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AGREEMENT
dated as of April 27, 2000
by and between
Team Communications Group, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
U.S.A.
(hereinafter referred to as "TEAM")
and
FFP Entertainment GmbH
Xxxxxxx Xxxxxxx 00
00000 Xxxxxxx
Xxxxxxx
(hereinafter referred to as "FFP")
RECITALS
Team, a California corporation with its principal place of business at Los
Angeles, California, is engaged in the business of developing, producing and
distributing various types of television programming in the United States of
America and worldwide. Team is the sole
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shareholder of Team Entertainment Germany GmbH ("TEAM GERMANY"), a German
limited liability company headquartered in Munich, Germany.
FFP, a German limited liability company with its principal place of business at
Cologne, Germany, is engaged in the business of developing, producing and
distributing television programming in Germany and worldwide. FFP's business
consists of two divisions known as "German language productions" and
"international productions", respectively. FFP is in the process of forming a
joint venture (hereinafter "FFP MEDIA") with Das Werk AG to which FFP will
contribute its German language productions division. FFP Media will be formed as
a German limited liability company whose sole shareholders will be FFP and Das
Werk AG (it being understood that FFP will, initially and until the transactions
contemplated by this Agreement are consummated, hold not less than 50 % of the
voting rights in FFP Media).
Team and FFP wish to jointly exploit their present and future business
opportunities in Germany and other countries. For this purpose, they wish to
form a joint venture (hereinafter referred to as "TEAM/FFP") to which FFP will
contribute its interest in FFP Media as well as its international productions
division. Pursuant to the transactions contemplated hereby, at the FIRST CLOSING
(as such term is defined below) Team will acquire a 50% equity interest
(computed on a fully diluted basis) in Team FFP, and at the SECOND CLOSING (as
such term is defined below), if when and as such closing shall occur, Team will
acquire from FFP the remaining interest of Team FFP.
Now, therefore, Team and FFP hereby agree as follows:
ARTICLE 1: FORMATION OF FFP MEDIA AS A JOINT VENTURE BETWEEN FFP
AND DAS WERK AG.
1.1 Formation of Company; Sale and Transfer of approximately 50.5 % to
Das Werk AG. As soon as possible after the execution hereof, FFP shall:
(a) form FFP Media in the form of a wholly-owned German
limited liability company ("Gesellschaft mit beschrankter Haftung" - "GmbH") and
contribute to FFP Media all of FFP's German language productions division
(including, without limitation, all tangible and intangible assets and contracts
attributable to FFP's German language productions division (it is agreed,
however, that FFP shall not contribute to FFP Media (i) any liabilities
(including contingent liabilities) to banks or similar institutions (other than
project financing), or (ii) any other liabilities (including contingent
liabilities) except for such
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liabilities arising from contracts entered into in the ordinary course of
business, it being understood that such formation and contribution shall occur
by way of a downstream spinoff ("Ausgliederung zur Neugrundung") under Section
123 Para. 3 No. 2 of the German Transformation Act ("Umwandlungsgesetz") and
that such contribution shall occur at book value. In the spin-off documentation,
FFP shall further agree to indemnify and hold harmless FFP Media from any
liability under applicable statutory law for those of FFP's obligations or
liabilities that are not being spun off to FFP Media;
(b) enter into a Share Purchase and Transfer Agreement and
other appropriate agreements with Das Werk AG whereby FFP sells and transfers to
Das Werk AG an (approximately) 50.5 % interest in FFP Media for a purchase price
of not less than DM 8,000,000.00 (eight million Deutschmarks).
1.2 Agreements between FFP and Das Werk AG. FFP shall ensure that the
Articles of Association and the agreements between FFP and Das Werk AG in
connection with the formation of FFP Media (collectively, the "FFP
ORGANIZATIONAL DOCUMENTS") and the sale of an (approximately) 50.5 % interest in
FFP Media to Das Werk AG do not contain terms materially disadvantageous to FFP
other than those set forth in the draft term sheet attached hereto as EXHIBIT
1.2 and do not deviate to FFP's disadvantage from the draft term sheet attached
hereto as EXHIBIT 1.2. In particular (without limitation), FFP shall ensure
that, even after the sale and transfer of an (approximately) 50.5 % interest in
FFP Media to Das Werk AG, FFP has the right to appoint and remove one of the two
managing directors of FFP Media and one of the three members of FFP Media's
Administrative Board and that Das Werk AG is not put in a position to overrule
FFP (or, after FFP has contributed its interest in FFP Media to Team/FFP,
Team/FFP) on any material issue or decision. The FFP Organizational Documents
shall also provide that:
(a) FFP Media will have two managing directors and a
three-person Administrative Board;
(b) one of the two managing directors will be Xx. Xxxxxxx,
who, for a period of three years from the date of his appointment, cannot be
removed as managing director of FFP Media except (i) for cause or (ii) with the
approval of Das Werk AG;
(c) one of the three members of FFP Media's Administrative
Board will be Xx. Xxxxxxxx Xxxxxxxxx, who, for a period of three years from the
date of his appointment, cannot be removed as member of FFP Media's
Administrative Board except (i) for cause or (ii) with the approval of Das Werk
AG.
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1.3 Disclosures to Team. FFP shall keep Team apprized of all relevant
facts in connection with the formation of FFP Media and its agreements with Das
Werk AG. In particular, FFP shall, as from the execution hereof, provide Team,
promptly and on an ongoing basis, with copies of all drafts and all final
versions of
(a) the formation deed of FFP Media;
(b) all legal instruments whereby FFP contributes its German language
productions division to FFP Media;
(c) all auditors' reports, valuation reports and similar documents
describing or valuing FFP's German language productions division;
(d) the Share Purchase and Transfer Agreement between FFP and Das Werk
AG contemplated by Article 1.1 (b) above;
(e) the Articles of Association of FFP Media;
(f) all shareholder resolutions of FFP Media;
(g) all shareholder agreements or other legal instruments governing
the relationship of FFP and Das Werk AG as co-shareholders of FFP Media;
and
(h) all other documents Team may reasonably request.
1.4 Indemnification of Team and Team Germany. FFP shall ensure that
Team and Team Germany are not exposed to any liability or cost arising from or
in connection with the formation of FFP Media, the contribution of FFP's German
language productions division to FFP Media, or the legal relationship between
FFP and Das Werk AG. FFP hereby agrees to indemnify and hold harmless Team and
Team Germany from and against any such liability or cost.
ARTICLE 2: FORMATION OF TEAM/FFP.
2.1 Formation of TEAM/FFP. As soon as possible after the Share Purchase
and Transfer Agreement between FFP and Das Werk AG as contemplated by Article
1.2 above
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has become legally effective and FFP has collected the purchase price from Das
Werk AG, FFP shall use the full amount of the purchase price to repay existing
liabilities of FFP (in particular, liabilities to lenders and/or suppliers).
After such repayment, FFP shall form a wholly-owned German limited liability
company ("Gesellschaft mit beschrankter Haftung" - "GmbH") under the corporate
name "Team/FFP GmbH" (or such other corporate name as may be agreed on by Team
and FFP and approved by the appropriate court of registration and Chamber of
Industry and Commerce) (hereinafter "TEAM/FFP"). FFP shall contribute to
Team/FFP all of FFP's assets, including, without limitation, all of FFP's
tangible or intangible assets (including FFP's interest in FFP Media and all
rights relating or pertaining thereto) but not including FFP's interests in XXX
Film GmbH and Xxxxxx GmbH & Co. KG and FFP's interest in Madbox Filmtrick GmbH
(which has been sold by FFP in January 2000). It is expressly agreed that FFP
shall not transfer to Team/FFP any liabilities (including contingent liabilities
and liabilities to banks or similar institutions and liabilities from employment
contracts or other contracts) except for liabilities arising in the ordinary
course of business and approved in advance, in writing, by Team. Such formation
and contribution may occur by way of a downstream spinoff ("Ausgliederung zur
Neugrundung") under Section 123 Para. 3 No. 2 of the German Transformation Act
("Umwandlungsgesetz") at book value or in another appropriate and legally
permissible form. FFP shall ensure that, as from the execution of this
Agreement, Team/FFP does not enter into any transaction which creates a
liability for Team/FFP except with the prior approval of Team (which approval
shall not be unreasonably withheld). If the formation and contribution occur by
way of a spin-off, FFP shall agree in the spin-off documentation to indemnify
and hold harmless Team/FFP from any liability under applicable statutory law for
FFP's obligations or liabilities.
2.2 Capitalization of Team/FFP. Team/FFP shall have a registered share
capital in the amount of Euro 110,000.00 (one-hundred ten thousand Euros). The
formation deed and Articles of Association of Team/FFP shall provide that FFP
shall pay up such share capital in the form of a contribution in kind by
contributing to Team/FFP the items set forth in Articles 2.1 above and that, to
the extent that the value of such items exceeds Euro 110,000.00, such excess
amount shall constitute a capital reserve within the meaning of Section 272
Para. 2 No. 1 of the German Commercial Code. FFP shall not adopt any shareholder
resolutions of Team/FFP increasing or decreasing Team/FFP's registered share
capital to an amount above or below Euro 110,000.00 except with Team's prior
approval.
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ARTICLE 3: SALE AND TRANSFER BY FFP OF 50 % OF TEAM/FFP TO TEAM; CONDITIONS TO
FIRST CLOSING.
3.1 Sale and Transfer. Subject to the terms hereof, FFP hereby sells to
Team, and Team hereby purchases from FFP, a future share in the nominal amount
of Euro 55,000.00 (fifty-five thousand Euros) in Team/FFP, representing 50 % of
the future registered share capital of Team/FFP (the "FIRST TEAM/FFP PURCHASE").
It is understood that, in the event that FFP, on or before the First Closing
Date (as defined in Article 3.3 below), should have resolved to increase or
decrease Team/FFP's registered share capital with or without Team's approval,
the First Team/FFP Purchase shall in any case comprise 50 % of Team/FFP's
registered share capital (giving effect to any capital increase or decrease that
may have been resolved but that may not yet have been registered) at the time
the First Closing (as defined in Article 3.3 below) occurs. To fulfill its
obligations under this Article 3.1, FFP hereby divides its future share in
Team/FFP in the nominal amount of Euro 110,000.00 into two shares in the nominal
amount of Euro 55,000.00 each and assigns and transfers one of the two shares in
the nominal amount of Euro 55,000.00 to Team. Such assignment and transfer shall
be subject to the condition precedent that the First Closing (as defined in
Article 3.3 below) occurs.
3.2 Consideration. As consideration for the First Team/FFP Purchase,
FFP shall receive 800,000 shares of Team's common stock (the "FIRST TEAM SHARE
CONSIDERATION"), which shares shall be subject to the restrictive provisions set
forth in Article 5 below. Team shall issue the First Team Share Consideration in
the name of FFP and shall put the First Team Share Consideration in escrow with
the Escrow Agent as referred to in the Escrow Agreement contemplated by Article
9.1 below (the "ESCROW AGENT"), each as soon as practicable after (but in no
event later than one week from) the execution of such Escrow Agreement and
subject to and in accordance with such Escrow Agreement and subject, in all
events, to the requisite approvals of NASDAQ and Deutsche Borse AG.
3.3 First Closing; Conditions. The closing of the First Team/FFP Purchase
(the "FIRST CLOSING") shall occur at such time and place as Team and FFP shall
agree on, which agreement shall be reached as soon as possible after the
execution hereof (the date of the First Closing shall hereinafter be referred to
as the "FIRST CLOSING DATE"). At the First Closing
(a) The Escrow Agent shall deliver the First Team Share Consideration to
FFP; and
(b) In the event that any increases or decreases of Team/FFP's registered
share capital have occurred prior to the First Closing, FFP and Team shall
execute a notarial
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deed effecting such share splits and share transfers as may be necessary to
consummate the First Team/FFP Purchase in accordance with the second sentence of
Article 3.1 above.
3.4 Conditions to Obligations of Each Party to Effectuate the First
Closing. The respective obligations of each party to this Agreement to carry out
the First Closing and to effect the transactions specified in Articles 3.1 and
3.2 above shall be subject to the satisfaction at or prior to the First Closing
Date of the following:
(a) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement is in effect,
nor is any proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, seeking any of
the foregoing pending; nor has there been any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
transactions contemplated hereby, which makes the consummation of such
transactions illegal.
(b) Litigation. There is no action, suit, or proceeding of any nature
pending against Team or FFP which would prevent the consummation of this
transaction.
(c) Government Approvals. Team and FFP have obtained all requisite
antitrust approvals (if any), including, without limitation, by the U.S. Federal
Trade Commission and the German Federal Cartel Office, and any requisite
approvals by Deutsche Borse AG and NASDAQ.
(d) Other Agreements etc. The parties shall have executed, delivered and
filed, as appropriate, the agreements, resolutions and other instruments
contemplated by Articles 9.1 through 9.6 below, each as specified in the
respective Article.
3.5 Additional Conditions to the Obligations of Team. The obligations of
Team to carry out the First Closing and to effect the transactions specified in
Articles 3.1 and 3.2 above shall in addition be subject to the satisfaction
prior to the First Closing Date of the following conditions:
(a) Formation and Registration of FFP Media etc. FFP has (i) formed FFP
Media, and (ii) contributed to FFP Media its German language productions
division, and (iii) complied with all its other obligations set forth in
Articles 1.1 through 1.3 above, and (iv) the
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formation of FFP Media and the contribution by FFP of its German language
productions division to FFP Media have been registered in the appropriate
commercial register.
(b) Formation of Team/FFP etc. FFP has (i) formed Team/FFP, (ii)
contributed to Team/FFP its assets as specified in Article 2.1 above, and (iii)
complied with all its other obligations set forth in Article 2 above, and the
formation of Team/FFP and the contribution by FFP of its assets to Team/FFP have
been registered in the appropriate commercial register.
(c) Agreements between FFP and Das Werk AG. The Share Purchase and Transfer
Agreements and all other agreements between FFP and Das Werk AG in connection
with the formation of FFP Media and the sale of an (approximately) 50.5 %
interest in FFP Media to Das Werk AG have been entered into in accordance with
Article 1.2 above and have become legally effective, and FFP has collected the
purchase price from Das Werk AG and has used all of such purchase price to repay
outstanding debt of FFP.
(d) Adverse Financial Condition. There shall have occurred no material
diminution in the book value of the assets of FFP from the valuations set forth
in the asset list derived from the balance sheet of FFP as of December 31, 1999,
which asset list shall be made available to Team as soon as possible after the
execution of this Agreement.
(e) Representations, Warranties, and Covenants. FFP shall have executed and
delivered to Team a certificate whereby FFP confirms to Team that the following
statements are true and correct as of the First Closing Date (which condition
may be waived in writing, as a whole or in part, exclusively by Team) (the "FFP
First Closing Certificate"): (i) The representations and warranties of FFP in
this Agreement are true and correct in all material respects on and as of the
First Closing Date as though such representations and warranties were made on
and as of the First Closing Date and FFP has performed and complied in all
material respects with all covenants and obligations of this Agreement required
to be performed and complied with by them as of the First Closing Date, (ii)
none of the agreements, shareholder resolutions etc. referred to in Article 9
below shall have been repealed, amended or otherwise altered by FFP or at FFP's
instruction without Team's prior written consent; and (iii) all covenants and
obligations of this Agreement to be performed by the FFP on or before such date
(including, in particular, FFP's obligations under Articles 1 and 2 above) have
been so performed in all material respects.
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(f) Legal Opinion. Team has received a legal opinion from Xxxxxxx Xxxxxx
Xxxxxxxxxx Kelwing Xxxxx, legal counsel to FFP, substantially in the form
attached as EXHIBIT 3.5(F).
3.6 Additional Conditions to Obligations of FFP. The obligations of FFP to
carry out the First Closing and to effect the transactions specified in Article
3 above shall in addition be subject to the satisfaction prior to the First
Closing Date of the following conditions:
(a) Representations, Warranties, and Covenants. Team shall have executed
and delivered to FFP a certificate whereby Team confirms to FFP that the
following statements are true and correct as of the First Closing Date (which
condition may be waived in writing, as a whole or in part, exclusively by FFP)
(the "Team First Closing Certificate"): (i) The representations and warranties
of Team in this Agreement are true and correct in all material respects on and
as of the First Closing Date as though such representations and warranties were
made on and as of the First Closing Date and Team has performed and complied in
all material respects with all covenants and obligations of this Agreement
required to be performed and complied with by them as of the First Closing Date,
(ii) none of the agreements, shareholder resolutions etc. referred to in Article
9 above shall have been repealed, amended or otherwise altered by Team or at
Team's instruction without FFP's prior written consent; and (iii) all covenants
and obligations of this Agreement to be performed by Team on or before such date
have been so performed in all material respects.
(b) Legal Opinion. FFP has received a legal opinion from Xxxxx Xxxxxx Xxxxx
& Xxxx LLP, legal counsel to Team, substantially in the form attached hereto as
EXHIBIT 3.6 (B).
3.7 Obligation to Execute and Deliver First Closing Certificates. The
parties hereby expressly undertake to (i) assist the other party in completing
any due diligence (including any financial review related to Section 3.5(d), and
(ii) execute and deliver to each other the Team First Closing Certificate and
the FFP First Closing Certificate as specified in Articles 3.5 (e) and 3.6 (a)
above as soon as the respective events have occurred.
ARTICLE 4: SALE BY FFP OF THE REMAINING 50 % OF TEAM/FFP TO TEAM; CONDITIONS TO
SALE.
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4.1 Binding Offer. Subject to the terms hereof, Team hereby extends a
binding, irrevocable offer (the "BINDING OFFER") to FFP to have Team purchase
from FFP the remaining 50 % interest in Team/FFP (the "SECOND TEAM/FFP
PURCHASE"). Such offer shall expire unless accepted by FFP in the form of a
notarial acceptance deed on or before April 30, 2001 (the date on which FFP
executes such notarial acceptance deed shall hereinafter be referred to as the
"BINDING OFFER ACCEPTANCE DATE").
4.2 Consideration. If FFP accepts the Binding Offer, FFP shall receive as
consideration for the Second Team/FFP Purchase a certain number (to be
determined as set forth below) of shares of common stock of Team (the "SECOND
TEAM SHARE CONSIDERATION"), which shall be subject to the restrictive provisions
set forth in Article 5 below. Such number shall be determined by reference to
the average of the closing price of Team stock in the computerized "Xetra"
trading system on the German Neuer Markt for the 75 consecutive trading days
immediately preceding the Binding Offer Acceptance Date (the "75-DAY AVERAGE
PRICE"). If the 75-Day Average Price is EUR 19.00 or above, then the Second Team
Share Consideration shall be 700,000 shares. If the 75-Day Average Price is less
than EUR 19.00, then the number of shares constituting the Second Team Share
Consideration shall be determined by multiplying 700,000 times a fraction, the
numerator of which is the 75-Day Average Price and the denominator of which is
19.00.
Team shall issue the 700,000 shares which (or part of which) are to constitute
the Second Team Share Consideration in the name of FFP and shall put such shares
in escrow with the Escrow Agent, each subject to and in accordance with the
Escrow Agreement contemplated by Article 9.1 below, at or before the First
Closing Date.
4.3 Second Closing. If FFP accepts the Binding Offer, the closing of the
Second Team/FFP Purchase (the "SECOND CLOSING") shall occur at such time and
place as Team and FFP shall agree on but as soon as possible after the Binding
Offer Acceptance Date (the date of the Second Closing shall hereinafter be
referred to as the "SECOND CLOSING DATE"). At the Second Closing,
(a) Team and FFP shall execute a notarial share transfer deed whereby FFP
assigns and transfers its remaining 50 % interest in Team/FFP to Team. It is
hereby agreed that Team, in its discretion, may notify FFP that Team Germany
shall be the transferee of the remaining 50 % interest in Team/FFP, in which
case FFP shall make the appropriate share transfer to Team Germany rather than
Team;
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(b) The Escrow Agent shall deliver the Second Team Share Consideration to
FFP.
4.4 Conditions to Obligations of Each Party. The respective obligations of
each party to this Agreement to carry out the Second Closing and to effect the
transactions specified in Article 4.3 above shall be subject to the satisfaction
at or prior to the Second Closing Date of the following conditions:
(a) First Closing. The First Closing shall have occurred.
(b) Acceptance of Binding Offer. FFP shall have accepted the Binding Offer
in accordance with Article 4.1 above.
(c) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect, nor shall any proceeding brought by an administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, seeking any of the foregoing be pending; nor shall there be any action
taken, or any statute, rule, regulation or order enacted, entered, enforced or
deemed applicable to the transactions contemplated hereby, which makes the
consummation of such transactions illegal.
(d) Litigation. There shall be no action, suit, or proceeding of any
nature pending against Team or FFP, which would prevent the consummation of this
transaction.
(e) Government Approvals. Team and FFP have obtained all requisite
antitrust approvals (if any), including, without limitation, by the U.S. Federal
Trade Commission and the German Federal Cartel Office and any requisite
approvals by Deutsche Borse AG and NASDAQ.
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ARTICLE 5: PROVISIONS GOVERNING THE FIRST AND SECOND TEAM SHARE CONSIDERATIONS.
5.1 Restrictions on Transferability. Team common stock constituting the
First Team Share Consideration and the Second Team Share Consideration, and any
other shares of common stock issued in respect thereto, including shares issued
in respect of a stock split, stock dividend, recapitalization, merger,
consolidation or similar event (collectively, "TEAM CAPITAL STOCK"), shall be
issued under an exemption from registration under the Securities Act of 1933, as
amended (the "SECURITIES ACT") and shall not be sold, assigned, transferred or
pledged except upon compliance with the provisions of the Securities Act and in
accordance with any lock-up or other restrictions imposed by Deutsche Borse AG.
FFP shall cause, and shall procure that each future holder of Team Capital Stock
("HOLDER") causes, any proposed assignee, transferee, or pledgee of any such
shares held by the Holder to agree to take and hold such Team Capital Stock
subject to the provisions of the Securities Act and all applicable restrictions
of Deutsche Borse AG.
5.2 Restrictive Legend. Each certificate representing Team Capital Stock
shall (unless otherwise permitted by the provisions of Article 5.3 below) be
stamped or otherwise imprinted with a legend in substantially the following form
(in addition to any legend required under applicable state securities laws or
other applicable law):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND HAVE
BEEN ACQUIRED NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF IN VIOLATION OF THE SECURITIES ACT. SUCH SHARES
MAY NOT BE SOLD OR TRANSFERRED IN THE UNITED STATES IN THE ABSENCE OF
SUCH REGISTRATION UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF
SAID ACT.
FFP consents to Team's making a notation on its records and giving instructions
to any transfer agent for Team Capital Stock in order to implement the
restrictions on transfer established under the Securities Act.
5.3 Notice of Proposed Transfers. FFP agrees, and shall procure that each
future Holder of any certificate representing Team Capital Stock by acceptance
thereof agrees, to
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comply in all respects with the provisions of this Article 5.3. Prior to any
proposed sale, assignment, transfer or pledge of any Team Capital Stock in the
United States (other than (a) a transfer not involving a change in beneficial
ownership, or (b) in transactions involving the distribution without
consideration of Team Capital Stock by a shareholder to any of its partners or
members, or retired partners or members, or to the estate of any of its partners
or members or retired partners or members), unless there is in effect a
registration statement under the Securities Act covering the proposed transfer,
the Holder thereof shall give written notice to Team of such Holder's intention
to effect such transfer, sale, assignment or pledge. Each such notice shall
describe the manner and circumstances of the proposed transfer, sale, assignment
or pledge in sufficient detail, and shall be accompanied, at such Holder's
expense by either (c) an unqualified written opinion addressed to Team of legal
counsel who shall be, and whose legal opinion shall be, reasonably satisfactory
to Team, to the effect that the proposed transfer of Team Capital Stock may be
effected without registration under the Securities Act, or (d) a "no action"
letter from the Securities and Exchange Commission to the effect that the
transfer of such securities without registration will not result in a
recommendation by the staff of the Securities and Exchange Commission that
action be taken with respect thereto, whereupon the Holder of such Team Capital
Stock shall be entitled to transfer such Team Capital Stock in accordance with
the terms of the notice delivered by the Holder to Team. It is agreed that Team
will not request an opinion of counsel for the Holder for transactions made in
reliance on Rule 144 under the Securities Act except as determined in good faith
by the Board of Directors of Team to be necessary for the compliance of
applicable laws. Each certificate evidencing Team Capital Stock transferred as
above provided shall bear, except if such transfer is made pursuant to Rule 144,
the appropriate restrictive legend set forth in Article 5.2 above, except that
such certificate shall not bear such restrictive legend if in the opinion of
counsel for such Holder and Team such legend is not required in order to
establish compliance with any provision of the Securities Act.
5.4 Subsequent Registration by Team. Team undertakes to register the Team
Capital Stock subject to underwriter approval and cutback together with each
public offering by Team if Team makes any such public offering at any time after
the execution hereof until all of the Team Capital Stock is tradable under Rule
144 under the Securities Act without any volume restrictions.
5.5 Contractual Holding Period. Irrespective of and in addition to any
statutory transfer restrictions under applicable law, FFP hereby agrees not to
sell, transfer, contribute, distribute, pledge or otherwise dispose of any of
the shares constituting the Team Capital Stock for a period of one year from the
First Closing Date.
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ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF TEAM.
Team hereby represents and warrants to FFP by way of an independent guarantee
that the following statements are true as of the date hereof as well as of the
date of the First Closing and, if the Second Closing occurs, the date of the
Second Closing:
6.1 Organization and Standing. Team is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
California. Team has all requisite corporate power and authority to own and
operate its properties and assets and to carry on its business as currently
conducted and as proposed to be conducted as set forth in its filings with the
Securities and Exchange Commission. Team is qualified to do business as a
foreign corporation in every jurisdiction where failure to be so qualified would
have a material adverse effect on the business, operations or financial
condition of Team.
6.2 Corporate Power. Team has all requisite legal and corporate power to
execute and deliver this Agreement, to sell and issue the shares constituting
the First Team Share Consideration and the Second Team Share Consideration
hereunder and to carry out and perform its obligations under the terms of this
Agreement. The execution, delivery and performance by Team of this Agreement and
the consummation of the transactions contemplated hereby have been or will be,
prior to the First Closing and (if applicable) the Second Closing, duly
authorized and approved by all necessary corporate action and all necessary
consents and approvals of Team's stockholders. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby will
not violate any material provision of law and will not conflict with, or result
in a breach of any of the terms of, or constitute a default under, the Restated
Articles of Incorporation (the "ARTICLES"), the Bylaws or any material
agreement, instrument or other restriction to which Team is a party or by which
Team or any of its properties or assets is bound. This Agreement constitutes the
legal, valid and binding obligation of Team, enforceable against it in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws and subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
6.3 Authorization. All corporate action on the part of Team, its directors
and stockholders necessary for the sale and issuance of the First Team Share
Consideration and the Second Team Share Consideration and the performance of
Team's respective obligations under this Agreement has been taken or will be
taken prior to the First Closing or the Second Closing, as the case may be. This
Agreement is a valid and binding obligation of Team,
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enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law.
The shares constituting the First Team Share Consideration and the Second Team
Share Consideration, when issued in accordance with the provisions of this
Agreement, will be validly issued and will be fully paid and nonassessable, and
will be free of any liens or encumbrances and will be issued in compliance with
all applicable federal and state securities laws; provided, however, that the
shares may be subject to restrictions on transfer under U.S. federal and/or
state securities laws or German securities laws as set forth herein.
6.4 Compliance with Other Instruments. Team is not, and will not be as a
result of the execution, delivery and performance of and compliance with this
Agreement and consummation of the transactions contemplated hereby, in violation
of any term of its Articles or Bylaws, or in any material respect of any
material term or provision of any material mortgage, indebtedness, indenture,
contract, agreement, instrument, judgment or decree, order, statute, rule or
regulation applicable to Team. The execution, delivery and performance of and
compliance with this Agreement and the consummation of the transactions
contemplated hereby have not resulted and will not result in any material
violation of, or conflict with, or constitute a material default under, or
result in the creation of, any mortgage, pledge, lien, encumbrance or charge
upon any of the properties or assets of Team, and there is no such violation or
default which materially and adversely affects the business of Team or any
subsidiary as conducted or as proposed to be conducted.
6.5 Governmental Consent, etc. No consent, approval, qualification, order
or authorization of, or filing with, any local, state or federal governmental
authority is required on the part of Team in connection with Team's valid
execution, delivery or performance of this Agreement or the offer, sale or
issuance of the First Team Share Consideration or the Second Team Share
Consideration or the consummation of any other transaction contemplated by this
Agreement, except for (a) such filings as have been or will be made prior to the
First Closing or the Second Closing, as the case may be, and (b) any notices of
sale required to be filed with the Securities and Exchange Commission pursuant
to Regulation D under the Securities Act or such post-closing filings as may be
required under applicable state securities laws or German securities laws, which
will be timely filed within the applicable periods therefor.
6.6 Stockholders' Agreements. There are no agreements or understandings
involving Team, its stockholders or other parties that affect or relate to the
voting of any of
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Team's securities, the giving of consents or approvals with respect to any of
such securities, the right to purchase any of such securities or any interests
therein, or the right to transfer fully without restriction any of such
securities, except restrictions that relate to compliance with applicable
securities laws.
6.7 Registration Rights. Except as contemplated by this Agreement, Team is
not under any obligation to register any of its currently outstanding
securities, or any of its securities which may hereafter be issued.
6.8 Disclosure. This Agreement does not contain any untrue statement on the
part of Team of a material fact or omits to state a material fact necessary in
order to make the statements on the part of Team contained herein not misleading
in light of the circumstances under which they were made. Except as previously
discussed with or disclosed to FFP in writing, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition, prospects or operations of Team that
have not been set forth in this Agreement or in other documents delivered to FFP
or its attorneys or agents in connection with this Agreement.
6.9 Brokers or Finders. Team has not incurred, and will not incur, directly
or indirectly, as a result of any action taken by Team, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with the transactions contemplated by this Agreement.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES OF FFP.
FFP hereby represents and warrants to Team by way of an independent guarantee
that the following statements are true as of the date hereof as well as of the
date of the First Closing and, if the Second Closing occurs, the date of the
Second Closing:
7.1 Organization and Standing. FFP is a limited liability company duly
organized and validly existing under the laws of Germany. FFP has all requisite
corporate power and authority to own and operate its properties and assets and
to carry on its business as currently conducted and as proposed to be conducted.
FFP is qualified to do business as a foreign corporation in every jurisdiction
where failure to be so qualified would have a material adverse effect on the
business, operations or financial condition of FFP.
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7.2 Corporate Power. FFP has all requisite legal and corporate power to
execute and deliver this Agreement, to form FFP Media and Team/FFP, and to carry
out and perform all its other obligations under the terms of this Agreement. The
execution, delivery and performance by FFP of this Agreement and the
consummation of the transactions contemplated hereby have been or will be, prior
to the First Closing and (if applicable) the Second Closing, duly authorized and
approved by all necessary corporate action and all necessary consents and
approvals of FFP's shareholders. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not violate
any material provision of law and will not conflict with, or result in a breach
of any of the terms of, or constitute a default under, the Articles of
Association or any material agreement, instrument or other restriction to which
FFP is a party or by which FFP or any of its properties or assets is bound. This
Agreement constitutes the legal, valid and binding obligation of FFP,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
7.3 Authorization. All corporate action on the part of FFP, its directors
and shareholders necessary for the formation of FFP Media and Team/FFP and the
performance of FFP's other obligations under this Agreement has been taken or
will be taken prior to the First Closing or the Second Closing, as the case may
be. This Agreement is a valid and binding obligation of FFP, enforceable against
it in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
and subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law. The FFP Media
Interest and the shares in Team/FFP will be validly issued and will be fully
paid and nonassessable, and will be free of any liens, encumbrances, preemptive
rights or other third party rights and will be issued in compliance with all
applicable laws.
7.4 Patents, Trademarks and Trade Secrets. FFP does not use any patents
for, and has all the copyrights, trademarks, trade names, service marks, trade
secrets and other rights necessary for, the operation of its business (including
the German language productions division as well as the international
productions division). FFP and its subsidiaries (which term, for the purposes of
this Agreement, shall be deemed to include FFP Media and Team/FFP) do not rely
on any options, licenses or agreements relating to the foregoing granted to any
of them by others in order to operate their business as now conducted and as
proposed to be conducted. To FFP's knowledge, no employee or consultant of FFP
or any of its subsidiaries owns any rights in patents, trademarks, trade names,
processes, data or know-
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how directly or indirectly competitive with those owned or to be used by FFP or
its subsidiaries or derived from or in connection with the conduct of FFP's or
its subsidiaries' business. FFP is not aware of any violation or infringement by
a third party of any of FFP's or its subsidiaries' patents, licenses,
trademarks, service marks, trade names, copyrights, trade secrets or other
proprietary rights. There are no pending or, to FFP's knowledge, threatened
claims against FFP or any of its subsidiaries alleging that the conduct of FFP's
or its subsidiaries' business infringes or conflicts with the rights of others
under patents, service marks, trade names, trademarks, copyrights, trade secrets
or other proprietary rights. To FFP's knowledge after reasonable inquiry, FFP's
and its subsidiaries' business as now conducted and as proposed to be conducted
will not infringe or conflict with the rights of others, including rights under
patents, service marks, trade names, trademarks, copyrights, trade secrets and
other proprietary rights in any manner that could reasonably be expected to
materially and adversely affect FFP's or its subsidiaries' business or
prospects. FFP and each of its subsidiaries have taken and will take reasonable
security measures to protect the secrecy, confidentiality and value of all trade
secrets useful in the conduct of their business.
7.5 Property and Assets, Liabilities. FFP Media or Team/FFP, as the case
may be, will have acquired, and will continue to have, good and marketable title
to all of the assets that will have been contributed to FFP Media or Team/FFP,
free and clear of any and all claims, liens, encumbrances, equities and
restrictions of every kind and nature whatsoever. It is agreed, however, that
the existence of any retention of title agreements, liens or other security
interests created by FFP in the ordinary course of business shall not constitute
a breach of the representations and warranties made in the preceding sentence.
FFP Media will not have acquired and will not acquire from FFP (i) any
liabilities (including contingent liabilities) to banks or similar institutions
(other than project financing) or (ii) any other liabilities, except for such
liabilities arising from contracts entered into by FFP in the ordinary course of
business and transferred to FFP Media. Team/FFP will not have acquired and will
not acquire from FFP any liabilities except with Team's prior written approval.
Between the execution of this Agreement and the First Closing Date, Team/FFP has
not entered into any transaction which creates a liability for Team/FFP without
the prior approval of Team (except if such approval has been unreasonably
withheld).
7.6 Compliance with Other Instruments, None Burdensome, etc. FFP is not,
and will not be as a result of the execution, delivery and performance of and
compliance with this Agreement and consummation of the transactions contemplated
hereby, in violation of any term of its Articles of Association, or in any
material respect of any material term or provision of any material mortgage,
indebtedness, indenture, contract, agreement, instrument, judgment or decree,
order, statute, rule or regulation applicable to FFP, except where such
violation
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would not have a material adverse effect on FFP's business, assets, or financial
condition. The execution, delivery and performance of and compliance with this
Agreement and the consummation of the transactions contemplated hereby have not
resulted and will not result in any material violation of, or conflict with, or
constitute a material default under, or result in the creation of, any mortgage,
pledge, lien, encumbrance or charge upon any of the properties or assets of FFP,
and there is no such violation or default which materially and adversely affects
the business of FFP or any subsidiary as conducted or as proposed to be
conducted.
7.7 Compliance with Laws. To FFP's knowledge, FFP and each of its
subsidiaries have complied in all material respects with all laws, regulations
and orders, foreign or domestic, applicable to their business as now conducted
or as proposed to be conducted. To FFP's knowledge, the uses or proposed uses by
FFP and its subsidiaries of their properties and assets do not and will not in
any material respect violate any laws, regulations, ordinances, codes or
permits. FFP and its subsidiaries have obtained all material approvals, permits
and licenses necessary for the operation of their business as presently
operated.
7.8 Governmental Consent, etc. No consent, approval, qualification, order
or authorization of, or filing with, any local, state or federal governmental
authority is required on the part of FFP in connection with FFP's valid
execution, delivery or performance of this Agreement or the formation of FFP
Media or Team/FFP or the consummation of any other transaction contemplated by
this Agreement, except for such filings as have been or will be made prior to
the First Closing or the Second Closing, as the case may be.
7.9 Disclosure. This Agreement does not contain any untrue statement on the
part of FFP of a material fact or omits to state a material fact necessary in
order to make the statements on the part of FFP contained herein not misleading
in light of the circumstances under which they were made. Except as previously
discussed with or disclosed to FFP in writing, there are no facts which
(individually or in the aggregate) materially adversely affect the business,
assets, liabilities, financial condition, prospects or operations of FFP or any
of its subsidiaries that have not been set forth in this Agreement or in other
documents delivered to Team or its attorneys or agents in connection with this
Agreement.
7.10 Brokers or Finders. FFP has not incurred, and will not incur, directly
or indirectly, as a result of any action taken by FFP, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with the transactions contemplated by this Agreement.
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ARTICLE 8: REMEDIES IN THE EVENT OF A BREACH OF REPRESENTATIONS AND WARRANTIES.
8.1 Representations and Warranties of Team. In the event that any of the
representations and warranties made or given by Team in Article 6 above proves
to be untrue or inaccurate, FFP shall notify Team accordingly and shall have the
right to demand that within an appropriate period of time, but in any case
within one month after FFP has so notified Team, Team put FFP in the position
FFP would be in if all representations and warranties set forth in Article 6
above were true and accurate. If Team fails to put FFP into such position within
such period, Team shall be obligated to pay FFP monetary damages for all losses
(including loss of profits), costs, liabilities and other damages FFP may suffer
as a result thereof. It is agreed, however, that FFP shall not be entitled to
any monetary damages under this Article 8.1 if the aggregate amount of the
monetary damages FFP would otherwise be entitled to claim under this Article 8.1
is less than DM 250,000.00. Other than as provided in this Article 8.1 or
elsewhere in this Agreement (including, without limitation, in Article 10
below), FFP shall have no further rights or remedies in the event of a breach of
Team's representations and warranties set forth in Article 6 above.
8.2 Representations and Warranties of FFP. Article 8.1 above shall apply
mutatis mutandis in the event that any of the representations and warranties
made or given by FFP in Article 7 above proves to be untrue or inaccurate.
ARTICLE 9: ADDITIONAL AGREEMENTS, SHAREHOLDER RESOLUTIONS ETC.
9.1 Escrow Agreement. As soon as possible after (but in no event later than
two weeks from) the execution hereof, Team and FFP shall reach an agreement on
the exact terms under which Team shall put the First Team Share Consideration
and the 700,000 shares of Team common stock which (or part of which) will
constitute the Second Team Share Consideration in escrow with the Escrow Agent
(the "ESCROW AGREEMENT"); in the Escrow Agreement, Team and FFP shall
irrevocably instruct the Escrow Agent to deliver to FFP the First Team Share
Consideration at the First Closing and the Second Team Share Consideration at
the Second Closing.
9.2 Amended Articles of Association. As soon as possible after the
execution hereof, Team and FFP shall reach an agreement on the wording of
Team/FFP's future Articles of Association (the "Amended Articles of
Association") (it being understood that under the Amended Articles of
Association all voting rights and other shareholder rights shall be split on a
50:50 basis between Team and FFP). Upon the formation of Team/FFP, FFP in its
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capacity as founder of Team/FFP shall adopt, and shall cause the registration in
the appropriate commercial register of, the Amended Articles of Association for
Team/FFP.
9.3 Shareholder Agreement. As soon as possible after the execution hereof,
Team and FFP shall reach consensus on and execute a shareholder agreement,
contingent upon and effective as of the First Closing, governing their
relationship as co-shareholders of Team/FFP. It is understood that in such
shareholder agreement Team shall undertake to finance Team/FFP's operations for
a period of at least two years from the First Closing Date subject to and in
accordance with Team/FFP's budget agreed on by Team and FFP and approved by
Team's Board of Directors. It is further understood that Team/FFP's budget for
the fiscal year ending on December 31, 2000 shall be agreed upon as soon as
possible and shall be attached to the shareholder agreement as an Exhibit. In
addition, it is understood that the shareholder agreement shall provide that
Team and FFP shall cause Team/FFP to cause FFP Inc., if Team so requests, to
transfer any assets FFP Inc. may have to Team at no cost to Team.
9.4 Management of Team/FFP.
(a) As soon as possible after the execution hereof, Team and FFP shall
reach consensus between each other as well as with Xx. Xxxxxxx Xxxxxxx on the
exact terms of an employment agreement between Team/FFP and Xx. Xxxxxxx (it
being provided that such employment agreement shall (i) have an initial fixed
term of two years from the date of the First Closing, which term shall be
automatically extended by another year if Team continues to finance the
operations of Team/FFP), (ii) provide for a base salary of US$ 250,000.00 p.a.,
a bonus of 2.5 % of Team/FFP's pre-tax earnings, a company car, and other
appropriate benefits Team/FFP, and (iii) authorize Xx. Xxxxxxx to serve as
managing director of FFP and FFP Media), and Team/FFP (represented by FFP as its
sole shareholder) shall then execute, and cause Xx. Xxxxxxx to execute, such
employment agreement.
(b) Upon the formation of Team/FFP, FFP shall adopt a shareholder
resolution appointing Xx. Xxxxxxx Xxxxxxx as sole managing director of Team/FFP.
(c) Team shall allocate stock options to key employees of Team/FFP at terms
not less favorable than those awarded to comparable key personnel of Team. The
foregoing shall not be construed as an obligation of Team to cause Team/FFP to
hire any executives or staff at Team/FFP other than Xx. Xxxxxxx.
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9.5 Non-Competition. As soon as possible after the execution hereof, Team
and FFP shall reach consensus on the exact terms of and shall then execute, or
cause the respective parties to execute:
(a) a non-competition agreement between Team and Team Germany on the one
side and FFP on the other side;
(b) a non-competition agreement between Team and Team Germany on the one
side and FFP Media on the other side;
(c) a non-competition agreement between FFP on the one side and FFP Media
on the other side;
(d) a non-competition agreement between Team and Team Germany on the one
side and Team/FFP on the other side; and
(e) a non-competition agreement between FFP on the one side and Team/FFP on
the other side.
9.6 Assumption of Rights and Obligations. Team and FFP shall, if and when
the transactions hereunder are completed and Team/FFP owns all of FFP's interest
in FFP Media, cause Team/FFP to acquire all of FFP's rights and assume all of
FFP's obligations under FFP's joint venture agreements with Das Werk AG.
ARTICLE 10: RESCISSION.
10.1 Right of Rescission. This Agreement may be rescinded at any time prior
to the First Closing Date:
(a) by mutual consent of Team and FFP;
(b) by either party if: (i) the First Closing has not occurred by December
31, 2000 without any default by the rescinding party; (ii) there shall be a
final nonappealable order of a U.S. federal or state court or a German court in
effect preventing consummation of the transactions contemplated in this
Agreement; or (iii) there shall be any statute, rule, regulation or order
enacted, promulgated or issued or deemed applicable to the transactions
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contemplated in this Agreement by any governmental entity that would make
consummation of the transactions contemplated in this Agreement illegal;
(c) by Team if there shall be any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to the
transactions contemplated in this Agreement by any governmental entity, which
would: (i) prohibit Team's ownership of a 50 % or a 100 % equity interest in
Team/FFP or Team/FFP's ownership of the assets to be contributed to Team/FFP
hereunder or (ii) compel Team to dispose of or hold separate all or a material
portion of the business or assets of Team as a result of the transactions
contemplated in this Agreement;
(d) by Team if (i) the shares in Team/FFP sold or offered to be purchased
hereunder do not validly exist or are not free from liens, encumbrances or other
third party rights, or (ii) the FFP Media Interest does not validly exist or is
not free from liens, encumbrances or other third party rights other than as
contemplated by this Agreement (including its Exhibits); or
(e) by FFP if the Team Share Consideration does not validly exist or is not
free from liens, encumbrances or other third party rights.
10.2 Effect of Rescission. In the event of a rescission of this Agreement
as provided in Article 10.1, Team's obligation hereunder to issue and deliver
shares of Team stock to FFP and FFP's obligation hereunder to assign and
transfer shares in Team/FFP to Team shall cease, and each party shall return to
the respective other party any value received from such other party under this
Agreement, each subject to and in accordance with applicable German law.
ARTICLE 11: GENERAL PROVISIONS.
11.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given and received if delivered personally or by
commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Team: Team Communications Group, Inc
00000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
U.S.A.
Attention: Xxxx X. Xxxxx
Facsimile No.: 310 -312-4401
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with a copy to: Xxxxx Xxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxx,
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
U.S.A.
Attention: Xxxxx X. Xxxx, Esq.
Facsimile No.: 000-000-0000
with an additional copy to: Bruckhaus Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxxxx(xxxx)x 00
00000 Xxxxxx
Xxxxxxx
Attention: Xx. Xxxxxxx Xxxxxxxxx
Facsimile No.: 011-4930-202-83766
(b) if to FFP: Xx. Xxxxxxx Xxxxxxx
FFP Entertainment GmbH
Xxxxxxx Xxxxxxx 00
00000 Xxxxxxx
Germany
Attention: Xxxxxxx Xxxxxxx
Facsimile No.: 011-49221-569-6649
with a copy to Xx. Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxxxx 00
00000 Xxxxx
Xxxxxxx
Facsimile No.: 011-49201-710-1998
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with an additional copy to: Loeb & Loeb LLP
000 Xxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx,
Esq.
Facsimile No.: 000-000-0000
11.2 Interpretation. The words "INCLUDE," "INCLUDES" and "INCLUDING" when
used herein shall be deemed in each case to be followed by the words "without
limitation." The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
11.3 Entire Agreement; Assignment. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced herein: (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;
(b) are not intended to confer upon any other person any rights or remedies
hereunder; and (c) shall not be assigned by operation of law or otherwise except
as otherwise specifically provided.
11.4 Severability. In the event that any provision of this Agreement or the
application thereof becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
11.5 Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
11.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Germany. For the avoidance of doubt, the parties
hereby
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acknowledge that the choice-of-law clause in this Article 11.6 does not
affect the applicability of any applicable U.S. federal or state securities
laws.
11.7 Jurisdiction and Venue. For any dispute based upon or arising out of
this Agreement or the matters contemplated herein, the parties hereto agree on
and consent to the exclusive jurisdiction and venue of
(a) the United States federal court encompassing the city of Los Angeles,
California, for proceedings initiated by FFP; and
(b) the courts in and for Cologne, Germany, for proceedings initiated by
Team.
The parties agree that process may be served upon them in any manner authorized,
in the case of a proceeding initiated by FFP, by U.S. federal law or the laws of
the State of California, and in the case of a proceeding initiated by Team, by
the laws of Germany, and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction, venue and such
process. It is further agreed that for the purposes of this Article 11.7 a
counterclaim brought by a party within a proceeding initiated by the respective
other party shall not be deemed to constitute a proceeding initiated by the
counterclaiming party.
11.8 Amendment. Except as is otherwise required by applicable law, this
Agreement may be amended by the parties hereto at any time by execution of an
instrument in writing signed on behalf of each of the parties hereto.
11.9 Extension; Waiver. At any time, Team and FFP may, to the extent
legally allowed, (i) extend the time for the performance of any of the
obligations of the other party hereto, (ii) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto, and (iii) waive compliance with any of the
provisions of this Agreement for the benefit of such party. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party.
11.10 Transaction costs. Each party shall bear the costs of its own
advisors and consultants incurred in connection with the preparation,
negotiation, execution and consummation of this Agreement. Any transfer taxes
arising in connection with this Agreement or the transactions contemplated by
this Agreement shall be borne by FFP. The
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notarial fees arising in connection with this Agreement or the transactions
contemplated by this Agreement shall be split evenly between Team and FFP.
