DEPARTMENT OF REVENUE, MOJAVE COUNTY, AND THE CITY OF PHOENIX, AS APPLICABLE,
WITH RESPECT TO ALT, VERIFYING THE TIMELY FILING OF AND REQUIRED TRANSACTION
PRIVILEGE, SALES, AND/OR USE TAX, INCOME TAX AND UNEMPLOYMENT AND WITHHOLDING
TAX RETURNS BY ALT, AND PAYMENT BY ALT OF ALL AMOUNTS DUE.
4.12.
CAPITALIZATION OF APOLLO LNG.
APOLLO LNG SHALL BE CAPITALIZED BY
NEPTUNE, GOLDEN SPREAD AND APOLLO IMMEDIATELY FOLLOWING THE EXECUTION AND
DELIVERY BY THE PARTIES OF THIS AGREEMENT, AND THE CLOSING OF THE TRANSACTIONS
CONTEMPLATED HEREBY, IN A TRANSACTION UNDER SECTION 351 OF THE INTERNAL REVENUE
CODE, PURSUANT TO WHICH (I) NEPTUNE AND GOLDEN SPREAD SHALL TRANSFER THE UNITS
TO APOLLO LNG, AND APOLLO SHALL CONTRIBUTE CASH TO APOLLO LNG, AND APOLLO LNG
SHALL CONTEMPORANEOUSLY ISSUE 81% OF THE APOLLO LNG STOCK TO SELLER, 19% OF THE
APOLLO LNG STOCK TO KEN KELLEY, AND ALL OF THE COMMON STOCK OF APOLLO LNG TO
APOLLO; AND (II) THEREFORE, IMMEDIATELY FOLLOWING SUCH TRANSACTIONS, SELLER WILL
POSSESS 81% OF THE OWNERSHIP AND CONTROL OF THE APOLLO LNG STOCK, AND APOLLO
WILL POSSESS 100% OF THE OWNERSHIP AND CONTROL OF THE COMMON STOCK OF APOLLO
LNG.
PRIOR TO SUCH CAPITALIZATION APOLLO LNG SHALL HAVE HAD NO SHAREHOLDERS OR
EMPLOYEES, SHALL HAVE CONDUCTED NO BUSINESS ACTIVITIES, AND SHALL HAVE HAD NO
ASSETS, PROPERTIES OR LIABILITIES OF ANY NATURE WHATSOEVER (WHETHER DUE OR TO
BECOME DUE, ACCRUED, CONTINGENT, ABSOLUTE OR OTHERWISE).
5.
CONDITIONS PRECEDENT TO THE PARTIES' OBLIGATIONS TO CLOSE
5.1.
CONTINGENCIES OF APOLLO.
APOLLO LNG'S OBLIGATION TO ACQUIRE THE
UNITS AND APOLLO LNG'S AND APOLLO'S OBLIGATION TO TAKE THE OTHER ACTIONS
REQUIRED TO BE TAKEN BY APOLLO LNG AND BY APOLLO AT THE CLOSING IS SUBJECT TO
THE SATISFACTION, AT OR PRIOR TO THE CLOSING, OF EACH OF THE FOLLOWING
CONDITIONS (ANY OF WHICH MAY BE WAIVED BY APOLLO LNG OR BY APOLLO, IN WHOLE OR
IN PART, IN WRITING).
(A)
REPRESENTATIONS AND WARRANTIES; AGREEMENTS; COVENANTS.
EACH OF
THE REPRESENTATIONS AND WARRANTIES OF SELLER SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON THE DATE MADE AND SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE CLOSING. EACH OF THE
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OBLIGATIONS OF SELLER REQUIRED BY THIS AGREEMENT TO BE PERFORMED BY IT AT OR
PRIOR TO THE CLOSING SHALL HAVE BEEN DULY PERFORMED AND COMPLIED WITH IN ALL
MATERIAL RESPECTS AS OF THE CLOSING. AT THE CLOSING, APOLLO LNG SHALL RECEIVE A
CERTIFICATE, DATED THE CLOSING DATE AND DULY EXECUTED BY SELLER TO THE EFFECT
THAT THE CONDITIONS SET FORTH IN THIS SECTION 5.1(A) HAVE BEEN SATISFIED EXCEPT
AS SPECIFIED IN SUCH CERTIFICATE.
(B)
AUTHORIZATIONS; CONSENTS.
ALL CORPORATE AND LIMITED LIABILITY
COMPANY ACTION NECESSARY TO AUTHORIZE THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY
SHALL HAVE BEEN DULY AND VALIDLY TAKEN BY SELLER AND BY ALT, AND ALL NOTICES TO,
AND DECLARATIONS, FILINGS AND REGISTRATIONS WITH, AND CONSENTS, AUTHORIZATIONS,
APPROVALS AND WAIVERS FROM, GOVERNMENTAL AUTHORITIES AND THIRD PERSONS REQUIRED
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED