SHARE EXCHANGE AGREEMENT by and among APOLLO CAPITAL GROUP, INC., CELESTIAL INVESTMENTS, LTD. and THE SHAREHOLDERS OF CELESTIAL INVESTMENTS, LTD. Dated as of July 7, 2010
Exhibit
10.1
by
and among
CELESTIAL
INVESTMENTS, LTD.
and
THE
SHAREHOLDERS OF CELESTIAL INVESTMENTS, LTD.
Dated as
of July 7, 2010
SHARE EXCHANGE AGREEMENT (this
“Agreement”), dated as
of July 7, 2010 by and among Apollo Capital Group, Inc., a Florida corporation
(“Apollo”), Celestial
Investments, Ltd., a United Kingdom Private Limited Company (“Celestial”) and the
individuals who are signatory to this Agreement (individually, a “Shareholder” and collectively,
the “Shareholders”).
RECITAL
WHEREAS, the Shareholders own
one hundred percent of the issued and outstanding Ordinary Shares of Celestial
(the “Celestial
Shares”); and
WHEREAS, the Shareholders wish
to exchange the Celestial Shares for 6,000,000 shares of common stock of Apollo
(the “Apollo Shares”)
and Apollo wishes to issue and exchange the Apollo Shares for the Celestial
Shares, whereupon Celestial will become a wholly-owned subsidiary of Apollo, all
on the terms and conditions set forth herein
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants contained in this Agreement, and for other
good and valuable consideration, the receipt and adequacy are hereby
acknowledged, Apollo, Celestial and the Shareholders agree as
follows:
ARTICLE
I
EXCHANGE
OF SHARES
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1.1
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The
Closing.
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(a) Subject
to the terms and conditions set forth in this Agreement, the Shareholders shall
assign, transfer, convey and deliver the number of Celestial Shares set forth
beside their respective names on Exhibit A hereto to Apollo in
exchange for which Apollo shall issue and deliver to the Shareholders the Apollo
Shares in the amounts set forth beside their respective names on Exhibit A
hereto. The closing of the exchange of shares (the “Closing”) shall occur
contemporaneously with the execution of this Agreement.
(b) At
the Closing, (i) the Shareholders shall deliver or cause to be delivered to
Apollo stock certificates representing their respective Celestial Shares duly
endorsed for transfer and (ii) Apollo shall deliver or cause to be delivered to
each Shareholder a certificate evidencing his or its Apollo Shares registered in
the name of such Shareholder.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE PARTIES
2.1 Representations and
Warranties of Apollo. Apollo hereby makes the following
representations and warranties to Celestial and the Shareholders:
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(a) Organization and
Qualification. Apollo is a corporation, duly incorporated,
validly existing and in good standing under the laws of the State of Florida,
with the requisite corporate power and authority to own and use its properties
and assets and to carry on its business as currently
conducted. Apollo has no subsidiaries other than Alpha Music Mfg.
Corp., which is in the process of being spun off to Apollo’s shareholders of
record as of October 18, 2009.
(b) Authorization;
Enforcement. Apollo has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by this
Agreement, and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement by Apollo and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of Apollo and no further action is required by
Apollo. This Agreement has been duly executed by Apollo and, when
delivered in accordance with the terms hereof, will constitute the valid and
binding obligation of Apollo enforceable against Apollo in accordance with its
terms. Apollo is not in violation of any of the provisions of its
articles of incorporation or bylaws.
(c) Capitalization. The
number of authorized, issued and outstanding shares of capital stock of Apollo
is set forth in the SEC Documents (as hereinafter defined). No shares
of capital stock of Apollo are entitled to preemptive or similar rights, nor is
any holder of capital stock of Apollo entitled to statutory preemptive or
similar rights arising out of any agreement or understanding with
Apollo. There are no outstanding options, warrants, rights to
subscribe to, calls, or commitments of any character whatsoever relating to
securities, rights or obligations convertible into or exchangeable for, or
giving any Person (as hereinafter defined) any right to subscribe for or acquire
any shares of capital stock of Apollo, or contracts, commitments,
understandings, or arrangements by which Apollo is or may become bound to issue
additional shares of capital stock of Apollo, or securities or rights
convertible or exchangeable into shares of capital stock of Apollo.
(d) Issuance of the Apollo
Shares. The Apollo Shares are duly authorized, and, when
issued and paid for in accordance with the terms hereof, shall be duly and
validly issued, fully paid and nonassessable, free and clear of all liens,
encumbrances and rights of first refusal of any kind (collectively, “Liens”).
(e) No
Conflicts. The execution, delivery and performance of this
Agreement by Apollo and the consummation by Apollo of the transactions
contemplated hereby do not and will not (i) conflict with or violate any
provision of Apollo’s articles of incorporation or bylaws (each as amended
through the date hereof); (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time, or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time, or both) of, any agreement,
credit facility, indenture or instrument (evidencing an Apollo debt or
otherwise) to which Apollo is a party or by which any property or asset of
Apollo is bound or affected; or (iii) result in a violation of any law, rule,
regulation, order, judgment, injunction, decree or other restriction of any
court or governmental authority to which Apollo is subject (including federal
and state securities laws and regulations), or by which any property or asset of
Apollo is bound or affected, except in the case of each of clauses (ii) and
(iii), as could not, individually or in the aggregate, reasonably be expected to
have or result in a material adverse effect on the business, prospects,
operations or condition (financial or otherwise) of Apollo (an “Apollo Material Adverse
Effect”). The business of Apollo is not being conducted in
violation of any law, ordinance or regulation of any governmental authority,
except for violations which, individually or in the aggregate, could reasonably
be expected to not have or result in an Apollo Material Adverse
Effect.
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(f) Filings, Consents and
Approvals. Apollo is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other U.S. or foreign federal, state, local or
other governmental authority or other person in connection with the execution,
delivery and performance by Apollo of this Agreement other than filings to be
made subsequent to the Closing to report the transactions contemplated hereby as
required by the Securities Act of 1933 (the “Securities Act”), the
Securities Exchange Act of 1934 (the “Exchange Act”) and the rules
and regulations promulgated thereunder the U.S. Securities and Exchange
Commission.
(g) Litigation;
Proceedings. There is no action, suit, notice of violation,
proceeding or investigation pending or, to the knowledge of Apollo, threatened
against or affecting Apollo or any of their respective properties before or by
any court, governmental or administrative agency, or regulatory authority (U.S.
federal, state, county, local or foreign) that (i) adversely affects or
challenges the legality, validity or enforceability of the Agreement or (ii)
could, individually or in the aggregate, reasonably be expected to have or
result in an Apollo Material Adverse Effect.
(h) No Default or
Violation. Apollo (i) is not in default under or in violation
of (and no event has occurred that has not been waived that, with notice or
lapse of time or both, would result in a default by Apollo), nor has Apollo
received notice of a claim that it is in default under or is in violation of any
indenture, loan or credit agreement or any other agreement or instrument to
which it is a party or by which it or any of its properties is bound, (ii) is
not in violation of any order of any court, arbitrator or governmental body, or
(iii) is not in violation of any statute, rule or regulation of any governmental
authority, except as could not, individually or in the aggregate, have or result
in an Apollo Material Adverse Effect.
(i) Private
Offering. Assuming the accuracy of the representations and
warranties of the Shareholders set forth in Section 2.3(a)-(g) of this
Agreement, the offer, issuance and sale of the Apollo Shares to the Shareholders
as contemplated hereby are exempt from the registration requirements of the
Securities Act. Neither Apollo nor any person acting on his or its
behalf has taken any action that could subject the issuance of the Apollo Shares
to the registration requirements of the Securities Act.
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(j)
SEC Documents; Financial
Statements. Apollo has filed all reports required to be filed
by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, during such
period as Apollo was required by law to file such material (the “SEC Documents”) on a timely
basis or has received a valid extension of such time of filing and has filed any
such SEC Documents prior to the expiration of any such extension. As
of their respective dates, the SEC Documents complied in all material respects
with the requirements of the Securities Act and the Exchange Act and the rules
and regulations of the Securities and Exchange Commission (the “Commission”) promulgated
thereunder. All material agreements to which Apollo is a party or to
filed as exhibits to the SEC Documents have been so filed. The
financial statements of Apollo included in the SEC Documents comply in all
material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of
filing. Such financial statements have been prepared in accordance
with U.S. generally accepted accounting principles applied on a consistent basis
(“GAAP”) during the
periods involved, except as may be otherwise specified in such financial
statements or the notes thereto, and fairly present in all material respects the
consolidated financial position of Apollo as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to normal, immaterial, year-end audit
adjustments.
(k) Brokers
Fees. No fees or commissions will be payable by Apollo to any
broker, financial advisor or consultant, finder, placement agent, investment
banker, or bank with respect to the transactions contemplated by this
Agreement.
(l)
Solicitation
Materials. Neither Apollo nor any person acting on Apollo’s
behalf has solicited any offer to buy or sell the Apollo Shares by means of any
form of general solicitation or advertising. No “directed selling efforts” as
defined in Rule 902 under the Securities Act were made in the United States with
respect to the offer and sale of the Apollo Shares by Apollo or anyone acting on
its behalf.
(m) Patents and
Trademarks. Apollo has, or has rights to use, all patents,
patent applications, trademarks, trademark applications, service marks, trade
names, copyrights, licenses and rights (collectively, the “Apollo Intellectual Property
Rights” that are necessary or material for use in connection with its
business, and the failure to so have could not reasonably be expected to have an
Apollo Material Adverse Effect. To the best knowledge of Apollo, all
such Intellectual Property Rights are enforceable and there is no existing
infringement by another person of any of the Apollo Intellectual Property
Rights.
(n) Registration Rights; Rights
of Participation. Apollo has not granted or greed to grant to
any person any rights (including “piggy-back” registration rights) to have any
securities of Apollo registered with the Commission or any other governmental
authority and no person has any right of first refusal, preemptive right, right
of participation, or any similar right to participate in the transactions
contemplated by this Agreement.
(o) Regulatory
Permits. Apollo possesses all certificates, authorizations and
permits issued by the appropriate U.S. federal, state or foreign regulatory
authorities necessary to conduct its business except where the failure to
possess such permits, individually or in the aggregate, could reasonably be
expected to have or result in an Apollo Material Adverse Effect (“Material Apollo Permits”), and
Apollo has not received any notice of proceedings relating to the revocation or
modification of any Material Apollo Permit.
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(p) Title. Apollo
does not own any real property. Apollo has good and marketable title
to all personal property owned by them that is material to the business of
Apollo, in each case free and clear of all Liens, except for Liens that do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by Apollo. Any real
property and facilities held under lease by Apollo is held under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by Apollo.
2.2 Representations and
Warranties of Celestial and the Shareholders. Celestial and
the Shareholders, jointly and severally, hereby represent and warrant to Apollo
as follows:
(a) Organization and
Qualification. Celestial is a private limited company duly
incorporated, validly existing and in good standing under the laws of the United
Kingdom with the requisite corporate power and authority to own and use its
properties and assets and to carry on its business as currently
conducted. Celestial has no subsidiaries or equity interests in any
other entity.
(b) Authorization;
Enforcement. Celestial and the Shareholders each have the
requisite power and authority to enter into and to consummate the transactions
contemplated by this Agreement, and otherwise to carry out their respective
obligations hereunder. The execution and delivery of this Agreement
by Celestial and the Shareholders and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Celestial and no further action is required by Celestial and the
Shareholders. This Agreement has been duly executed by Celestial and
the Shareholders and, when delivered in accordance with the terms hereof, will
constitute the valid and binding obligations of Celestial and the Shareholders
enforceable against Celestial and the Shareholders in accordance with its
terms. Celestial is not in violation of any of the provisions of its
charter documents.
(c) Capitalization. The
number of authorized, issued and outstanding capital stock of Celestial is set
forth in Schedule
3.1(c). No shares of capital stock of Celestial are entitled
to preemptive or similar rights, nor is any holder of capital stock of Celestial
entitled to statutory preemptive or similar rights arising out of any agreement
or understanding with Celestial. There are no outstanding options,
warrants, rights to subscribe to, calls, or commitments of any character
whatsoever relating to securities, rights or obligations convertible into or
exchangeable for, or giving any person any right to subscribe for or acquire,
any shares of capital stock of Celestial or contracts, commitments,
understandings, or arrangements by which Celestial is or may become bound to
issue additional shares of capital stock of Celestial, or securities or rights
convertible or exchangeable into shares of capital stock of
Celestial.
(d) Title to Celestial
Shares. The Celestial Shares are duly authorized, validly
issued, and fully paid and nonassessable, and are owned of record and
beneficially by the Shareholders as set forth on Exhibit A hereto, free and
clear of all Liens.
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(e) No
Conflicts. The
execution, delivery and performance of this Agreement by Celestial and the
Shareholders and the consummation by Celestial and the Shareholders of the
transactions contemplated hereby do not and will not (i) conflict with or
violate any provision of Celestial’s charter documents; (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time, or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation (with or without notice, lapse of time,
or both) of, any agreement, credit facility, indenture or instrument (evidencing
a debt or otherwise) to which Celestial or any Shareholder is a party or by
which any property or asset of Celestial or any Shareholder is bound or
affected; or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which Celestial or any Shareholder is subject (including federal
and state securities laws and regulations), or by which any property or asset of
Celestial or any Shareholder is bound or affected, except in the case of each of
clauses (ii) and (iii), as could not, individually or in the aggregate,
reasonably be expected to have or result in a material adverse effect on the
business, prospects, operations or condition (financial or otherwise) of
Celestial (a “Celestial Material
Adverse Effect”). The business of Celestial
is not being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, could not reasonably be expected to have or result in a Celestial
Material Adverse Effect.
(f) Filings,
Consents and Approvals. Neither Celestial nor any
Shareholder is required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or
other or foreign federal, state, local or other governmental authority or other
person in connection with the execution, delivery and performance by Celestial
or the Shareholders of this Agreement.
(g) Litigation;
Proceedings. There is no action, suit,
notice of violation, proceeding or investigation pending or, to the knowledge of
Celestial or the Shareholders, threatened against or affecting Celestial or the
Shareholders or any of their respective properties before or by any court,
governmental or administrative agency, or regulatory authority (U.S. federal,
state, county, local or foreign) that (i) adversely affects or challenges the
legality, validity or enforceability of the Agreement or the Celestial Shares or
(ii) could, individually or in the aggregate, reasonably be expected to have or
result in a Celestial Material Adverse Effect.
(h) No Default
or Violation. Neither Celestial nor any
Shareholder (i) is in default under or in violation of (and no event has
occurred that has not been waived that, with notice or lapse of time or both,
would result in a default by Celestial or any Shareholder), nor has Celestial
nor Shareholder received notice of a claim that it is in default under or is in
violation of any indenture, loan or credit agreement or any other agreement or
instrument to which it or her is a party or by which it or any of its properties
is bound, (ii) is in violation of any order of any court, arbitrator or
governmental body, or (iii) is in violation of any statute, rule or regulation
of any governmental authority, except as could not, individually or in the
aggregate, have or result in a Celestial Material Adverse
Effect.
(i) Financial
Statements; Books and Records; Accounts Receivable.
(i) The Shareholders and Celestial have
delivered to Apollo the financial statements attached as Schedule
2.2(i) hereto (the
“Celestial Financial
Statements”). The Celestial Financial
Statements have been prepared in accordance with GAAP during the periods
involved, except as may be otherwise specified in such financial statements or
the notes thereto, and fairly present in all material respects the financial
position of Celestial as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit
adjustments. The Celestial Financial Statements comply in all
material respects with applicable accounting requirements of the
Commission.
7
(ii) The books and records of Celestial are
complete and correct in all material respects and have been maintained in
accordance with sound business practices consistent with industry
standards.
(iii) Celestial has no accounts
receivable.
(j) Absence of
Certain Changes. Since the date of the
latest balance sheet included in the Celestial Financial Statements, Celestial
has been operated, in the ordinary course and consistent with past practice and,
in any event, there has not been: (i) any material adverse change in
the business, condition (financial or otherwise), operations, results of
operations or prospects of Celestial; (ii) any loss or, to the knowledge of
Celestial and the Shareholders, threatened or contemplated loss, of business of
any customers or suppliers of Celestial which, individually or in the aggregate,
could reasonably be expected to have a Celestial Material Adverse effect; (iii)
any loss, damage, condemnation or destruction to any of the properties of
Celestial (whether or not covered by insurance); (iv) any borrowings by
Celestial other than trade payables arising in the ordinary course of the
business and consistent with past practice; or (v) any sale, transfer or other
disposition of any of the assets other than in the ordinary course of the
business and consistent with past practice.
(k) Contracts. Schedule
2.2(k) hereto sets forth a
list of all contracts, agreements, leases, licenses, permits, commitments and
arrangements of Celestial (the “Contracts”). Celestial is not alleged
to be in default, nor to Celestial’s and the Shareholders’ knowledge is there
any basis for any Celestial or any other party, under any of the Contracts and
no event has occurred and no condition or state of facts exists which, with the
passage of time or the giving of notice or both, would constitute such a default
or breach by Celestial or any Shareholder, any other party thereto or any other
party. All of the Contracts are in full force and effect, will
continue in full force and effect after the Closing without breaching the terms
thereof or resulting in the forfeiture or impairment of any rights thereunder
and without the consent, approval or act of, or making of any filing with, any
third party. The Contracts are valid and enforceable against
Celestial and to Celestial’s and the Shareholders’ knowledge, the other parties
thereto. Neither Celestial nor any Shareholder has received any
notice of the intention of any party to terminate, or substantially reduce the
volume of its purchases, sales, products or advertisements under, any
Contract. Celestial is not currently in discussions regarding any
amendment, modification, extension or termination of, and is not currently
re-negotiating Contracts.
(l) Employees. Schedule
2(l) sets forth the name of
each employee of Celestial and a description of their
compensation. Celestial does not maintain any employee benefit
plans.
(m) Taxes. Celestial has filed all tax
returns of any kind required to be filed and has paid all taxes and other
charges due or claimed to be due with respect to its taxing
authorities. There are no Liens for taxes upon any of Celestial’s
assets and there are no claims asserted for taxes against Celestial or any
Shareholder with respect to any of Celestial’s assets, except for taxes due but
not yet payable.
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(n) Brokers’
Fees. No fees or
commissions will be payable by Celestial or the Shareholders to any broker,
financial advisor or consultant, finder, placement agent, investment banker, or
bank with respect to the transactions contemplated by this
Agreement.
(o) Patents and
Trademarks. Celestial has, or has
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and rights
(collectively, the “Celestial
Intellectual Property Rights”) that are necessary or material for
use in connection with its business, and the failure to so have could not
reasonably be expected to have a Celestial Material Adverse
Effect. To the best knowledge of Celestial and the Shareholders, all
such Celestial Intellectual Property Rights are enforceable and there is no
existing infringement by another person of any of the Celestial Intellectual
Property Rights.
(p) Regulatory
Permits. Celestial possesses all
certificates, authorizations and permits issued by the appropriate U.S. federal,
state or foreign regulatory authorities necessary to conduct its business except
where the failure to possess such permits, individually or in the aggregate,
could reasonably be expected to have or result in a Celestial Material Adverse
Effect (“Celestial Material
Permits”), and neither
Celestial nor any Shareholder has received any notice of proceedings relating to
the revocation or modification of any Celestial Material
Permit.
(q) Title. Celestial does not own or
lease any real property. Celestial has good and marketable title to
all real personal property owned by it in each case free and clear of all Liens,
except for Liens that do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by
Celestial.
2.3 Investment
Representations of the Shareholders. Each Shareholder warrants
and represents to Apollo as follows:
(a) Investment
Intent. The
Shareholder is acquiring the Apollo Shares for his or its own account and not
for the account of any “U.S.
Person” as defined in Rule
902 under the Securities Act. The Shareholder is acquiring the Apollo Shares for
investment purposes only and not with a view to or for distributing or reselling
the Apollo Shares or any part thereof or interest therein, without prejudice,
however, to the Shareholder’s right at all times to sell or otherwise dispose of
all or any part of the Apollo Shares pursuant to an effective registration
statement under the Securities Act and in compliance with applicable state
securities laws or under an exemption from such
registration.
(b) Status. The Shareholder is an
“accredited
investor” as defined in
Rule 501(a) under the Securities Act. The Shareholder is not a
“U.S.
Person” as defined in Rule
902 under the Securities Act
(c) Experience
of Shareholder. The Shareholder has such
knowledge, sophistication and experience in business and financial matters so as
to be capable of evaluating the merits and risks of the prospective investment
in the Apollo Shares, and has so evaluated the merits and risks of such
investment.
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(d) Ability of
Shareholder to Bear Risk of Investment. The Shareholder is able to
bear the economic risk of an investment in the Apollo Shares and, at the present
time, is able to afford a complete loss of such investment.
(e) Access to
Information. The Shareholder acknowledges that he or it has
reviewed the SEC Documents and the disclosure contained herein and has been
afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of Apollo concerning the terms
and conditions of the offering of the Apollo Shares and the merits and risks of
investing in the Apollo Shares; (ii) access to public information about Apollo
and Apollo’s financial condition, results of operations, business, properties,
management and prospects sufficient to enable the Shareholder to evaluate his
investment; and (iii) the opportunity to obtain such additional public
information that Apollo possesses or can acquire without unreasonable effort or
expense that is necessary to make an informed investment decision with respect
to the investment and to verify the accuracy and completeness of the information
contained herein and in the SEC Documents.
(f) General
Solicitation. The Shareholder is not purchasing the Apollo
Shares as a result of or subsequent to any advertisement, article, notice or
other communication regarding the Apollo Shares published in any newspaper,
magazine or similar media, published or broadcast over television or radio or
presented at any seminar. No “directed selling
efforts” as defined in Rule
902 under the Securities Act were made in the United States with respect to the
offer and sale of the Apollo Shares by Apollo or anyone acting on its
behalf.
(g) Reliance. The
Shareholder understands and acknowledges that (i) the Apollo Shares are being
offered and sold to the Shareholder without registration under the Securities
Act and applicable state securities laws in a private placement that is exempt
from the registration provisions of the Securities Act and applicable state
securities laws and (ii) the availability of such exemption depends in part on,
and Apollo will rely upon the accuracy and truthfulness of, the foregoing
representations and the Shareholder hereby consents to such
reliance.
ARTICLE
III
OTHER
AGREEMENTS OF THE PARTIES
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3.1
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Transfer
Restrictions.
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(a) The
Apollo Shares may only be disposed of pursuant to an effective registration
statement under the Securities Act, or pursuant to an available exemption from
or in a transaction not subject to the registration requirements of the
Securities Act. In connection with any transfer of the Apollo Shares
other than pursuant to an effective registration statement, Apollo may require
the transferor thereof to provide to Apollo an opinion of counsel selected by
the transferor, the form and substance of which opinion shall be reasonably
satisfactory to Apollo, to the effect that such transfer does not require
registration of such transferred securities under the Securities Act and
applicable state securities laws.
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(b) The
Shareholders agree to the imprinting, so long as is required under the
Securities Act and the rules and regulations thereunder, or an appropriate
restrictive legend on the certificates evidencing their respective Apollo
Shares.
ARTICLE
IV
INDEMNIFICATION
4.1 Survival. All
of the provisions of this Agreement shall survive the Closing indefinitely,
except that the representations and warranties of Celestial and the
Shareholders, on the one hand, and the representations and warranties of Apollo
on the other hand, shall survive until the second anniversary of the Closing
Date.
4.2 Indemnity by Celestial and
the Shareholders. Celestial and the Shareholders, jointly and
severally, shall indemnify Apollo and hold Apollo and Apollo’s directors,
officers and employees (collectively, the “Celestial Indemnified
Parties”) harmless against and in respect of any and all damages, losses,
claims, penalties, liabilities, costs and expenses (including, without
limitation, all fines, interest, reasonable and actual legal fees and expenses
and amounts paid in settlement), that arise from or relate or are attributable
to (and without giving effect to any tax benefit to the indemnified party) (a)
any misrepresentation by Celestial or any Shareholder or breach of any warranty
by Celestial or any Shareholder in this Agreement or (b) any breach of any
covenant or agreement on the part of Celestial or any Shareholder in this
Agreement.
4.3 Indemnity by
Apollo. Apollo shall indemnify Celestial and the Shareholders
and hold Celestial and the Shareholders (collectively, “Apollo Indemnified Parties”)
harmless against and in respect of any and all damages, losses, claims,
penalties, liabilities, costs and expenses (including, without limitation, all
fines, interest, reasonable and actual legal fees and expenses and amounts paid
in settlement), that arise from or relate or are attributable to (and without
giving effect to any tax benefit to the indemnified party) (a) any
misrepresentation by Apollo or breach of any warranty by Apollo in this
Agreement or (b) any breach of any covenant or agreement on the part of Apollo
in this Agreement.
4.4 Notice to Indemnitor; Right
of Parties to Defend. Promptly after the assertion of any
claim by a third party or occurrence of any event which may give rise to a claim
for indemnification from an indemnifying party (“Indemnitor”) under this
Article IV, an indemnified party (“Indemnitee”) shall notify the
Indemnitor in writing of such claim. The Indemnitor shall have the
right to assume the control and defense of any such action (including, but
without limitation, tax audits), provided that the Indemnitee may participate in
the defense of such action subject to the Indemnitor’s reasonable direction and
at Indemnitee’s sole cost and expense. The party contesting any such
claim shall be furnished all reasonable assistance in connection therewith by
the other party and be given full access to all information relevant
thereto. In no event shall any such claim be settled without the
Indemnitor’s consent.
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ARTICLE
V
MISCELLANEOUS
5.1 Fees and
Expenses. Each party to this Agreement shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and
all other expenses incurred by such party incident to the negotiations,
preparation, execution, delivery and performance of this Agreement.
5.2 Entire Agreement;
Amendments. This Agreement, together with the Exhibit and
Schedules hereto, contains the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, Exhibit and
Schedules.
5.3 Notices. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile with a receipt of confirmation at the
facsimile telephone number specified in this Section 5.3 prior to 5:00 p.m.
(Miami, Florida time) on a Business Day; (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 5:00 p.m.
(Miami, Florida time) on any date and earlier than 11:59 p.m. (Miami, Florida
time) on such date; (iii) upon receipt, if sent by nationally recognized
overnight courier service; or (iv) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and
communications shall be as follows:
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If
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Attn: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, President
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Facsimile
No. :(▇▇▇) ▇▇▇-▇▇▇▇
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If
to Celestial or the
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Shareholders:
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Celestial
Investments, Ltd.
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Provident
House
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Attn: ▇▇.
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or such
other address as maybe designated in writing hereafter, in the same manner, by
such party.
5.4 Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
both the Company and the Purchaser; or, in the case of a waiver, by the party
against whom enforcement of any such waiver is sought. No waiver of
any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right accruing to it thereafter.
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5.5 Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect ay of the provisions
hereof.
5.6 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns. Neither party may assign this Agreement or any of the rights
or obligations hereunder without the written consent of the other party, which
consent shall not unreasonably withheld.
5.7 No Third-Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
person.
5.8 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of Florida without regard to the
principles of conflicts of law thereof. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in
Miami-Dade County, Florida, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the interpretation or enforcement of this
Agreement), and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect for
notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
5.9 Attorneys’
Fees. In any suit, action or proceeding brought with respect
to interpretation or enforcement of this Agreement, the prevailing party shall
be entitled to recover attorneys’ fees and costs at both the trial and appellate
levels.
5.10 Execution. 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.
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5.11 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 affecting or
impaired thereby and the parties will attempt to agree upon a valid and
enforceable provision that shall be a reasonable substitute therefore, and upon
so agreeing, shall incorporate such substitute provision in this
Agreement.
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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, President
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CELESTIAL
INVESTMENTS, LTD.
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By:
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/s/ Ciaran ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name:
Ciaran ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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SHAREHOLDERS:
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/s/ Ciaran ▇▇▇▇▇▇▇ ▇▇▇▇▇
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