AGREEMENT
THIS AGREEMENT, made as of this 1st day of July 1996, among MAESTRO
HOLDING CORP., a corporation organized under the Laws of Delaware (hereinafter
referred to as "Maestro") XXXXXX XXXXXXX, XXXXXX XXXXXXX, XXXX X. XXXXXX,
XXXXXXX XXXXXX, individually and representative of the stockholders in
accordance with the issuance set forth on Schedule A attached hereto
(hereinafter referred to as "Sellers"); and PLANET ENTERTAINMENT, (hereinafter
referred to as "Purchaser").
WHEREAS, Purchaser wishes to acquire all of the assets of Maestro in
exchange for a commitment to issue 7,000,000 (SEVEN MILLION) shares of common
stock of Purchaser upon recapitalization of said company; and
WHEREAS the Sellers are the sole owners of all the outstanding stock of
Maestro in accordance with the issuance set forth on Schedule A attached hereto;
and
WHEREAS Maestro is the owner of certain rights to a library of master
recordings, copyrights, accounts receivable and the right to develop other
musical arrangements; and
WHEREAS Sellers are willing to sell all the assets of Maestro to
Purchaser subject to the assumption of certain defined liabilities;
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, the parties hereto agree as follows:
-1-
SECTION 1. The closing for the purchase and sale of the Transferred
Assets shall take place at the offices of Xxxxxxxx, Xxxxx & XxXxxxxx, P.C. on
July 1, 1996 (the "Closing Date"). Said date may be extended upon the mutual
agreement of the parties but not later than July 15, 1996.
SECTION 2. Sellers and Maestro agree to transfer, assign and/or deliver
all rights and title to the following "Transferred Assets":
(a) master recording library as set forth on Schedule B attached hereto
and made a part hereof including any and all copyrights and trademarks including
but not limited to any pending applications for copyright or trademark.
(b) twenty-four track studio in Jackson, New Jersey including any and
all furniture and equipment.
SECTION 3. In consideration for the transfer of Assets, Purchaser shall
grant and deliver to Sellers and Maestro a commitment to issue 7,000,000 (SEVEN
MILLION) shares of common stock of Purchaser to be issued upon recapitalization
of said company on or before October 1, 1996;
SECTION 4. Sellers and Maestro hereby represent and warrant to
Purchaser that on the date hereof and as of the Closing Date:
(a) Maestro is a corporation duly organized and in good standing under
the laws of the State of Delaware and which has duly authorized capital stock of
1,000 (ONE THOUSAND) shares of Common Stock, $ .001 par value of which 1,000
(ONE THOUSAND) shares have been and will be validly issued, fully paid and
nonassessable as of
-2-
the date of closing.
(b) Sellers are the owner of all the outstanding Common Stock of
Maestro in accordance with the issuance set forth on Schedule A attached hereto;
(c) The Transferred Assets to be conveyed to Purchaser will be free
and clear of any and all security interests, pledges, claims, liens, equities or
encumbrances whatsoever and, upon the consummation of the transactions herein
contemplated, Purchaser will have acquired good and marketable title to the
Transferred Assets, free and clear of any and all claims, liens, security
interests, pledges, equities or encumbrances, except as provided for herein.
(d) There are no outstanding rights, options, warrants, contracts,
commitments or demands of any character which would require the transfer or
pledge by Maestro of any interest in the Transferred Assets.
(e) All tax returns, Federal, State and local, required to be filed by
Maestro will have been filed as of the closing date. Such returns will be true
and correct based on the information reasonably available to Purchaser and all
taxes (including penalties or interest) imposed by any government or other
taxing authority in respect to income or with respect to the operation or
ownership of property by Maestro up to and including the date hereof have been
paid in full by Maestro. No taxing agency or authority is engaged in any audit
or examination of Maestro and any
-3-
deficiencies which have been brought to the attention of Maestro resulting from
any audits of its tax returns have been paid in full prior to the date of this
Agreement.
(f) Other than this Agreement, Maestro is not a party to any lease or
agreement whatsoever or liabilities of any nature effecting the Transferred
Assets. At closing, the Sellers will cause Maestro to deliver to Purchaser true
and correct copies of the Articles of Incorporation, Minutes, Corporate Seal and
Corporate By-laws, and all amendments thereto, of Maestro and a Xxxx of Sale as
to the Transferred Assets.
(g) There are no lawsuits, proceedings, judgments or orders pending or
threatened against Maestro or any of its respective officers or directors in
their official capacities as officers or directors of Maestro before any court
or governmental agency or body, foreign or domestic, or before any arbitration
tribunal, and to the knowledge of counsel for Maestro there is no governmental
investigation relating to Maestro or any pending legislation or governmental
regulation which would materially adversely affect the title to as value of the
Transferred Assets.
(h) All corporate action required to be taken by Sellers or Maestro to
authorize Maestro and Sellers to sell, convey and transfer the Transferred
Assets to Purchaser has been taken or will be taken as of the date of closing.
Maestro and Sellers will have full power and authority to transfer and deliver
the Transferred Assets to Purchaser and to execute and perform this Agreement.
The
-4-
execution and performance of this Agreement, the sale and delivery of the
Transferred Assets of Maestro will not violate any provision of law or any
contract or agreement by which Maestro or Sellers are bound. This Agreement has
been duly executed and delivered by Maestro and Sellers and constitutes the
valid and legally binding obligation of Sellers and Maestro enforceable in
accordance with its terms. No approval or authorization of, or filing with any
Federal, State, municipal or other governmental commission, board or agency is
required in connection with the sale, conveyance, transfer and delivery of the
Stock.
(i) Maestro has 4 stockholders holding all of the outstanding shares
of Maestro's Common Stock in accordance with the issuance set forth on Schedule
A attached hereto.
(j) Maestro has delivered a true and complete list, as of the date of
this Agreement, certified by Maestro's Secretary, showing the names of Maestro's
directors and officers.
(k) Purchaser will receive at closing a Certificate verifying the
existence and title of Maestro's Transferred Assets.
(1) No action or proceeding has been instituted by or before any court
or other governmental body, nor has such action or proceeding been threatened,
to restrict, prohibit or invalidate the transactions contemplated by this
Agreement or otherwise affect the rights of any party to the Agreement.
(m) All actions, proceedings, instruments and documents required to
carry out this Agreement and all other related legal
-5-
matters have been approved by counsel for Purchaser.
SECTION 5. Purchaser, knowing that Sellers and Maestro are relying on
the following, hereby represents and warrants that the execution and performance
of this Agreement will not violate any provision of law applicable to Purchaser
or any contract or agreement by which Purchaser is bound. This Agreement
constitutes a legally valid and binding obligation of Purchaser enforceable in
accordance with its terms.
SECTION 6. (a) From the date hereof, Sellers and Maestro agree to allow
Purchaser, its attorneys, employees, representatives, and accountants free
access at all reasonable times during customary business hours to the records,
files, and correspondence of Maestro as well as to all information relating or
otherwise pertaining to Maestro.
(b) Sellers and Maestro will use their respective best efforts to
assure that all of its representations and warranties contained herein are true
in all material respects as of the Closing as if repeated at and as of such
time, and that no material breach or default occurs with respect to any of its
covenants contained herein that have not been cured by the Closing Date.
SECTION 7. The obligation of Purchaser to complete the closing is
subject to the fulfillment, on the Closing Date or within seven (7) days of the
Closing Date, of each of the following conditions any one or more of which may
be waived by Purchaser:
(a) Maestro and Sellers' representations and warranties
-6-
contained in this Agreement shall be true and correct in all material respects
at the Closing Date as if made at the Closing as of the Closing Date.
(b) All covenants and agreements to be performed hereunder by Maestro
and Sellers and all matters contemplated herein to be performed by Maestro at or
prior to the closing shall have been performed in all material respects.
(c) Purchaser shall have received a certificate of Maestro dated as of
the Closing Date, signed by the President of Maestro annexed hereto as Exhibit
C, to the effect the matters set forth in Subsection 4 are true and correct.
(d) Sellers and Maestro shall have delivered to Purchaser, except as
otherwise requested in writing by Purchaser prior to or on the Closing Date, a
Xxxx of Sale as to all Transferred Assets free and clear.
(e) There shall have been obtained from the appropriate federal, state,
municipal, or other governmental or administrative bodies or courts all such
approvals, certificates, clearances, or consents, if any, as may be required to
permit the change of ownership of the shares herein provided for.
(f) Maestro shall deliver to Purchaser the favorable opinion of its
counsel in form, scope and substance satisfactory to Purchaser's counsel, dated
as of the Closing Date, that Maestro is a Corporation in good standing and the
stock certificates issued as stated in Subsection 4(b) are authorized acts of
the Company; that
-7-
the representations and warranties of Subsection 6 are true; and that such
counsel does not know or have any reasonable grounds to know of any litigation,
proceedings or governmental investigation pending or threatened against the
Transferred Assets or relating to Maestro, its property or business.
SECTION 8. The obligation of Sellers and Maestro to complete the
closing is subject to the fulfillment, prior to or on the Closing Date, of each
of the following conditions, any one or more of which may be waived by Sellers
and Maestro:
(a) Purchaser's representations and warranties contained in this
Agreement shall be true and correct in all material respects at the Closing Date
as if made at the Closing and Date;
(b) All covenants and agreements to be performed hereunder by Purchaser
at or prior to the Closing shall have been performed in all material respects;
(c) Sellers and Maestro shall have received a certificate of Purchaser
dated as of the Closing Date to the effect that the matters set forth in
Subsection 5 have been satisfied.
(d) No action or proceeding shall have been instituted or threatened
for the purpose or with the probable effect of enjoining or preventing the
consummation of this Agreement.
SECTION 9. Sellers and Maestro hereby agree to indemnify, save and
hold harmless Purchaser and its successors and assigns, of and from any damage,
liability, claim, loss or deficiency (including, without limitation reasonable
attorney's fees and
-8-
expenses incident to a suit, action or proceeding), provided Sellers and Maestro
have been given notice and an opportunity to defend any matter arising out of or
resulting from any damage, liability, claim, loss or deficiency, in connection
with the terms of this Agreement and will pay to Purchaser and its successors
and assigns, on thirty (30) days notice, the full amount of any and all sums
which Purchaser or any successor or assign, may pay or become obligated to pay
on account of (i) any material inaccuracies in any representations or the breach
of any covenant or warranty made by Sellers or Maestro hereunder, (ii) any
material failure of Sellers or Maestro to duly perform or observe any term,
provision, covenant, agreement or condition hereunder on the part of Sellers to
be performed or observed.
SECTION 10. Purchaser hereby agrees to indemnify and hold harmless
Sellers and Maestro at all times after the date of this Agreement, provided
Purchaser has been given notice and an opportunity to defend any matter against
and in respect of: (a) any damage or deficiency resulting from any
misrepresentation, breach of warranty, or nonfulfillment of any agreement on the
part of Purchaser under this Agreement, or from any misrepresentation of or
omission from any certificate or other instrument furnished or to be furnished
to Purchaser hereunder; and (b) all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses incident to any of the foregoing.
Purchaser shall reimburse Sellers and Maestro on thirty (30) days notice for any
payment made
-9-
by Sellers or Maestro at any time after the Closing, in respect of any liability
or claim to which the foregoing indemnity relates.
SECTION 11. Maestro and Sellers hereby represent that it is acquiring
the Purchaser's Common Stock hereunder for investment purposes only with no
present intention of reselling or otherwise distributing the same, except in
compliance with the registration requirements under the Securities Act of 1933
or an exemption therefrom.
SECTION 12. At the Closing, Purchaser subject to the terms and
conditions hereof, shall deliver to Sellers, Purchaser's shares of Common Stock
constituting the purchase price.
SECTION 13. All notices hereunder shall be in writing and will be
deemed to have been given if delivered personally or mailed by registered or
certified mail, return receipt requested, postage prepaid, addressed as
respectively indicated below or by a notice hereunder:
(a) if addressed to Sellers:
Xxxxxx Xxxxxxx
000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx
(b) if addressed to Maestro:
Xxxxxx Xxxxxxx
XXXXXXX XXXXXXX & XXXXXXX
000 Xxxxxxx 00 Xxxxx
Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx
-10-
(c) If addressed to Purchaser:
Xxxxxx Xxxxxxx, President
000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx
xx: Xxxxxxxx, Xxxxx & XxXxxxxx, P.C.
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxxxx 00000
SECTION 14. Neither this Agreement nor any provisions hereof may be
modified, changed, discharged or terminated except by instrument in writing
signed by the parties hereto.
SECTION 15. All representations, warranties and agreements contained
herein shall survive the execution of this Agreement and the delivery of the
Transferred Assets to be purchased by Planet pursuant hereto. All statements
contained in any certificate or other instrument delivered by Sellers, Maestro
and Purchaser pursuant to this Agreement or in connection with the transactions
contemplated by this Agreement shall constitute representations and warranties
by Sellers or Purchaser respectively under this Agreement.
SECTION 16. This Agreement may be executed in several counterparts, in
person or by facsimile and each executed copy will constitute an original
instrument but such counterparts shall together constitute but one and the same
instrument.
SECTION 17. This Agreement will be deemed to be a contract made under
the laws of the State of New Jersey and the parties agree to be subject to the
exclusive jurisdiction of the Courts of New Jersey.
-11-
SECTION 18. All the terms, warranties, representations and provisions
hereof will be binding upon and inure to the benefit of and be enforceable by
and against the respective legal representatives, successors and assigns of the
parties hereto.
SECTION 19. The parties reserve the right to amend this agreement to
include a subsidiary or affiliate of Purchaser formed specifically to affect the
Purchase of Common Stock contemplated by this Agreement.
IN WITNESS THEREOF, the parties have executed this Agreement
MAESTRO:
Attest:
/s/ XXXXXXX XXXXXX BY: /s/ XXXXXX XXXXXXX
----------------------------- -----------------------------
Xxxxxxx Xxxxxx, Secretary Xxxxxx Xxxxxxx, President
SELLERS:
/s/ XXXXX XXXX /s/ XXXXXX XXXXXXX
----------------------------- -----------------------------
Xxxxx Xxxx Xxxxxx Xxxxxxx
/s/ XXXXX XXXX /s/ XXXXXX XXXXXXX
----------------------------- -----------------------------
Xxxxx Xxxx Xxxxxx Xxxxxxx
-12-
Attest:
/s/ XXXXXXX XXXXXX /s/ XXXX X. XXXXXX
----------------------------- -----------------------------
Xxxxxxx Xxxxxx Xxxx X. Xxxxxx
Attest:
/s/ XXXX X. XXXXXX /s/ XXXXXXX XXXXXX
----------------------------- -----------------------------
Xxxx X. Xxxxxx Xxxxxxx Xxxxxx
PURCHASER:
Attest:
/s/ XXXXXXX XXXXXX BY: /s/ XXXXXX XXXXXXX
----------------------------- -----------------------------
Xxxxxxx Xxxxxx, Secretary Xxxxxx Xxxxxxx, President
-13-
SCHEDULE A
Stockholder Shares
----------- ------
XXXXXX XXXXXXX 7
XXXXXX XXXXXXX 331
XXXX X. XXXXXX 331
XXXXXXX XXXXXX 331
SCHEDULE C
I, the undersigned, as President of Maestro Holding Corp. hereby
certify that as of the date set forth below, all representations and warranties
made by said company in the Purchase Agreement dated as of July 1, 1996, are
true and correct.
I certify that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully false, I am
subject to punishment.
Dated:
Attest:
/s/ XXXXXXX XXXXXX BY: /s/ XXXXXX XXXXXXX
----------------------------- -----------------------------
Xxxxxxx Xxxxxx, Secretary Xxxxxx Xxxxxxx, President