Exhibit 2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is entered into as of July 25, 2006 by and among
T. K. BALAJI, K. XXXXXXX XXXXX and T. K. SHIVAJI XXX (collectively, the
"Principals"); SECURENEXT SOFTWARES PRIVATE LIMITED, an Indian corporation (the
"Seller"); 110 MEDIA GROUP, INC., a Delaware corporation (the "Parent"); and
BYINDIA, INC., a Florida corporation (the "Purchaser"),
RECITALS:
WHEREAS, the Principals constitute all of the shareholders, directors and
officers of the Seller; and
WHEREAS, the Seller desires to sell the Intellectual Property (as such
term is hereinafter defined) to the Purchaser, and the Purchaser desires to
purchase the Intellectual Property, on the terms and conditions set forth in
this Purchase Agreement (the "Agreement");
NOW THEREFORE, in consideration of the Recitals and the respective
representations, warranties, covenants, agreements and indemnities of the
parties set forth herein, each of the parties agrees as follows:
ARTICLE I
Sale and Purchase
1.1 Intellectual Property. The term "Intellectual Property" means all
intellectual property in which the Seller has a proprietary interest of any kind
or nature whatsoever relating in any manner to the product known as "ByIndia,"
whether developed or existing on the date of this Agreement or created or
developed subsequent to the date of this Agreement. Without limiting the
generality of the immediately preceding sentence, the term "Intellectual
Property" includes, with respect to the product known as "ByIndia," (i) all
computer software and subsequent versions thereof, including source code,
object, executable or binary code, objects, comments, screens, user interfaces,
report formats, modules, templates, menus, buttons and icons and all files,
data, materials, manuals, design notes and other items and documentation related
in any manner thereto or associated in any manner therewith, (ii) all know-how,
trade secrets, confidential or proprietary information, technical information,
data, process technology, plans, drawings, blue prints, procedures, techniques,
marketing plans, business plans, methods of management and operation and all
other information, (iii) all patents, patent applications and inventions and
discoveries that may be patentable, (iv) all registered and unregistered
copyrights in both published works and unpublished works relating thereto and
(v) all modifications, improvements and enhancements of all of the foregoing.
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1.2 Sale and Purchase. For and in consideration of the Purchase Price (as
such term is hereinafter defined), the Seller hereby sells, transfers, assigns
and conveys to the Purchaser, free and clear of all liens, pledges,
encumbrances, charges, restrictions or claims of any kind, nature, or
description whatsoever, all of the Intellectual Property.
1.3 Purchase Price. The purchase price for the Intellectual Property (the
"Purchaser Price") shall be (a) Eighty Thousand United States Dollars
(US$80,000.00) and (b) Two Hundred Fifty Thousand (250,000) shares of common
stock, par value $.001 per share, of the Parent (collectively, the "Shares").
1.4 Payment of Purchase Price. The Purchase Price shall be payable by the
Purchaser to the Seller as follows:
(a) Forty United States Thousand Dollars (US$40,000.00) and One
Hundred Thousand (100,000) of the Shares shall be delivered by the Purchaser to
the Seller upon (i) the delivery and satisfactory installation of the software
(other than the software currently under development) comprising a portion of
the Intellectual Property on the Purchaser's server located in the State of
Florida of the United States of America and (ii) the delivery of all other items
of Intellectual Property by the Seller to the Purchaser; and
(b) Forty Thousand United States Dollars (US$40,000.00) and One
Hundred Fifty Thousand (150,000) of the Shares shall be delivered by the
Purchaser to the Seller upon (i) the delivery and satisfactory installation of
the software currently under development comprising a portion of the
Intellectual Property on the Purchaser's server located in the State of Florida
of the United States of America and (ii) the delivery of all items of
Intellectual Property relating to such software currently under development by
the Seller to the Purchaser.
ARTICLE II
Certain Representations and Warranties of the Principals and the Seller
In order to induce the Parent and the Purchaser to execute and deliver
this Agreement, and to perform their respective obligations hereunder, each of
the Principals and the Seller, jointly and severally, represents and warrants to
each of the Parent and the Purchaser as follows:
2.1 Organization. The Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the Republic of India and has
the power and is duly authorized, qualified, franchised, and licensed under all
applicable laws, regulations, ordinances, and orders of public authorities to
own all of its properties and assets and to carry on its business as it is now
being conducted. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the Seller's charter documents.
2.2 Authority and Validity. Each of the Principals and the Seller has full
power and authority to execute and deliver this Agreement and to perform his or
its respective obligations hereunder; the execution and delivery by the Seller
of this Agreement and the performance by the Seller of its obligations hereunder
have been authorized by all necessary corporate action of the Seller; this
Agreement has been duly and validly executed and delivered by each of the
Principals and the Seller and constitutes the legal, valid and binding
obligation of each of the Principals and the Seller; and this Agreement is
enforceable against each of the Principals and the Seller in accordance with its
terms.
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2.3 No Governmental Authorizations Required. No authorization, approval,
consent, or order of, or registration, declaration, or filing with, any court or
governmental body is required in connection with the execution and delivery by
the Seller of this Agreement and the consummation by the Seller of the
transactions contemplated hereby, including without limitation the sale and
transfer of the Intellectual Property to the Purchaser.
2.4 Ownership of Seller. All of the shares of the Seller or other equity
interests in the Seller are legally and beneficially owned solely by the
Principals.
2.5 Title to Intellectual Property.
(a) The Seller has good, valid and marketable title to all of the
Intellectual Property, free and clear of all liens, pledges, encumbrances,
charges, restrictions or claims of any kind, nature, or description whatsoever.
(b) No third party has any right to, and the Seller has not received
any notice of infringement of or conflict with asserted rights of any other
party with respect to, any of the Intellectual Property. The Seller has no
knowledge of any possible or unasserted claim with respect to the Intellectual
Property.
(c) The Seller has not sold, assigned, transferred, conveyed or
licensed any rights in the Intellectual Property to any third party.
(d) The Seller owns no other intellectual property, whether
completed or in development, of a similar nature, or with a similar commercial
purpose, to the Intellectual Property.
2.6 Compliance with Laws. To the best of its knowledge, the Seller is not
in material violation of any federal, state, or local statute, law, rule and/or
regulation.
2.7 Litigation and Proceedings. There are no actions, suits, proceedings,
or investigations pending or, to the knowledge of the Seller after reasonable
investigation, threatened by or against the Seller or affecting the Seller or
its properties and assets (including without limitation the Intellectual
Property), at law or in equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind. The
Seller does not have any knowledge of any material default on its part with
respect to any judgment, order, injunction, decree, award, rule, or regulation
of any court, arbitrator, or governmental agency or instrumentality.
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ARTICLE III
Certain Representations, Warranties, Covenants and Agreements
of the Principals and the Seller Relating to Securities Laws Matters
In order to induce the Parent to execute and deliver this Agreement, and
to perform its obligations hereunder, each of the Principals and the Seller,
jointly and severally, represents and warrants to the Parent, and covenants and
agrees with the Parent, as follows:
3.1 Exemption from Registration. The Seller acknowledges that the offer,
issuance and sale to him of the Shares is intended to be exempt from the
registration requirements of the Securities Act of 1933, as amended (the "Act"),
in reliance on one or more exemptions therefrom.
3.2 Residence and Domicile. Each of the Principals is a citizen of the
Republic of India. Each of the Principals and the Seller is a resident and
domiciliary of the City of Chennai, State of Tamil Nadu, of the Republic of
India.
3.3 Information. The Seller, by and through the Principals, has had the
opportunity to review the information regarding the Parent available at
xxx.xxx.xxx. The Seller, by and through the Principals, has had the opportunity
to ask questions of, and to receive answers from, officers and employees of the
Parent and the Purchaser concerning the Parent and its business, affairs and
operations, the Purchaser and its business, operations and affairs, and the
transactions contemplated by this Agreement, and to obtain any additional
information desired by it. The Seller acknowledges that the officers and
employees of the Parent and the Purchaser have answered all inquiries made on
its behalf to the satisfaction of the Principals.
3.4 Evaluation of Information. The Seller, by virtue of the education,
training and experience of the Principals, has such knowledge and experience in
financial and business matters that it is capable of understanding the
information regarding the Parent available at xxx.xxx.xxx and otherwise provided
to it by the Parent and the Purchaser, and of evaluating the merits and risks of
its investment in the Shares to be issued pursuant to this Agreement.
3.5 Investment. The Shares are being acquired solely for the account of
the Seller, for investment, and not with a view to, or for resale in connection
with, any "distribution" within the meaning of the Act. By such representation,
the Seller means that no other person has a beneficial interest in the Shares,
and that no other person has furnished or will furnish, directly or indirectly,
any part of or guarantee the payment of any part of the consideration paid to
the Parent in connection therewith. The Seller does not intend to distribute all
or any part of the Shares and understands that the Shares are being offered
pursuant to a specific exemption or exemptions under the provisions of the Act,
which exemption(s) depends, among other things, upon the investment intent of
the Seller. The Seller realizes that, in the view of the Securities and Exchange
Commission, a purchase now with an intent to resell by reason of any foreseeable
specific contingency or an anticipated change in market value or in the
condition of the Parent or of its property, or in connection with a contemplated
liquidation or settlement of any loan obtained by the Seller for the acquisition
of such security would represent a purchase with an intent inconsistent with the
foregoing representation and warranty by the Seller, and that such a sale or
disposition might be regarded as a deferred sale as to which the exemption is
not available.
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3.6 No Registration. The Seller understands and acknowledges that the
Parent has not registered, and has no obligation or present intention to
register, under the Act or any applicable securities laws of any jurisdiction,
the sale or transfer of the Shares. The Seller further acknowledges that no
representations to the contrary have been made by any person on behalf of the
Parent in connection with the acquisition of the Shares.
3.7 Restricted Securities. The Seller acknowledges and agrees that the
Shares may not be sold, assigned, transferred, conveyed, pledged or otherwise
disposed of unless they are registered under the Act or an exemption from such
registration is available. The Seller acknowledges and agrees that the Shares
constitute "restricted securities," as such term is defined in Rule 144
promulgated by the Securities and Exchange Commission under the Act, and, unless
sooner registered for sale under the Act, may not be sold or transferred for a
period of one year from and after the date of this Agreement. Stop transfer
instructions will be placed by the Parent against the Shares and the Parent
shall not permit the transfer or other disposition of the Shares, unless and
until such transfer or other disposition complies with all applicable laws,
rules and regulations. The Seller shall not engage in any hedging transaction
with regard to the Shares.
3.8 Restrictive Legend. The Seller acknowledges that any and all
certificates representing the Shares will bear a restrictive legend in
substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
ASSIGNED, TRANSFERRED, CONVEYED, PLEDGED, HYPOTHECATED, ENCUMBERED OR
OTHERWISE DISPOSED OF UNLESS (A) THEY ARE COVERED BY A REGISTRATION
STATEMENT OR POST-EFFECTIVE AMENDMENT THERETO, EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) SUCH SALE, ASSIGNMENT,
TRANSFER, CONVEYANCE, PLEDGE, HYPOTHECATION, ENCUMBRANCE OR OTHER
DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT AND ANY
OTHER APPLICABLE SECURITIES LAWS.
ARTICLE IV
Certain Representations and Warranties of the Parent
In order to induce the Principals and the Seller to execute and deliver
this Agreement, and to perform their respective obligations hereunder, the
Parent represents and warrants to the Principals and the Seller as follows:
4.1 Organization. The Parent is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware of the
United States of America and has the corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the Parent's certificate of incorporation or bylaws.
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4.2 Authority and Validity. The Parent has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; the
execution and delivery by the Parent of this Agreement and the performance by
the Parent of its obligations hereunder have been authorized by all necessary
corporate action of the Parent; this Agreement has been duly and validly
executed and delivered by the Parent and constitutes the legal, valid and
binding obligation of the Parent; and this Agreement is enforceable against the
Parent in accordance with its terms.
4.3 Capitalization. The authorized capital stock of the Parent consists of
Ten Million (10,000,000) shares of preferred stock, par value $.001 per share,
of which, as of June 30, 2006, Three Hundred Thirty-Five Thousand Two Hundred
Sixty-Eight (335,268) shares were issued and outstanding, and One Hundred
Million (100,000,000) shares of common stock, par value $.001 per share, of
which, as of June 30, 2006, Seventeen Million Three Hundred Seventy-Seven
Thousand Sixty (17,377,060) shares were issued and outstanding. All such
outstanding shares are fully paid and non-assessable.
4.4 SEC Reports. The Parent has filed all reports required to be filed by
it with the United States Securities and Exchange Commission. Such reports may
be accessed at xxx.xxx.xxx.
4.5 Compliance with Laws. To the best of its knowledge, the Parent is not
in material violation of any federal, state, or local statute, law, rule and/or
regulation.
4.6 Litigation and Proceedings. There are no actions, suits, proceedings,
or investigations pending or, to the knowledge of the Parent after reasonable
investigation, threatened by or against the Parent or affecting the Parent or
its properties and assets, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. The Parent does not have any knowledge of any material
default on its part with respect to any judgment, order, injunction, decree,
award, rule, or regulation of any court, arbitrator, or governmental agency or
instrumentality.
4.7 Title to Shares. The Shares to be issued by the Parent pursuant to
this Agreement are free and clear of all liens, security interests, pledges,
charges, claims, encumbrances and restrictions of any kind. None of such Shares
is subject to any voting trust or agreement. No person holds or has the right to
receive any proxy or similar instrument with respect to such Shares.
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ARTICLE V
Certain Representations and Warranties of the Purchaser
In order to induce the Principals and the Seller to execute and deliver
this Agreement, and to perform their respective obligations hereunder, the
Purchaser represents and warrants to the Principals and the Seller as follows:
5.1 Organization. The Purchaser is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Florida of the
United States of America and has the corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business in all material respects as it is now being
conducted. The execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of the Purchaser's certificate of incorporation or bylaws.
5.2 Authority and Validity. The Purchaser has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder; the
execution and delivery by the Purchaser of this Agreement and the performance by
the Purchaser of its obligations hereunder have been authorized by all necessary
corporate action of the Purchaser; this Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes the legal, valid and
binding obligation of the Purchaser; and this Agreement is enforceable against
the Purchaser in accordance with its terms.
5.3 Wholly-Owned Subsidiary. All of the issued and outstanding shares of
common stock of the Purchaser are legally and beneficially owned by the Parent.
5.4 Compliance with Laws. To the best of its knowledge, the Purchaser is
not in material violation of any federal, state, or local statute, law, rule
and/or regulation.
5.5 Litigation and Proceedings. There are no actions, suits, proceedings,
or investigations pending or, to the knowledge of the Purchaser after reasonable
investigation, threatened by or against the Purchaser or affecting the Purchaser
or its properties and assets, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or before any
arbitrator of any kind. The Purchaser does not have any knowledge of any
material default on its part with respect to any judgment, order, injunction,
decree, award, rule, or regulation of any court, arbitrator, or governmental
agency or instrumentality.
ARTICLE VI
Certain Restrictions on the Principals and the Seller
6.1 Certain Restrictive Covenants. Each of the Principals and the Seller
covenants and agrees with the Parent and the Purchaser as follows:
(a) He or it shall not at any time, directly or indirectly, for
himself or itself or for any other individual, person, sole proprietorship,
company, corporation, partnership, joint venture, trust, association or other
entity, or any combination of the foregoing (collectively, "Persons" and,
individually, a "Person") approach, counsel, solicit, induce or attempt to
approach, counsel, solicit or induce any Person employed or engaged by the
Parent or the Purchaser, whether such Person is a full-time employee, part-time
employee or independent contractor, to terminate his, her or its employment or
independent contractor relationship with the Parent or the Purchaser.
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(b) He or it shall not at any time, directly or indirectly, for
himself or itself or for any other Person employ, attempt to employ or enter
into any contractual arrangement for employment with, engage, attempt to engage
or enter into any contractual arrangement for the engagement of, any employee or
former employee or independent contractor or contractor of the the Parent or the
Purchaser, unless such former employee or independent contractor shall not have
been employed or engaged by the Parent or the Purchaser for a period of at least
one year.
(c) He or it shall not, for a period of seven years from and after
the date of this Agreement, directly or indirectly, for himself or itself or for
any other Person:
(i) acquire or own in any manner any interest in, or loan any
amount to, any Person which competes in any manner with the Parent or the
Purchaser in the United States of America, its territories and possessions, and
the District of Columbia or in the Republic of India (collectively, the
"Territory"); or
(ii) be employed by or serve as an employee, agent, officer,
or director of, or as a consultant to, or as an independent contractor or
salesperson for, any Person which competes in any manner with the Parent or the
Purchaser in the Territory.
The foregoing provisions of this Section 6.1(c) shall not prevent the Principals
or the Seller from acquiring and owning not more than one percent of the equity
securities of any Person whose securities are listed for trading on a national
securities exchange or are regularly traded in the over-the-counter securities
market.
6.2 Independent Agreements. The restrictive covenants set forth in Section
6.1 above (collectively, the "Restrictive Covenants") shall be construed as
agreements independent of any other provision contained in this Agreement, and
the existence of any claim or cause of action, whether predicated upon this
Agreement or otherwise, against the Parent or the Purchaser shall not constitute
a defense to the enforcement by the Parent or the Purchaser of any of the
Restrictive Covenants. Each of the Principals and the Seller acknowledges that
the Parent and the Purchaser has fully performed all obligations entitling it to
the benefits of the Restrictive Covenants, and that the Restrictive Covenants,
therefore, are not executory or otherwise subject to rejection under the
Bankruptcy Code of 1978.
6.3 Reasonable Restraint. Each of the parties acknowledges that each of
the Restrictive Covenants is a reasonable and necessary restraint of trade and
does not violate any applicable laws, rules or regulations, including without
limitation the Xxxxxxx Antitrust Act, the Florida Antitrust Act or the common
law. Each of the parties acknowledges that the Parent and the Purchaser conducts
or will conduct its business activities throughout the Territory. Each of the
parties acknowledges that each of the Restrictive Covenants is supported by
valid and legitimate business interests, including without limitation the need
to protect the Confidential Information and Trade Secrets of the Parent and the
Purchaser (as such terms are hereinafter defined), and the need to protect the
substantial relationships of the Parent and the Purchaser with its employees and
independent contractors, current and prospective customers, and current and
prospective vendors, and that the period of restriction set forth in Section
6.1(c) above is essential to the full protection of each of such valid and
legitimate business interests.
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6.4 Severability. Each of the parties agrees that each of the Restrictive
Covenants is reasonable and proper with respect to duration, geographical scope,
and lines of business. If all or any portion of any of the Restrictive Covenants
is held by a court of competent jurisdiction to be unreasonable, arbitrary or
against public policy for any reason, then all or such portion of such
Restrictive Covenants shall be considered divisible as to duration, geographical
scope or lines of business, or may be otherwise narrowed so as to be
enforceable. If a court of competent jurisdiction shall determine that a time
period, a geographical area or a specified line of business is unreasonable,
arbitrary or against public policy for any reason, then a shorter period, a
smaller geographical area or a narrower line of business, as shall be determined
by such court to be reasonable, non-arbitrary and not against public policy, may
be enforced against the Principals and the Seller by the Parent and the
Purchaser, as the case may be.
ARTICLE VII
Confidential Information and Trade Secrets
7.1 Certain Definitions.
(a) "Confidential Information" includes information which (a) has
been or is developed or is otherwise owned by the Parent or the Purchaser,
whether developed by the Company or by any other Person, (b) is not readily
available to the public and not generally ascertainable by proper means by the
public, (c) if disclosed to the public, would be harmful to the interests of the
Parent or the Purchaser, (d) has limited disclosure within the Parent or the
Purchaser, or (e) is treated or designated by the Parent or the Purchaser as
being confidential. Confidential Information shall include the Intellectual
Property and may otherwise consist of technical information, including without
limitation inventions, formulas, compilations, computer programs, methods,
purchasing techniques and processes, sales techniques and processes, market data
and pricing and discounting practices, as well as the Parent's and the
Purchaser's business information relating to the financial condition, financial
arrangements, business plans or strategies (such as new products and services
and plans for sales, marketing, purchasing, distribution, services or
promotions), employee training materials, sales manuals, customer or contacts,
accounts and the like, vendor or supplier lists, vendor or supplier needs,
contacts, accounts and the like, personnel, payroll and financial data and
records, and any and all data, information, plans, processes, procedures,
methods and records of any kind or nature whatsoever, regardless of the form of
storage medium and wherever located, related in any manner to the Parent or the
Purchaser or its respective business, operations or affairs or its directors,
officers, employees, agents or independent contractors.
(b) "Trade Secrets" include the Intellectual Property and other
Confidential Information which is sufficiently secret to derive actual or
potential economic value to the Parent or the Purchaser from not being generally
known to, and not being readily ascertainable by, the Parent's or the
Purchaser's competitors and other Persons (including without limitation the
Parent's or the Purchaser's vendors, suppliers and customers), which information
gives, or has the potential of giving, the Parent or the Purchaser an advantage
over the Parent's or the Purchaser's competitors or other Persons (including
without limitation the Parent's or the Purchaser's vendors, suppliers and
customers) which can obtain economic value from the disclosure or use of the
information and which information the Parent or the Purchaser has taken, and
will continue to take, reasonable steps to maintain as secret or confidential
vis-a-vis its current and potential competitors and other Persons (including
without limitation the Parent's or the Purchaser's vendors, suppliers and
customers).
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7.2 Ownership of Confidential Information and Trade Secrets by the
Company. Each of the Principals and the Seller acknowledges that he has
received, used, had access to or became familiar with, or in the future will
receive, use, have access to and become familiar with, the Confidential
Information and the Trade Secrets which are owned by the Parent or the Purchaser
or which are or will be otherwise used in connection with the Parent's or the
Purchaser's current or future business. Each of the Principals and the Seller
acknowledges and agrees that all such Confidential Information and Trade Secrets
are and shall remain the sole and exclusive property of the Parent and the
Purchaser and that the covenants set forth in Section 7.3 below are fair and
reasonable.
7.3 Non-Disclosure. None of the Principals and the Seller shall, directly
or indirectly, at any time disclose to any Person, or take or use for the
purposes of any Person, other than the Parent or the Purchaser, any Confidential
Information or Trade Secrets. Each of the Principals and the Seller authorizes
the Parent and the Purchaser to inspect the computers and other data collection
or storage devices of the Principals or the Seller at any time in order to
permit the Parent or the Purchaser to determine their compliance with the
provisions of the immediately preceding sentence. The obligations of the
Principals and the Seller set forth in this Section 7.3 apply to, and are
intended to prevent, the direct or indirect disclosure of any Confidential
Information or Trade Secrets to Persons where such disclosure of the
Confidential Information or the Trade Secrets would reasonably be considered to
be useful to the Parent's or the Purchaser's competitors or to any other Person
to become a competitor based, in whole or in part, on such Confidential
Information or Trade Secrets. Immediately upon request by the Parent or the
Purchaser, each of the Principals and the Seller shall deliver to the Parent or
the Purchaser all Confidential Information and Trade Secrets and all Parent or
Purchaser property then in his or its possession.
7.4 Independent Agreements. The covenants set forth in Section 7.3 above
shall be construed as an agreement independent of any other provision contained
in this Agreement, and the existence of any claim or cause of action, whether
predicated upon this Agreement or otherwise, against the Parent or the Purchaser
shall not constitute a defense to the enforcement by the Parent or the Purchaser
of any of such covenants. Each of the Principals and the Seller acknowledges
that the Parent and the Purchaser has fully performed all obligations entitling
it to the benefit of the covenants set forth in Section 7.3 above, and that such
covenants, therefore, are not executory or otherwise subject to rejection under
the Bankruptcy Code of 1978.
ARTICLE VIII
Survival and Indemnities; Other Remedies
8.1 Survival. All of the representations, warranties, covenants,
agreements and indemnities of the parties set forth in this Agreement shall
survive the consummation of the transactions contemplated by this Agreement
indefinitely, notwithstanding any audit or investigation made by or on behalf of
any such party.
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8.2 Indemnification of the Parent and the Purchaser. Each of the
Principals and the Seller shall, jointly and severally, indemnify and hold
harmless the Parent and the Purchaser from, against and in respect of the full
amount of any and all liabilities, damages, claims, taxes, deficiencies,
assessments, losses, penalties, interest, costs and expenses (including without
limitation fees and disbursements of trial and appellate counsel)(collectively,
the "Indemnified Expenses") arising from, in connection with, or incident to any
breach or violation of any or all of the representations, warranties, covenants
and agreements made by it, him or them in this Agreement.
8.3 Indemnification of the Principals and the Seller. The Parent and the
Purchaser shall, jointly and severally, indemnify and hold harmless each of the
Principals and the Seller from, against and in respect of the full amount of any
and all Indemnified Expenses arising from, in connection with, or incident to
any breach or violation of any or all of the representations, warranties,
covenants and agreements made by the Parent or the Purchaser in this Agreement.
8.4 Injunction; Specific Performance. It is recognized and acknowledged by
each of the parties that a breach or violation by any party of any or all or the
provisions contained in this Agreement will cause irreparable harm and damage to
the other parties in a monetary amount which would be virtually impossible to
ascertain. As a result, each of the parties recognizes and acknowledges that the
parties shall be entitled to the remedies of injunction and/or specific
performance from any court of competent jurisdiction enjoining and restraining
any breach or violation by any party of any or all of the provisions contained
herein and/or requiring the specific performance of any or all of the provisions
contained herein, and that such rights to injunction and specific performance
shall be cumulative and in addition to whatever other rights and remedies any
party may possess hereunder, at law and in equity.
ARTICLE IX
Miscellaneous Provisions
9.1 Expenses. All of the legal, accounting and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be borne and paid by the party to this Agreement incurring such
costs and expenses, and no party shall be obligated for any cost or expense
incurred by any other party to this Agreement.
9.2 Further Assurances. From and after the date of this Agreement, each of
the parties shall cooperate with one another, shall do and perform such actions
and things, and shall execute and deliver such documents and instruments, as may
be reasonable and necessary to effectuate the purposes and intents of this
Agreement.
9.3 Notices. Any and all notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed to have been duly given (a) when delivered by hand or email, (b) ten
days after having been delivered to Federal Express, DHL, UPS, Airborne or
another recognized overnight courier or delivery service, (c) when delivered by
facsimile transmission, provided that an original copy of such transmission
shall be sent by first class mail, postage prepaid, or (d) thirty days after
having been deposited into the mail, by registered or certified mail, return
receipt requested, postage prepaid, to the respective parties at their
respective addresses or to their respective facsimile telephone numbers, as
follow:
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If to the Principals or the Seller: Securenext Softwares Private Limited
Xx 0, 0xx Xxxxx, "X" Wing
Xxxxx Xxxxxx, 000, Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx,
Xxxxx 600 006
Attn: K. Xxxxxxx Xxxxx
Email: xxxxx@xxxxxxxxxx.xxx
Fax:
If to the Parent or the Purchaser: 110 Media Group, Inc.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
Email: xxxxxxx@000xxxxxxxxxx.xxx
Fax: (000) 000-0000
or to such other address as any party may from time to time give written notice
of to the other.
9.4 Governing Law. This Agreement shall be governed by, and shall be
construed and interpreted in accordance, with the laws of the State of Florida
of the United States of America, without giving effect to the principles of
conflicts of law thereof.
9.5 Jurisdiction and Venue; Service of Process; Waiver of Trial by Jury.
If any dispute or controversy shall arise between the Company and the Employee,
then such dispute or controversy may only be brought for resolution in the
United States District Court for the Middle District of Florida or in the
Judicial Circuit Court in and for Orange County, Florida. Each of the Company
and the Employee consents to the jurisdiction and venue of such courts, and
agrees that it or he shall not contest or challenge the jurisdiction or venue of
such courts. Each of the Company and the Employee agrees that service of any
process, summons, notice or document, by United States registered or certified
mail, to its or his address set forth in or as provided herein shall be
effective service of process for any action, suit or proceeding brought against
it or him in any such court. In recognition of the fact that the issues which
would arise under this Agreement are of such a complex nature that they could
not be properly tried before a jury, each of the Company and the Employee waives
trial by jury.
9.6 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and arrangements, both oral and
written, among the parties with respect to such subject matter. This Agreement
may not be amended or modified in any manner, except by a written instrument
executed by all of the parties hereto.
9.7 Benefits; Binding Effect. This Agreement shall be for the benefit of,
and shall be binding upon, the parties hereto and their respective heirs,
personal representatives, executors, legal representatives, successors and
assigns.
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9.8 No Waivers. The waiver by any party of a breach or violation of any
provision of this Agreement by any other party shall not operate nor be
construed as a waiver of any subsequent breach or violation or as a waiver by
any other party of such breach or violation. The waiver by any party to exercise
any right or remedy it or he may possess shall not operate nor be construed as a
bar to the exercise of such right or remedy by such party upon the occurrence of
any subsequent breach or violation or as bar to the exercise of such right or
remedy by any other party.
9.9 Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
any or all of the provisions hereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts and by the separate parties in separate counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed and delivered this
Agreement as of the date first written above.
/s/ T.K. Balaji /s/ K. Xxxxxxx Xxxxx
T. K. Balaji K. Xxxxxxx Xxxxx
SECURENEXT SOFTWARES
PRIVATE LIMITED
/s/ T.K. Shivaji Xxx /s/ T.K. Balaji
T. K. Shivaji Xxx X. X. Balaji, Chairman and
Managing Director
110 Media Group, Inc. ByIndia, Inc.
By /s/ Xxxxxxx Xxxxxx, Jr. By /s/ Xxxxxxx Xxxxxx, Jr.
Xxxxxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxx, Xx.
Chairman and Chief Executive Officer Chairman and Chief Executive
Officer
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