PURCHASE AGREEMENT
This Purchase Agreement (the "Agreement") is made as of July 28, 1998, by
and between Video Stream International, Inc., a Wyoming corporation ("Buyer"),
and Interactive Solutions Group, Inc., a North Carolina corporation ("Seller"),
with respect to the following facts:.
A. Buyer is engaged in the business of developing and marketing video
conferencing and other multimedia communications products and technologies.
B. Seller has developed certain products and technologies for computer
networks and multimedia communications, including the transfer of voice, video,
image and data which it has transferred to ISG Acquisition, LLC, a Delaware
limited liability company (the "Company"), a wholly owned subsidiary of Seller.
C. Seller desires to sell, and Buyer desires to purchase all of the
outstanding membership interests of the Company, for the consideration and on
the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties agree as follows:
ARTICLE 1
SALE AND TRANSFER OF INTEREST; EXPENSES; CLOSING
1.1 AGREEMENT TO PURCHASE AND SELL INTEREST. Upon the terms and subject to
the conditions set forth in this Agreement, Seller hereby sells, transfers,
conveys, assigns and delivers to Buyer, and Buyer hereby purchases or acquires
from the Seller, all right, title and interest of Seller in and to all of the
membership interests in the Company (the "Interest").
1.2 PURCHASE PRICE. The total purchase price (the "Purchase Price") for the
Interest will be Two Hundred Fifty-one Thousand Dollars ($251,000), payable as
follows: (i) Buyer hereby cancels Seller's indebtedness to Buyer in the amount
of One Hundred Sixty Thousand Dollars ($160,000); and (ii) Buyer hereby assumes
up to Ninety-One Thousand Dollars ($91,000) of trade liablilities as described
herein.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
2.1 ORGANIZATION AND GOOD STANDING. Seller is a corporation and the Company
is a limited liability company, each duly organized, validly existing and in
good standing in the jurisdiction of their incorporation or organization, with
full corporate power and authority to conduct its business as it is now being
conducted, to own or use the properties and assets that it owns or uses, and to
perform all its obligations under its contracts. Seller has no subsidiaries
other than the Company.
2.2 AUTHORITY; NO CONFLICT. This Agreement constitutes the legal, valid,
and binding obligation of Seller, enforceable against Seller in accordance with
its terms. Seller has the corporate right, and corporate power, to execute and
deliver this Agreement and to perform its obligations under this Agreement.
Neither the execution and delivery of this Agreement nor the consummation or
performance of any of the transactions contemplated hereby will, directly or
indirectly (with or without notice or lapse of time): contravene, conflict with,
or result in a violation of any provision of the Articles of Incorporation or
Bylaws of Seller or the Articles of Organization or Operating Agreement of the
Company; (ii) contravene, conflict with, or result in a violation of, or give
any governmental body or other person the right to challenge any of the
transactions contemplated hereby or to exercise any remedy or obtain any relief
under any legal requirement or any order to which Seller, the Company, or any of
the assets owned or used by Seller, may be subject; (iii) contravene, conflict
with, or result in a violation of any of the terms or requirements of, or give
any governmental body the right to revoke, cancel or terminate any governmental
authorization that is held by Seller, the Company, or that otherwise relates to
the business of, or any of the assets owned or used by the Company; (iv)
contravene, conflict with, or result in a violation or breach of any provision
of, or give any person the right to declare a default or exercise any remedy
under, or to accelerate the maturity or performance of, or to cancel, terminate,
or modify, any material contract to which Seller or the Company is a party; or
result in the imposition or creation of any encumbrance upon or with respect to
any of the assets owned or used by Seller. Seller is not required to give any
notice to or obtain any consent from any person in connection with the execution
and delivery of this Agreement or the consummation or performance of any of the
transactions contemplated hereby.
2.3 CONTRIBUTION OF ASSETS. Seller has contributed to the Company all of
its assets (the "Assets") used in connection with its computer networking and
multimedia communications business (the "Business"), including without
limitation:
(a) PROPERTY AND EQUIPMENT. All of Seller's right, title and interest
in and to all personal property and equipment used by Seller in the Business,
furniture and fixtures, leasehold improvements, freehold improvements and
computers (hardware and software) (the "Property and Equipment"). Such Property
and Equipment contains substantially all of those items listed on Seller's most
recent available listing of the Property and Equipment used by Seller in the
Business;
2
(b) INVENTORY. All of the inventory (within the meaning ascribed under
generally accepted accounting principles) of the Business (the "Inventory");
(c) INTELLECTUAL PROPERTY. All intellectual property rights, including
but not limited to all trade secrets, U.S. and international copyrights,
trademarks and trademark registrations, patents, patentable inventions,
discoveries and improvements, any rights in any product, programming, technology
documentation or other work product (the "Intellectual Property").
(d) CUSTOMER LISTS. All customer and contact lists of the Seller
related to the Business or the Assets;
(e) CONTRACT RIGHTS. All rights under existing contacts to which Seller
is a party and which have been disclosed to Buyer.
(f) CLAIMS. Any and all claims and rights against third parties, if and
to the extent they relate to the condition of the Assets including, without
limitation, all rights under manufacturers' and vendors' warranties
(collectively the "Claims");
(g) CORPORATE RECORDS. The minute books, membership books, corporate
seals, member lists, sales records, tax return workpapers, and similar corporate
records of the Company.
(h) GOODWILL. All of Seller's goodwill in, and the going concern value
of, the Business; and
(i) OTHER. All trade names, trademarks, and logos, telephone numbers,
telephone and mobile communications equipment, service contracts, customer lists
and contracts, sales records, transferable licenses and permits, and normal
business records associated with the Business.
2.4 EXCLUDED ASSETS. The Assets contributed to the Company do not include,
and Seller shall not sell to Buyer, any of the following items (collectively,
the "Excluded Assets"):
(a) CASH. All cash on hand or in bank accounts, and any other cash
equivalents, including without limitation certificates of deposit, commercial
paper, treasury bills, asset or money market accounts, marketable securities and
all such similar accounts or investments.
(b) PREPAID ITEM. All deposits and prepaid expenses relating to the
Business or the Assets.
3
(c) TAX REFUNDS. All amounts due the Seller in connection with any tax
refunds, prepaid taxes, rights under any tax-sharing agreement, or similar
payments.
(d) LICENSES AND PERMITS. All governmental licenses and permits, or
similar rights that cannot by their terms be assigned to the Company.
2.5 ASSUMED LIABILITIES.
(a) The liabilities transferred from Seller to the Company include only
the following liabilities and obligations (collectively, the "Assumed
Liabilities"): (i) the obligations of Seller under all contracts entered into by
Seller prior to the date of transfer; as used in this Agreement, the term
"Contract" shall mean any unexpired agreement, arrangement, commitment or
understanding, written or oral, entered into by Seller with respect to the
Business, written or oral, express or implied, to which Seller is a party or is
bound, including, without limitation, purchase orders, warehouse receipts,
leases, capital leases and collective bargaining agreements, but the term
"Contract" does not include any contract of insurance; (ii) all federal and
state income taxes due and owing for the year ended 1997 as well as current
trade payables of Seller relating to the Assets or the Business arising in the
ordinary course of business and disclosed to Buyer in an amount up to sixty-five
thousand dollars ($65,000); and (iii) all liabilities and obligations relating
to the Assets or the Business incurred on and after the date of transfer.
(b) The Assumed Liabilities shall not include, and Buyer shall not
assume or be liable for, and does not undertake or attempt to assume or
discharge any of the following: (i) except as described above, any income tax
liability or obligation of Seller relating to the operation of the Business
prior to the date of transfer or arising from, or incident to, the sale,
assignment, transfer and delivery of the Assets, or any delinquent sales,
payroll or other delinquent tax obligation; (ii) any workers' compensation
liabilities with respect to employees of the Business relating to illnesses or
injuries occurring prior to the date hereof; (iii) any liability or obligation
of Seller created under this Agreement or arising out of the transactions
contemplated hereby, except as specifically provided in this Agreement; or (iv)
any other liabilities or obligations of Seller not expressly assumed by Buyer
hereunder.
2.6 BOOKS AND RECORDS. The books of account, minute books, stock record
books, and other records of Seller and the Company, all of which have been made
available to Buyer, are complete and correct and have been maintained in
accordance with sound business practices.
2.7 TITLE TO PROPERTIES; ENCUMBRANCES. Seller owns all the properties and
assets (whether real, personal, or mixed and whether tangible or intangible),
located in the facilities owned or operated by Seller or reflected as owned in
the books and records of Seller (except for assets held under capitalized leases
disclosed) free and clear of all encumbrances.
4
2.8 CONDITION AND SUFFICIENCY OF ASSETS. The buildings, plants, structures,
Property and Equipment are in normal operating condition and repair, and are
adequate for the uses to which they are being put.
2.9 TAXES. Except for federal and state income tax returns for the fiscal
year ended December 31, 1997, Seller has filed or caused to be filed on a timely
basis all tax returns that are or were required to be filed by it pursuant to
applicable legal requirements. Seller has paid, or made provision for the
payment of, all taxes that have or may have become due pursuant to those tax
returns or otherwise, or pursuant to any assessment received by Seller. Seller
has not been subject to any audit, and has not given or been requested to give
waivers or extensions (or is or would be subject to a waiver or extension given
by any other person) of any statute of limitations relating to the payment of
taxes of Seller or for which Seller may be liable. All tax returns filed by
Seller are true, correct, and complete in all material respects. There is no tax
sharing agreement that will require any payment by Seller after the date of this
Agreement.
2.10 EMPLOYEE BENEFITS. Seller has no pension plans or welfare plans.
Seller has no knowledge of any material liability being incurred under any
applicable government regulation relating to pension, retirement, welfare,
health or other benefit plans for employees.
2.11 COMPLIANCE WITH LEGAL REQUIREMENTS; GOVERNMENTAL AUTHORIZATIONS.
(a) To Seller's knowledge: (i) Seller is, and at all times has been,
in material compliance with each legal requirement that is or was applicable to
it or to the conduct or operation of its business or the ownership or use of any
material assets; (ii) no event has occurred or circumstance exists that (with or
without notice or lapse of time) (A) may constitute or result in a violation by
Seller of, or a failure on the part of Seller to comply with, any legal
requirement, or (B) may give rise to any obligation on the part of Seller to
undertake, or to bear all or any portion of the cost of, any remedial action of
any nature except for violations, failures or obligations which would not have a
material adverse effect on the business, operations and prospects of Seller; and
(iii) Seller has not received, any written notice from any governmental body or
any other person regarding (A) any actual, alleged, possible, or potential
violation of, or failure to comply with, any legal requirement, or (B) any
actual, alleged, possible, or potential obligation on the part of Seller to
undertake, or to bear all or any portion of the cost of, any remedial action of
any nature except for violations, failures or obligations which would not have a
material adverse effect on the business, operations and prospects of Seller.
(b) Seller and the Company has each material governmental
authorization that is necessary to permit Seller and the Company to lawfully
conduct and operate its business in the manner it currently conducts and
operates such business and to permit the Company to own and use its Assets in
the manner in which it currently owns and uses such Assets.
2.12 LEGAL PROCEEDINGS. There is no pending, or to Seller's knowledge,
threatened, legal proceeding that has been commenced by or against Seller or the
Company or that otherwise relates
5
to or may affect the business of, or any of the Assets owned or used by, Seller
or the Company or the transactions contemplated hereby.
2.13 CONTRACTS; NO DEFAULTS. Sellers books and records, which have been
disclosed to Buyer, contains a complete and accurate list of: each Contract to
which Seller is a party with respect to which the outstanding obligation of any
party thereto is in excess of Twenty Thousand Dollars ($20,000); (ii) each
lease, rental or occupancy agreement, and other contract affecting the ownership
of, leasing of, title to, use of, or any leasehold or other interest in, any
real or personal property of Seller or the Company; (iii) each licensing
agreement or other contract with respect to any intellectual property of Seller
or the Company; (iv) each agreement and other Contract to or with any employee;
(v) each joint venture, partnership, and other Contract (however named)
involving a sharing of profits, losses, costs, or liabilities by Seller with any
other person; (vi) each contract containing covenants that in any way purport or
limit the freedom of Seller to engage in any line of business or to compete with
any person; (vii) each power of attorney of Seller that is currently effective
and outstanding. No related person or affiliate of Seller has any rights under,
and no such person has or may become subject to any obligation or liability
under, any material contract that relates to the business of, or any of the
assets owned or used by Seller. To Seller's knowledge, no officer, director,
agent, employee, consultant, or contractor of Seller is bound by any contract
that purports to limit the ability of such officer, director, agent, employee,
consultant, or contractor to (A) engage in or continue any conduct, activity, or
practice relating to the business of Seller, or (B) assign to Seller or to any
other person any rights to any invention, improvement, or discovery. To the
Seller's knowledge, no event has occurred or circumstance exists that (with or
without notice or lapse of time) may contravene, conflict with, or result in a
violation or breach of, or give Seller or other person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any contract. To Seller's
knowledge, Seller has not given to or received from any other person any written
notice regarding any actual, alleged, possible, or potential violation or breach
of, or default under, any Contract.
2.14 ENVIRONMENTAL MATTERS. To Seller's knowledge, Seller's facilities have
been maintained in material compliance with all federal state and local
environmental protection, occupational, health and safety or similar laws,
ordinances, restrictions, licenses, and local environmental protection,
occupational health and safety or similar law ordinances, restrictions and
regulations. To Seller's knowledge, Seller has not disposed or arranged for the
disposal of any hazardous substance that was generated or used by Seller at any
off-site location that has been or is listed or proposed for inclusion on any
list promulgated by any governmental body for the purpose of identifying sites
which pose an imminent danger to health and safety.
2.15 INTELLECTUAL PROPERTY. Seller's books and records, which have been
provided to Buyer set forth a complete and accurate list of Intellectual
Property, which Seller or the Company owns or uses (whether or not under license
from third parties) together with identification of all parties thereto under
which Seller either obtains or grants the right to use any of said Intellectual
Property; (ii) all agreements and identification of all parties thereto under
which Seller or the Company either obtains or grants the right to use any of
said Intellectual Property; and (iii) all validity, infringement
6
or other opinions of counsel which relate to the validity, infringement and/or
enforceability of any patent owned or controlled by a party other than Seller,
which relates to any aspect of the business of Seller or the Company. The
Company is the sole and exclusive owner of, and has the sole and exclusive right
to use, all of said Intellectual property without any obligation, consent or
assignment of any kind from any third party. To Seller's knowledge, the
Company's rights in the Intellectual Property are not being infringed by others,
nor does the conduct by Seller or the Company, infringe in any way upon the
rights of the type enumerated herein owned by others, and Seller has not
received any written claims or notices alleging such infringement.
2.16 RELATIONSHIPS WITH RELATED PERSONS. Neither Seller nor any related
person or other affiliate of Seller or of Seller has, or has had, any interest
in any property (whether real, personal, or mixed and whether tangible or
intangible), used in or pertaining to the business of Seller. Except for Xxxxx
X. Xxxxxxx'x ownership interest in Buyer, neither Seller nor any related person
or other affiliate of Seller or of Seller owns, or has owned, (of record or as a
beneficial owner) an equity interest greater than one percent (1%) or any other
financial or profit interest in, a person that has had business dealings or a
material financial interest in any transaction with Seller or (ii) engaged in
competition with Seller with respect to any line of the products or services of
Seller (a "Competing Business") in any market presently served by Seller.
Neither Seller nor any related person or other affiliate of Seller or of Seller
is a party to any contract with, or has any claim or right against, Seller.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
3.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Wyoming,
with full corporate power and authority to conduct its business as it is now
being conducted, to own or use the properties and assets that it owns or uses,
and to perform all its obligations under its contracts.
3.2 AUTHORITY; NO CONFLICT. This Agreement constitutes the legal, valid,
and binding obligation of Buyer, enforceable against Buyer in accordance with
its terms. Buyer has the power and corporate authority to execute and deliver
this Agreement and to perform its obligations under this Agreement. Neither the
execution and delivery of this Agreement nor the consummation or performance of
any of the transactions contemplated hereby will, directly or indirectly (with
or without notice or lapse of time): contravene, conflict with, or result in a
violation of any provision of the Articles of Incorporation or Bylaws of Buyer;
(ii) contravene, conflict with, or result in a violation of, or give any
governmental body or other person the right to challenge any of the transactions
contemplated hereby or to exercise any remedy or obtain any relief under any
legal requirement or any order to which Buyer, or any of the assets owned or
used by Buyer, may be subject; (iii) contravene, conflict with, or result in a
violation of any of the terms or requirements of, or give any governmental body
the right to revoke, cancel or terminate any governmental authorization that is
held by Buyer or that otherwise relates to the business of, or any of the assets
7
owned or used by Buyer; (iv) contravene, conflict with, or result in a violation
or breach of any provision of, or give any person the right to declare a default
or exercise any remedy under, or to accelerate the maturity or performance of,
or to cancel, terminate, or modify, any material contract to which Buyer is a
party; or result in the imposition or creation of any encumbrance upon or with
respect to any of the assets owned or used by Buyer. Buyer is not required to
give any notice to or obtain any consent from any person in connection with the
execution and delivery of this Agreement or the consummation or performance of
any of the transactions contemplated hereby.
3.3 CAPITALIZATION. The authorized equity securities of Buyer consist of
50,000,000 shares of common stock and 100,000 shares of non voting preferred
stock. There are no other outstanding equity securities or other securities of
Buyer. There are no contracts relating to the issuance, sale, or transfer of
any equity securities or other securities of Buyer.
3.4 CERTAIN PROCEEDINGS. Except for the litigation brought by Xxxxxx
Xxxxxxxx against TechnoVision Communications, Inc., there is no pending
proceeding that has been commenced against Buyer and that challenges, or may
have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the transactions contemplated hereby. To the best of
Buyer's knowledge, no such proceeding has been threatened.
ARTICLE 4
INDEMNIFICATION; REMEDIES
4.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND INDEMNITIES. All
covenants, agreements, representations and warranties of the parties under this
Agreement and any schedule or certificate or other document delivered pursuant
hereto shall survive the Closing; provided, however, that no claim for indemnity
under this Agreement with respect to any breach of any of the representations
and warranties of either Buyer or Seller shall be made after the period
specified in Section 4.3(a).
4.2 INDEMNITY.
(a) Buyer shall defend, indemnify, and hold Seller harmless from,
against and in respect of the full amount of any Damages (hereinafter defined)
which may accrue to or be sustained by Seller, arising out of, as a result of or
in respect of: any error, misstatement, omission or inaccuracy in any
representation or warranty of Buyer or the breach of any warranty of Buyer or
any omission to state or failure by Buyer to disclose any fact or facts known to
it which are necessary in order to make any such representation or warranty not
misleading, under this Agreement, or under any schedule, exhibit, certificate,
agreement, instrument or other document delivered pursuant thereto, and (ii) any
failure of Buyer duly to perform or observe any term, provision, instrument,
covenant or agreement to be performed or observed by Buyer pursuant to this
Agreement, or any schedule, certificate, agreement or other document entered or
delivered pursuant hereto.
8
(b) Seller shall defend, indemnify, and hold Buyer harmless from,
against and in respect of the full amount of any Damages (hereinafter defined)
which may accrue to or be sustained by Buyer, arising out of, as a result of or
in respect of: any error, misstatement, omission or inaccuracy in any
representation or warranty of Seller or the breach of any warranty of Seller or
any omission to state or failure by Seller to disclose any fact or facts known
to it which are necessary in order to make any such representation or warranty
not misleading, under this Agreement, or under any schedule, exhibit,
certificate, agreement, instrument or other document delivered pursuant thereto,
and (ii) any failure of Seller duly to perform or observe any term, provision,
instrument, covenant or agreement to be performed or observed by Seller pursuant
to this Agreement, or any schedule, certificate, agreement or other document
entered or delivered pursuant hereto.
(c) The indemnification and hold harmless obligations of Buyer and of
Seller hereunder are hereinafter referred to as "Indemnification Obligations,"
and the party to whom such Indemnification obligations are owed (or would be
owed but for Section 4.3 or 4.4) is hereinafter sometimes referred to as
"Indemnified Party," and the party obligated to perform (or who would be
obligated to perform but for Section 4.3 or 4.4) such Indemnification
Obligations is hereinafter sometimes referred to as the "Indemnifying Party."
(d) For purposes of this Agreement, "Damages" shall be deemed to mean
and include any and all losses, liabilities, costs, expenses, judgments,
assessments, penalties, damages, fines, deficiencies, the fees and expenses of
experts, and reasonable attorneys' fees and expenses, costs of investigation and
court costs incident thereto. Damages shall be measured net of any insurance
recovery or retroactive insurance adjustment in respect of such Damages.
4.3 LIMITATIONS.
(a) The Indemnifying Party shall not be liable to the Indemnified Party
under Section 4.2 unless the Indemnified Party shall have asserted a claim
pursuant to Sections 4.2 by giving written notice to the Indemnifying Party of
the basis of its claim not later than one year from the date hereof.
(b) The Indemnifying Party shall not be liable to the Indemnified Party
under Sections 4.2 until the aggregate amount of Damages suffered by the
Indemnified Party shall exceed Fifty Thousand Dollars ($50,000.00) (the "Minimum
Loss") in the aggregate in excess of any applicable insurance coverage
maintained by the Indemnified Party, at which time the Indemnifying Party shall
be liable for the total aggregate Damages.
4.4 MAXIMUM LIABILITY. Notwithstanding any other provision of this
Agreement, neither Buyer nor Seller shall have any Indemnification Obligations
or liability under this Section 4 in excess of Two Million Dollars ($2,000,000)
(the "Maximum Liability")
9
ARTICLE 5
GENERAL PROVISIONS
5.1 EXPENSES. Except as otherwise expressly provided in this Agreement,
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel, and accountants.
5.2 FURTHER ASSURANCES. The parties agree to furnish upon request to each
other such further information, to execute and deliver to each other such other
documents, and to do such other acts and things, all as the other party may
reasonably request for the purpose of carrying out the intent of this Agreement
and the documents referred to in this Agreement.
5.3 WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; no waiver that may be given
by a party will be applicable except in the specific instance for which it is
given; and no notice to or demand on one party will be deemed to be a waiver of
any obligation of such party or of the right of the party giving such notice or
demand to take further action without notice or demand as provided in this
Agreement or the documents referred to in this Agreement.
5.4 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the party to be charged with the amendment.
5.5 ASSIGNMENTS, SUCCESSORS, AND NO THIRD-PARTY RIGHTS. Neither party may
assign any of its rights under this Agreement without the prior consent of the
other parties, which will not be unreasonably withheld or delayed, except that
Buyer may assign any of its rights under this Agreement to any directly or
indirectly wholly owned subsidiary of Buyer, and such assignment shall not
relieve Buyer of its duties and obligations hereunder. Subject to the preceding
sentence, this Agreement will apply to, be binding in all respects upon, and
inure to the benefit of the successors and permitted assigns of the parties.
Nothing expressed or referred to in this Agreement will be construed to give any
Person other than the parties to this Agreement any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any provision of
this Agreement. This
10
Agreement and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their successors and
assigns.
5.6 SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
5.7 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in this
Agreement are provided for convenience only and will not affect its construction
or interpretation. All references to "Section" or "Sections" refer to the
corresponding Section or Sections of this Agreement. All words used in this
Agreement will be construed to be of such gender or number as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms. All dollar values shall refer to United
States currency, unless otherwise noted.
5.8 GOVERNING LAW AND VENUE. This Agreement will be governed by the laws of
the State of California without regard to conflicts of laws principles. Any
proceeding arising out of this Agreement shall be brought only within a court of
competent jurisdiction located in the County of San Diego, State of California,
and by their execution of this Agreement, each of the parties expressly consent
and submit themselves to the jurisdiction of such courts.
5.9 ATTORNEYS' FEES. In any legal proceeding arising out of this Agreement,
including with respect to any instrument, document or agreement made under or in
connection with this Agreement, the prevailing party shall be entitled to
recover its costs and actual attorneys' fees. As used in this Agreement, "actual
attorneys' fees" shall mean the full and actual cost of any legal services
actually performed in connection with the matters involved, calculated on the
basis of the usual hourly fees charged by the attorneys performing such
services.
5.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
BUYER: SELLER:
Video Stream International, Inc. Interactive Solutions Group
By: /s/ Xxxx Xxx By: /s/ Xxxxx Xxxxxxx
------------------------------ -----------------------------
Xxxx Xxx, President Xxxxx X. Xxxxxxx, President
11
