Getting close to a year now on those restricted shares ... little over a month to go...but then again the terms of the agreement were never fulfilled by Glenn... and justifiably so imo..
Exhibit 10
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (“Agreement”) is entered into on March 19, 2010, , by and between TBC Global News Network, Inc., a Nevada corporation (“TGLN”), Sterling Yacht Sales, Inc., a Florida corporation (“Sterling”), and Sterling stockholders Glenn W. McMachen, Sr., and Arlene McMachen, individually (collectively, “Stockholders”), for the transfer of common stock to Stockholders from TGLN in exchange for all of Sterling’s outstanding issued and outstanding shares of common stock to TGLN ( hereinafter, all parties to this Agreement referred to as the “Parties”).
RECITALS
The Stockholders as named above own 100% of Sterling’s issued and outstanding shares of common stock (“Sterling Shares”). Stockholders desire to transfer all of Sterling’s outstanding shares to TGLN, and TGLN desires to issue from treasury and transfer an amount of restricted shares of common stock that equals eighty-two and one-half percent (82.5%) of its outstanding shares (“TGLN Shares”) to the Stockholders.
In further consideration of the mutual covenants, agreements, representations, and warranties contained in this Agreement, the parties hereto agree as follows:
ARTICLE ONE: PURCHASE AND SALE; CLOSING
1.1 Purchase and Sale.
Subject to the terms and conditions contained in this Agreement, on the Closing (defined below), the Stockholders shall sell, assign, transfer and deliver to TGLN certificated representing the Sterling Shares. TGLN shall sell, assign, transfer and deliver to the Stockholders, individually, issued in the names of Glenn McMachen and Arlen McMachen, pro rata, certificates representing the TGLN Shares.
1.2. Closing.
The closing (“Closing”) of the sale and purchase of the Shares shall be the date that all conditions herein have been satisfied, including completion of the financial statements as specified in Article Nine of this Agreement, the Parties meet in the offices of Brian F. Faulkner, A Professional Law Corporation not later than March 31, 2010 to transfer the required shares, or at such other time and place as the parties may agree to in writing, and all required documents have been executed.
1.3 Consideration and Other Terms of this Agreement
Subject to the terms and conditions set forth in this Agreement, the Parties agree to the following conditions:
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TGLN shall nominate and elect Glenn McMachen to the Board of Directors (the “Board”) and all current Board members agree to then resign. The current Board members shall then forfeit fifty percent (50%) of their current TGLN stock holdings: one hundred million one hundred thousand (100,100,000) shares held by Mark Crist, one hundred million (100,000,000) shares held by Marty Schiff, and one hundred fifty million five hundred thousand seven hundred eight (150,500,708) shares held by John Fleming. Thus, the total number of shares to be returned to TGLN treasury shall be one hundred seventy-five million seven hundred fifty thousand three hundred fifty-four (175,750,354).
Furthermore, the Parties agree that the loan, and any accompanying documents, in connection with inventory (i.e. certain vessels/yachts) (see section subsections (a) and (b) below) shall remain in the names of Glenn and Arlene McMachen individually; however, TGLN agrees to assume and will be responsible for making the required monthly payments of the principal balance of this loan in the amount of $933,000.00 until these vessels in inventory are sold.
Additionally, Stockholders, in their individual capacity as 82.5% owners of TGLN, agree to the following:
(a) Pay all necessary audits of TGLN upon closing of this transaction, and will maintain the TGLN status as a fully reporting public entity.
(b) Retain TGLN’s current corporate and securities attorney, Brian F. Faulkner, under the same annual fee structure and other terms according to the current retainer agreement.
(c) Maintain the relationship with TGLN’s current auditor, Child, Van Wagoner & Bradshaw, PLLC, and assume and pay the current balance in the amount of approximately $40,000.00 owed for 2009, and $35,000.00 for auditing services during the fiscal year 2010.
(d) Pay the one-time business consulting fees in the amount of 150,000,000 free trading shares of common stock to Kaptiva Group and its assigns and affiliates, such shares being registered under a Form S-8 registration statement filed with the Securities and Exchange Commission in exchange for Kaptiva Group assisting TGLN in its efforts to move the business forward and execute its business plan and strategies. This consulting work shall extend for a period of twelve (12) months from the Closing.
(e) Appoint two (2) additional members to the TGLN Board of Directors within one hundred fifty (150) days of the Closing, which persons will not include previous Board members of TGLN who with be resigning.
Furthermore, the Parties to this Agreement agree to act in good faith and best interests in order to ensure that this transaction occurs and closes according to the terms set forth herein.
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ARTICLE TWO: REPRESENTATIONS AND WARRANTIES
OF STOCKHOLDERS AND STERLING
Sterling represents and warrants:
2.1 Validity of Transaction .
The Stockholders own the number of Sterling Shares set forth above. The Stockholders have all requisite power and authority to execute, deliver, and perform this Agreement and to sell to TGLN the Sterling Shares to be sold by the Stockholders pursuant hereto. All necessary corporate proceedings or other similar actions by the Sterling and the Stockholders have been duly taken to authorize the execution, delivery, and performance of this Agreement and to authorize the sale of the Sterling Shares by the Stockholders. This Agreement has been duly authorized, executed, and delivered by Sterling and the Stockholders, is the legal, valid, and binding obligation of Sterling and the Stockholders, and is enforceable as to Sterling and the Stockholders in accordance with its terms except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). No consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or of any court or other tribunal is required by Sterling and the Stockholders for the execution, delivery, or performance of this Agreement by Sterling and the Stockholders, and except as would not affect the ability of Sterling or the Stockholders to perform any of his material obligations under this Agreement. No consent of any party to any contract, agreement, instrument, lease, license, arrangement, or understanding to which Sterling or the Stockholders are a party, or by which any of its properties or assets is bound, shall be required for the execution, delivery, or performance by Sterling and the Stockholders of this Agreement, except for such consents as have been obtained at or prior to the date of this Agreement, and except as would not affect the ability of Sterling or the Stockholders to perform any of his material obligations under this Agreement. The execution, delivery, and performance of this Agreement by Sterling and the Stockholders will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under, any such contract, agreement, instrument, lease, license, arrangement, or understanding, or violate or result in a breach of any term of the certificate or articles of incorporation or by-laws (or other organizational document) of Sterling, or violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, or decree binding on Sterling or the Stockholders or to which any of its/his/her operations, business, properties, or assets is subject, except as would not affect the ability of Sterling or the Stockholders to perform any of its material obligations under this Agreement. The Shares sold by the Stockholders have been duly authorized and validly issued and are fully paid and nonassessable and have not been issued in violation of any preemptive right of stockholders or rights of first refusal. Upon the transfer of the Sterling Shares, sold by the Stockholders to TGLN at the Closing, TGLN shall acquire good and valid title to the Sterling Shares free and clear of all claims, liens, pledges, charges, encumbrances, stockholders’ agreements, and voting trusts (other than any created for and in favor of TGLN).
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2.2 Finder or Broker .
No Stockholder has incurred any fee as a result of any negotiation with any finder, broker, intermediary, or similar person in connection with the transaction contemplated hereby that will result in any liability to TGLN.
2.3 Accredited Investor .
Each of the Stockholders is a “sophisticated” or “accredited” investor, as those terms are defined in Regulation D promulgated under the Securities Act of 1933, as amended (“Securities Act”). The Stockholders have received all requested documents from TGLN, including without limitation, and has had an opportunity to ask questions of and receive answers from the officers of TGLN with respect to the business, results of operations, financial condition, and prospects of TGLN.
2.4 Investment Intent .
The Stockholders are acquiring the TGLN Shares for their own account for investment and not with a view to, or for sale in connection with, any public distribution thereof in violation of the Securities Act, it being understood that the Stockholders, being affiliates of TGLN, shall have the right to sell a portion of such shares in their sole discretion in accordance with the requirements of the minimum six (6) months hold period under Rule 144. The Stockholders understand that the TGLN Shares, as of the Closing, have not been registered for sale under the Securities Act of 1933, as amended (“Securities Act”) or qualified under applicable state securities laws and that the TGLN Shares shall be delivered to the Stockholders pursuant to one or more exemptions from the registration or qualification requirements of such securities laws and that the representations and warranties contained in this section are given with the intention that TGLN may rely thereon for purposes of claiming such exemptions. The Stockholders understand that the TGLN Shares cannot be sold unless registered under the Securities Act and qualified under state securities laws, or unless an exemption from such registration and qualification is available
2.5 Transfer of Common Stock .
The Stockholders shall not sell or otherwise dispose of any TGLN Shares unless (a) a registration statement with respect thereto has become effective under the Securities Act and such shares have been qualified under applicable state securities laws or (b) such registration and qualification are not required and, if TGLN so requests, there is presented to TGLN a legal opinion reasonably satisfactory to TGLN to such effect. The Stockholders consent that the transfer agent for the TGLN Shares may be instructed not to transfer any TGLN Shares acquired pursuant hereto unless it receives satisfactory evidence of compliance with the foregoing provisions, and that there may be endorsed upon any certificate representing the TGLN Shares acquired pursuant hereto (and any certificates issued in substitution therefor) the following legend calling attention to the foregoing restrictions on transferability and stating in substance:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR QUALIFICATION UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF, BENEFICIALLY OR ON THE RECORDS OF THE CORPORATION, UNLESS THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION AND QUALIFICATION IS AVAILABLE.”
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TGLN shall, upon the request of any holder of a certificate bearing the foregoing legend and the surrender of such certificate, issue a new certificate without such legend if (i) the security evidenced by such certificate has been effectively registered under the Securities Act and qualified under any applicable state securities law and sold by the holder thereof in accordance with such registration and qualification or (ii) such holder shall have delivered to TGLN a legal opinion reasonably satisfactory to TGLN to the effect that the restrictions set forth herein are no longer required or necessary under the Securities Act or any applicable state law.
2.6 Corporate Existence .
Sterling is a Florida corporation duly incorporated, validly existing and in good standing under the laws of the State of Florida, and has all corporate powers and all governmental licenses, authorizations, permits, consents and approvals required to carry on its business as now conducted. Sterling is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where failure to be so qualified would not, individually or in the aggregate, be material to the business of Sterling. Sterling is not in violation of any of the provisions of its Articles of Incorporation, its Bylaws, or any regulations governing them.
2.7 Capitalization.
(a) The authorized equity of Sterling consists of one thousand (1,000) shares of common stock, all of which are issued and outstanding.
(b) To the knowledge of the Stockholders, (i) all outstanding Sterling Shares have been duly authorized and validly issued and are fully paid and non-assessable and are not subject to preemptive rights created under Florida law, its Articles of Incorporation, its Bylaws, or any regulations governing them, or any agreement or document to which Sterling is a party or by which it or its assets are bound, (ii) all outstanding Sterling Shares have been issued and granted in compliance with all applicable securities law and other legal requirements and all requirements set forth in applicable agreements or instruments, and (iii) none of the outstanding Sterling Shares is unvested or is subject to a repurchase option, risk of forfeiture or other condition providing that the Sterling Shares may be forfeited or repurchased by Sterling or otherwise vest upon termination of a Stockholder’s or grantee’s employment, directorship or other relationship with Sterling under the terms of any restricted stock agreement or other agreement with Sterling.
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(c) Other than the Sterling Shares, there are no outstanding (i) shares of equity or voting securities of Sterling, (ii) securities of Sterling convertible into or exchangeable for shares of capital stock or voting securities of Sterling or (iii) options or other rights to acquire from Sterling, or other obligation of Sterling to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Sterling. There are no registration rights, and there is no voting trust, proxy, rights plan, anti-takeover plan or other agreement or understanding to which Sterling is a party. There are no outstanding obligations of Sterling to repurchase, redeem or otherwise acquire any shares.
2.8 Financial Statements .
The Sterling Stockholders acknowledges that the books and records of Sterling fairly and correctly set out and disclose in all material respects, in accordance with generally accepted accounting principles (“GAAP”), the financial position of Sterling as at the date hereof, and all material financial transactions of the Sterling have been accurately recorded in such books and records. However, completion of an audit of said books and records, and accompanying pro forma financial statements, shall be required to be disclosed in an amended Form 8-K filing with the Securities and Exchange Commission (“SEC”) within seventy-one (71) days from the filing of the Form 8-K (which must be filed within four (4) business days of the Closing).
2.9 No Undisclosed Material Liabilities .
There are no liabilities of Sterling of any kind whatsoever, whether accrued, contingent, absolute, determined or determinable, and no existing condition, situation or set of circumstances which could reasonably result in such a liability, other than:
(a) liabilities recorded in full or reserved for; and
(b) liabilities incurred in the ordinary course of the business of Sterling consistent with past practice, none of which has or may reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, results of operations, or financial condition of Sterling.
2.10 Litigation .
There is no action, suit, investigation or proceeding (or to the Sterling Stockholders knowledge any basis therefor) pending against, or to the knowledge of the Sterling Stockholders, threatened against or affecting, the Stockholders, Sterling or any of their respective properties before any court or arbitrator or any governmental body, agency or official which, individually or in the aggregate, if determined or resolved adversely in accordance with the plaintiff’s demands, could reasonably be expected to have a material adverse effect on the business, results of operations, or financial condition of Sterling or which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Agreement.
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2.11 Absence of Liens and Encumbrances; Title to Properties.
Sterling has good, valid and marketable title to all properties and assets used in the conduct of its business free of all liens, mortgages, pledges, charges, security interests, encumbrances or other adverse claims of any kind, except as set forth in its financial statements, including, but not limited to, the following:
(a) 48 foot Fairline Yacht with a fair market value of one million three hundred fifty thousand dollars ($1,350,000.00) (title in the name of Glenn and Arlene McMachen, individually)
(b) 35 foot Jupiter Yacht with a fair market value of three hundred thousand dollars ($300,000.00) (title in the name of Glenn and Arlene McMachen, individually). This boat is current under contract to be sold not later than March 31, 2010.
(c) Customer List. Such list includes: the previously sold prospects of the aforementioned yachts and other vessels during the course of the last 30 years Stockholders have been doing business as yacht brokers or their family members; and all vendor, dealer, manufacture relationships formed during the course of the last 30 years to the present, with whom Stockholders did business.
2.12 Intellectual Property.
Sterling has good and valid title to and ownership of all Intellectual Property (defined herein as trade marks, trade names or copyrights, patents, domestic or foreign) necessary for its business and operations, including, but not limited to, Sterling’s family name (McMachen). There are no outstanding options, licenses or agreements of any kind to which Sterling is a party or by which it is bound relating to any Intellectual Property, whether owned by Sterling or another person. To the knowledge of the Sterling, the business of Sterling as formerly and presently conducted did not and does not conflict with or infringe upon any Intellectual Property right, owned or claimed by another.
2.13 Compliance with Laws and Court Orders.
(a) Sterling is not in violation of, and to the knowledge of the Stockholders is not under investigation with respect to and has not been threatened to be charged with or given notice of any violation of, any applicable law, rule, regulation, judgment, injunction, order or decree, except for violations that have not had and could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, results of operations or financial condition of Sterling.
(b) To the knowledge of the Stockholders, each executive officer and director of Sterling has complied with all applicable laws in connection with or relating to actions within the scope of Sterling’s business, except where the failure to comply would not be material to Sterling. No executive officer or director of Sterling is a party to or the subject of any pending or threatened suit, action, proceeding or investigation by any governmental entity that would have a material adverse effect on the business, results of operations or financial condition of Sterling.
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2.14 Material Contracts .
Sterling is not a party to or bound by any Contract (as defined below) that (a) is a material contract, or (b) materially limits or otherwise materially restricts Sterling or that would, after the Closing, materially limit or otherwise materially restrict TGLN or any of its subsidiaries or any successor thereto, from engaging or competing in any material line of business in any geographic area or that contains most favored nation pricing provisions or exclusivity or non-solicitation provisions with respect to customers. As used herein, “Contract” shall mean any written or oral agreement, contract, commitment, lease, license, contract, note, bond, mortgage, indenture, arrangement or other instrument or obligation. Sterling is not in, or has received notice of, any violation of or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) any Contract or any other Contract to which it is a party or by which it or any of its properties or assets is bound, except for violations or defaults that would not have a material adverse effect on the business, results of operations or financial condition of Sterling or, after giving effect to the Closing, TGLN or any of its subsidiaries.
2.15 Taxes.
(a) Sterling has timely filed all tax returns required to be filed on or before the Closing and all such tax returns are true, correct and complete in all respects. Sterling has paid in full on a timely basis all taxes owed by it, whether or not shown on any tax return, except where the failure to file such return or pay such taxes would not have a material adverse effect. No claim has ever been made by any authority in any jurisdiction where Sterling does not file tax returns that Sterling may be subject to taxation in that jurisdiction.
(b) There are no ongoing examinations or claims against Sterling for taxes, and no notice of any audit, examination or claim for taxes, whether pending or threatened, has been received. Sterling has not waived or extended the statute of limitations with respect to the collection or assessment of any tax.
2.16 Interested Party Transactions .
No officer, director or stockholder of Sterling or any “affiliate” (as such term is defined in Rule 405 under the Securities Act) of any such person or Sterling has or has had, either directly or indirectly, (a) an interest in any person that (i) furnishes or sells services or products that are furnished or sold or are proposed to be furnished or sold by Sterling other than Sterling, or (ii) purchases from or sells or furnishes to Sterling any goods or services, or (b) a beneficial interest in any contract or agreement to which Sterling is a party or by which it may be bound or affected (other than routine compensation and expense reimbursement programs in the ordinary course of business).
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ARTICLE THREE: REPRESENTATIONS AND WARRANTIES OF TGLN
TGLN represents and warrants that:
3.1 Validity of Transaction .
TGLN has all requisite power and authority to execute, deliver, and perform this Agreement and to issue and sell to the Stockholders the TGLN Shares. All necessary corporate proceedings of TGLN have been duly taken to authorize the execution, delivery, and performance of this Agreement, and the issuance and sale to the Stockholders of the TGLN Shares. This Agreement has been duly authorized, executed, and delivered by TGLN, is the legal, valid, and binding obligation of TGLN, and is enforceable as to TGLN in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, or other similar laws affecting creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). No consent, authorization, approval, order, license, certificate, or permit of or from, or declaration or filing with, any federal, state, local, or other governmental authority or of any court or other tribunal is required by TGLN for the execution, delivery, or performance of this Agreement by TGLN, except as would not affect the ability of TGLN to perform any of its material obligations under this Agreement. No consent of any party to any contract, agreement, instrument, lease, license, arrangement, or understanding to which TGLN is a party, or by which any of its properties or assets is bound, is required for the execution, delivery, or performance by TGLN of this Agreement, except for such consents as have been obtained at or prior to the date of this Agreement, and except as would not affect the ability of TGLN to perform any of its material obligations under this Agreement. The execution, delivery, and performance of this Agreement by TGLN will not violate, result in a breach of, conflict with, or (with or without the giving of notice or the passage of time or both) entitle any party to terminate or call a default under any contract, agreement, instrument, lease, license, arrangement, or understanding to which TGLN is a party, or violate or result in a breach of any term of the Articles of Incorporation or By-laws of TGLN, or violate, result in a breach of, or conflict with any law, rule, regulation, order, judgment, or decree binding on TGLN or to which any of its operations, business, properties, or assets is subject, except as would not affect the ability of TGLN to perform any of its material obligations under this Agreement. The shares of TGLN Common Stock have been duly authorized and, upon receipt by the Stockholders from TGLN of the stock certificates representing the TGLN Shares being sold pursuant to this Agreement, will be validly issued, fully paid, and nonassessable, will not have been issued in violation of any preemptive right of stockholders or rights of first refusal, and the Stockholders will have good title to the TGLN Shares, free and clear of all liens, security Shares, pledges, charges, encumbrances, stockholders agreements, and voting trusts (other than any created by the Stockholders).
3.2 Finder or Broker .
Neither TGLN nor any person acting on behalf of TGLN has negotiated with any finder, broker, intermediary, or similar person in connection with the transaction contemplated herein.
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