ACQUISITION AGREEMENT
EXHIBIT
10.1
This
Acquisition Agreement (“Agreement”) made on this 27th day of October 2009, by
and between Artfest
International, Inc., a public corporation organized under the laws of
Nevada (the “Company”), with its principle place of business at 00000 Xxxxxx
Xxxxxxx, Xxxxx 000 Xxxxxxx, XX 00000, and Luxor International (“LXI”), a
private company organized under the laws of Nevada, with its principal place of
business at 0000 Xxxxxxxx Xxxx, Xxxxxx Xxxxx 00000.
Terms of
Agreement
In
consideration of the mutual promises, covenants and representations contained
herein, the parties herewith agree as follows:
ARTICLE
I
ACQUISITION
TERMS
1.01 Acquisition. The
Company will acquire 100% of the assets listed in Exhibit A attached hereto, in
exchange for Five Million ($5,000,000) dollars to be paid in $1,000,000 dollars
and $4,000,000 worth of Common shares of the Company’s stock.
1.02 Closing. The
Closing of this transaction will take place on October 28, 2009, under the terms
described in Article IV of this Agreement, unless mutually extended by the
parties.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to LXI the following:
2.01 Organization. The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the state of Nevada and has all necessary corporate powers to
own properties and carry on its business. All actions taken by the
incorporators, Directors and/or shareholders of Company have been valid and in
accordance with all applicable laws.
2.02 Capital. The
authorized capital stock of Company consists of 1,000,000,000 shares of Common
Stock, of which 961,320,064 shares are issued and outstanding and 5,000,000
shares of Preferred Stock, of which 3,000,000 are issued and outstanding. All
outstanding shares are fully paid and non-assessable, free of liens,
encumbrances, options, restrictions and legal or equitable rights of others not
a party to this Agreement. At the Closing, there may be outstanding
subscriptions, options, rights, warrants, convertible securities, or other
agreements or commitments obligating the Company to issue or transfer from
treasury any additional shares of its capital stock. None of the
outstanding shares of the Company are subject to any stock restriction
agreements.
2.03 Financial
Statements. The audited balance sheet as of June 30,
2009, and the related statements of income and retained earnings for the periods
then ended fairly present the financial position of the Company as of the dates
of the balance sheets included in the financial statements, and the results of
its operations for the period indicated.
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Artfest
International, Inc. / Luxor
International
Asset
Acquisition Agreement
October
27, 2009
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2.04 Tax
Returns. Within the times, and in the manner prescribed by
law, the Company has filed all federal, state, and local tax returns required by
law. The Company has paid, or will pay by the Closing, all taxes, assessments,
and penalties due and payable. There are no present disputes as to taxes of any
nature payable by the Company as of the Closing, and there shall be no taxes of
any kind, due or owing.
2.05 Ability to Carry Out
Obligations. Company has the right, power, and authority to
enter into and perform its obligations under this Agreement. The execution and
delivery of this Agreement by the Company and the performance by the Company of
its obligations hereunder will not cause, constitute, or conflict with or result
in (a) any breach or violation or any of the provisions of or constitute a
default under any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which the Company is a
party or by which they may be bound, nor will any consents or authorizations of
any party other than those hereto be required or (c) an event that would result
in the creation or imposition of any lien, charge, or encumbrance on any asset
of Company or upon the Shares.
2.06 Full
Disclosure. None of the representations and warranties made in
this Agreement by the Company, or on its behalf, contains or will contain any
untrue statement of a material fact or omit any material fact the omission of
which would be misleading.
2.07 Compliance with
Laws. The Company has complied with all, and is not in
violation of any, federal, state, or local statute, law, or regulation. The
Company has complied with all federal and state securities laws in connection
with the offer, sale and distribution of its securities.
2.08 Litigation. The
Company is not a party to any suit, action, arbitration, or legal,
administrative, or other proceeding or pending governmental investigation. To
the best of Company’s knowledge, there is no basis for any such action or
proceeding, and no such action or proceeding is threatened against the
Company. The Company is not subject to, or in default with respect to
any order, writ, injunction, or decree of any federal, state, local, or foreign
court, department, agency, or instrumentality.
2.09 Conduct of
Business. Prior to the Closing, the Company shall not (i)
amend its Certificate of Incorporation or Bylaws, other than to restructure the
Company for this acquisition, (ii) declare dividends or redeem or sell stock or
other securities, except as part of completing this transaction, (iii) incur any
liabilities, (iv) acquire any assets, enter into any contract, or guarantee
obligations of any third party, or (v) enter into any other transaction, which
is outside the bounds of its customary and ordinary operations.
2.10 Truth of
Representations. All of these representations shall be true as
of the Closing and shall survive the Closing for a period of one
year.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF LXI
LXI
represents and warrants to the Company the following:
3.01 Organization. LXI is
a corporation duly organized, validly existing, and in good standing under the
laws of the state of Nevada and has all necessary corporate powers to own
properties and carry on its business. All actions taken by the incorporators,
directors and/or shareholders of LXI have been valid and in accordance with all
applicable laws.
3.04 Ability to Carry Out
Obligations. LXI has the right, power, and authority to enter
into and perform its obligations under this Agreement. The execution and
delivery of this Agreement by LXI and the performance by LXI of its obligations
hereunder will not cause, constitute, or conflict with or result in (a) any
breach or violation or any of the provisions of or constitute a default under
any license, indenture, mortgage, charter, instrument, articles of
incorporation, bylaw, or other agreement or instrument to which LXI is a party
or by which they may be bound, nor will any consents or authorizations of any
party other than those hereto be required or (c) an event that would result in
the creation or imposition of any lien, charge, or encumbrance on any asset of
LXI.
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3.05 Full
Disclosure. None of the representations and warranties made in
this Agreement by LXI, or on behalf of LXI, contains or will contain any untrue
statement of a material fact or omit any material fact the omission of which
would be misleading.
3.06 Compliance with
Laws. LXI has complied with all, and is not in violation of
any, federal, state, or local statute, law, or regulation.
3.07 Litigation. LXI is
not a party to any suit, action, arbitration, or legal, administrative, or other
proceeding or pending governmental investigation. To the best of LXI’s
knowledge, there is no basis for any such action or proceeding, and no such
action or proceeding is threatened against LXI. LXI is not subject to
or in default with respect to any order, writ, injunction, or decree of any
federal, state, local, or foreign court, department, agency, or
instrumentality.
3.09 Truth of
Representations. All of these representations shall be true as
of the Closing and shall survive the Closing for a period of one
year.
ARTICLE
IV
THE
CLOSING
4.01 Closing. The
Closing of this transaction will occur when all of the documents and
consideration described below have been delivered to each party. Unless the
Closing of this transaction takes place by October 28, 2009, or such other date
mutually agreed to, either party may terminate this Agreement.
4.02 Documents to be Delivered at
Closing. The following documents, in form reasonably acceptable to the
parties, shall be delivered:
4.02.1 Document to be Delivered by
Company:
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(i)
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Certificate
of Incorporation, as amended;
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(ii)
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Bylaws,
as amended; and
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(iii)
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Board
Resolutions approving this
transaction.
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4.02.2 Document to be Delivered by
LXI:
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(iv)
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Board
Resolutions approving this
transaction.
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ARTICLE
V
REMEDIES
5.01 Arbitration. Any
controversy or claim arising out of, or relating to, this Agreement, or the
making, performance, or interpretation thereof, shall be settled by arbitration
in Addison, Texas, in accordance with the Rules of the American
Arbitration Association then existing, and judgment on the arbitration award may
be entered in any court having jurisdiction over the subject matter of the
controversy.
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5.02 Other Remedies. The
forgoing indemnification provision is in addition to, and not derogation of, any
statutory, equitable or common law remedy any party may have for breach of
representation, warranty, covenant or agreement.
ARTICLE
VI
MISCELLANEOUS
6.01 Captions and
Headings. The article and paragraph headings throughout this
Agreement are for convenience and reference only, and shall in no way be deemed
to define, limit, or add to the meaning of any provision of this
Agreement.
6.02 No Oral
Change. This Agreement and any provision hereof may not be
waived, changed, modified, or discharged orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
6.03 Non
Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this Agreement shall be
deemed to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party to insist
in any one or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any option herein
contained shall not be construed as a waiver or relinquishment for the future of
any such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision hereof
shall not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
6.04 Entire
Agreement. This Agreement, including any and all attachments
hereto, if any, contains the entire Agreement and understanding between the
parties hereto and supersedes all prior agreements and understandings, whether
written or oral.
6.05 Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Facsimile signatures will be acceptable
to all parties as originals.
6.06 Notices. All
notices, requests, demands, and other communications under this Agreement shall
be in writing and shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be given, or on the third
day after mailing if mailed to the party to whom notice is to be given, by first
class mail, registered or certified, postage prepaid, or on the second day if
faxed, and properly addressed or faxed as follows:
If to
Company:
Xxxxxx
Xxxxxx, CEO
00000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
P: (000)
000-0000
F:
(000)000-0000
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If to
LXI:
Xxxx Xxxxxx, President
0000
Xxxxxxxx Xxxx
Xxxxxx
Xxxxx 00000
P: (000)
000-0000
6.07 Binding
Effect. This Agreement shall inure to and be binding upon the
heirs, executors, personal representatives, successors and assigns of each of
the parties to this Agreement.
6.08 Effect of Closing.
All representations, warranties, covenants, and agreements of the parties
contained in this Agreement, or in any instrument, certificate, opinion, or
other writing provided for in it, shall be true and correct as of the closing
and shall survive the Closing of this Agreement for a period of one
year.
6.09 Mutual
Cooperation. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement, and shall execute such other and
further documents and take such other and further actions as may be necessary or
convenient to effect the transaction described herein.
6.10 Counterpart
Signatures. This Agreement may be executed in two or more counterparts,
all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
6.11 Severability. In
case any one or more of the provisions of this Agreement shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision, which shall be a reasonable substitute therefor, and upon
so agreeing, shall incorporate such substitute provision in this
Agreement.
In
witness whereof, this Agreement has been duly executed by the parties hereto as
of the date first above written.
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