1
EXHIBIT 10.2
STOCK PURCHASE AGREEMENT
This Agreement is made as of November 18, 1999, by and among Xxxxxx X.
Xxxxxx, whose address is 000 Xxx Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx, 00000-0000
("Seller") and Select Media Communications, Inc., a New York corporation, with a
principal place of business of 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000
("Purchaser").
BACKGROUND
A. Seller owns twenty (20) shares of the capital stock of Sigma Sound
Services, Inc., a Pennsylvania corporation (the "Company"), which shares
represent one hundred percent (100%) of the outstanding shares of the capital
stock of the Company (the "Stock").
B. Seller wishes to sell and Purchaser wishes to purchase the Stock on
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual and
several covenants, conditions, representations, warranties and indemnities set
forth herein, intending to be legally bound hereby, the parties hereto agree as
follows:
1. DEPOSIT TOWARDS PURCHASE PRICE. Purchaser acknowledges and
understands that by entering into this Agreement, Seller has forgone a
profitable opportunity to cause the Company to enter in to an agreement for the
sale of substantially all of the Company's assets. Accordingly, as a covenant
independent of the Closing (as defined below), on the date hereof, Purchaser
shall pay Seller in good funds by wire transfer to an account or accounts
designated by Seller or, in the absence of such designation, by certified or
bank cashier's checks payable to Seller delivered to Seller's address set forth
above, the sum of Four Hundred Thousand Dollars [$400,000] (the "Payment Upon
Execution"). If Purchaser shall not pay when due the Payment Upon Execution,
Seller may terminate this Agreement and either exercise any and all remedies
available to Seller hereunder, at law or in equity or retain as liquidated
damages the Payment Upon Execution. Notwithstanding anything herein to the
contrary, the Payment Upon Execution shall be deemed earned by Seller as of the
date of this Agreement and shall not be refundable to Purchaser under any
circumstances whatsoever.
2. SALE AND PURCHASE OF THE STOCK.
2.1 TRANSFER AT CLOSING. At the Closing, Seller shall sell,
transfer, assign and convey to Purchaser the Stock. If any Seller should refuse
or fail to deliver the Stock at the Closing, Purchaser shall at its sole
discretion have the option to accept delivery of such shares of the Stock as are
delivered at the Closing (without losing any rights Purchaser may have hereunder
or at law or in equity against Seller for refusing or failing to make such
delivery) or to terminate the transactions contemplated by this Agreement
without any further liability to Purchaser.
2.2 PURCHASE PRICE FOR THE STOCK. The purchase price for the
Stock shall be One Million Dollars [$1,000,000] (the "Purchase Price"), of
which: (i) Four Hundred Thousand Dollars ($400,000) shall be paid pursuant to
the terms of Section 1 hereof; (ii) Two Hundred Thousand
2
Dollars ($200,000) shall be payable in cash at the Closing by wire transfer to
an account or accounts designated by Seller or, in the absence of such
designation, by certified or bank cashier's checks payable to Seller (the "Down
Payment"); and (iii) Four Hundred Thousand Dollars ($400,000) shall be payable
pursuant to the terms of the Note (as defined in Section 2.3 hereof).
2.3 NOTE PAYABLE FOR THE STOCK. At the Closing, Purchaser
shall execute and deliver to Seller: (i) a promissory note in the principal sum
of Four Hundred Thousand Dollars ($400,000) in the form attached as Exhibit "A"
hereto (the "Promissory Note"); (ii) an Escrow Agreement for Assignment of Name
in the form attached as Exhibit "B" hereto, together with the Assignment of Name
attached thereto as an exhibit, duly executed by Purchaser and the Company (the
"Escrow Agreement for Assignment of Name"); (iii) a Security Agreement in the
form attached as Exhibit "C" hereto (the "Security Agreement"); and (iv) all
appropriate Forms UCC-1.
3. CLOSING; TRANSFER PROCEDURES.
3.1 CLOSING. The consummation of the transactions resulting in
the sale and purchase of the Stock ( the "Closing") shall occur on January 18,
2000, commencing at 10:00 A.M. (the "Closing Date"), at the offices of Xxxxx
Xxxxxxxx & XxXxxxxx, LLP, Two Commerce Square, Suite 3410, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or on such other Closing Date or at such other
place agreed to by the parties. Time is of the essence.
3.2 MINUTE BOOKS, CORPORATE SEAL AND STOCK RECORDS. At the
Closing, Seller shall deliver or cause the Company to deliver to Purchaser all
minute books, corporate seals, stock certificate books and other stock records
of the Company.
3.3 DELIVERY OF THE STOCK. At the Closing, Seller shall
deliver to Purchaser all certificates representing the Stock, duly endorsed in
blank or with appropriate stock powers duly endorsed in blank.
3.4 BANK ACCOUNT SIGNATURES. At the Closing, Seller shall
deliver or cause the Company to deliver to Purchaser all necessary documents
required by any banks or other depository institutions for the Company to remove
the authorized signatories and replace them with the Purchaser's designees.
3.5 NAME. Effective the Closing, Seller shall be deemed to
have assigned, transferred and conveyed to the Company: (i) all of Seller's
right, title and interest, if any, in and to the name "Sigma Sound," and all
goodwill associated therewith; and (ii) all of Seller's right, title and
interest, if any, in and to the name "Sigma Sound Studios," and all goodwill
associated therewith.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants to Purchaser as of the date hereof and at the Closing as follows:
4.1 ORGANIZATION AND GOOD STANDING. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the Commonwealth of Pennsylvania.
2
3
4.2 NO SUBSIDIARIES. The Company has no interest in any other
corporation, partnership, joint venture or other legal entity.
4.3 CAPITALIZATION. The issued, authorized and outstanding
capital stock of the Company consists of the Stock, of which Seller owns one
hundred percent (100%). Each share of such capital stock issued and outstanding
is validly issued, fully paid and non-assessable. There are no outstanding
options, warrants, puts, calls, contracts, commitments, preemptive rights,
cumulative voting rights, assignments, pledges or demands of any character
relating to any of the capital stock of the Company.
4.4 STOCK OWNERSHIP. Seller owns the Stock free and clear of
all liens, encumbrances, pledges, mortgages, security interests, conditional
sales contracts, claims and other charges of every kind ("Liens"). Seller has
the full right to transfer the Stock to Purchaser free and clear of all Liens,
and without violating any agreement or understanding to which the Company or
Seller is a party or by which either of them is bound.
4.5 TITLE TO PROPERTIES. The Company owns outright, and has
good and marketable title to, all of its properties, free and clear of all
Liens, except for the lien of current taxes not yet due and payable and
statutory liens incurred in the ordinary course of business which are not
delinquent. The Company's assets include substantially all of the inventory and
equipment listed on Schedule "1" hereto (the "Inventory and Equipment"). The
Company's assets expressly exclude all of the office furniture, furnishings and
memorabilia listed on Schedule "2" hereto (the "Excluded Assets"). Any assets
within the Company's business premises located at 000-000-000 Xxxxx 00xx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 and not listed on Schedule "2" shall be deemed
assets of the Company and not Excluded Assets from and after the Closing.
4.6 TAX MATTERS. The Company has filed or caused to be filed
all federal, state and local tax returns and reports through the taxable year
ended December 31, 1998, and as of the date hereof, the taxable calendar quarter
ended June 30, 1999, and, as of the Closing, the taxable calendar quarter ended
September 30, 1999, which are due and required to be filed and has paid or
caused to be paid all taxes reported thereby, except taxes or assessments being
contested in good faith and for which adequate reserves have been established.
Since July 1, 1999, the Company has made all required interim payroll tax
payments, including, without limitation, all payroll withholding taxes.
4.7 LITIGATION. There is no dispute, claim, action, suit,
proceeding, arbitration or governmental investigation, either administrative or
judicial, pending, or, to the knowledge of Seller, threatened, against or
related to the Company or its properties or business. The Company is not in
default with respect to any order, writ, injunction or decree of any court or
governmental department, commission, board, bureau, agency or instrumentality,
which involves the possibility of any judgment or liability which may result in
any material adverse change in the Company's financial condition, assets,
liabilities, properties or business. Seller has no knowledge of any facts that
would provide a basis for any such claim, action, suit, proceeding,
investigation or default referred to in the first two sentences of this Section
4.7.
3
4
4.8 LIABILITIES. The Company has no liabilities or obligations
accrued, absolute, contingent or otherwise, except for trade accounts payable
consistent with past business practice in the normal and ordinary course of its
business and payroll taxes and unemployment compensation insurance and similar
expenses consistent with past business practice in the normal and ordinary
course of its business. Effective upon the Closing, any loans, accounts or other
sums payable to Seller shall be deemed to have been capital contributions and
treated as such from and after the Closing. The Company is not a party to any
debenture, note, conditional sale, loan or other borrowing agreement, or any
lease required to be capitalized in accordance with generally accepted
accounting principles, any of which involves a total remaining financial
obligation of more than Ten Thousand Dollars ($10,000). No dividends have been
declared that are payable by the Company to Seller.
4.9 COMPLIANCE WITH LAWS. The Company has received no notice
of violation of any law, ordinance, rule, regulation or order (including,
without limitation, any environmental, safety, health or price or wage control
law, ordinance, rule, regulation or order), and, to the knowledge of Seller none
are pending or threatened, applicable to its operations, business or properties
as presently constituted.
4.10 EMPLOYEE BENEFIT PLANS; EMPLOYEE RELATIONS. The Company
maintains no pension, profit sharing, stock bonus, stock option, deferred
compensation, health, life, accident or disability plans and the Company is not
a party to any employment or severance agreements (including but not limited to,
any "employee benefit plans" within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended and the regulations
promulgated thereunder.
4.11 DIRECTORS, OFFICERS AND AUTHORIZED PERSONS. Seller and
Xxxxxxx Xxxxxx are the Company's directors. No other person is a director of
Company. Seller and Xxxxxxx Xxxxxx shall be deemed to have resigned as directors
of the Company as of the Closing. Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxx are the only
officers of the Company.
4.12 DISCLOSURE. No representation or warranty by Seller in
this Agreement or in any other exhibit, list, certificate or document delivered
pursuant to this Agreement, contains or will contain any material omission or
untrue statement of material fact. Disclosure in any particular Exhibit attached
hereto shall constitute disclosure for all purposes of this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants to Seller as of the date hereof and at the Closing, as
follows:
5.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of New York. Purchaser is qualified to do business and is in good standing
in each jurisdiction in which the nature of its activities or the character of
its property owned, leased or operated by it make such qualification necessary
or appropriate except for those jurisdictions in which the failure to be so
qualified will not have a material adverse effect on Purchaser's business or
financial affairs. Purchaser has full corporate power to own its properties,
assets and business and to carry on its business as now
4
5
conducted.
5.2 AUTHORIZATION OF TRANSACTION "Authorization of
Transaction". Purchaser has the legal capacity, power and authority (including
full corporate power and authority) to execute and deliver this Agreement and
each agreement, document, instrument or certificate executed by it in connection
with this Agreement, including, without limitation, the Promissory Note, the
Escrow Agreement for Assignment of Name, the Security Agreement, the Lease [as
defined below], the Employment Agreement [as defined below], the Consulting
Agreement [as defined below] and the Guaranties [as defined below]
(collectively, the "Transaction Documents") and to perform its obligations
hereunder and thereunder. All corporate and other actions or proceedings to be
taken by or on the part of Purchaser to authorize and permit the execution and
delivery by it of the Transaction Documents to which it is a party, the
instruments required to be executed and delivered by it pursuant thereto, the
performance by Purchaser of its obligations under the Transaction Documents, and
the consummation by it of the transactions contemplated therein, have been duly
and properly taken. The Transaction Documents have been duly executed and
delivered by Purchaser and constitute the legal, valid and binding obligation of
Purchaser enforceable in accordance with their terms and conditions. At the
Closing, Purchaser shall deliver to Seller copies of Purchaser's and the
Company's corporate resolutions authorizing the matters set forth in this
Agreement and the other Transaction Documents. Any individual executing this
Agreement on behalf of Purchaser represents and warrants that he is a duly
authorized officer of Purchaser and authorized to act in the name of Purchaser
to bind Purchaser to this Agreement. If any such individual shall not be so
authorized then such individual shall be personally liable hereunder until
Purchaser ratifies, approves and adopts this Agreement as a binding obligation
of Purchaser, enforceable in accordance with its terms.
6. CONDUCT PENDING THE CLOSING. Seller hereby covenants and agrees
that, pending the Closing and except as otherwise approved in advance in writing
by the Purchaser:
6.1 CONDUCT OF BUSINESS. The Company shall carry on its
business diligently and substantially in the same manner as heretofore and
refrain from any action that would result in the breach of any of the
representations, warranties or covenants of Seller or the Company hereunder. The
Company shall not enter into any contract, commitment or transaction not in the
usual and ordinary course of its business and not consistent with past
practices. The Company will not sell or dispose of any capital asset with an
original cost in excess of Two Hundred and Fifty Dollars ($250). The Company
will not, and will not agree to, create any indebtedness or any other fixed or
contingent liability including, without limitation, liability as a guarantor or
otherwise with respect to the obligations of others, other than that incurred in
the usual and ordinary course of its business consistent with past practices,
and that incurred pursuant to existing contracts. The Company will not: (A)
issue any capital stock other than the Stock or grant any options, warrants or
other rights to purchase or obtain (including upon conversion, exchange or
exercise) any of its capital stock; (B) declare, set aside, or pay any dividend
or make any distribution with respect to its capital stock (including the Stock)
or redeem, purchase, or otherwise acquire any of its capital stock (including
the Stock).
6.2 AMENDMENT. The Company will not, and will not agree to,
amend its Articles of Incorporation or Bylaws, nor will there be any change in
its authorized or unissued capital stock.
5
6
6.3 INSURANCE. All insurance maintained by the Company
insuring the Company, its employees, or its business or operations will be
maintained by the Company in all respects.
6.4 NO DEFAULT. The Company shall not do any act or omit to do
any act, or permit any act or omission, which will cause a material breach of
any material contract, commitment or obligation to which it is a party or by
which it is bound.
6.5 TAX RETURNS. The Company will prepare and file all state,
federal and other tax returns, and amendments thereto required to be filed
between the date of this Agreement and the Closing Date. After the Closing,
Purchaser shall have a reasonable opportunity to review all such returns and
amendments thereto, prior to their being filed.
7. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations of
Purchaser under this Agreement are subject to the fulfillment, prior to or at
the Closing, of each of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES. Seller's representations
and warranties contained in this Agreement or in any list, certificate or
document delivered pursuant to the provisions hereof shall be true at and as of
the time of Closing.
7.2 PERFORMANCE OF AGREEMENTS. Seller shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed or complied with by them prior to or at the Closing.
7.3 CLOSING DELIVERIES. Seller shall have delivered the
documents and other items described in Section 3 hereof.
7.4 LEASE. Seller and Xxxxxxx Xxxxxx shall have entered into
the Lease substantially in the form attached as Exhibit "D" hereto (the "Lease")
and the same shall be in full force and effect.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. All obligations of
Seller under this Agreement are subject to the fulfillment, prior to or at the
Closing, of the following conditions:
8.1 REPRESENTATIONS AND WARRANTIES. Purchaser's
representations and warranties contained in this Agreement shall be true at and
as of the time of Closing.
8.2 PERFORMANCE OF AGREEMENTS. Purchaser and the Company shall
have performed and complied with all agreements and conditions required by this
Agreement or any of the other Transaction Documents to which it is a party to be
performed or complied with by it prior to or at the Closing. Purchaser and the
Company shall have delivered all agreements, documents, certificates and
instruments required to be delivered by this Agreement or any of the other
Transaction Documents.
8.3 PAYMENTS. Purchaser shall have paid to Seller the Payment
Upon Execution,
6
7
the Down Payment and Seller's Transaction Costs (as defined in Section 9.6
hereof).
8.4 PROMISSORY NOTE. Purchaser shall have executed and
delivered to Seller the Promissory Note, Escrow Agreement for Assignment of
Name, Security Agreement and all appropriate Forms UCC-1.
8.5 LEASE. The Company shall have entered into the Lease and
the same shall be in full force and effect.
8.6 EMPLOYMENT AND CONSULTING AGREEMENTS. The Company shall
have entered into the Employment Agreement substantially in the form attached as
Exhibit "E" hereto (the "Employment Agreement") and the Consulting Agreement
substantially in the form attached as Exhibit "F" hereto (the "Consulting
Agreement"), and each of these two (2) agreements shall be in full force and
effect.
8.7 PARENT GUARANTIES. Purchaser shall have entered into the
Purchaser's Security Agreement and each of the Guaranty Agreements substantially
in the form attached as Exhibits "G", "H" and "I" hereto (collectively, the
"Guaranties") and the same shall be in full force and effect.
9. REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
9.1 SURVIVAL. All representations, warranties and agreements
made by Seller individually and collectively in this Agreement or in any
exhibit, list, certificate or document delivered pursuant hereto shall survive
the Closing for a period of one (1) year, except those made in Section 4.3
(titled "Capitalization"), Section 4.4 (titled "Stock Ownership") and Section
4.6 (titled "Tax Matters"), which shall survive for a period of three (3) years.
All representations, warranties and agreements made by Purchaser in this
Agreement or any other of the Transaction Documents or in any exhibit, list,
certificate or document delivered pursuant hereto or thereto shall survive for a
period of one (1) year following the date on which Purchaser shall have paid in
full the Promissory Note.
9.2 INDEMNIFICATION BY SELLER. Seller shall indemnify, defend
and hold harmless Purchaser from and against all claims, demands, liabilities,
damages, losses, costs and expenses, including reasonable attorneys' fees,
caused by or arising out of the breach of any agreement of or any representation
or warranty made by Seller in this Agreement or in any exhibit, list,
certificate or document delivered by them pursuant hereto; provided, however,
that no such claim for indemnification hereunder may be asserted until and only
to the extent that the amount of such claim or the aggregate amount of such
claims exceeds the sum of One Hundred Thousand Dollars ($100,000), this
obligation of Seller to survive the Closing.
9.3 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify,
defend and hold harmless Seller from and against all claims, demands,
liabilities, damages, losses, costs and expenses, including reasonable
attorneys' fees, caused by or arising out of the breach of any agreement of or
any representation or warranty made by Purchaser in this Agreement or any other
of the Transaction Documents to which it is a party including, without
limitation, Section 9.6 hereof, this obligation of
7
8
Purchaser to survive the Closing.
9.4 DEFENSE OF CLAIMS. Promptly after any service of process
by any third person in any litigation in respect of which indemnity may be
sought from the other party pursuant to this Section 9, the party so served
shall notify the indemnifying party of the commencement of such litigation, and
the indemnifying party shall be entitled to assume the defense thereof at its
expense with counsel of its own choosing.
9.5 LIMITATION OF LIABILITY. Purchaser acknowledges as of the
date hereof and as of the Closing having had full and fair opportunity to
investigate the business, financial and other affairs of the Company. Purchaser
further acknowledges that except as expressly set forth herein, neither Seller
nor the Company has made any representatives and warranties to Purchaser.
9.6 SELLER'S TRANSACTION COSTS. Purchaser shall reimburse
Seller for all of Seller's fees, costs and expenses of this transaction,
including, without limitation Seller's legal and accounting fees, costs and
expenses attributable to this transaction, including the negotiation and
preparation of all of the Transaction Documents for the execution of this
Agreement and the administration of the Closing, this obligation of Purchaser to
survive the Closing (collectively, Seller's Transaction Costs").
10. MISCELLANEOUS.
10.1 FURTHER ASSURANCES. Seller will, at the request of
Purchaser from time to time, execute and deliver such further documents and
instruments and will take such other action reasonably required to consummate
the transactions contemplated by this Agreement.
10.2 NO BROKERS. Each party hereby represents and warrants to
the other that it has not engaged or dealt with any broker or other person who
may be entitled to any brokerage fee or commission in respect of the execution
of this Agreement or the consummation of the transactions contemplated hereby.
Each of the parties hereto shall indemnify and hold the other harmless against
any and all claims, losses, liabilities or expenses which may be asserted
against a party as a result of such other party's dealings, arrangements or
agreements with any such broker or person.
10.3 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No party shall
issue any press release or make any public announcement relating to the subject
matter of this Agreement prior to the Closing without the prior approval of the
other party.
10.4 NO THIRD PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person other than the parties and their
respective successors and permitted assigns.
10.5 ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement between the parties and
supersedes any prior understandings, agreements, or representations by or
between the parties, written or oral, to the extent they related in any way to
the subject matter hereof.
8
9
10.6 SUCCESSION AND ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the parties named herein and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other party.
10.7 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10.8 HEADINGS. The section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.9 NOTICES. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given (i) upon
confirmation of facsimile, (ii) one business day following the date sent when
sent by overnight delivery and (iii) three (3) business days following the date
mailed when mailed by registered or certified mail return receipt requested and
postage prepaid at the following address:
If to Purchaser:
Select Media Communications, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
With a copy to:
Xxxxx Xxxxx Xxxxxx & Xxxxxxxxx, LLP
The Bellevue, Sixth Floor
Broad Street at Walnut
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxxx, Esquire
If to Seller and/or Company:
Xxxxxx X. Xxxxxx
000 Xxx Xxxx
Xxxxxxxxxxx, XX 00000-0000
9
10
With a Copy to:
Xxxxx Xxxxxxxx & XxXxxxxx, LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. XxXxxxxx, Esquire
Any party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
10.10 GOVERNING LAW; ARBITRATION. This Agreement shall be
governed by and construed in accordance with the domestic laws of the
Commonwealth of Pennsylvania without giving effect to any choice or conflict of
law provision or rule (whether of the Commonwealth of Pennsylvania or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the Commonwealth of Pennsylvania. Any and all legal proceeds
concerning the infringement, breach or contemplated breach of this Agreement
shall be filed in the Commonwealth of Pennsylvania, Philadelphia County only,
and the parties hereto consent to such jurisdiction and venue. If a dispute
arises as to interpretation of this Agreement, it shall be decided finally by
three arbitrators in an arbitration proceeding conforming to the Rules of the
American Arbitration Association applicable to commercial arbitration. The
arbitrators shall be appointed as follows: one by Seller, one by Purchaser and
the third by the said two arbitrators, or, if they cannot agree, then the third
arbitrator shall be appointed by the American Arbitration Association. The third
arbitrator shall be chairman of the panel and shall be impartial. The
arbitration shall take place in Philadelphia, Pennsylvania. The decision of a
majority of the Arbitrators shall be conclusively binding upon the parties and
final, and such decision shall be enforceable as a judgment in any court of
competent jurisdiction. Each party shall pay the fees and expenses of the
arbitrator appointed by it, its counsel and its witnesses. The parties shall
share equally the fees and expenses of the impartial arbitrator.
10.11 AMENDMENTS AND WAIVERS. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
each of the parties. No waiver by any party of any default, misrepresentation,
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation, or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
10.12 SEVERABILITY. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
10
11
10.13 CONSTRUCTION. The parties have participated jointly in
the negotiation and drafting of this Agreement and the other Transaction
Documents. In the event an ambiguity or question of intent or interpretation
arises, the Transaction Documents shall be construed as if drafted jointly by
the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision thereof. Any
reference to any federal, state, local, or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. The word "including" shall mean including
without limitation. Nothing in any Schedule hereto shall be deemed adequate to
disclose an exception to a representation or warranty made herein unless it
identifies the exception with particularity and describes the relevant facts in
detail. Without limiting the generality of the foregoing, the mere listing (or
inclusion of a copy) of a document or other item shall not be deemed adequate to
disclose an exception to a representation or warranty made herein (unless the
representation or warranty has to do with the existence of the document or other
item itself). The parties intend that each representation, warranty, and
covenant contained herein shall have independent significance. If any party has
breached any representation, warranty, or covenant contained herein in any
respect, the fact that there exists another representation, warranty, or
covenant relating to the same subject matter (regardless of the relative levels
of specificity) which the party has not breached shall not detract from or
mitigate the fact that the party is in breach of the first representation,
warranty, or covenant. Time is of the essence with respect to any obligation of
Purchaser to pay any sums to Seller under any of the Transaction Documents.
10.14 INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits
and Schedules identified in this Agreement are incorporated herein by reference
and made a part hereof.
10.15 SPECIFIC PERFORMANCE. Each of the parties acknowledges
and agrees that the other party would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the parties
agrees that the other party shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
this Agreement and the terms and provisions hereof in any action instituted in
any court of the United States or any state thereof having jurisdiction over the
parties and the matter in addition to any other remedy to which it may be
entitled, at law or in equity.
[SIGNATURES APPEAR NEXT PAGE]
11
12
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the day and year first above written.
SELLER:
---------------------------------
Xxxxxx X. Xxxxxx
PURCHASER:
ATTEST: Select Media Communications, Inc.,
a New York corporation
BY: BY:
------------------------ -------------------------
NAME: NAME:
------------------------ -------------------------
TITLE: TITLE:
------------------------ -------------------------
12
13
STOCK PURCHASE AGREEMENT
DATED NOVEMBER 18, 1999 MADE BY AND BETWEEN
XXXXXX X. XXXXXX AND SELECT MEDIA COMMUNICATIONS, INC., A NEW YORK CORPORATION
LIST OF EXHIBITS AND SCHEDULES TO STOCK PURCHASE AGREEMENT
Exhibit "A" Promissory Note
Exhibit "B" Escrow Agreement for Assignment of Name
Exhibit "C" Security Agreement
Exhibit "D" Lease
Exhibit "E" Employment Agreement of Xxxxxxx Xxxxxx
Exhibit "F" Consulting Agreement of Xxxxxx X. Xxxxxx
Exhibit "G" Guaranty of Lease
Exhibit "H" Guaranty of Xxxxxxx Xxxxxx
Exhibit "I" Guaranty of Xxxxxx X. Xxxxxx
Schedule "1" Inventory and Equipment
Schedule "2" Excluded Assets
13
14
EXHIBIT "A"
PROMISSORY NOTE
SEE ATTACHED
15
EXHIBIT "B"
ESCROW AGREEMENT FOR
ASSIGNMENT OF NAME
SEE ATTACHED
16
EXHIBIT "C"
SECURITY AGREEMENT
SEE ATTACHED
17
EXHIBIT "D"
LEASE
SEE ATTACHED
18
EXHIBIT "E"
EMPLOYMENT AGREEMENT
OF XXXXXXX XXXXXX
SEE ATTACHED
19
EXHIBIT "F"
CONSULTING AGREEMENT
OF XXXXXX XXXXXX
SEE ATTACHED
20
EXHIBIT "G"
GUARANTY OF LEASE
SEE ATTACHED
21
EXHIBIT "H"
GUARANTY OF XXXXXXX XXXXXX
SEE ATTACHED
22
EXHIBIT "I"
GUARANTY OF XXXXXX X. XXXXXX
SEE ATTACHED
23
SCHEDULE "1"
INVENTORY AND EQUIPMENT
SEE ATTACHED
24
SCHEDULE 2
EXCLUDED ASSETS
SEE ATTACHED
