present any
substances or conditions in or on any Company property which may
support a claim or cause of action under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended (the "Superfund Act"), the Resource Conservation and
Recovery Act of 1976, the Toxic Substances Control Act, or any
other federal, state, or local environmental statutes,
regulations, ordinances or regulatory requirements. This
environmental matters section will be interpreted to include,
but not be limited to, any substance which after release into
the environment and upon exposure, ingestion, inhalation or
assimilation, either directly from the environment or indirectly
by ingestion through food chains or otherwise, will or may
reasonably be anticipated to cause sickness, death, disease,
behavior abnormalities, cancer or genetic abnormalities. Sellers
will hold Purchaser harmless from and indemnify Purchaser
against and from any damage, loss, expenses or liability
resulting from any breach, of this representation and warranty,
including all attorneys fees and costs incurred as a result
thereof.
Section 5.11 TAXES. The Company has duly and timely filed or caused to be
filed all federal income tax returns and all other federal,
state, county, local or city tax returns which are required to
be filed, including, but not limited to, income and employee
withholding taxes, and the Company has paid or caused to be paid
all taxes shown on said returns or on any tax assessment
received by it to the extent that such taxes have become due, or
has set aside on its books reserves (segregated to the extent
required by sound accounting practice) reasonably deemed by the
Company to be adequate with respect thereto. No events have
occurred which could impose upon Buyer, any transferee liability
for any taxes, penalties, or interest due or to become due from
the Company.
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Section 5.12 ABSENCE OF CHANGES. Since December 31, 2008, the date of the
Audited Financial Statements, interim Unaudited Financial
Statements dated June 30, 2009, and to date, the Company has
operated its business in the ordinary course consistent with
past practices and there has not been, except as disclosed in
this Agreement or the Exhibits attached hereto:
i. any Material Adverse Effect;
ii. any damage, destruction or loss (whether or not covered by
insurance) affecting any tangible asset or property used or
useful in the business operations, normal wear and tear
excepted;
iii. any payments, discharges or satisfactions by the Company of
any liens, claims, charges or liabilities (whether absolute,
accrued, contingent or otherwise and whether due or to become
due) relating to the business operations, other than in the
ordinary course of the business and consistent with past
practice;
iv. any licenses, sales, transfers, pledges, mortgages or other
dispositions of any tangible or intangible assets having a value
over $100 (in the aggregate) used or held for use in connection
with the operation of the business, other than in the ordinary
course of business and consistent with past practice; v. any
write-offs as uncollectible of any accounts receivable or notes
receivable of the operations, or any portion thereof, not
provided for in the allowance for uncollectible accounts in the
Interim Financial Statements;
vi. any cancellations of any material debts or claims of, or any
amendments, terminations or waivers of any rights of material
value to, the business operations;
vii. any general uniform increase in or change in the method of
computing the compensation of employees of the Company who
perform services for the benefit of the business operations;
viii. any material changes in the manner in which the Company
extends discount or credits to customers or otherwise deals with
customers of its business;
ix. any material changes in the accounting methods or practices
followed by the Company and or any changes in depreciation or
amortization policies or rates theretofore adopted;
x. any capital commitments by the Company and for additions to
property, plant or equipment of the business operations;
xi. any agreements or commitments to merge or consolidate with
or otherwise acquire any other corporation, association, firm or
other business organization or division thereof;
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xii.any declarations of dividend, payment of any dividend,
issuance of any securities, purchase or redemption of any
securities, commitments or authorizations for any changes to its
Articles of Incorporation or amendments to any by-laws,
conversions of any options, warrants or otherwise into common
shares; and except as disclosed in paragraph B.1. relating to
the total shares issued and outstanding which resulted from a
corporate reorganization;
xiii. any other material transaction relating to the Company
other than in the ordinary course of the business and consistent
with past practice; or
xiv. any agreements or understandings, whether in writing or
otherwise, for the Company to take any of the actions specified
in items i. through xii. above.
Section 5.13 UNDISCLOSED LIABILITIES. The Company does not have any
liabilities or obligations of any nature that would be required
by GAAP to be reflected in the Financial Statements (subject, in
the case of unaudited statements, to normal year-end audit
adjustments), except: (a) such liabilities and obligations which
are reflected in the Financial Statements, or (b) such
liabilities or obligations which were incurred in the ordinary
course of business for normal trade or business obligations and
are not individually or in the aggregate in excess of $100.
Section 5.14 NO LIABILITIES AT CLOSING. At Closing, all Company liabilities
will have been discharged through the date of closing.
Section 5.15 COMPLIANCE WITH LAWS. Except as individually or in the aggregate
would not have a Material Adverse Effect, the Company has
complied in all respects with all laws of all Governmental
Authorities (including all tariff and reporting requirements)
with respect to its business operations.
Section 5.16 EMPLOYEES AND SHAREHOLDERS. No material grievance exists between
the Company, its shareholders and any of the persons employed by
it as of the date of this Agreement (the "Current Employees");
and (ii) the Company is not delinquent in the payments to any of
the Current Employees for any wages, salaries, commissions,
bonuses or other direct or indirect compensation for any
services performed by them to the date of this Agreement or for
any amounts required to be reimbursed to the Current Employees.
The Company is in material compliance with all applicable laws
respecting employment withholding and other taxes, employment
law and employment practices terms and conditions of employment
and wages and hours, and is not engaged in any unfair labor
practices. There is no collective bargaining agreement in effect
with respect to the Current Employees. The Company has not
experienced any strike or work stoppage or other industrial
dispute involving the employees of the Company in the past five
years.
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Section 5.17 INSURANCE; BONDS. To the extent applicable, Exhibit "C" lists
all material policies of fire, liability, worker's compensation
and other forms of insurance covering the company's assets or
the Company's operations, and all bonds or letters of credit
required to be obtained by the Company with respect to its
business operations.
Section 5.18 DISCLOSURE. To the best knowledge, no representation or warranty
by the Company, its officers and directors individually, in this
Agreement or any Schedule or Exhibit to this Agreement, or any
statement, list or certificate furnished or to be furnished by
them or either of them pursuant to this Agreement, contains or
will contain any untrue statement of material fact, or omits or
will omit to state a material fact required to be stated therein
or necessary to make the statements contained therein not
misleading.
ARTICLE VI
REPRESENTATION AND WARRANTIES OF THE BUYER
THE BUYER REPRESENTS AND WARRANTS THAT:
Section 6.1 The Buyer is a sophisticated investor. The Buyer has the
financial ability to pay the consideration required at Closing
and to bear the economic risk of this investment in the Company,
has adequate means for providing for the current needs and
contingencies of the Buyer and has no need for immediate
liquidity with respect to the investment in the Company.
Section 6.2 The Buyer:
(a) has evaluated the risks of a purchase of the Securities and
has relied solely upon his own investigation of the Company and
the information and representations made by the Sellers and the
Company contained herein this Agreement and any written
information and documents provided to Buyer by the Sellers
and/or the Company;
(b) has been given the opportunity to ask questions of, and
receive answers from, the Company and Sellers concerning the
terms and conditions of the Securities and other matters
pertaining to this investment, and has been given the
opportunity to obtain such additional information necessary to
verify the accuracy of the information contained in any
documents provided in order for the Buyer to evaluate the merits
and risks of the purchase of the Securities to the extent the
Company or Sellers possess such information or could acquire it
without unreasonable efforts or expense, and have not been
furnished with any other offering literature upon which the
Buyer have relied;
(c) has not been furnished by Sellers with any oral or written
representation or oral or written information upon which the
Buyer has relied in connection with the offering of the
Securities that is not contained, or referred to, in this
Agreement;
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(d) has investigated the acquisition of the Securities to the
extent the Buyer has deemed necessary or desirable and the
Company or the Sellers have provided the Buyer with any
assistance the Buyer has requested in connection herewith;
(e) is an accredited investor as that term is defined in rule
501(a) of Regulation D under the Securities Act of 1933, as
amended;
(f) has determined that the Securities are a suitable investment
for the Buyer and that at this time the Buyer can bear a
complete loss of an investment in the Securities purchased
hereby; and
(g) is experienced in transactions involving the purchase of
securities and obtaining control of companies such as the
Company.
Section 6.3 The Buyer is not relying on the Sellers, or the Company, or any
of its affiliates, or this Agreement, with respect to the Buyer'
tax consequences with respect to the Buyer' purchase of the
Securities.
Section 6.4 The Buyer is aware that no federal or state agency has passed
upon the Securities or made any finding or determination as to
the fairness of this investment.
Section 6.5 The Buyer is an individual over the age of 18 years and is
empowered, authorized and qualified to purchase the Securities,
in the manner contemplated in this Agreement.
Section 6.6 The Buyer has the right, power, legal capacity and authority to
enter into and perform his obligations under this Agreement and
no approvals or consents of any persons or entities are
necessary in connection with such actions.
ARTICLE VII
SPECIFIC CONTRACTS AND AGREEMENTS
CONDUCT OF BUSINESS/CONFIDENTIALITY
Section 7.1 CERTAIN CONTRACTS CANCELLED: As of the date of Closing certain
contracts and agreements, whether oral or written, by and
between the Sellers and the Buyer shall be deemed cancelled and
terminated and neither Seller nor Buyer shall have any further
rights or obligations thereunder. In particular:
(a) Any employment agreements, stock purchase agreements, stock
option agreements, convertible instruments and outstanding
warrants of any kind whatsoever, by and between, or among, the
Sellers and the Company; and
(b) Any loan agreements, expense reimbursement agreements,
payment agreements, or monetary agreements of any kind
whatsoever, by and between or among, the Seller and the Company.
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Section 7.2 RESIGNATION FROM BOARD OF DIRECTORS, OFFICER POSITIONS AND
EMPLOYMENT: Immediately following Closing, Xxxxxxxx Xxxxxx shall
resign her position as the sole Officer and Director and Buyer
will recommend nominees to fill officer and director vacancy as
set forth on Exhibit "D".
Section 7.3 EXPENSES. Each party shall be responsible for their own
expenses.
Section 7.4 CONFIDENTIALITY Each of the parties hereto agrees that it shall
not use, or permit the use of, any and all of the information
relating to the Seller or the Buyer, respectively, furnished to
each other in connection with this Transaction ("Confidential
Information"), except publicly available or freely usable
material as otherwise obtained from another source, in a manner
or for a purpose detrimental to the Seller or the Buyer, as the
case may be, or otherwise than in connection with this
Transaction. None of the Parties hereto shall, and each party
shall cause its directors, officers, employees, agents,
affiliates, and representatives not to, disclose, divulge,
provide, or make accessible, or available, any and all of the
Confidential Information, in whole or in part, to any person or
entity, other than their respective and responsible officers,
employees, advisors, or attorneys, or otherwise as required by
law or regulation. The parties acknowledge that until public
announcement, the terms and existence of this Agreement may be
deemed material non-public information under the Securities
Exchange Act of 1934, and shall govern their activities
accordingly. Prior to Closing, neither party shall disclose the
terms of this Agreement to any other person or entity other than
its advisors who are under a legal or contractual obligation of
confidentiality. Prior to Closing, neither party shall disclose
the existence of this Agreement except to such advisors or as
necessary in connection with due diligence under this Agreement.
ARTICLE VIII
INDEMNIFICATION AND POST CLOSING OBLIGATIONS
Section 8.1 INDEMNIFICATION BY BUYER: Buyer, individually and as the agent
of certain designated buyers (and, after Closing, the Company
jointly and severally with the Buyer) shall indemnify, save,
defend and hold harmless Sellers from and against any and all
damages, costs, liabilities, and expenses, of any kind
whatsoever (including reasonable attorneys' fees) arising
directly out of (a) any and all activities and/or operations of
the Company and the Company's subsidiaries conducted after the
Closing; (b) any and all breaches of this Agreement by Buyer;
(c) any and all claims by a third party relating to Buyer's
and/or the Company's actions or gross negligence, not also
involving the actions or gross negligence of Seller, occurring
after the Closing. This indemnification will not extend to any
proceedings, liabilities, or claims of any nature whatsoever,
arising from the "Spin Off Transaction" referred to in Section
8.2.
Section 8.2 INDEMNIFICATION BY THE SELLERS: The Sellers will indemnify the
Buyer and the new officers and directors for any liabilities
arising from the "Spin Off" transaction and the forgiveness of
debt owed by Alpha Music Group, Inc. to the Company.
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Section 8.3 POST CLOSING OBLIGATIONS
(a)The Company shall spin off its holdings in Alpha Music Mfg.
Corp. ("Alpha") to those pre-closing shareholders of record
holding 16,644,659 Company shares of common stock at the close
of business on (1) clearance day by the Securities and Exchange
Commission of Alpha's S-1 Registration Statement, or (2)
December 31, 2009, whichever is later. Alpha will pay all costs
and expenses, without limitation, for the S-1 filing and spin
off. The Company will spin off the shares on the basis of 1
(one) Alpha share for every 1 (one) Apollo share beneficially
owned. Upon the spin-off, all financial obligations owed to
Apollo by Alpha shall be forgiven and cancelled.
(b) The Company and the Buyer shall undertake to provide Alpha
with such information as may be required to facilitate the
spin-off. Any failure on the part of the Buyer or the Company to
facilitate this Agreement will upon notice from Alpha constitute
a Default under the terms and conditions of this Agreement.
ARTICLE IX
THE CLOSING
Section 9.1 THE CLOSING. The Closing shall occur on or before close of
business on the 10th day following the filing of the Form 14f-1
(or such later date if the SEC issues comments) using reasonable
diligence and efforts. The 14f-1 will be filed with the
Securities & Exchange Commission simultaneously with the
execution of this Agreement. Closing may occur in counterparts
as necessary. At closing the Company will provide the Buyer and
Buyer's counsel with the SEC Xxxxx filing codes which will
include the CIK, the CCC and the password. The Company will
cooperate with Buyer's counsel providing such information as is
reasonably necessary in order to insure a smooth transition of
control.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 ASSIGNMENT: Seller may not assign or transfer their interest
and/or rights under this Agreement without the prior written
consent of the Buyer. The Buyer may assign this Agreement to one
or more persons or entities of which the Buyer controls with the
consent of the Seller.
Section 10.2 BINDING EFFECT: This Agreement shall be binding upon the parties
hereto and their personal representatives, executors, heirs,
beneficiaries, distributees, successors, and permitted assigns,
if any.
Section 10.3 NOTICES: Unless otherwise changed by written notice, any notice
or other communications required or permitted hereunder shall be
deemed given if sent facsimile, hand delivery or courier
addressed to the respective party at the address set forth in
the initial paragraph of this Agreement or by other means if
receipt of such notice is acknowledged.
13
Section 10.4 GOVERNING LAW: This Agreement shall be governed and interpreted
solely in accordance with the laws of the State of Florida, and
applicable U.S. federal law, if any, and in each case without
regard to their choice of laws principles. By entering into this
Agreement the parties agree to the jurisdiction of the Florida
courts with venue in Palm Beach County, Florida. In the event of
any litigation, the prevailing party shall be entitled to
recover all costs including attorney's fees.
Section 10.5 SURVIVAL OF REPRESENTATIONS: All agreements, representations,
covenants, and warranties, on the part of the parties contained
herein, shall survive the Closing of this Agreement, and any
investigation made at the time with respect thereto, shall not
merge into any of the documents and instruments executed and
delivered pursuant hereto, and shall remain enforceable to the
fullest extent permitted by law and/or equity.
Section 10.6 ENTIRE AGREEMENT: This Agreement embodies the entire agreement
between the parties hereto with respect to the subject matter
hereof, and supersedes all prior, and contemporaneous,
negotiations, agreements, and understandings, whether written or
oral. This Agreement, nor any provision herein, may not be
changed, waived, discharged, or terminated, except by an express
written instrument signed by the party against whom enforcement
of the change, waiver, discharge or termination is sought.
14
The following have executed this agreement as of the 19th day of October, 2009.
The Company:
Apollo Entertainment Group, Inc.
/s/ Xxxxxxxx Xxxxxx
---------------------------
By: Xxxxxxxx Xxxxxx
Title: President
THE SELLING SHAREHOLDERS:
/s/ Xxxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
--------------------------- --------------------------
Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxx
--------------------------- --------------------------
Xxxxxxx Xxxxxx, Co-Trustee Xxxxxxx Xxxxx
Xxxxxx Family Spendthrift Trust
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxxx Xxxxxxx
--------------------------- --------------------------
Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx
BUYER:
/s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
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EXHIBIT "A"
SELLERS
Shareholder/Cert No. No. of shares Purchase Price
-------------------- ------------- --------------
Xxxxxx Family Spendthrift Trust .... 11,262,572 220,537.85
Xxxxxxxx Xxxxxx .................... 3,474,331 20,000.00
Xxxxxxx Xxxxxx ..................... 13,334 228.89
Xxxxxxx Xxxxx ...................... 300,000 5,149.66
Xxxxxxxx Xxxxx ..................... 300,000 5,149.66
Xxxxxxx Xxxxxxx .................... 600,000 10,299.31
---------- -----------
Total .............................. 15,950,237 $261,365.37
16
