Exhibit 4.6
INTANGIBLE ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of July 16, 2004
by and among CONVERGITON, INC. a Florida corporation (the "Company"), and
MEDIACOM ENTERTAINMENT, INC. a Delaware corporation (the "Purchaser").
WITNESSETH:
WHEREAS, the Company is engaged in the production of infomercial, advertising,
television and music programming; and
WHEREAS, Purchaser is engaged in the exploitation of television, film and music
programming, Internet content and related merchandising opportunities, and
desires to purchase all of the Company's know-how and expertise necessary for
the operation of the Company's businesses as they are currently conducted
including but not limited to the Company's Branded Media Strategy (the
"Intangible Asset"); and
WHEREAS the Company desires to sell and Purchaser desires to purchase the
Intangible Asset.
NOW THEREFORE, in consideration of the premises and the mutual representations,
warranties, covenants and agreements herein contained, the parties hereto do
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF THE COMPANY'S INTANGIBLE ASSET
1.1 AGREEMENT TO PURCHASE. At the Closing (as hereinafter defined),
Purchaser shall purchase the Intangible Asset from the Company for $35,000.00,
upon and subject to the terms and conditions of this Agreement, to be paid by
the issuance to Company of 3,500,000 shares of Common Stock of Purchaser (the
"Mediacom Common Stock").
1.2 CLOSING. At the Closing, the Company shall provide to Purchaser all
right, title and interest in and to the Intangible Asset free and clear of all
liens, security interests, charges, encumbrances, equities, and other adverse
claims, and the Purchaser shall deliver to the Company or its assigns the
Mediacom Common Stock.
1.3 FURTHER ASSURANCES. After the Closing Date, the parties shall from time
to time, at the request of the other parties and without further cost or expense
to the party to whom the request is directed, execute and deliver such other
instruments of conveyance and transfer and take such other actions as the other
1
parties may reasonably request, in order to more effectively consummate the
transaction contemplated hereby and to vest in Purchaser, subject to the
provisions of this Agreement, and at such future dates as provided for herein.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company hereby represents, covenants and warrants to Purchaser as
follows:
2.1 ORGANIZATION; GOOD STANDING. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and has full corporate power and authority to carryon its business as it
is now being conducted and to own the properties and assets it now owns.
2.2 CORPORATE RECORD BOOKS. The corporate minute books of the Company have
been made available to the Purchaser, are complete and correct and contain all
of the proceedings of the Stockholders and Directors of the Company.
2.3 AUTHORIZATION, ETC. The Company has full corporate power and authority
to enter into this Agreement and to carry out the transactions contemplated
hereby. The Company has taken all actions required by law, its charter
documents, or otherwise to be taken by it to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and this Agreement is a valid and binding agreement of the Company
enforceable in accordance with its terms.
2.4 NO VIOLATION. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will violate any
provision of the charter documents of the Company.
2.5 NO UNDISCLOSED LIABILITIES; ETC. The Company has no material
liabilities or obligations of any nature (absolute, accrued, contingent or
otherwise).
2.6 LITIGATION. There is no pending or threatened action, suit, inquiry,
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or threatened against
or involving the Company, or which questions or challenges the validity of this
Agreement or any action taken or to be taken by the Company pursuant to this
Agreement or in connection with the transactions contemplated hereby; nor is
there any valid basis for any such action, proceeding or investigation. The
Company is not in default under or in violation of, nor is there any valid basis
for any claim of default under or violation of, any contract, commitment or
restriction to which it is a party or by which it is bound. The Company is not
in violation of, or in default with respect to, any law, rule, regulations,
order, judgment, or decree; nor is the Company required to take any action in
order to avoid
2
such violation or default. The Company is not subject to any judgment, order or
decree entered in any lawsuit or proceeding which may have a material adverse
effect on its business practices or on its ability to acquire any property or
conduct its business in any area.
2.7 KNOW HOW NECESSARY FOR THE BUSINESS.
(a) All of the Company's know-how and expertise necessary for the operation
of the Company's businesses as they are currently conducted shall be provided to
Purchaser at Closing. Subject to the terms and conditions of any agreements
executed by the Company with respect to any entertainment projects with which it
is involved shall be shared among the Company and other parties, the Company is
the owner of all right, title, and interest in and to each of the entertainment,
branding and marketing assets, free and clear of all liens, security interests,
charges, encumbrances, equities, and other adverse claims.
2.8 INVESTMENT REPRESENTATIONS. The Company hereby represents that: (a) The
Company (and/or its assigns) is and will be acquiring the Mediacom Common Stock
for its own account, for investment and not with a present view towards the
public sale or distribution thereof, except pursuant to sales registered or
exempted from registration under the Securities Act of 1933, as amended (the
"Securities Act"). (b) The Company understands that (i) the Mediacom Common
Stock have not been registered under the Securities Act, by reason of their
issuance by the Company in transactions exempt from the registration
requirements of the Securities Act and (ii) the Mediacom Common Stock must be
held by the Company unless a subsequent disposition thereof is made pursuant to
an effective registration statement under the Securities Act or is exempt from
such registration. (c) The Company is an "accredited investor" as that term is
defined in Rule 501 (a) under the Securities Act. (d) The Company (i) has
sufficient experience in business and financial matters to be able to evaluate
the merits and risks of its investment in the Mediacom Common Stock, (ii) has
obtained such accounting, legal and tax advice as it has considered necessary to
make an informed investment decision, (iii) has made such independent
investigations as it has deemed necessary for the purpose of making the decision
to invest in the Mediacom Common Stock, (iv) has had the opportunity to ask
questions of and receive answers concerning the Purchaser's operations, affairs
and financial condition and to request additional information about the
Purchaser, and all questions have been answered and all requested additional
information has been received, and (v) has the financial ability to bear the
full economic risk of its investment in the Mediacom Common Stock.
3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company as follows:
3.1 CORPORATE ORGANIZATION; ETC. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the power and authority to canyon its business as now being conducted
and to own the properties and assets it now owns.
3.2 AUTHORIZATION, ETC. Purchaser has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
Purchaser has taken all action required to authorize the execution and delivery
of this Agreement and the transactions contemplated hereby, and this Agreement
is a valid and binding agreement of Purchaser enforceable in accordance with its
terms. The MEDIACOM Common Stock to be issued pursuant to this Agreement has
been duly authorized, and, upon the Closing, will be validly issued, fully paid
and non-assessable.
3.3 NO VIOLATION. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will violate any
provisions of the Certificate of Incorporation or Bylaws of Purchaser, or
violate, or be in conflict with, or constitute a default under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, any
agreement or commitment to which Purchaser is a party or by which Purchaser is
bound, or violate any statute or law or any judgment, decree, order, regulation
or rule of any court or governmental authority.
3.4 CAPITALIZATION. The authorized capital stock of Purchaser consists of
5,000,000 shares of preferred stock, none of which are outstanding, and
30,000,000 shares of common stock, of which 7,014,188 shares are outstanding at
July 16,2004.
3.5 LITIGATION. There is no pending or threatened action, suit, inquiry,
proceeding or investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or threatened against
Purchaser, or which questions or challenges the validity of this Agreement or
any action taken or to be taken by Purchaser pursuant to this Agreement or in
connection with the transactions contemplated hereby; nor is there any valid
basis for any such action, proceeding or investigation. Purchaser is not subject
to any judgment, order or decree entered in any lawsuit or proceeding which may
have an adverse effect on its business practices or on its ability to acquire
any property or conduct its business in any area.
3.6 BROKERS. Purchaser has not engaged, consented to or authorized any
broker, finder, investment banker or other third party to act on its behalf,
directly or indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement.
4
3.7 ABSENCE OF CERTAIN CHANGES. Since the date of the Purchaser Financial
Statements, the Purchaser has not (a) Suffered any material adverse change in
its working capital, financial condition, assets, liabilities (absolute,
accrued, contingent or otherwise), reserves, business, operations or prospects;
(b) Incurred any material liabilities or obligations (absolute, accrued,
contingent or otherwise), except items incurred in the ordinary course of
business and consistent with past practice, or increased or experienced any
change in any assumptions underlying, or methods of calculating, any bad debt,
contingency or other reserves; (c) Paid, discharged or satisfied any claim,
liabilities or obligations (absolute, accrued, contingent or otherwise) other
than the payment, discharge or satisfaction in the ordinary course of business
and consistent with past practice of liabilities and obligations reflected or
reserved against in the Purchaser Financial Statements or incurred in the
ordinary course of business and consistent with past practice since the date of
the balance sheet included in the Purchaser Financial Statements; (d) Permitted
or allowed any of its property or assets (real, personal or mixed, tangible or
intangible) to be subjected to any mortgage, pledge, lien, security interest,
encumbrance, restriction or charge of any kind, except for liens for current
taxes not yet due; (e) Become aware of any fact or event which materially
adversely affects or may in the future materially adversely affect the financial
condition, results of operations, business, properties, assets, liabilities, or
future prospects of the Purchaser; (f) Sold, transferred, or otherwise disposed
of any of its properties or assets (real, personal or mixed, tangible or
intangible), except in the ordinary course of business and consistent with past
practice; and (g) Agreed, whether in writing or otherwise, to take any action
described in this Section 3.8.
ARTICLE 4
COVENANTS
4.1 COVENANTS OF THE COMPANY
4.1.1 CONSENTS. The Company will obtain, prior to the Closing, all consents
necessary, in the reasonable opinion of Purchaser's counsel, to the consummation
of the transactions contemplated hereby. All such consents will be in writing
and executed counterparts thereof will be delivered to Purchaser prior to or at
the Closing.
4.2 COVENANTS OF THE PURCHASER:
(a) REGISTRATION. Purchaser will register the MEDIACOM Common Stock in
accordance with Article 7 hereof. In the event that the Purchaser grants to any
current or future investor, registration rights superior to or more favorable
than those contained in Article 7, the Purchaser shall also grant such superior
or more favorable registration rights to the Company with respect to the MEDIA
COM Common Stock acquired pursuant hereto.
5
ARTICLE 5
CONDITIONS TO OBLIGATIONS OF THE COMPANY
Each and every obligation of the Company under this Agreement to be
performed on or before the Closing shall be subject to the satisfaction, on or
before the Closing, of each of the following conditions, unless waived in
writing by the Purchaser:
5.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and warranties
of the Company contained herein shall be in all material respects true, complete
and accurate as of the date when made and at and as of the Closing as though
such representations and warranties were made at and as of such date, except for
changes expressly permitted or contemplated by the terms of this Agreement.
5.2 PERFORMANCE. The Company shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by it on or prior to the Closing.
5.3 NO GOVERNMENTAL PROCEEDING OR LITIGATION. No suit, action,
investigation, inquiry or other proceeding by any governmental body or other
Person or legal or administrative proceeding shall have been instituted or
threatened which questions the validity or legality of the transactions
contemplated hereby.
5.4 MATERIAL CHANGE. The Company shall not have suffered any unanticipated
material adverse change in its business, prospects, financial condition, working
capital, assets, liabilities (absolute, accrued, contingent or otherwise),
reserves or operations.
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF THE PURCHASER
Each and every obligation of Purchaser under this Agreement to be performed
on or before the Closing shall be subject to the satisfaction, on or before the
Closing, of each of the following conditions, unless waived in writing by the
Company:
6.1 REPRESENTATIONS AND WARRANTIES TRUE. The representations and warranties
contained in Article 3 hereof, and in all certificates and other documents
delivered and to be delivered by the Purchaser pursuant hereto or in connection
with the transactions contemplated hereby shall be in all material respects
true, complete and accurate as of the date when made and at and as of the
Closing Date as though such representations and warranties were made at and as
of such date, except for changes expressly permitted or contemplated by the
terms of this Agreement or changes which are not material in the aggregate.
6
6.2 PERFORMANCE. The Purchaser shall have performed and complied with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by them on or prior to the Closing.
6.3 INVESTIGATIONS; ETC. No investigation of the Company by Purchaser, nor
the Schedules or any supplement thereto nor any other document delivered to
Purchaser as contemplated by this Agreement, shall have revealed any facts or
circumstances which, in the sole and exclusive judgment of Purchaser, reflect in
a material adverse way on the financial condition, assets, liabilities
(absolute, accrued, contingent or otherwise), reserves, business, operations or
prospects of the Company.
6.4 CONSENTS. The consents from third parties and government agencies
required to consummate the transactions contemplated hereby shall have been
obtained.
6.5 NO GOVERNMENT PROCEEDING OR LITIGATION. No suit, action, investigation,
inquiry or other proceeding by any governmental body or other Person or legal or
administrative proceeding shall have been instituted or threatened which
questions the validity or legality of the transactions contemplated hereby.
6.6 MATERIAL CHANGE. The Purchaser shall not have suffered any
unanticipated material adverse change (whether or not such change is referred to
or described in any supplement to the Schedules) in its business, prospects,
financial condition, working capital, assets, liabilities (absolute, accrued,
contingent or otherwise), reserves or operations.
ARTICLE 7
REGISTRATION RIGHTS
7.1 REGISTERABLE SECURITIES. As used herein the term "Registerable
Security" means the 3,500,000 shares of MEDIA COM Common Stock issued pursuant
to this Agreement, provided, however, that with respect to any particular
Registerable Security, such security shall cease to be a Registerable Security
when, as of the date of determination, (a) it has been effectively registered
under the Securities Act, and disposed of pursuant thereto, (b) registration
under the Securities Act is no longer required for the immediate public
distribution of such security without restriction, or (c) it has ceased to be
outstanding. The term "Registerable Securities" means any and/or all of the
securities falling within the foregoing definition of a "Registerable Security."
In the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, all adjustments
shall be made in the definition of "Registerable Security" as are necessary or
appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Agreement.
7
7.2 PIGGYBACK REGISTRATION.
(a) If the Purchaser proposes to register any of its securities under the
Securities Act, for its own account or for the account of others (other than in
connection with a merger on Form S-4, pursuant to Form S-8 or other comparable
form), the Purchaser shall at such time give prompt written notice to the
Company of its intention to effect such registration and of the Company's rights
under such proposed registration, and upon the request of the Company delivered
to the Purchaser within 20 days after giving of such notice (which request shall
specify the Registerable Securities intended to be disposed of by Stockholders
and the intended method of disposition thereof), the Purchaser shall include
such Registerable Securities held by the Company requested to be included in
such registration; provided, however, that:
(i) If, at any time after giving such written notice of the
Purchaser's intention to register any of the Company's Registerable
Securities and prior to the effective date of the registration statement
filed in connection with such registration, the Purchaser shall determine
for any reason not to register or to delay the registration of the
Purchaser's own securities and such Registerable Securities, at its sole
election, the Purchaser may give written notice of such determination to
the Company and thereupon shall be relieved of its obligation to register
any Registerable Securities issued or issuable in connection with such
registration (but not from its obligation to pay registration expenses in
connection therewith or to register the Registerable Securities in a
subsequent registration); and in the case of a determination to delay a
registration, the Purchaser shall thereupon be permitted to delay
registering any Registerable Securities for the same period as the delay in
respect of securities being registered for the Purchaser's own account.
(ii) If the registration relates to an underwritten offering and the
managing underwriter in such underwritten offering shall advise the
Purchaser that it declines to include a portion or all of the Registerable
Securities requested by the Company to be included in the registration
statement, then (1) registration of all of the Registerable Securities
shall be excluded from such registration statement on the condition that
all securities to be registered by any other selling securityholders, if
any, are also excluded and (2) registration of a portion of such
Registerable Securities shall be excluded if such portion is allocated
among the Stockholders and any other selling securityholders in proportion
to the respective numbers of securities to be registered by the Company and
other selling securityholders. In such event the Purchaser shall give the
Company prompt notice of the number of Registerable Securities excluded.
(iii) It shall be a condition of the Company's participation
in a registration statement under this Section 7.2 which relates to an
underwritten public offering, that the Company agrees to sell the
Company's Registerable Securities on the basis provided in the
underwriting arrangements agreed to by the Purchaser and the managing
underwriter of such offering.
8
7.3 REGISTRATION PROCEDURES. In connection with each registration statement
filed pursuant to this Agreement, the Purchaser hereby agrees to: (a) prepare
and file with the Commission a registration statement and shall use its best
efforts to cause such registration statement to become effective and remain
effective for one (1) year or until all the Registerable Securities are sold
(whichever is shorter) or become capable of being publicly sold without
registration under the Securities Act. (b) prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus used in collection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale or other disposition of all securities
covered by such registration statement whenever the Company shall desire to sell
or otherwise dispose of the same; (c) furnish to the Company such numbers of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus or any amendment or supplement to any prospectus, in conformity with
the requirements of the Securities Act, and such other documents, as the Company
may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by the Company; (d) use its best efforts to
register and qualify the securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as the Company
shall request, and do any and all other acts and things which may be necessary
or advisable to enable the Company to consummate the public sale or other
disposition in such jurisdictions of the securities owned by the Company, except
that the Purchaser shall not for any such purpose be required to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service of process; (e) use
its best efforts to list such securities on any securities exchange or national
quotation system on which any securities of the Purchaser are then listed or
quoted; (f) enter into and perform its obligations under an underwriting
agreement, if the offering is an underwritten offering, in usual and customary
form, with the managing underwriter or underwriters of such underwritten
offering; (g) notify Company, at any time when a prospectus relating to such
registration statement is required to be delivered under the Securities Act, of
the happening of any event of which it has knowledge as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; and (h) take such
other actions as shall be reasonably requested by the Company to facilitate the
registration and sale of the Registerable Securities.
7.4 INDEMNIFICATION. In the event any Registerable Securities are included
in a registration statement pursuant to this Agreement:
(a) PURCHASER. Without limitation of any other indemnity provided to
Company pursuant to this Agreement, to the extent permitted by law, the
Purchaser shall indemnify and hold harmless the Company, any underwriter (as
defined in the Securities Act) for Company, and each person, if any, who
controls such underwriter (within the meaning of the Securities Act) against any
losses, claims, damages or liabilities (joint or several) to which they may
become subject under the Securities Act or other federal or
9
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statements including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (iii) any violation or alleged violation
by the Purchaser of the Securities Act, or (iv) any state securities law or any
rule or regulation promulgated under the Securities Act, or any state securities
law, and the Purchaser shall reimburse the Company, underwriter or controlling
person for any legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Purchaser shall not be liable to Company in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
confol1nity with written information furnished expressly for use in connection
with such registration by the Company.
(b) COMPANY. The Company shall indemnify and hold harmless the Purchaser,
its affiliates, its counsel, officers, directors, shareholders and
representatives, any underwriter (as defined in the Securities Act) and each
person, if any, who controls the Purchaser or the underwriter (within the
meaning of the Securities Act), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act or any state securities law, and the Company shall reimburse the
Purchaser and each such Stockholders, affiliate, officer or director or partner,
underwriter or controlling person for any legal or other expenses incurred by
them in connection with investigating or defending any such loss, claim, damage,
liability or action; insofar as such losses, claims, damages or liabilities (or
actions and respect thereof) arise out of or aloe based upon any statements or
information provided by such Stockholders to the Purchaser in connection with
the offer or sale of Registerable Securities.
(c) NOTICE; RIGHT TO DEFEND. Promptly after receipt by an indemnified party
under this Section 7.4 of notice of the commencement of any action (including
any governmental action), such indemnified party shall, if a claim in respect
thereof is to be made against any indemnifying party under this Section 7.4,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in and if the
indemnifying party agrees in writing that it will be responsible for any costs,
expenses, judgments, damages and losses incurred by the indemnified party with
respect to such claim, jointly with any other indemnifying party similarly
noticed, to assume the defense thereof with counsel mutually satisfactory to the
parties; provided, however, that an indemnified party shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if the indemnified party reasonably believes that
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
10
counsel in such proceeding. The failure to deliver written notice tothe
indemnifying party within a reasonable time of the commencement of any such
action shall relieve such indemnifying party of any liability to the indemnified
party under this Agreement only if and to the extent that such failure is
prejudicial to its ability to defend such action, and the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Agreement.
(d) CONTRIBUTION. If the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other
hand in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relevant fault of the indemnifying party and the indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Notwithstanding the foregoing, the amount the Company shall be obligated to
contribute pursuant to the Agreement shall be limited to an amount equal to the
proceeds to the Stockholders of the Registerable Securities sold pursuant to the
registration statement which gives rise to such obligation to contribute (less
the aggregate amount of any damages which the Company has otherwise been
required to pay in respect of such loss, claim, damage, liability or action or
any substantially similar loss, claim, damage, liability or action arising from
the sale of such Registerable Securities).
(e) SURVIVAL OF INDEMNITY. The indemnification provided by this Agreement
shall be a continuing right to indemnification and shall survive the
registration and sale of any Registerable Securities by any person entitled to
indemnification hereunder and the expiration or termination of this Agreement.
7.5 TERMINATION OF REGISTRATION RIGHTS. The registration rights provided
for in this Article 7 shall continue in full force and effect until such time as
there are no Registerable Securities, as defined in Section 7.1 hereof,
outstanding.
7.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Purchaser to take any action pursuant to this Article 7 with
respect to the Company that the Company shall furnish to the Purchaser such
information regarding the Company, the Company's Registerable Securities and the
intended method of disposition of the Registerable Securities and shall execute
such documents in connection with such registration as the Purchaser and/or any
managing underwriters may reasonably request.
11
7.7 EXPENSES OF REGISTRATION. All expenses, other than underwriting
discounts and commissions incurred by the Company in connection with the
transactions contemplated by this Agreement, including, without limitation,
listing, filing and qualification fees, printers' fees, accounting fees, legal
fees and expenses of counsel for the Company (up to an aggregate of$10,000) and
the fees of the Purchaser's counsel, shall be borne by the Purchaser.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION BY COMPANY. The Company shall indemnify Purchaser and
each of its officers and directors and hold each of them harmless from, against
and in respect of and shall on demand reimburse such persons for: (a) all its
losses, liabilities, damages, costs and expenses arising from any
misrepresentation or breach of any representation, warranty, covenant or
agreement on the part of the Company under this Agreement; (b) to the extent any
of the following constitute a breach of any representation, warranty, covenant
or agreement on the part of the Company under this Agreement, any and all
actions, suits, claims, or legal, administrative, arbitration, governmental or
other proceedings or investigations against Purchaser that relate to the Company
or the business in which the principal event giving rise thereto occurred before
the Closing Date or which result from or arise out of any action or inaction
before the Closing Date of the Company or any employee, agent, representative or
subcontractor of the Company; and (c) any and all actions, suits, proceedings,
elections, demands, assessments, judgments, costs and expenses, including
without limitation, reasonable legal fees and expenses, incident to any of the
foregoing or incurred in investigating or attempting to avoid same or to oppose
the imposition thereof, or in enforcing this indemnity.
8.2 INDEMNIFICATION BY PURCHASER. Purchaser shall indemnify the Company and
hold it harmless from, against and in respect of and shall on demand reimburse
it for: (a) all of its losses, liabilities, damages, costs and expenses arising
from any misrepresentation or breach of any representation, warranty, covenant
or agreement on the part of the Purchaser under this Agreement; (b) any and all
actions, suits, claims, or legal, administrative, arbitration, governmental or
other proceedings or investigations against the Company that relate to the
Purchaser or the business in which the principal event giving rise thereto
occurred after the Closing Date or which result from or arise out of any action
or inaction after the Closing Date of Purchaser or any employee, agent,
representative or subcontractor of the Purchaser; and (c) any and all actions,
suits, proceedings, elections, demands, assessments, judgments, costs and
expenses, including without limitation, reasonable legal fees and expenses,
incident to any of the foregoing or incurred in investigating or attempting to
avoid same or to oppose the imposition thereof, or in enforcing this indemnity.
12
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 WAIVER OF COMPLIANCE. Any failure of the Company, on the one hand, or
Purchaser, on the other, to comply with any obligation, covenant, agreement or
condition herein may be expressly waived in writing by the President of
Purchaser or the Company, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
9.2 NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or if mailed, certified or registered mail,
return receipt requested, with postage prepaid or if delivered to an overnight
courier that guarantees next-day delivery.
9.3 ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by the Company
without the prior written consent of the Purchaser.
9.4 GOVERNING LAW. This Agreement and the legal relations among the parties
hereto shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflicts of law doctrine.
9.5 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.6 HEADINGS. The headings of the Sections and Articles of this Agreement
are inserted for convenience only and shall not constitute a part hereof or
affect in any way the meaning or interpretation of this Agreement.
9.7 ENTIRE AGREEMENT. This Agreement and the other documents and
certificates delivered pursuant to the terms hereof, set forth the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and supersede all prior agreements, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto,
including but not limited to the Stock Purchase Agreement dated July 16, 2004
attached hereto.
9.8 THIRD PARTIES. Except as specifically set forth or referred to herein,
nothing herein expressed or implied is intended or shall be construed to confer
upon or give to any person or corporation other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
13
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be duly
executed all as of the day and year first above written.
MEDIACOM ENTERTAINMENT, INC.
/s/ Xxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Xxxxxx
Chief Executive Officer
CONVERGITON, INC.
/s/ Xxxx X. Xxxxxxx
------------------
Xxxx X. Xxxxxxx
President
14
