Share Purchase Agreement

Share Purchase Agreement

Exhibit 10.2
 
 
SHARE PURCHASE AGREEMENT (the “Agreement”) dated as of May 12, 2014, by and between U.S. Rare Earths, Inc., a corporation existing under the laws of Nevada (“Seller”) and Mach One Media Group, Inc., a corporation existing under the laws of Nevada (the “Buyer”).
 
W I T N E S S E T H:
 
WHEREAS, Seller has entered into a Master Sale Agreement with the Buyer dated as of the date hereof (the “Master Agreement”) pursuant to which the delivery of this Agreement is a closing condition;
 
WHEREAS, Seller owns 100% of the shares of Media Depot, Inc., a Nevada corporation (“MD” and such shares, the “MD Shares”);
 
WHEREAS, MD owns 100% of the shares of Media Max, Inc., a Pennsylvania corporation (“MM” and such shares, the “MM Shares”);
 
WHEREAS, Media Depot, Inc. and Media Max, Inc. operate at a loss;
 
WHEREAS, subject to the terms and conditions hereof, Seller desires to sell, transfer and assign to Buyer, and Buyer desires to purchase from Seller, all the MD Shares;
 
WHEREAS, any undefined capitalized terms shall bear such meaning ascribed to them in the Master Agreement;
 
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the parties hereby agree as follows:
 
ARTICLE I.
PURCHASE AND SALE OF SHARES.
 
1.1. Sale of Media Depot Shares  Effective at January 1, 2014, Seller hereby sells, assigns, transfers and delivers to Buyer, and Buyer hereby purchases from Seller, all of the MD Shares.  Seller and Buyer agree that the liabilities of Media Depot, Inc. and Media Max, Inc. assumed by Buyer offset any benefit Buyer may receive as a result of Buyer’s acquisition of the net operating losses.
 
1.2. Instruments of Conveyance and Transfer.  At Closing, Seller shall issue and deliver a certificate or certificates representing the MD Shares of Seller to Buyer sufficient to transfer all right, title and interest in the MD Shares to Buyer.  Such documents shall include, but are not limited to, a Stock Power, assigned stock certificate or certificates, corporate resolutions of Seller and MD authorizing the assignment, and all approvals or waivers necessary under the By-laws or any shareholder agreements of Seller and MD, all in forms acceptable to Buyer.
 
 
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
 
Seller hereby represents and warrant to Buyer that:
 
2.1. Organization and Good Standing.  Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada.  
 
2.2. Authorization of Agreement.  Seller has all requisite corporate power, authority and legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Seller. This Agreement has been duly and validly executed and delivered by Seller and (assuming the due authorization, execution and delivery by Buyer) this Agreement constitutes the legal, valid and binding obligations of Seller, enforceable against Seller, in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).  Neither the execution or delivery of this Agreement by Seller nor the consummation by Seller of the transaction contemplated herein will result in a breach of the terms or provisions of the Articles of Incorporation or By-Laws of Seller, or any material agreement or other instrument to which Seller is a party.
 
2.3. Ownership of MM Shares.  MD owns all of the issuance and outstanding MM Shares and has good and marketable title to all of the MM Shares free and clear of all mortgages, pledges, security interests, charges, liens, restrictions and encumbrances of any kind (collectively, “Liens”) whatsover.
 
2.4. Ownership and Transfer of MD Shares.  Seller has good and marketable title to all of the MD Shares free and clear of all Liens whatsoever.  Upon the sale, assignment, transfer and delivery of the MD Shares to the Buyer hereunder, there will be vested in the Buyer good, marketable and indefeasible title to the MD Shares, free and clear of all Liens.
 
2.5. No Other Agreements to Sell or Options. Seller has no commitment or legal obligation, absolute or contingent, to any person or firm other than Buyer, to (i) sell, assign or transfer all or substantially all of the MD Shares or MM Shares, (ii) effect any merger, consolidation or other reorganization of Seller, or (iii) enter into an agreement which would conflict with this Agreement.  There are no outstanding options, rights, agreements, commitments or demands of any character relating to the acquisition of the MD Shares or MM Shares by any party other than Buyer.
 
2.6. Financial Statements and Records.  All balance sheets, financial statements, income statements, accounts receivable and accounts payable records, and all other financial records of Seller other than those related to the Business are current, true, correct and complete, have been prepared in accordance with generally accepted accounting principles applied on a basis consistent with prior periods and present fairly and accurately the financial condition of Seller and the result of operations for the periods reflected thereon, and there are no liabilities of Seller which are not reflected thereon.
 
 
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2.7. Litigation and Proceedings.  To Seller’s knowledge, there are no suits, claims, complaints, legal proceedings, administrative enforcement proceedings or legal actions before any court or governmental authority pending, or, to the knowledge of Seller or the Advertising Companies, threatened against Seller, MD, or MM.  To Seller’s knowledge, there is no material decision, order, judgment, ruling, injunction, award or decree against Seller, MD, or MM.
 
2.8. Taxes.  With respect to taxes owed by or claimed to be owed to Seller, MD, or MM, Seller agrees to be responsible for all 2013 taxes and costs associated with preparing and filing all required tax returns and reports.
 
2.9. Disclosure.  No representation or warranty by Seller in this Agreement nor in any exhibit, schedule, written statement or certificate furnished or to be furnished to Buyer pursuant hereto, or in connection with the transactions contemplated hereby, contains any untrue statement or omits to state a material fact.  All documents furnished by or on behalf of Seller, its representatives, MD or MM, or their representatives to Buyer in connection with this transaction and all information contained therein are true, correct and complete as of the date thereof.
 
2.10.  Insurance.  Seller, MD and MM have and will have as of the date of Closing such insurance policies that are customary in the industry (including policies providing property, casualty, employment practices, errors and omissions, liability and workers’ compensation coverage) including coverages, deductibles and limits that are reasonable and customary in the industry.  With respect to each policy of insurance, (i) the policy is legal, valid, enforceable and in full force and effect and shall remain in effect through Closing, (ii) the policy shall remain in effect after Closing, and (iii) Seller is not in default of any such policy.
 
 
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
BUYER
 
The Buyer represents and warrants to the Seller that:
 
3.1. Organization and Good Standing. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada.
 
3.2. Authorization of Agreement. Buyer has all requisite corporate power, authority and legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action on the part of Buyer. This Agreement has been duly and validly executed and delivered by Buyer and (assuming the due authorization, execution and delivery by Seller) this Agreement constitutes the legal, valid and binding obligations of Buyer, enforceable against Buyer, in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
 
 
 
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3.3. Securities Representations.
 
(a) Buyer has adequate means of providing for current needs and contingencies, has no need for liquidity in the investment, and is able to bear the economic risk of an investment in the Shares offered by Seller of the size contemplated.  Buyer is able to bear the economic risk of the investment and at the present time could afford a complete loss of such investment.  Buyer shall have a full opportunity to inspect the books and records of the MD and MM and to make any and all inquiries of MD and MM and its business as Buyer has deemed appropriate.
 
(b) Buyer is an “Accredited Investor” as defined in Regulation D of the Securities Act of 1933 (the “Act”) and Buyer has sufficient knowledge and experience in financial and business matters that Buyer is capable of evaluating the merits and risks of an investment in the MD Shares offered by Seller and of making an informed investment decision with respect thereto and has the capacity to protect Buyer’s own interests in connection with Buyer’s proposed investment in the MD Shares.
 
(c) The certificates representing the MD Shares which will be issued to Buyer shall contain a legend which provides as follows:
 
THE SHARES (OR OTHER SECURITIES) REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.  THE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
 
(d) Buyer acknowledges that the MD Shares will be “restricted securities” (as such term is defined in Rule 144 promulgated under the Act, that the MD Shares will include the foregoing restrictive legend, and, except as otherwise set forth in this Agreement, that the MD Shares cannot be sold unless registered with the Securities and Exchange Commission or otherwise complies with an exemption from such registration and qualification.
 
ARTICLE IV.
COVENANTS
 
4.1. Other Actions.  Each of Seller and Buyer shall use its best efforts to (i) take all actions necessary or appropriate to consummate the transactions contemplated by this Agreement and (ii) cause the fulfillment at the earliest practicable date of all of the conditions to their respective obligations to consummate the transactions contemplated by this Agreement.
 
4.2. Non-Media Related Assets. Each of Seller and Buyer are entering into this Agreement on the understanding that neither MD nor MM possess or have any rights whatsoever in any assets that are not media or advertising related (“Non-Media Assets”). If after Closing, either party hereto discovers that MD or MM is in possession of any Non-Media Assets that were held by MD or MM at the time immediately prior to Closing, then Buyer shall transfer all right, title and interest to such Non-Media Assets to the Company or its successors and assigns upon a showing sufficient to Buyer that such Assets are, in fact, Non-Media Assets..
 
 
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4.3. Use of Names; Confidentiality.  After Closing, Seller will not for any reason, directly or indirectly, for itself or any other person or entity, (i) use the name, “Calypso”, “Calypso Media Group”, “Calypso Media”, “Media Depot”, “Media Max”, or any other name associated with the Advertising Companies or the Business, (ii) use any internet domain name associated with or similar to that of the Advertising Companies or the Business, or (iii) use or disclose any trade secrets, confidential information, know how, proprietary information or other intellectual property of Seller transferred pursuant to this Agreement and any of the exhibits.
 
4.4. Further Assurances.  Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably requests in order to carry out the intent and accomplish the purposes of this Agreement and all exhibits and to consummate the transactions contemplated hereby and thereby.
 
ARTICLE V. 
INDEMNIFICATION

5.1 Indemnification.  Seller agrees to indemnify, defend, save and hold harmless Buyer and Michael Parnell from and against any and all claims, demands, actions, causes of action, damages, loss, costs, taxes, diminutions in value, interests on borrowed money, liability, fees (including attorney’s fees) or expense, including amounts spent on investigation, defense or settlement of any claim which may be brought against Buyer and/or Michael Parnell and/or which Buyer and/or Michael Parnell may suffer, sustain, or become subject to as a result of, in respect of, or arising out of (i) any misrepresentation or breach of any representation, warranty or covenant made by Seller, (ii) any non-tax related liability, obligation or commitment of Seller arising out of transactions entered into or events occurring prior to Closing, or (iii) any non-tax related liability of Seller not expressly and explicitly assumed by Buyer.
 
5.2 Right to Indemnification Not Affected by Knowledge.  All representations, warranties, covenants, and obligations in this Agreement, any of the exhibits, and any other certificate or document delivered pursuant to this Agreement will survive Closing.  Buyer’s and Michael Parnell’s right to indemnification, payment of damages or other remedy based on such representations, warranties, covenants, and obligations will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement, the exhibits, or the Closing, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant, or obligation.  The waiver of any condition based on the accuracy of any representation or warranty, or on the performance or compliance with any covenant or obligation, will not affect Buyer’s or Michael Parnell’s right to indemnification, payment of damages, or other remedy based on such representations, warranties, covenants, and obligations.
 
5.3. Insurance.  With respect to the obligations set forth in this Article, Seller shall be entitled and required to take advantage of any insurance policy that covers such claims, and shall not be required to indemnify or hold harmless Buyer and Michael Parnell for any claims that are covered by an insurance policy.  It is the express intent of this Agreement that Seller’s obligation to indemnify Buyer and Michael Parnell shall apply only to claims not covered by existing insurance.
 
 
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ARTICLE VI
CONDITIONS TO CLOSING

6.1  Conditions Precedent to Obligations of Buyer.  The obligation of Buyer to consummate the transactions contemplated by this Agreement is subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions (any or all of which may be waived by Buyer in whole or in part to the extent permitted by applicable law):
 
(a) all representations and warranties of Seller contained herein qualified as to materiality shall be true and correct in all material respects at and as of the Closing Date with the same effect as though those representations and warranties had been made again at and as of that time; and
 
(b) Seller shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing Date.
 
(c)  Buyer shall have completed its due diligence to its sole and complete satisfaction.
 
 6.2   Conditions Precedent to Obligations of Seller.  The obligations of Seller to consummate the transactions contemplated by this Agreement are subject to the fulfillment, prior to or on the Closing Date, of each of the following conditions (any or all of which may be waived by Seller in whole or in part to the extent permitted by applicable law):
 
(a) all representations and warranties of Buyer contained herein shall be true and correct in all material respects at and as of the Closing Date with the same effect as though those representations and warranties had been made again at and as of that date;
 
(b) Buyer shall have performed and complied in all material respects with all obligations and covenants required by this Agreement to be performed or complied with by Buyer on or prior to the Closing Date; and
 
(c) each of the conditions to closing set forth in the Master Agreement shall have been performed by Buyer (or, if applicable, waived by Seller).
 
 
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ARTICLE VII
MISCELLANEOUS
 
7.1  Definitions. Any undefined capitalized terms herein shall bear such meaning as ascribed to them in the Master Agreement.
 
7.2 Payment of Sales, Use or Similar Taxes.  All sales, use, transfer, intangible, recordation, documentary stamp or similar taxes or charges, of any nature whatsoever, applicable to, or resulting from, the transactions contemplated by this Agreement shall be borne by the Buyer.
 
7.3 Survival of Representations and Warranties.  The parties hereto hereby agree that the representations and warranties contained in this Agreement or in any certificate, document or instrument delivered in connection herewith, shall survive the execution and delivery of this Agreement, and the Closing hereunder.
 
7.4  Governing Law.  All questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas, without regard to the principles of conflicts of law thereof.  Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of Plano.  Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Plano for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, 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 or is an inconvenient venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery) 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 other manner permitted by law.  
 
7.5  Entire Agreement  Except with respect to the Master Agreement, this Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof.  This Agreement supersedes that certain letter agreement between USRE and Michael Parnell dated January 28, 2014 which after the date hereof shall be terminated and of no further force and effect.
 
7.6  Amendments; Waivers.  No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by Seller and Buyer or, in the case of a waiver, by the party against whom enforcement of any such waived provision 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 subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
 
 
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7.7  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: (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a business day, (b) the next business day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a business day or later than 5:30 p.m. (New York City time) on any business day, (c) the second (2nd) business day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) 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 set forth on the signature pages attached hereto.
 
7.8   Severability.  If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
 
7.9  No Assignment.  No assignment of this Agreement or of any rights or obligations hereunder may be made by either Seller or Buyer (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consents shall be void.
 
7.10  Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. No party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party hereto.
 
7.11  Counterparts. 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 each other party, it being understood that the parties need not sign the same counterpart.  In the event that any executed signature page is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such executed signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
 
7.12  Publicity.Neither Buyer or Seller shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, Seller shall be entitled, without the prior approval of Buyer, to issue any press release, file any reports with the Securities and Exchange Commission or make other public disclosure with respect to such transactions as required by applicable law and regulations.
 
7.13   Expenses. Except as otherwise provided in this Agreement, each party will pay its own costs and expenses, including legal and accounting expenses, related to the transactions contemplated by this Agreement, irrespective of when incurred.
 
7.14  Independent Legal Counsel. Each party acknowledges that it has read the entire Agreement, understands it and in addition, has received independent legal advice from counsel to the extent it considers is warranted as to the advisability of executing this Agreement and with respect to all matters contained herein.
 
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Agreement on the date first written above.
 
 
BUYER:
 
     
 
Mach One Media Group, Inc.
 
       
 
By:
/s/ Michael D. Parnell   
    Name: Michael D. Parnell  
    Title:   Secretary/Director  
       
 
 
Address:
 12 North Washington St.    
     Mountoursville, PA    
     17754    
   Fax No: 570.337.7363    

 
SELLER:
 
     
   
       
 
By:
/s/ Kevin M. Cassidy   
    Name:  Kevin M. Cassidy  
    Title:    CEO  
       

 
Address:
 5600 Tennyson Pkwy    
     Suite 240    
     Plano, TX 75024    
   Fax No:  (972) 829-8933  

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