EXHIBIT 2.3
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("the Agreement"), dated as of May 12,
1999 (the "Closing Date") and effective as of January 4, 1999 (the "Effective
Date"), is made by and between 5th Avenue Channel Corp., a Florida corporation
("5th Avenue"), and International Broadcast Consultants of America, Inc., a
Florida corporation ("IBC"), and Xxxx Xxxxxxxxx ("Xxxxxxxxx") and Xxxx Xxxxxxxxx
("Xxxxxxxxx"), the shareholders of IBC.
WITNESSETH:
WHEREAS, IBC is engaged in the business of merchandising a wide variety
of products through television, mass markets, direct purchase, and other
marketing venues, as well as representing manufacturers and their products; and
WHEREAS, 0xx Xxxxxx desires to purchase substantially all of the assets
and business operations of IBC (collectively, the "Assets");
WHEREAS, IBC and its sole shareholders, Xxxxxxxxx and Xxxxxxxxx, desire
to sell the Assets to 0xx Xxxxxx; and
WHEREAS, the parties have negotiated a purchase and sale of the Assets,
upon terms and conditions provided herein.
NOW, THEREFORE, in consideration of the above recitals, the covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PURCHASE OF ASSETS. Subject to the terms and conditions set forth
herein, 5th Avenue shall purchase, and IBC shall sell, the Assets, as listed on
SCHEDULE 1 hereto, in exchange for 300,000 shares of 5th Avenue common stock,
par value $0.001 per share ("5th Avenue Shares"), and $450,000 in cash, to be
paid by 0xx Xxxxxx to IBC as follows:
(a) 300,000 5th Avenue Shares shall be issued by 0xx Xxxxxx to
IBC at Closing, with the stock certificates representing such Shares to be
delivered to IBC within ten (10) business days following the Closing, and
thereafter such 0xx Xxxxxx Shares shall be included in the 0xx Xxxxxx
registration statement on Form SB-2, which is currently on file with the U. S.
Securities and Exchange Commission, File No. 33-41459, but not yet effective, or
in a newly filed registration statement substituting such pending registration
statement; and
(b) $450,000 in cash payable by 0xx Xxxxxx to IBC pursuant to
the terms of a Non-Negotiable Promissory Note (the "Note") dated as of the
Closing Date(a copy of which Note is attached as Exhibit "A" hereto), which Note
shall be guaranteed by Xxxxxx Xxxxx, President and CEO of 0xx Xxxxxx pursuant to
a form of Guaranty attached as Exhibit "B" hereto.
The sale, transfer, conveyance and assignment of the Assets by
IBC to 0xx Xxxxxx shall be effected on the Closing Date by IBC's execution and
delivery to 0xx Xxxxxx of an instrument of transfer in the form attached hereto
as EXHIBIT "C" (the "Xxxx of Sale"). At the Closing, all of the Assets shall be
transferred by IBC to 0xx Xxxxxx free and clear of any and all liens,
encumbrances, mortgages, security interests, pledges, claims, equities and other
restrictions or charges of any kind or nature whatsoever and 0xx Xxxxxx shall be
the sole owner of all right, title and interest in and to the Assets.
Except as otherwise agreed in writing by 0xx Xxxxxx xxx XXX,
0xx Xxxxxx shall not assume or otherwise be responsible at any time for any
liability, obligation, debt or commitment of IBC,
Xxxxxxxxx or Xxxxxxxxx, whether absolute or contingent, accrued or unaccrued,
asserted or unasserted, or otherwise, including but not limited to any
liabilities, obligations, debts or commitments of IBC, Xxxxxxxxx or Xxxxxxxxx
(i) incident to, arising out of or incurred with respect to this Agreement and
the transactions contemplated hereby (including any and all sales, use, income
or other taxes arising out of the transactions contemplated hereby) or (ii)
which otherwise arise or are asserted or incurred by reason of events, acts or
transactions occurring, or the operation of IBC's business prior to, on or after
the Effective Date.
2. REPRESENTATIONS AND WARRANTIES OF 0XX XXXXXX. 0xx Xxxxxx hereby
makes the following representations and warranties to IBC, subject to and except
as otherwise set forth in 5th Avenue's Annual Report on Form 10-KSB for the year
ended December 31, 1997 (the "5th Avenue Form 10-KSB") or in the Schedules
referred to herein and incorporated into this Agreement by this reference:
(a) CORPORATE ORGANIZATION. 5th Avenue is duly organized,
validly existing and in good standing under the laws of the State of Florida and
has full corporate power, authority and legal right to own its properties and to
conduct the businesses in which it is now engaged. 0xx Xxxxxx is duly licensed
or qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or lease of its assets or the
operation of its businesses requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, operations, property or financial or other condition of 0xx Xxxxxx
taken as a whole. All of the capital stock of the subsidiaries of 0xx Xxxxxx is
owned of record and beneficially by 0xx Xxxxxx.
(b) AUTHORITY. 5th Avenue has the corporate power and
authority to execute and deliver this Agreement and to perform all of its
covenants and agreements hereunder. The execution and delivery of this Agreement
by 5th Avenue, the performance by 0xx Xxxxxx of its covenants and agreements
hereunder and the consummation by 0xx Xxxxxx of the transactions contemplated
hereby have been duly authorized by all necessary corporate action.
(c) ENFORCEABILITY. This Agreement has been duly executed and
delivered and constitutes the valid and legally binding obligation of 5th
Avenue, enforceable against 0xx Xxxxxx in accordance with its terms except as
such enforceability may be limited by (i) bankruptcy, insolvency, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by the
principles governing the availability of specific performance, injunctive relief
and other equitable remedies (regardless of whether such enforceability is
considered in equity or at law), including requirements of reasonableness and
good faith in the exercise of rights and remedies thereunder; (ii) applicable
laws and court decisions which may limit or render unenforceable certain terms
and provisions contained therein, but which do not substantially interfere with
the practical realization of the benefits thereof, except for the economic
consequences of any procedural delay which may be imposed by, relate to or
result from such laws and court decisions; and (iii) the limitations on the
enforceability of the securities indemnification provisions set forth herein by
reason of matters of public policy.
(d) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement by 5th Avenue, nor the consummation of the transactions
contemplated hereby, nor the performance by 0xx Xxxxxx of its covenants and
agreements hereunder (i) violates any provision of the Articles of Incorporation
or By-Laws of 0xx Xxxxxx; (ii) violates any existing law, statute, ordinance,
regulation, or any order, judgment or decree of any court or governmental agency
to which 0xx Xxxxxx is a party or by which any of its assets is bound; or (iii)
conflicts with or will result in any breach of any of the terms of or constitute
a default under or result in the termination of or the creation of any lien
pursuant to the terms of any indenture, mortgage, real property lease,
securities purchase agreement, credit or loan agreement or other material
agreement to which 5th Avenue is a party or by which 0xx Xxxxxx or any of its
assets is
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bound, to the extent such violation thereof, conflict therewith, breach thereof,
default thereunder or termination thereof would have a material adverse effect.
(e) CAPITALIZATION. As of the Closing Date, the authorized
capital stock of 0xx Xxxxxx consists of (i) 5,000,000 shares of preferred stock,
$.001 par value per share (the "5th Avenue Preferred Stock"), of which no shares
are issued and outstanding; and (ii) 50,000,000 shares of 5th Avenue common
stock, $.001 par value per share (the "5th Avenue Common Stock"), of which,
currently there are approximately 9,000,000 shares issued and outstanding.
SCHEDULE 2(E) attached hereto sets forth a list of all options, warrants or
other securities exercisable for, convertible into or exchangeable for 0xx
Xxxxxx Preferred Stock or 5th Avenue Common Stock or other subscription,
commitments or agreements for 0xx Xxxxxx to issue 5th Avenue Preferred Stock or
5th Avenue Common Stock.
(f) APPROVALS. Except as may be required under federal and
state securities laws (which have been or, in the case of compliance required on
a post-sale basis, will be complied with), the execution, delivery and
performance of this Agreement by 0xx Xxxxxx does not require (i) the consent,
waiver, approval, license or authorization of or any filing with any person or
any governmental authority; or (ii) the approval or authorization of the
shareholders of 5th Avenue.
(g) LEGAL PROCEEDINGS. Except as set forth on SCHEDULE 2(G),
attached hereto, there are no (i) actions, suits, claims, investigations or
legal, or administrative or arbitration proceedings pending or, to the best
knowledge of 5th Avenue, threatened against or affecting 5th Avenue, whether at
law or in equity, or before or by any governmental authority or (ii) judgments,
decrees, injunctions or orders of any governmental authority or arbitrator
against 0xx Xxxxxx which, in any case, could have a material adverse effect on
5th Avenue's business, operations, property or financial condition.
(h) FINANCIAL STATEMENTS. The audited consolidated financial
statements of 0xx Xxxxxx as of December 31, 1998 included in the 0xx Xxxxxx Form
10-KSB (the "5th Avenue Financial Statements") were prepared in accordance with
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as may have been indicated in the notes thereto or
to the extent footnotes thereto have been omitted) and fairly present (subject
to normal audit adjustments) the financial position of 0xx Xxxxxx at the dates
thereof and the consolidated results of the operations and statement of changes
in financial position for the periods then ended.
(i) ABSENCE OF UNDISCLOSED LIABILITIES. Except as disclosed in
Schedule 2 (i) or in the 0xx Xxxxxx Form 10-KSB or as incurred in the ordinary
course of business subsequent to December 31, 1998, as of the date hereof (i) to
the best of its knowledge, 0xx Xxxxxx has no material liability of any nature
(matured or unmatured, fixed or contingent) that was not provided for or
disclosed therein, and (ii) to the best knowledge of 5th Avenue, all liability
reserves established by 0xx Xxxxxx set forth in the 0xx Xxxxxx Financial
Statements were adequate in all material respects for the purposes indicated
therein.
(j) NO CHANGE. Since December 31, 1998 there has not been (i)
any material adverse change in the condition (financial or otherwise),
operations, results of operations, assets, liabilities, business or prospects of
0xx Xxxxxx taken as a whole; (ii) any material liability or obligation
(contingent or otherwise) incurred by 5th Avenue, other than current liabilities
(or obligations) or capital leases incurred in the ordinary of business; (iii)
any asset or property of 0xx Xxxxxx made subject to a lien of any kind, except
(A) liens for taxes not yet due or which are being contested in good faith and
by appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on 5th Avenue's books in accordance with generally accepted
principles; (B) landlords', carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like liens arising in the ordinary course of
business, provided that payments for the related products or services are not
overdue for a period of more than 60 days or are being contested in good faith
and by appropriate proceedings; (C) pledges or
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deposits in connection with worker's compensation, unemployment insurance and
other social security legislation; (D) deposits to secure the performance of
contracts, bids, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature; (E) easements, rights-of-way,
restrictions and other similar encumbrances incurred in the ordinary course of
business; and (F) liens which, in the aggregate, are not material in amount, and
which do not in any case materially detract from the value of the property
subject thereto or interfere with the ordinary conduct of 5th Avenue's business;
(iv) any waiver of any material valuable right of 5th Avenue, or the
cancellation of any material debt or claim held by 0xx Xxxxxx; (v) any payment
of dividends on, or other distributions with respect to, or any direct or
indirect redemption or acquisition of, any shares of 5th Avenue Common Stock, or
any agreement or commitment therefor; (vi) any mortgage, pledge, sale,
assignment or transfer of any tangible or intangible assets of 5th Avenue,
except, with respect to tangible assets, in the ordinary course of business;
(vii) any loan by 0xx Xxxxxx to any officer, director, employee or shareholder
of 5th Avenue, or any agreement or commitment therefor; (viii) any material
damage, destruction or loss (whether or not covered by insurance) which does or
may adversely affect the condition (financial or otherwise), operations, results
of assets, property, business or prospects of 0xx Xxxxxx; or (ix) any change in
the accounting methods or practices followed by 5th Avenue.
(k) TAXES. Except as indicated in SCHEDULE 2(K) attached
hereto, 0xx Xxxxxx has accurately prepared and timely filed, or has had
accurately prepared and timely filed on its behalf, or has filed appropriate
extensions of time to file, all tax returns which, to its knowledge, are
required to be filed by it, and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any nation or government, any state or other political subdivision thereof, and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
generally accepted accounting principles have been provided on the books); and,
to its knowledge, no tax liens have been filed nor claims being asserted with
respect to any such taxes, fees or other charges
(l) DISCLOSURE. The representations or warranties made by 0xx
Xxxxxx in this Agreement or in any other document or certificate furnished in
connection herewith did not contain at the time made or, if set forth herein, do
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they are made, not misleading in any material
respect. There is no fact known to 0xx Xxxxxx that has a material adverse effect
or, other than general economic conditions in the industry in which 0xx Xxxxxx
operates, that 0xx Xxxxxx reasonably believes will in the future not have a
material adverse effect, which has not been set forth in this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF IBC, XXXXXXXXX AND XXXXXXXXX. IBC,
Xxxxxxxxx and Xxxxxxxxx, jointly and severally, hereby make the following
representations and warranties to 5th Avenue, subject to and except as otherwise
disclosed in the attached schedules:
(a) RECEIPT OF CORPORATE INFORMATION. All requested documents,
records and books pertaining to 0xx Xxxxxx have been delivered to IBC, Xxxxxxxxx
and Xxxxxxxxx, and all of IBC's, Xxxxxxxxx'x and Xxxxxxxxx'x questions and
requests for information as to 0xx Xxxxxx have been answered to their
satisfaction.
(b) RISKS. Each of IBC, Xxxxxxxxx and Xxxxxxxxx acknowledge
and understand that the acquisition of the 0xx Xxxxxx Shares involves a high
degree of risk in that (i) they may not be able to liquidate the investment in
the event of an emergency; (ii) transferability of such shares is extremely
limited; and (iii) in the event of a disposition of such shares, IBC, Xxxxxxxxx
and Xxxxxxxxx could sustain
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a complete loss of their entire investment. IBC, Xxxxxxxxx and Xxxxxxxxx are
each sufficiently experienced in financial and business matters to be capable of
evaluating the merits and risks of an investment in 0xx Xxxxxx; IBC, Xxxxxxxxx
and Xxxxxxxxx have evaluated such merits and risks, including risks particular
to their situations; and IBC, Xxxxxxxxx and Xxxxxxxxx have determined that their
investment in 0xx Xxxxxx is suitable for them.
(c) INVESTMENT INTENT. The 5th Avenue Shares are being
acquired by IBC, Xxxxxxxxx and Xxxxxxxxx for their own account with no present
intention of distributing the 0xx Xxxxxx Shares to others, except, in the case
of IBC, for the expected distribution of such shares to Xxxxxxxxx and Xxxxxxxxx,
as the sole shareholders of IBC, in connection with the expected dissolution and
liquidation of IBC within a reasonably short time after the Closing. Neither
IBC, nor Xxxxxxxxx nor Xxxxxxxxx has any contract, undertaking, agreement or
arrangement with any person to sell, transfer or otherwise distribute to any
person or to have any person sell, transfer or otherwise distribute the 5th
Avenue Shares. Neither IBC, nor Xxxxxxxxx nor Xxxxxxxxx are presently engaged,
nor plan to engage within the presently foreseeable future, in any discussion
with any person regarding such a sale, transfer or other distribution of the 0xx
Xxxxxx Shares or any interest therein.
(d) COMPLIANCE WITH FEDERAL AND STATE SECURITIES LAWS. IBC,
Xxxxxxxxx and Xxxxxxxxx understand that the 0xx Xxxxxx Shares have not been
registered under the Securities Act. IBC, Xxxxxxxxx and Xxxxxxxxx understand
that they may have to hold the 5th Avenue Shares indefinitely unless and until
the sale or other transfer thereof is subsequently registered under the
Securities Act or an exemption from such registration is available. IBC,
Xxxxxxxxx and Xxxxxxxxx understand that their right to transfer the 5th Avenue
Shares will be subject to certain restrictions, which include restrictions
against transfer under the Securities Act and applicable state securities laws.
In addition to such restrictions, IBC, Xxxxxxxxx and Xxxxxxxxx realize that they
may not be able to sell or dispose of the 0xx Xxxxxx Shares as there may be no
public or other market for the 5th Avenue Shares. IBC and its shareholders
understand that certificates evidencing the 5th Avenue Shares shall bear a
legend substantially as follows:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY APPLICABLE STATE LAW. THEY MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR PLEDGED UNLESS REGISTERED UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE LAW OR PURSUANT TO AN
EXEMPTION FROM SUCH REGISTRATION REQUIREMENTS.
(e) CORPORATE ORGANIZATION. IBC: (i) is duly organized,
validly existing and in good standing under the laws of the State of Florida;
(ii) has full corporate power, authority and legal right to own its properties
and to conduct its business in which it is now engaged; (iii) is duly licensed
or qualified to transact business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or lease of its assets or the
operation of its business requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on its business,
operations, properties or financial or other condition taken as a whole; and
(iv) does not have any subsidiaries and does not own any equity interest in any
other business entity. True, correct and complete copies of IBC's Articles of
Incorporation and Bylaws as presently in effect have been delivered by IBC to
0xx Xxxxxx. As of the Closing Date, 100% of the issued and outstanding shares of
IBC's capital stock are held by Xxxxxxxxx and Xxxxxxxxx in equal 50% portions.
(f) CORPORATE RECORD BOOKS. The corporate minute books of IBC,
to the full extent they exist, have been made available to 0xx Xxxxxx. To the
extent such records are not available or in existence, Xxxxxxxxx and Xxxxxxxxx,
constitute the holders of all of the outstanding shares of voting
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stock of IBC under IBC's Articles of Incorporation, Bylaws, as well as under
applicable law, to ratify, adopt and approve same, and have ratified, adopted
and approved the transaction described herein and all prior actions of the
officers, Board of Directors and shareholders of IBC.
(g) AUTHORITY. IBC and each of Xxxxxxxxx and Xxxxxxxxx have
full power and authority to enter into this Agreement and the agreements
contemplated hereby and perform their respective obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and all
other agreements and transactions contemplated hereby have been duly authorized
by the Board of Directors and the shareholders of IBC and no other corporate
proceedings on its part are necessary to authorize this Agreement and the
transactions contemplated hereby.
(h) ENFORCEABILITY. This Agreement and all other agreements
contemplated hereby to be entered into by IBC, Xxxxxxxxx and/or Xxxxxxxxx have
been duly executed and delivered by them and constitute the valid and legally
binding obligations of IBC, Xxxxxxxxx and Xxxxxxxxx, enforceable against each of
them in accordance with their terms except as such enforceability may be limited
by (i) bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by the principles governing the
availability of specific performance, injunctive relief and other equitable
remedies (regardless of whether such enforceability is considered in equity or
at law), including requirements of reasonableness and good faith in the exercise
of rights and remedies thereunder; (ii) applicable laws and court decisions
which may limit or render unenforceable certain terms and provisions contained
therein, but which do not substantially interfere with the practical realization
of the benefits thereof, except for the economic consequences of any procedural
delay which may be imposed by, relate to or result from such laws and court
decisions; and (iii) the limitations on the enforceability of the securities
indemnification provisions set forth herein by reason of matters of public
policy.
(i) NONCONTRAVENTION. Neither the execution and delivery of
this Agreement by IBC, Xxxxxxxxx and Xxxxxxxxx nor the consummation of the
transactions contemplated hereby, nor the performance by IBC, Xxxxxxxxx and
Xxxxxxxxx of their respective covenants and agreements hereunder (i) violates
any provision of the Articles of Incorporation or ByLaws of IBC; (ii) violates
any existing law, statute, ordinance, regulation, or any order, judgment or
decree of any court or governmental agency to which IBC is a party or by which
any of the Assets are bound; or (iii) conflicts with or will result in any
breach of any of the terms of or constitute a default under or result in the
termination of any agreement to which IBC, Xxxxxxxxx and/or Xxxxxxxxx is a party
or the creation of any lien pursuant to the terms of any indenture, mortgage,
real property lease, securities purchase agreement, credit or loan agreement or
other agreement to which IBC, Xxxxxxxxx and Xxxxxxxxx is a party or by which
IBC, Xxxxxxxxx or Xxxxxxxxx or any of the Assets are bound, to the extent such
violation thereof, conflict therewith, breach thereof, default thereunder or
termination thereof would have a "Material Adverse Effect" as hereinafter
defined. "Material Adverse Effect" as used with respect to IBC and the Assets
means any circumstances, state of facts or matters which might reasonably be
expected to have an adverse effect in respect of the Assets or business of IBC
resulting in a 20% or greater reduction in net sales or net worth of IBC or the
value of the Assets.
(j) NO ENCUMBRANCES. IBC, Xxxxxxxxx and Xxxxxxxxx represent
that IBC is the sole owner, legally and beneficially, of the Assets, free and
clear of all liens, pledges, encumbrances and claims of every kind and that upon
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereunder, all legal and beneficial ownership of the
Assets will be validly transferred to and vested in 0xx Xxxxxx free and clear of
all liens, pledges, encumbrances and claims of every kind. As a result, 0xx
Xxxxxx will be the sole owner of the Assets.
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(k) APPROVALS. Except as may be required under federal and
state securities laws (which have been or, in the case of compliance required on
a post-sale basis, will be complied with), the execution, delivery and
performance of this Agreement by IBC, Xxxxxxxxx and Xxxxxxxxx does not require
the consent, waiver, approval, license or authorization of or any filing with
any person or any governmental authority.
(l) FINANCIAL STATEMENTS. SCHEDULE 3(L) hereto is a copy of
IBC's unaudited balance sheet as of March 31, 1999. IBC has no liability,
whether accrued, absolute or contingent, that is not reflected on said balance
sheet. Since the balance sheet date, to the best knowledge of the IBC, Xxxxxxxxx
and Xxxxxxxxx, there has not been any change that would or has had a Material
Adverse Effect.
(m) CONTRACTS. SCHEDULE 3(M) contains a true and complete list
of all agreements related to or involving IBC's business or under which IBC or
any of the Assets are subject or bound in any respect, including, without
limiting the generality of the foregoing, any and all: contracts and agreements
for the purchase, sale or lease of inventory, goods, materials, equipment,
hardware, supplies or other personal property, or for the performance or
furnishing of services; contracts and agreements for the sale or lease of
products or the furnishing of services for which IBC received payment in advance
of delivering such products or furnishings such services and have not yet
delivered such products or furnished such services; joint venture, partnership
or other contracts, agreements or arrangements involving the sharing of profits;
agreements containing any covenant or covenants which purport to limit the
ability or right of IBC, Xxxxxxxxx or Xxxxxxxxx to engage in any aspects of
IBC's business or compete in any aspect of such business with any person or
entity; agreements, contracts or arrangements pursuant to which IBC has
appointed any organization or person to act as its distributor or sales agent or
pursuant to which IBC has been appointed as a distributor or sales agent by any
third party; and licenses, sub-licenses and other contracts and agreements to
which IBC, Xxxxxxxxx or Xxxxxxxxx is a party or otherwise subject relating to
patents, trademarks, trade names or copyrights or applications for any thereof,
inventions, trade secrets or other proprietary know-how or technical assistance.
A complete and accurate copy of each written
contract, agreement and other document or relationship identified on SCHEDULE
3(M) has been delivered or made available to 0xx Xxxxxx or, if oral, a complete
and accurate summary thereof has been delivered to 0xx Xxxxxx. Except as set
forth on SCHEDULE 3(M) hereto, all of the contracts and agreements described on
SCHEDULE 3(M) are valid, binding and enforceable in accordance with their
respective terms, are in full force and effect and were entered into in the
ordinary course of business on an "arms-length" basis. Except as set forth on
SCHEDULE 3(M), IBC is not in breach or default under any of such agreements and,
to the best knowledge of IBC, Xxxxxxxxx and Xxxxxxxxx, no occurrence or
circumstance exists which constitutes (with or without the giving of notice or
the lapse of time or both) a breach or default by the other party thereto.
Neither IBC, Xxxxxxxxx nor Xxxxxxxxx have been notified or advised by any party
to an agreement of such party's intention or desire to terminate or modify any
such contract or agreement.
(n) REAL PROPERTY. IBC does not own and has never owned any
real property. Neither Xxxxxxxxx nor Xxxxxxxxx own or have owned any real
property that has been used in any aspect of IBC's business. SCHEDULE 3(N)
hereto is an accurate, complete, current, and complete list of each lease or
sublease of real property to which IBC is a party or by which IBC may be bound,
and a description of the real property leased thereunder. With respect to each
lease or sublease described on SCHEDULE 3(N) hereto: (i) IBC has been in
peaceful possession of the property leased thereunder and neither IBC nor the
landlord (to the knowledge of IBC) is in default thereunder; (ii) no waiver,
indulgence or postponement of any of the obligations thereunder has been granted
by the lessee or lessor thereunder; and (iii) there exists no event, occurrence,
condition, or act known to IBC which upon notice or lapse of time would be or
become a default thereunder. IBC has not violated or breached any provision of
any such lease or sublease, and
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all obligations required to be performed by IBC under any such lease or sublease
have been fully and properly performed.
(o) LEGAL PROCEEDINGS. Except as identified and described in
SCHEDULE 3(O) attached hereto, there is no claim, action, obligation, liability,
expense, lawsuit, demand, inquiry, investigation, notice of violation, or other
proceeding pending or, to the best knowledge of IBC, Xxxxxxxxx and Xxxxxxxxx
threatened against any IBC, Xxxxxxxxx or Xxxxxxxxx which would prevent IBC,
Xxxxxxxxx or Xxxxxxxxx from entering into or performing their respective
obligations under this Agreement, or which, if adversely determined, would have
a Material Adverse Effect. There is no order, judgment, injunction, or other
ruling by any governmental, regulatory or administrative outstanding against
IBC, Xxxxxxxxx or Xxxxxxxxx having, or which, insofar as can be reasonably
foreseen of any kind, in the future may have, a Material Adverse Effect.
(p) COMPLIANCE WITH LAW AND APPLICABLE GOVERNMENT REGULATIONS.
IBC is presently complying in all material respects of its operations,
practices, real property, plants, structures, and other property, and all other
aspects of IBC's business, with all applicable regulations and orders,
including, but not limited to, all regulations relating to the safe conduct of
business, environmental protection, quality and labeling, antitrust, taxes,
consumer protection, equal opportunity, discrimination, health, sanitation,
fire, zoning, building and occupational safety where such failure or failures
would individually or in the aggregate have a Material Adverse Effect. There are
no claims pending, nor to the best knowledge of IBC, Xxxxxxxxx or Xxxxxxxxx are
there any claims threatened, nor has IBC, Xxxxxxxxx or Xxxxxxxxx received any
written notice, regarding any violations of any regulations and orders enforced
by anyone claiming jurisdiction over IBC, Xxxxxxxxx or Xxxxxxxxx, including any
requirement of Occupational Safety and Health Administration or any pollution
and environmental control agency (including air and water). SCHEDULE 3(P) hereto
sets forth all permits, licenses, orders, franchises and approvals from all
federal, state, local and foreign governmental regulatory bodies held by IBC
relating to the operation of IBC's business.
(q) ABSENCE OF UNDISCLOSED LIABILITIES. Neither IBC nor
Xxxxxxxxx nor Xxxxxxxxx has any material liability of any nature (matured or
unmatured, fixed or contingent) that has not been disclosed in writing to 5th
Avenue.
(r) TAXES. IBC has accurately prepared and timely filed, or
has had accurately prepared and timely filed on its behalf, all tax returns
which, to IBC's, Xxxxxxxxx'x and Xxxxxxxxx'x knowledge, are required to be filed
by IBC, and IBC has paid all taxes shown to be due and payable on said returns
or on any assessments made against it or any of its respective properties and
all other taxes, fees or other charges imposed on it or any of its properties by
any nation or government, any state or other political subdivision thereof, and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
generally accepted accounting principles have been provided on the books); and,
to IBC's, Xxxxxxxxx'x and Xxxxxxxxx'x knowledge, no tax liens have been filed
nor have claims been asserted with respect to any such taxes, fees or other
charges.
(s) DISCLOSURE. To the best of IBC's, Xxxxxxxxx'x and
Xxxxxxxxx'x knowledge, the representations or warranties made by IBC, Xxxxxxxxx
and Xxxxxxxxx in this Agreement or in any other document or certificate
furnished in connection herewith did not contain at the time made or, if set
forth herein, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements herein or therein, in
light of the circumstances under which they are made, not misleading in any
material respect. There is no fact known to IBC, Xxxxxxxxx and Xxxxxxxxx that
has a Material Adverse Effect or, other than general economic conditions in the
industry in which IBC operates,
8
that IBC, Xxxxxxxxx and Xxxxxxxxx reasonably believe will in the future have a
Material Adverse Effect, which has not been set forth in this Agreement.
(t) BROKERAGE. There are no claims for brokerage commissions,
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon IBC, Xxxxxxxxx or Xxxxxxxxx.
4. REGISTRATION OF 5TH AVENUE SHARES. 5th Avenue agrees to amend its
pending registration statement on Form SB-2, File No. 33-41459, or to file a new
registration statement to include the 5th Avenue Shares, and shall diligently
pursue completion of such filing and undertake its best efforts to have such
registration statement declared effective by the Securities and Exchange
Commission (the "SEC") as soon as reasonably practicable.
(a) OBLIGATIONS OF 5TH AVENUE. In connection with the
registration of the 5th Avenue Shares pursuant to this Section 4, 5th Avenue
shall:
(i) Prepare and file any necessary amendments
(including post-effective amendments) and supplements to the registration
statement and the prospectus used in connection with the registration statement
and take such other reasonable action as may be necessary to have the
registration statement declared effective by the SEC and keep the registration
statement effective until the 5th Avenue Shares are capable of full and complete
public sale without registration under the Securities Act and to comply with the
provisions of the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act"), and the rules and regulations thereunder, with respect to the
disposition of the 5th Avenue Shares;
(ii) Notify IBC, Xxxxxxxxx and Xxxxxxxxx, after
becoming aware thereof, (A) when the registration statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective
amendment has been filed and, with respect to the registration statement or any
post-effective amendment, when the same has become effective, or (B) of any
request by the SEC for amendment of or supplement to the registration statement
or related prospectus or for additional information;
(iii) Furnish promptly to IBC, Xxxxxxxxx and
Xxxxxxxxx such reasonable number of copies of a prospectus, and all amendments
and supplements thereto, in conformity with the requirements of the Securities
Act, and such other documents as IBC and its shareholders may reasonably request
in order to facilitate their disposition of the 5th Avenue Shares;
(iv) Use its best efforts to register and qualify the
0xx Xxxxxx Shares under the securities or blue sky laws of such states as shall
be reasonably requested by IBC and its shareholders, and prepare and file in
those states such amendments (including post-effective amendments) and
supplements and to take such other actions as may be necessary to maintain such
registration and qualification in effect at all times during the period 5th
Avenue is required to maintain the registration statement effective, and to take
all other actions necessary or advisable to enable the disposition of such
securities in such states, provided that 0xx Xxxxxx shall not be required in
connection therewith or as a condition thereto to subject itself to taxation, to
qualify to do business or to file a general consent to service of process in any
such states; and
(v) Notify IBC, Xxxxxxxxx and Xxxxxxxxx, at any time
when a prospectus relating to the 0xx Xxxxxx Shares is required to be delivered
under the Securities Act, of the happening of any event as a result of which the
prospectus included in the registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein
9
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. 0xx Xxxxxx shall promptly amend or
supplement the registration statement to correct any such untrue statement or
omission, and provide IBC, Xxxxxxxxx and Xxxxxxxxx with an amended or
supplemented prospectus with respect to the 0xx Xxxxxx Shares that corrects such
untrue statement or omission.
(b) IBC OBLIGATIONS. It shall be a condition precedent to the
obligations of 5th Avenue to IBC, Xxxxxxxxx and Xxxxxxxxx to take any action
pursuant to this Section 4 that IBC, Xxxxxxxxx and Xxxxxxxxx shall furnish to
5th Avenue such information regarding (i) the Assets, (ii) IBC, Xxxxxxxxx and
Xxxxxxxxx, (iii) the 5th Avenue Shares acquired by IBC pursuant to this
Agreement, (iv) other shares of 0xx Xxxxxx common stock held by IBC, Xxxxxxxxx
and Xxxxxxxxx, and the intended method of disposition of such securities as
shall be reasonably required to effect the registration of the 5th Avenue Shares
acquired by IBC, Xxxxxxxxx and Xxxxxxxxx pursuant to this Agreement, and the
intended method of disposition of such shares, and IBC, Xxxxxxxxx and Xxxxxxxxx
shall execute such documents in connection with such registration as 5th Avenue
may reasonably request.
(c) EXPENSES OF REGISTRATION. All expenses incurred by 0xx
Xxxxxx in complying with this section, including, without limitation,
registration and filing fees, fees and expenses of complying with state
securities and blue sky laws, printing expenses, and fees and disbursements of
5th Avenue's counsel and accountants, shall be paid by 5th Avenue.
(d) INDEMNIFICATION RELATING TO REGISTRATION.
(i) 0xx Xxxxxx shall indemnify and hold harmless IBC,
Xxxxxxxxx and Xxxxxxxxx within the meaning of the Securities Act or the Exchange
Act (each a "Seller Indemnified Party" and collectively, the "Seller Indemnified
Parties"), against any losses, claims, damages, expenses or liabilities (joint
or several) to which any of them may become subject under the Securities Act,
the Exchange Act, or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, a "Violation"): (A)
any untrue statement or alleged untrue statement of a material fact contained in
the registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (B) the
omission or alleged omission to state therein information required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading or (C) any violation or
alleged violation by 0xx Xxxxxx of the Securities Act, the Exchange Act, or any
state securities or blue sky law; and 0xx Xxxxxx shall reimburse each Seller
Indemnified Party, promptly as such expenses are incurred, for any legal or
other expenses reasonably incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that the indemnity agreement contained in this
section shall not apply to amounts paid in settlement of any such loss, claim,
damage, expense, liability, action or proceeding if such settlement is effected
without the consent of 5th Avenue, which consent shall not be unreasonably
withheld, nor shall 0xx Xxxxxx be liable in any such case for any such loss,
claim, damage, expense, liability, action or proceeding to the extend that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in the
registration statement by IBC or its shareholders.
(ii) Promptly after receipt by an indemnified party
under this Section 4 of notice of the commencement of any action (including any
governmental action), such Seller Indemnified Party shall, if a claim in respect
thereof is to be made against 0xx Xxxxxx under this section, deliver to 0xx
Xxxxxx a written notice of the commencement thereof and 0xx Xxxxxx shall have
the right to participate in and, to the extent it so desires, to assume control
of the defense thereof with counsel mutually
10
satisfactory to 0xx Xxxxxx and the indemnified parties; provided, however, that
an indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by 5th Avenue, if, in the reasonable opinion of
counsel for the Seller Indemnified Party, representation of such Seller
Indemnified Party by the counsel retained by 0xx Xxxxxx would be inappropriate
due to actual or potential differing interests between such party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to 0xx Xxxxxx within a reasonable time of the commencement of any
such action shall relieve 0xx Xxxxxx of any liability to the Seller Indemnified
Party under this section only to the extent prejudicial to 5th Avenue's ability
to defend such action, but the omission so to deliver written notice to 0xx
Xxxxxx shall not relieve it of any liability that is may have to any Seller
Indemnified Party otherwise than under this section. The indemnification
required by this section shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, promptly as such
expense, loss, damage or liability is incurred.
(iii) To the extent any indemnification by 5th Avenue
is prohibited or limited by law, or is otherwise unavailable to or insufficient
to hold harmless a Seller Indemnified Party, 0xx Xxxxxx agrees to make the
maximum contribution with respect to any amounts for which it would otherwise be
liable under this section, provided that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
5. CLOSING DATE; DELIVERIES BY THE PARTIES. The closing of the sale of
the Assets (the "Closing") shall occur contemporaneously with the execution and
delivery of this Agreement and all other documents and materials to be executed
and delivered as contemplated herein. Such Closing shall include or shall be
promptly followed by the following deliveries:
(a) DOCUMENTS TO BE DELIVERED BY IBC, XXXXXXXXX AND XXXXXXXXX.
IBC, Xxxxxxxxx and Xxxxxxxxx has delivered or caused to be delivered, or
promptly will deliver, to 0xx Xxxxxx the following:
(i) The Xxxx of Sale duly executed by the President
of IBC and conveying all right, title and interest in and to the Assets,
together with all of its manually signed and available copies of its agreements,
bills of sale and receipts for payments for the Assets, documents of title,
registrations and any other papers providing evidence of the ownership of the
Assets by IBC; and
(ii) such other instruments, documents and
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement or that may be reasonably requested in furtherance of the
provisions of this Agreement.
(b) DOCUMENTS TO BE DELIVERED BY 0XX XXXXXX. 0xx Xxxxxx has
delivered or caused to be delivered, or promptly will deliver, to IBC:
(i) a letter to Continental Stock Transfer requesting
the issuance of two stock certificates each in the amount of 150,000 5th Avenue
Shares, representing the 5th Avenue Shares being issued to IBC in connection
with this Agreement;
(ii) the Note in the form attached hereto as EXHIBIT
"A" to evidence the $450,000 deferred payment obligation of 0xx Xxxxxx to IBC
under this Agreement;
(iii) a Guaranty of Xxxxxx Xxxxx, in the form
attached hereto as Exhibit "B", guaranteeing the promissory note of 0xx Xxxxxx;
and
11
(iv) such other instruments, documents and
certificates, if any, as are required to be delivered pursuant to the provisions
of this Agreement, or that may be reasonably requested in furtherance of the
provisions of this Agreement.
6. GENERAL INDEMNIFICATION.
(a) INDEMNIFICATION BY 0XX XXXXXX. 0xx Xxxxxx hereby agrees to
indemnify and holds harmless IBC, Xxxxxxxxx and Xxxxxxxxx in respect of any and
all losses, claims, demands, judgments, expenses, or liabilities, including all
attorneys' fees and court costs in any court or quasi-judicial or administrative
agency of any federal, state, local or foreign jurisdiction or before an
arbitrator ("Adverse Consequence") suffered by IBC, Xxxxxxxxx and Xxxxxxxxx in
connection with each and all of the following:
(i) Any material misrepresentation or material breach
of any representation or warranty made by 0xx Xxxxxx in this Agreement or other
document attached hereto or delivered to IBC by 0xx Xxxxxx in connection with
the transactions contemplated hereby;
(ii) The material breach of any covenant, agreement,
or obligation of 0xx Xxxxxx contained in this Agreement or any other instrument
specifically contemplated by this Agreement; or
(iii) Any misrepresentation contained in any
statement in writing or certificate furnished by 0xx Xxxxxx pursuant to this
Agreement or in connection with the transactions contemplated by this Agreement,
which results in a material adverse effect on 5th Avenue's business, operations
or property.
(b) INDEMNIFICATION BY IBC. IBC, Xxxxxxxxx and Xxxxxxxxx
hereby agree to indemnify and hold harmless 0xx Xxxxxx and its directors,
officers, employees and agents in respect of any and all Adverse Consequences
incurred by 0xx Xxxxxx in connection with each and all of the following:
(i) Any material misrepresentation or material breach
of any representation or warranty made by IBC, Xxxxxxxxx or Xxxxxxxxx in this
Agreement or other document attached hereto or delivered to 0xx Xxxxxx by IBC,
Xxxxxxxxx or Xxxxxxxxx in connection with the transactions contemplated hereby;
(ii) The material breach of any covenant, agreement,
or obligation of IBC, Xxxxxxxxx or Xxxxxxxxx contained in this Agreement or any
other instrument specifically contemplated by this Agreement; or
(iii) Any material misrepresentation contained in any
statement in writing or certificate furnished by IBC, Xxxxxxxxx or Xxxxxxxxx
pursuant to this Agreement or in connection with the transactions contemplated
by this Agreement
(c) PROCEDURE FOR INDEMNIFICATION. Whenever any claim shall
arise for indemnification hereunder, the party seeking indemnification (the
"Indemnitee") shall promptly notify the other party (the "Indemnitor") of the
claim and, when known, the facts constituting the basis for such claim. If any
claim for indemnification hereunder results from or is in connection with any
claim or Adverse Consequence by a person who is not a party to this Agreement
("Third Party Claim"), such
12
notice shall also specify, if known, the amount or an estimate of the amount of
the liability arising therefrom. The Indemnitee shall give the Indemnitor prompt
notice of any such claim and the Indemnitor shall undertake the defense thereof
by representatives of its own choosing, reasonably satisfactory to the
Indemnitee, at the expense of the Indemnitor. The Indemnitee shall have the
right to participate in any such defense of a Third Party Claim with advisory
counsel of its own choosing, at its own expense. If the Indemnitor, within a
reasonable time after notice of any such Third Party Claim, fails to defend, the
Indemnitee or any affiliate of the Indemnitee shall have the right to undertake
the defense, compromise or settlement of such Third Party Claim on behalf of,
and for the account of, the Indemnitor, at the expense and risk of the
Indemnitor. The Indemnitor shall not, without the Indemnitee's written consent,
settle or compromise any such Third Party Claim or consent to entry of any
judgment that does not include, as an unconditional term thereof, the giving by
the claimant or the plaintiff to the Indemnitee and the Indemnitee's directors,
officers, employees and agents, an unconditional release from all liability in
respect of such Third Party Claim. The Indemnitee shall not pay any claim
covered by this right to indemnification prior to giving the Indemnitor the
notice of such claim required by this Section 6 and the opportunity provided
herein to handle the claim itself.
(d) PAYMENT. All indemnification hereunder shall be effected
upon demand by payment of cash or delivery of a cashier's check in the amount of
the indemnification liability.
7. NOTICES. All notices, reports and other communications hereunder to
0xx Xxxxxx or to IBC, Xxxxxxxxx and Xxxxxxxxx shall be in writing, shall refer
specifically to this Agreement and shall be hand delivered or sent by facsimile
transmission or by registered mail or certified mail, overnight courier, return
receipt requested, postage prepaid, in each case to the respective persons and
addresses specified below (or to such other persons or addresses as may be
specified in writing to the other party):
If to 5th Avenue, to: 5th Avenue Channel Corp.
Attn: Xxxxxx Xxxxx, President
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
If to IBC or its shareholders, to: International Broadcast Consultants of
America, Inc.
Attn: Xxxx Xxxxxxxxx and Xxxx Xxxxxxxxx
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
Any notice or communication given in conformity with this
section shall be deemed to be effective when received by the addressee if
delivered by hand or overnight courier or by facsimile (with confirmed receipt),
and three days after mailing, if mailed.
8. NO IMPLIED WAIVERS; RIGHTS CUMULATIVE. No failure on the part of any
of the parties to this Agreement to exercise and no delay in exercising any
right, power, remedy or privilege under this Agreement or provided by statute or
at law or in equity or otherwise, including, without limitation, the right or
power to terminate this Agreement, shall impair, prejudice or constitute a
waiver of any such right, power, remedy or privilege or be construed as a waiver
of any breach of this Agreement or as an acquiescence therein, nor shall any
single or partial exercise of any such right, power, remedy or privilege
preclude any other or further exercise thereof or the exercise of any other
right, power, remedy or privilege.
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9. PAYMENT OF LIABILITIES; DISCHARGE OF LIENS.
(a) IBC, Xxxxxxxxx and Xxxxxxxxx shall satisfy and discharge
as the same shall become due, all of their respective liabilities, obligations,
debts and commitments including but not limited to tax liabilities of IBC,
Xxxxxxxxx and Xxxxxxxxx, except for liabilities for taxes being disputed by IBC,
Xxxxxxxxx and Xxxxxxxxx in good faith, which shall be satisfied and discharged
upon resolution of any such dispute.
(b) If following the Closing Date any other liens,
encumbrances, mortgages, security interests, pledges, claims, or other
restrictions or charges whatsoever arising out of acts of omissions of IBC,
Xxxxxxxxx and Xxxxxxxxx shall exist or be levied upon 0xx Xxxxxx or the Assets,
then IBC, Xxxxxxxxx and Xxxxxxxxx shall promptly notify 0xx Xxxxxx and shall, at
their own cost and expense, promptly take such action as may be necessary to
discharge the same by bond or otherwise. If IBC, Xxxxxxxxx or Xxxxxxxxx shall
fail to discharge any such lien, encumbrance, mortgage, security interest,
pledge claim, or other restriction or charge, 0xx Xxxxxx may do so, in which
event IBC, Xxxxxxxxx and/or Xxxxxxxxx shall pay to 0xx Xxxxxx on demand the
amount paid by 0xx Xxxxxx together with 5th Avenue's losses, and reasonable
costs and expenses, including reasonable attorneys' fees and expenses.
10. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time,
each party shall execute such additional instruments and take such action as may
be reasonably requested by any other party to confirm or perfect title to any
property transferred hereunder or otherwise to carry out the intent and purposes
of this Agreement.
(b) COSTS AND EXPENSES. 0xx Xxxxxx hereby agrees to pay all of
its own costs and expenses incurred in negotiating this Agreement and
consummating the transactions described herein. Further, 0xx Xxxxxx agrees to
pay all of the reasonable out of pocket costs and expenses of IBC and its
shareholders in negotiating this Agreement and consummating the transactions
described herein, including, without limitation, the reasonable fees and
expenses of legal counsel for IBC and its shareholders and any costs incurred by
such legal counsel for appraisals of the Assets.
(c) ENTIRE AGREEMENT. This Agreement, including all schedules
and exhibits thereto, constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof. It supersedes all prior
negotiations, letters and understandings relating to the subject matter hereof.
(d) AMENDMENT. This Agreement may not be amended, supplemented
or modified in whole or in part except by an instrument in writing signed by all
parties hereto.
(e) ASSIGNMENT. This Agreement may not be assigned by any
party hereto without the prior written consent of the other party.
(f) CHOICE OF LAW. This Agreement shall be interpreted,
construed and enforced in accordance with the laws of the State of Florida,
without giving effect to the application of the principles pertaining to
conflicts of laws.
(g) HEADINGS. The section and subsection headings in this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
14
(h) PRONOUNS. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
context may require.
(i) CONSTRUCTION. The parties hereto and their respective
legal counsel participated in the preparation of this Agreement; therefore, this
Agreement shall be construed neither against nor in favor of any of the parties
hereto, but rather in accordance with the fair meaning thereof.
(j) SURVIVAL. The representations, warranties, and
indemnification obligations of the parties hereunder and in any instrument or
other document delivered pursuant hereto shall survive the consummation of the
transactions contemplated by this Agreement.
(k) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision or provisions of this Agreement will not
affect any other provision of this Agreement, which will remain in full force
and effect, nor will the invalidity, illegality or unenforceability of a portion
of any provision of this Agreement affect the balance of such provision. In the
event that any one or more of the provisions contained in this Agreement or any
portion thereof shall for any reason be held to be invalid, illegal or
unenforceable in any respect, this Agreement shall be reformed, construed and
enforced as if such invalid, illegal or unenforceable provision had never been
contained herein.
(l) ENFORCEMENT. Should it become necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party shall be awarded reasonable attorneys' fees, expenses and
costs, at all trial and appellate levels. Any suit, action or proceeding with
respect to this Agreement shall be brought in the courts of Miami-Dade County in
the State of Florida or in the U.S. District Court for the Southern District of
Florida. The parties hereto hereby accept the exclusive jurisdiction of those
courts for the purpose of any such suit, action or proceeding.
(m) JURISDICTION; VENUE. The parties hereto submit to personal
jurisdiction in the courts located in Miami-Dade County. Venue for any such
action, in addition to any other venue permitted by statute, shall be Miami-Dade
County, Florida. The parties hereto hereby irrevocably waive, to the fullest
extent permitted by law, any objection that any of them may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any judgment entered by any court in respect
thereof brought in Miami-Dade County, Florida, and hereby further irrevocably
waive any claim that any suit, action or proceeding brought in Miami-Dade
County, Florida, has been brought in an inconvenient forum.
(n) REMEDIES. The parties hereto acknowledge and agree that
any party's remedy at law for a breach or threatened breach of any of the
provisions of this Agreement would be inadequate and such breach or threatened
breach shall be per se deemed as causing irreparable harm to such party.
Therefore, in the event of such breach or threatened breach, the parties hereto
agree that, in addition to any available remedy at law, including but not
limited to monetary damages, an aggrieved party, without posting any bond, shall
be entitled to obtain, and the offending party agrees not to oppose the
aggrieved party's request for, equitable relief in the form of (i) specific
enforcement, (ii) a temporary restraining order, (iii) a temporary or permanent
injunction, or (iv) any other equitable remedy that may then be available to the
aggrieved party.
(o) BINDING NATURE AND INUREMENT. This Agreement shall be
binding upon and shall inure to the benefit of any successors, assigns, heirs,
executors, administrators, and personal representatives of the parties hereto.
15
(p) NO THIRD-PARTY BENEFICIARIES. No person shall be deemed to
possess any third-party beneficiary right pursuant to this Agreement. It is the
intent of the parties hereto that no direct benefit to any third party is
intended or implied by the execution of this Agreement.
(q) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, individually or through their
duly authorized officers, as the case may be, have executed this Agreement as of
the date first written above.
"5TH AVENUE"
5TH AVENUE CHANNEL CORP., a Florida corporation
By: /s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx, President
"IBC"
INTERNATIONAL BROADCAST CONSULTANTS OF AMERICA,
Inc., a Florida corporation
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx, President
By: /s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx, Vice President
"XXXXXXXXX"
/s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx, Individually
"XXXXXXXXX"
/s/ Xxxx Xxxxxxxxx
------------------------------------------
Xxxx Xxxxxxxxx, Individually
16
