SETTLEMENT AGREEMENT
Settlement Agreement (the "Agreement") dated March 31, 2006 by and among
Ckrush, Inc., a Delaware corporation, formerly known as Xxxxxx Xxxxxxx
Promotions, Inc. (the "Company"), Big Content, Inc., a wholly-owned subsidiary
of the Company ("Big Content"), both having an address at 1414 Avenue of the
Americas, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000, and Xxxxxx Xxxxxxx, an individual
("Xxxxxxx"), having an address at 1414 Avenue of the Americas, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, Xxxxxxx has served as an officer and director of the Company and
has resigned all positions he holds with the Company and has agreed to enter
into such other agreements with the Company as set forth in this Agreement; and
WHEREAS, Xxxxxx Xxxxxxx Promotions, Ltd., a Delaware corporation ("LTD")
was a wholly-owned subsidiary of the Company that was dissolved by proclamation
by the Secretary of State of Delaware; and
WHEREAS, the Company is the successor by merger to Zenascent, Inc.,
Zenascent Newco, Inc. and Xxxxxx Xxxxxxx Boxing, Inc. ("Boxing") pursuant to
that certain Amended and Restated Agreement and Plan of Merger (the "Merger
Agreement") dated as of February 21, 2002 by and among such parties, the
Company, LTD, Xxxxxxx and Xxxxx XxXxxxxxx ("XxXxxxxxx") (such parties being
referred to collectively as the "Merger Parties" and such parties other than
Xxxxxxx and XxXxxxxxx being referred to collectively as the "Corporate Merger
Parties") and that certain Agreement and Plan of Merger dated as of March 8,
2002 by and among Boxing, LTD, Big Content, Big Content Accquisition Corp.,
Xxxxxx Charitable Remainder Trust and Xxxxxxxxxx Investments, LLC; and
WHEREAS, the parties to this Agreement have agreed to resolve certain
matters pursuant to this Agreement and two other agreements of even date among
such parties and certain of their affiliates referred to as the "Lease and
Library Agreement" and the "Consulting Agreement" (together with the two
promissory notes referred to in Section 3 of this Agreement, referred to herein
as the "Transaction Documents");
NOW, THEREFORE, for good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. Effective Date. The effective date of this Agreement is February 14,
2006 (the "Effective Date").
2. Compensation. All compensation payable to Xxxxxxx by the Company, such
as but not limited to salary, bonus and health and retirement benefits, shall
cease to accrue as of the Effective Date, subject, however, to Xxxxxxx'x rights
under COBRA. The Company shall not be obligated to pay any severance or similar
payment to Xxxxxxx.
3. Indebtedness. The Company is currently indebted to Xxxxxxx (the "Xxxxxxx
Debt") in the amount of Two Hundred Sixty-Three Thousand One Hundred
Thirty-Eight and Fifty-Nine One-Hundredths ($263,138.59) Dollars and to Xxxx
Xxxxxx (the "Lister Debt") in the amount of Seventeen Thousand ($17,000.00)
Dollars, each of which indebtedness shall be paid in accordance with (i) that
certain promissory note (the "Xxxxxxx Note") of even date made by the Company
and payable to the order of Xxxxxxx in the original principal amount of
$263,138.59, with respect to the Xxxxxxx Debt, and (ii) that certain promissory
note of even date made payable to the order of Lister (the "Lister Note") in the
original principal amount of $17,000 with respect to the Lister Debt.
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4. Indemnification.
a. The parties agree that their respective representations and warranties
contained in this Agreement and the Transaction Documents (as hereinafter
defined) shall survive the execution and delivery of this Agreement and the
Transaction Documents.
b. On, from and after the Effective Date, the Company, Big Content and
LTD, jointly and severally, will reimburse, indemnify and hold harmless Xxxxxxx,
Gotham Boxing, Inc. ("Gotham"), Xxxxxx Xxxxxxx Media, Inc. ("Media") and each of
their respective successors and assigns (each, an "Indemnified Xxxxxxx Party")
against and in respect of:
(i) any and all damages, losses, deficiencies, liabilities, costs and
expenses incurred or suffered by any Indemnified Xxxxxxx Party that result from,
relate to or arise out of:
(A) any and all liabilities and obligations of the Company, Big
Content, the Corporate Merger Parties, LTD and any of their direct or indirect
subsidiaries and affiliates (collectively, the "Ckrush Parties") and, to the
extent he and/or it has assumed, guaranteed or is otherwise liable for any
liabilities or obligations of the Ckrush Parties, Xxxxxxx, Gotham and/or Media,
of any kind, nature and description whatsoever, fixed or contingent, inchoate or
otherwise, including, but not limited to, any liabilities and obligations
described on Schedule A attached hereto and made a part hereof;
(B) any and all actions, suits, claims, judgments or legal,
administrative, arbitration, governmental or other proceedings or investigations
against any Indemnified Xxxxxxx Party that relate to the business or the assets
of any of the Ckrush Parties in which the principal event giving rise thereto
occurred prior to, on or after the Effective Date or which result from or arise
out of any action or inaction on, prior to or after the Effective Date by any of
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the Ckrush Parties or any director, officer, employee, shareholder, agent or
representative of the Ckrush Parties including, but not limited to, those
matters described on Schedule A attached hereto and made a part hereof;
(C) any misrepresentation, breach of warranty or nonfulfillment of any
agreement or covenant on the part of any of the Ckrush Parties and/or XxXxxxxxx
under this Agreement or any Transaction Document, or from any misrepresentation
in or omission from any certificate, schedule, statement, document or instrument
furnished to an Indemnified Xxxxxxx Party pursuant hereto or thereto or in
connection with the negotiation, execution or performance of this Agreement or
any Transaction Documents;
(D) the fact that (1) Xxxxxxx is or was an officer, director, employee,
or agent of any Ckrush Party or (2) Xxxxxxx while a director, officer, employee
or agent of any Ckrush Party, Xxxxxxx is or was serving at the request of such
Ckrush Party as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another corporation, partnership,
joint venture, trust, employee benefit plan or other entity, in each case to the
fullest extent permitted under Delaware law, or (3) any Indemnified Xxxxxxx
Party is a personal guarantor of, or is otherwise liable with respect to, any
and/or all liabilities, obligations and/or indebtedness of any of the Ckrush
Parties, other than with respect to obligations under that certain lease
agreement (the "Lease") dated February 4, 2005 between the Company and 1414
Property LLC arising after, but not prior to (which shall be subject to
indemnification hereunder), May 1, 2006, except to the extent that any of the
CKrush parties is in breach of any representation or warranty with respect to
the Lease and provided that the Ckrusch parties have complied with their
respective covenants and agreements under the Lease, or (4) Xxxxxxx has any
liability or obligation with respect to any matter listed on Schedule A to this
Agreement;
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(E) any liability or obligation of any of the Ckrush Parties that any
Indemnified Xxxxxxx Party guaranteed or may be otherwise personally liable for
or with regard to which any Indemnified Xxxxxxx Party may be liable; and
(ii) any and all actions, suits, claims, proceedings, investigations,
demands, assessments, audits, fines, judgments, costs and other expenses
(including, without limitation, reasonable legal fees) incident to any of the
foregoing or to the enforcement of this Section 4.
c. The indemnification rights of each Indemnified Xxxxxxx Party under
this Section 4 are independent of and in addition to any indemnification rights
of such Indemnified Xxxxxxx Party and such other rights and remedies as such
party may have at law or in equity or otherwise for any misrepresentation,
breach of warranty or failure to fulfill any agreement or covenant hereunder on
the part of any party hereto or under any Transaction Document, including, but
not limited to, the right to seek specific performance, rescission or
restitution, none of which rights or remedies shall be affected or diminished by
this Section 4.
d. Without limiting the foregoing, each Indemnified Xxxxxxx Party shall
be entitled to, and the Company, Big Content and LTD shall, jointly and
severally, pay to each Indemnified Xxxxxxx Party promptly following his or its
request therefor (i) advance payment of reasonable costs and expenses,
including, but not limited to, attorney's fees in the defense of any and all
matters subject to indemnification hereunder, subject to the provisions of the
Delaware General Corporation Law; and (ii) in the event that Xxxxxxx loses any
rights pursuant to a foreclosure or similar action or any proceeding or
transaction in lieu thereof in certain collateral (compromised of art work)
currently held by the Tua Investors (as defined in the Consulting Agreement) as
security for certain obligations of any of the Ckrush Parties, fifty (50%)
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percent of the fair market value (as valued in such foreclosure proceeding,
transaction or other event in lieu thereof) of such collateral, up to a maximum
of One Hundred Dollars ($100,000).
5. Nondisclosure of Confidential Information; Termination of Restrictive
Covenant.
a. For a term of two (2) years commencing on the Effective Date, Xxxxxxx
shall not, without the prior written consent of the Company, use, divulge,
disclose or make accessible to any other person, firm, partnership, corporation
or other entity any Confidential Information pertaining to the business of the
Company or any of its subsidiaries, except when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of the Company, or by any administrative body or legislative
body with jurisdiction to order Xxxxxxx to divulge, disclose or make accessible
such information. For purposes of this Section 5, "Confidential Information"
shall mean non-public information concerning the financial data, strategic
business plans, product development (or other proprietary product data),
marketing plans and other non-public, proprietary or confidential information of
the Company and its subsidiaries, that, in any case, is not otherwise available
to the public (other than by Xxxxxxx'x breach of the terms hereof). Confidential
Information does not include any information that:
i. at the time of disclosure is in the public domain or which,
after disclosure, enters the public domain except as a result of
a breach of this Agreement or any other obligation of
confidentiality;
ii. is provided to Xxxxxxx by a third party, except when the third
party is subject to an obligation to maintain such information
and materials in confidence; or
iii. is independently developed for Xxxxxxx by employees or
contractors of Xxxxxxx who did not use the Confidential
Information of the Company.
x. Xxxxxxx agrees that this covenant is reasonable under the
circumstances,
and further agrees that, if in the opinion of any court of competent
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jurisdiction this covenant is not reasonable in any respect, such court shall
have the right, power and authority to modify such provision or provisions of
this covenant to the extent the court determines such restraint is not
reasonable and to enforce the covenant as so amended. Xxxxxxx agrees that any
breach of the covenant contained in this Section 5 would irreparably injure the
Company and its subsidiaries. Accordingly, Xxxxxxx agrees that the Company may,
in addition to pursuing any other remedies it may have in law or in equity,
obtain an injunction against Xxxxxxx from any court having jurisdiction over the
matter restraining any further violation of this covenant by Xxxxxxx.
c. Nothing in this Section 5 shall preclude Kushner from including his
experience with the Company on any resume, employment application or similar
document used for the purpose of soliciting a position as an employee, director,
officer or otherwise of another company.
d. The Company, LTD and XxXxxxxxx hereby agree that, as of the Effective
Date, Section 5.17 of the Merger Agreement be and, is hereby terminated, deemed
null and void, ab initio, and of no further force or effect. The Merger Parties
hereby represent and warrant, jointly and severally, to Xxxxxxx that none of the
Company, LTD nor XxXxxxxxx or their respective direct or indirect subsidiaries
or affiliates are parties to, have any right to enforce, or are aware of any
written or oral agreement, arrangement, contract, commitment, understanding or
obligation that limits or restricts Xxxxxxx'x ability to, directly or
indirectly, engage in any line of business or with any person, firm, corporation
or other entity in any geographical area, or solicit, contract with, and/or hire
any person, firm, corporation or other entity.
6. Release by Xxxxxxx. For valuable consideration from the Company, receipt
of which is hereby acknowledged by Xxxxxxx, Xxxxxxx releases and forever
discharges the Company and its subsidiaries and affiliates, and their respective
securityholders, affiliates, officers, directors, partners, agents, employees,
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and attorneys, and all trustees and administrators under any plans, successors
and assigns of the Company or any of its subsidiaries (collectively, for
purposes of this Section 6, the "Affiliates"), and covenants to forever cease
and refrain from instituting, maintaining, pressing, collecting or in any way
aiding and proceeding against, and releases and forever discharges each of the
Affiliates from any and all claims, suits or actions, whether known or unknown,
which Xxxxxxx had, now has or may have against any Affiliate, from the beginning
of time, including but not limited to, any such claims, suits or actions
relating to employment with the Company or the termination thereof, including
any attorney fees incurred thereby, or under any equal employment opportunity
law, ordinance, regulation or order, including, but not limited to, Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. ss.2000 et seq., the Civil
Rights Act of 1866, as amended, 42 U.S.C. ss.1981 et seq., Executive Order
11246, as amended, the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. ss.621 et seq., the Americans with Disabilities Act, 42 U.S.C.
ss.12101 et seq., the Older Workers Benefit Protection Act, 29 U.S.C. ss. 626,
the Employee Retirement Income Security Act of 1974, 29 U.S.C. ss.1144, the
Federal Family and Medical Leave Act, 29 U.S.C. ss. 2601 et seq., and any other
applicable federal, state or local, constitutional or statutory provision, order
or regulation, arising from any event or act of omission or commission. This
release includes, but is not limited to, any and all claims, suits or actions of
any kind, occurring during the term of employment with the Company through the
Effective Date, including any alleged injuries or damages suffered at any time
after the Effective Date by reason of the continued effects of any such alleged
acts which occurred on or before the Effective Date. In consideration of the
payments provided herein, Xxxxxxx gives up any rights he may have under these or
any other laws with respect to his employment and termination and acknowledges
that none of the Company and its Affiliates has (i) discriminated against him;
(ii) breached any express or implied contract with him; or (iii) otherwise acted
unlawfully toward him. This release shall not apply to matters to be performed
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under this Agreement or any Transaction Document. This release shall not apply
with respect to the rights of Xxxxxxx and/or any and all Indemnified Xxxxxxx
parties, if any, for indemnification, including, but not limited to, as provided
in this Agreement, any Transaction Document, or in accordance with the Company's
Certificate of Incorporation or By-Laws, including, but not limited to, for
third-party claims arising from Xxxxxxx'x acts or omissions, as an officer
and/or director of the Company or any of its subsidiaries, or for any personal
guarantees of the Company's obligations or indebtedness that Xxxxxxx may have
given or for which he is otherwise liable, or any other matters for which
Xxxxxxx is otherwise entitled to indemnification.
7. Release by Company and Others. For valuable consideration from Xxxxxxx,
receipt of which is hereby acknowledged by the Company, Big Content and LTD, the
Company, Big Content and LTD, on behalf of itself and each of its subsidiaries,
releases and forever discharges Xxxxxxx and his subsidiaries and affiliates, and
their respective securityholders, affiliates, officers, directors, partners,
agents, employees, and attorneys, and all trustees and administrators under any
plans, heirs, successors and assigns of Xxxxxxx (collectively, for purposes of
this Section 7, the "Xxxxxxx Affiliates"), and covenants to forever cease and
refrain from instituting, maintaining, pressing, collecting or in any way aiding
and proceeding against, and releases and forever discharges each of the Xxxxxxx
Affiliates from any and all claims, suits or actions, whether known or unknown,
which the Company, Big Content, Boxing, or LTD had, now has or may have against
any Xxxxxxx Affiliate, from the beginning of time, including but not limited to,
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any such claims, suits or actions relating to employment of Xxxxxxx or the
termination thereof, including any attorney fees incurred thereby, arising from
any event or act of omission or commission. The Company, Big Content and LTD
give up any rights they may have under any laws with respect to Xxxxxxx'x
employment and termination and acknowledge that Xxxxxxx has not (i) breached any
express or implied contract with any of them; or (ii) otherwise acted unlawfully
toward any of them. Without limiting the foregoing release, the Company, Big
Content and LTD hereby release any right they have or may have, to use the name
"Xxxxxx Xxxxxxx" and hereby sell, transfer, assign, convey and deliver to
Xxxxxxx all of their right, title and interest in, to and under such name, free
and clear of any and all assignments, grants, licenses claims, agreements,
rights, liens, mortgages, options, pledges, security interests and/or
encumbrances whatsoever (collectively, "Liens"), and agree that none of such
entities shall prohibit the use of such name by any Indemnified Xxxxxxx Party,
whether directly or indirectly; provided that the Company shall have the right
to refer to "Xxxxxx Xxxxxxx Promotions, Inc." as its former corporate name and
to continue to use the names "Xxxxxx Xxxxxxx Boxing," "Xxxxxx Xxxxxxx Sports
Network," "Xxxxxx Xxxxxxx Promotions" and "Xxxxxx Xxxxxxx Productions" as
company and trade names. Notwithstanding the foregoing, Xxxxxxx shall not be
permitted to use his name in a time due or business immediately preceding or
immediately succeeding any word beginning with "P", such as, but not limited to,
"Promotions," "Productions" or "Presents" or to use the acronyms "CKP," "CKPI"
or "CKSN." This release shall not apply to matters to be performed under this
Agreement. The Company, Big Content and LTD hereby represent and warrant
(jointly and severally) to Xxxxxxx that none of them has granted to any other
party other than Xxxxxxx, and to their knowledge, no party other than each of
the foregoing and Xxxxxxx has any right, title or interest in, to or under the
name "Xxxxxx Xxxxxxx" or any variations thereof.
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8. Return of Property. Simultaneously with the execution of this Agreement,
Xxxxxxx shall turn over to the Company any and all, credit cards, security
passes, a personal computer, computer disks, files, records or property of the
Company and its Affiliates, or copies thereof, in Xxxxxxx'x possession or
custody provided, however, that the parties hereby agree that Xxxxxxx may keep
the keys to the premises covered by the Lease. In addition, the Company will
turn over to Xxxxxxx any items of his personal property in the possession of the
Company or any of its affiliates simultaneously with the execution of this
Agreement and deliver to Xxxxxxx all keys to the premises covered by the Lease
on or before May 1, 2006. Except for the aforementioned keys, the parties hereby
acknowledge receipt of all such items.
9. Cooperation. Xxxxxxx agrees to cooperate at any and all times with the
Company and its subsidiaries in each and every litigation in which he or them is
named as a party or whose subject matter relates to any action he took while an
employee, officer, director or trustee thereof. This cooperation includes, but
is not limited to, making himself available at a mutually convenient time for
assistance to any of them in defending its position or for witness preparation
for a deposition or any court proceeding. The Company shall compensate Xxxxxxx
at the rate of $200 per hour, for all such cooperation, other than brief
telephone conversations, and shall reimburse Xxxxxxx for travel and other
Company pre-approved out-of-pocket expenses incurred by Xxxxxxx in such
cooperation. The Company, Big Content and LTD agree, jointly and severally, to
indemnify, hold harmless and defend Xxxxxxx from and against any and all claims,
damages and liability, including, but not limited to, without limitation
attorneys' fees and expenses and related costs of defense, that result from or
relate to any claims by employees, customers, suppliers, government agencies and
others relating to the Company, Big Content or LTD arising out of Xxxxxxx'x
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employment or its cessation or from Xxxxxxx'x actions on behalf of the Company,
Big Content or LTD during the term of employment, except that no indemnification
will be provided under this Section 9 for any proceeding by any such third party
unless Xxxxxxx acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, Big Content or LTD (as
the case maybe) and, with respect to any criminal proceeding, Xxxxxxx had no
reasonable cause to believe his conduct was unlawful. Xxxxxxx and the Company,
Big Content and LTD each agree to execute all documents and instruments in
furtherance of this Agreement. Similarly, the Company, Big Content and LTD will
cooperate with Xxxxxxx in defending any such action in which he is entitled to
indemnification under this Agreement or otherwise.
10. Non-Disparagement. Xxxxxxx agrees that neither he, nor anyone acting on
his behalf, shall hereafter (i) make any derogatory, disparaging or critical
statement about the Company or any of the Affiliates, the business of the
Company or any of its Affiliates, or any of the Company's or its Affiliates'
current officers, directors or employees or any persons who were officers,
directors or employees of the Company or any of its Affiliates or (ii) with the
exception of any disclosures required by law, communicate, directly or
indirectly, with the press or other media concerning the past or present
employees or business of the Company or its Affiliates, except to communicate
his business experience. Each of the Company, Big Content and LTD agrees that
none of the forgoing, nor any of its or their subsidiaries, officers, directors,
employees or agents or anyone acting on its or their behalf, shall hereafter (i)
make any derogatory, disparaging or critical statement about Xxxxxxx, his
reputation, business expertise and job performance or (ii) with the exception of
any disclosures required by law, communicate, directly or indirectly, with the
press or other media concerning Xxxxxxx in any manner.
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11. Representations and Warranties by the Company and Others. Each of the
Company, Big Content and LTD, jointly and severally, hereby represents and
warrants to each of the Indemnified Xxxxxxx Parties (each of which are hereby
deemed intended third party beneficiaries of this Agreement with full and
unfettered rights to enforce this Agreement) as follows:
a. Each of the Company and Big Content is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company and Big Content have full corporate power to own, lease and operate
their respective properties and to carry on their respective business as
presently conducted. The Company has not been known by any name other than
CKrush, Inc., Xxxxxx Xxxxxxx Promotions, Inc., Zenascent, Inc. and Fusion Flow,
Inc. in the past five (5) years. Big Content is a wholly-owned subsidiary of the
Company. LTD has been dissolved by proclamation by the Secretary of State of
Delaware and no representation is made that LTD will be reinstated as an active
corporation.
b. Each of the Company, and Big Content has all requisite power,
authority and capacity to execute, deliver and perform its obligations under
this Agreement and each and every instrument, document or agreement contemplated
by this Agreement, including, but not limited to, the Transaction Documents. The
execution, delivery and performance by each of the Company and Big Content of
this Agreement and the Transaction Documents has been duly authorized by all
necessary action on the part of each such party respectively. Each of this
Agreement and the Transaction Documents has been duly executed and delivered by
each of the Company and Big Content. Each of this Agreement and the Transaction
Documents is a legal, valid and binding obligation of each of the Company and
Big Content to the extent it is a party hereto or thereto, enforceable against
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such party, in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar
laws affecting the enforcement of creditors' rights generally and subject to
general principles of equity, regardless of whether enforcement is sought in a
proceeding of law or in equity.
c. Neither the execution nor delivery of this Agreement and the
Transaction Documents, nor the consummation of the transactions contemplated by
this Agreement and the Transaction Documents, will conflict with or result in
the breach of any term or provision of, require consent or violate or constitute
a default under, or give any third party the right to terminate or accelerate
any obligation under any charter provision, by-law, contract, agreement, permit,
license or law to which, the Company, Big Content or LTD is a party or by which
such party is in any way bound or obligated.
d. No consent, or approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any governmental or
quasi-governmental agency, authority, commission, board, other body and/or any
third party, is required on the part of the Company, Big Content or LTD, in
order to enter into or consummate the transactions contemplated by this
Agreement or the Transaction Documents.
e. The Company is the successor by merger to Zenascent, Inc., Zenascent
Newco, Inc. and Boxing pursuant to the Merger Agreement and that certain
Agreement and Plan of Merger dated as of March 8, 2002 by and among Boxing, LTD,
Big Content, Big Content Accquisition Corp., Xxxxxx Charitable Remainder Trust
and Xxxxxxxxxx Investments, LLC.
f. To the best knowledge of the Company, each of the Company and Big
Content has good and marketable title to each of the assets to be transferred to
Xxxxxxx, Gotham and/or Media (as the case may be) by such party under this
Agreement and/or Transaction Documents, including, but not limited to, the
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Lease, the Security Deposit, the FFE, the Library, the Master Tapes, the
Intellectual Property, the Facilities Agreements, the License Agreement (as
hereinafter defined) and the Miscellaneous Agreements (as each is defined in the
Lease and Library Agreement), free and clear of any and all Liens. None of such
assets to be transferred hereunder are subject to any restriction with regard to
transferability. To the best knowledge of the Company, there are no agreements,
options, commitments or understandings with, of or to any person to acquire any
of such assets or any rights or interest therein and no person other than the
Company and Big Content, as the case may be, has any rights or interest therein.
g. A true and correct copy of each of the Transferred Agreements, the
License Agreement and the Sports Tech Agreement (as defined in the Consulting
Agreement) has been delivered to Xxxxxxx. To the best knowledge of the Company,
each of the Facilities Agreements, Miscellaneous Agreements, Transferred
Agreements, the License Agreement and the Sports Tech Agreement has been duly
executed and delivered by each of the parties thereto and each such agreement is
a legal, valid and binding obligation of each such party, enforceable against
each such party in accordance with its terms. To the best knowledge of the
Company, the Sports Tech Agreement has been duly and validly assigned to LTD by
Sports Tech (as defined in the Consulting Agreement), and by LTD to the Company
free and clear of any and all Liens and has not been further assigned or
Modified (as defined in the Consulting Agreement). To the best knowledge of the
Company, each such agreement is enforceable in accordance with its terms by the
Company, Big Content, and/or LTD, as the case may be. To the best knowledge of
the Company, no CKrush Party has received, directly or indirectly, any payments
pursuant to, on account of, or related to, the Sports Tech Agreement or the
License Agreement.
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h. Pursuant to the License Termination Agreement of even date between
English Disbtribution, LLC ("English") and Big Content, Inc., except to the
extent contemplated by the Lease and Library Agreement, that certain License
Agreement dated November 1, 2005 between English and Big Content, Inc. (the
"License Agreement") has been terminated, no party thereto having any liability
and/or obligation thereunder.
i. The Company is in possession of the Premises (as defined in the
Library Agreement) and is paying the full lease rental as reserved in the Lease.
No rental payments have been made more than one month in advance. All work
required to be performed by the Landlord under the Lease has been completed. The
commencement date of the Lease is February 4, 2003 and the expiration date of
the original term of the Lease is January 30, 2008. To the best knowledge of the
Company, there are no outstanding defaults by any party to the Lease.
j. All references in this Section 11 to "the best knowledge of the
Company" means matters of which any director, officer, or employee of the
Company other than Xxxxxxx has actual knowledge.
12. Representations by Xxxxxxx. Xxxxxxx hereby represents and warrants to
the Company as follows:
x. Xxxxxxx has all requisite power, authority and capacity to execute,
deliver and perform his obligations under this Agreement. This Agreement has
been duly executed and delivered by Xxxxxxx. This Agreement is a legal, valid
and binding obligation of Xxxxxxx, enforceable against Xxxxxxx in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the
enforcement of creditors' rights generally and subject to general principles of
equity, regardless of whether enforcement is sought in a proceeding of law or in
equity.
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b. Neither the execution nor delivery of this Agreement nor the
consummation of the transactions contemplated by this Agreement will conflict
with or result in the breach of any term or provision of, require consent or
violate or constitute a default under, or give any third party the right to
terminate or accelerate any obligation under any contract, agreement, permit,
license or law to which Xxxxxxx is a party or by which Xxxxxxx is in any way
bound or obligated.
c. No consent, or approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any governmental or
quasi-governmental agency, authority, commission, board or other body is
required on the part of Xxxxxxx in order to enter into or consummate the
transactions contemplated by this Agreement.
13. SEC Filings. Xxxxxxx acknowledges and the Company agrees that he
understands that the Company will file a Current Report on Form 8-K (the "8-K")
with the Securities and Exchange Commission (the "SEC") disclosing the execution
and delivery of this Agreement, and including a copy of this Agreement as an
exhibit to the 8-K. The Company agrees to provide to Xxxxxxx a draft of the 8-K
at least one (1) business day prior to its filing with the SEC. The Company will
consider in good faith any changes requested by Xxxxxxx; provided, however, that
the Company shall make the final determination with respect to the contents of
the 8-K. In addition, the Company agrees to prepare or cause to be prepared and
filed with the SEC on behalf of Xxxxxxx any and all reports legally required of
him, including, but not limited to, Form 4 and Schedule 13D or any amendment
thereto; provided, however, that the contents of any such filings shall be
solely the responsibility of Xxxxxxx. The Compay also agrees to expedite the
issuance of a new 500,000 share certificate to Kushner as a result of his sale
of common stock to an unaffiliated third party.
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14. Severability. Should any provisions of this Agreement be held to be
illegal, void or unenforceable, such provision shall be of no force and effect.
However, the illegality or unenforceability of any such provision shall have no
effect upon, and shall not impair the enforceability of, any other provision of
this Agreement.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, excluding its conflicts of
laws provisions.
16. Integration. This Agreement contains the complete understanding among
the Company and Xxxxxxx, and no other promises or agreements shall be binding
unless signed by both. In signing this Agreement, the parties are not relying on
any fact, statement or assumption not set forth in this Agreement.
17. Amendments. This Agreement may only be changed or amended by a written
agreement signed by all of the parties hereto.
18. Knowledge and Consent. By signing below, the parties indicate that they
have carefully read and understood the terms of this Agreement, enter into the
Agreement knowingly, voluntarily and of their own free will, understand its
terms and significance and intend to abide by its provisions without exception.
19. Binding Effect. This Agreement is binding upon, inures to the benefit
of and is enforceable by the parties, the heirs, personal representatives,
successors and assigns of the parties. This Agreement is not assignable by a
party without the prior written consent of each other party.
20. Further Assurances. Subject to the terms and conditions of this
Agreement, the parties hereto will use commercially reasonable efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transaction contemplated by this Agreement.
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None of the parties hereto will, without prior written consent of the other
parties, take any action which would reasonably be expected to prevent or
materially impede, interfere with or delay the transactions contemplated by this
Agreement.
21. Consents. To the extent that any rights under any agreement, contract,
commitment, lease, permit or other asset to be assigned to Xxxxxxx, Gotham or
Media hereunder or under any Transaction Document may not be assigned without
the consent of another person which has not been obtained, neither this
Agreement nor such Transaction Document shall constitute an agreement to assign
the same if an attempted assignment would constitute a breach thereof or be
unlawful, and the Company or Big Content, at its expense, shall use its best
efforts to obtain any such required consent(s) as promptly as possible. If any
such consent shall not be obtained or if any attempted assignment would be
ineffective or would impair Xxxxxxx'x, Gotham's or Media's rights in and to the
asset in question so that such party would not in effect acquire the benefit of
all such rights, the Company or Big Content, as the case may be, to the maximum
extent permitted by law and the asset, shall act as such party's agent in order
to obtain for it the benefits thereunder and shall cooperate, to the maximum
extent permitted by law and the asset, with such party in any other reasonable
arrangement designed to provide such benefits to such party, all at no cost to
such party.
22. Incorporation By Reference. Each of the Company, Big Content, and LTD,
jointly and severally, hereby represents and warrants to, and covenants and
agrees with, each of the Indemnified Xxxxxxx Parties that the representations,
warranties, indemnifications, covenants and agreements of each of the Company,
Big Content and LTD set forth in this Agreement are hereby incorporated as if
set forth at length in (i) the Consulting Agreement of even date among the
Company and Gotham
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and that Xxxxxxx and Gotham are each intended third party beneficiaries thereof
with full and unfettered rights to enforce same, (ii) the Lease and Library
Agreement and that Xxxxxxx and Media are each intended third party beneficiaries
thereof with full and unfettered rights to enforce same. Each of the Company,
Big Content, and LTD, jointly and severally, hereby represents and warrants to,
and covenants and agrees with, each of the Indemnified Xxxxxxx Parties that the
representations, warranties, indemnifications, covenants and agreements of each
of the Company, Big Content and LTD set forth in the Consulting Agreement and
Library Agreement, as the case may be, are hereby incorporated as if set forth
at length herein and that Xxxxxxx, Boxing and Media, as the case may be, are
each intended third party beneficiaries thereof with full and unfettered rights
to enforce same.
23. Representations and Warranties Regarding Xxxxxxxxx. Each of the
Company, Big Content, LTD and XxXxxxxxx, jointly and severally, hereby
represents and warrants to Xxxxxxx as follows: XxXxxxxxx is an individual with
all requisite power, authority and capacity to execute, deliver and perform his
obligations under paragraph 5(d) of this Agreement. This Agreement has been duly
executed and delivered by XxXxxxxxx. Paragraph 5(d) of this Agreement is a
legal, valid and binding obligation of XxXxxxxxx, enforceable against such party
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting the enforcement of creditors' rights generally and subject to general
principles of equity, regardless of whether enforcement is sought in a
proceeding of law or in equity. Neither the execution nor delivery of this
Agreement nor the consummation of the transactions contemplated by paragraph
5(d) of this Agreement will conflict with or result in the breach of any term or
provision of, require consent or violate or constitute a default under, or give
any third party the right to terminate or accelerate any obligation under any
contract, agreement, permit, license or law to which, XxXxxxxxx is a party or by
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which he is in any way bound or obligated. No consent, or approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any governmental or quasi-governmental agency, authority,
commission, board, other body and/or any third party is required on the part of
XxXxxxxxx in order to enter into or consummate the release contemplated by
paragraph 5(d) of this Agreement.
24. LTD. Each of the Company and Big Content, jointly and severally, hereby
guaranty to the Indemnified Xxxxxxx Parties all of LTD's representations,
warranties, covenants and agreements, monetary and non-monetary, set forth
herein and each Transaction Document, as and when due, whether enforceable
against LTD or otherwise.
IN WITNESS WHEREOF, this Agreement has been signed as of the date first set
forth above.
/s/ Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx, Individually
CKRUSH, INC.
f/k/a Xxxxxx Xxxxxxx Promotions, Inc.
By: /s/ Xxxxxx Xxxxxx
------------------
Xxxxxx Xxxxxx
President
XXXXXX XXXXXXX PROMOTIONS, LTD.
By: /s/ Xxxxxx Xxxxxx
------------------
Xxxxxx Xxxxxx
AS TO PARAGRAPHS 5(D) & 23 ONLY:
/s/ Xxxxx XxXxxxxxx
--------------------
Xxxxx XxXxxxxxx, Individually
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