EXHIBIT 6.2
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
between
DIGITAL CREATIVE DEVELOPMENT CORPORATION
(a Utah corporation)
as Seller,
and
XXXXXX XXXXXXXX'X, INC.
(a Delaware corporation)
as Buyer
[ ], 2001
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
SEPARATION AND DISTRIBUTION AGREEMENT made as of the [ ] day of [ ], 2001
(this "Agreement") by and between DIGITAL CREATIVE DEVELOPMENT CORPORATION, a
Utah corporation ("Seller"), and XXXXXX XXXXXXXX'X, INC., a Delaware corporation
("Buyer"). Seller and Buyer are sometimes individually referred to as a "Party"
and collectively referred to as the "Parties."
WHEREAS, pursuant to that certain Separation and Distribution Agreement
dated as of [_______ ___, 2001] between the Parties (the "Separation
Agreement"), the Parties agreed that Seller shall transfer to Buyer
substantially all of the business and assets of Seller's restaurant business
(the "Business") and that Buyer shall assume substantially all of the
liabilities of the Business;
WHEREAS, it is the intent of the Parties, by this Agreement and the other
agreements and instruments provided for in the Separation Agreement, that Seller
convey to Buyer substantially all of the business and assets of the Business and
that Buyer assume substantially all of the liabilities of the Business;
NOW, THEREFORE, in consideration of the premises and of the mutual promises
and covenants made in this Agreement and in reliance upon the representations
and warranties made in this Agreement, Seller and Buyer, intending to be legally
bound, hereby agree as follows:
DEFINITIONS ARTICLE
As used in this Agreement, the following terms, when capitalized, shall
have the respective meanings set forth in this Definitions Article. Other
capitalized terms used in this Agreement shall have the meanings as are defined
in the Separation Agreement or elsewhere in the text of this Agreement.
1. "Action" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international governmental authority or any arbitration or mediation
tribunal.
2. "Affiliated Company" means any Person in which Seller or Buyer, as the
case may be, holds a 50% or less ownership interest.
3. "Ancillary Agreement" has the meaning set forth in Section 2.1(b)(iii)
of the Separation Agreement.
4. "Assets" has the meaning set forth in Section 1.1(a) of the Separation
Agreement.
5. "Assumed Obligations" has the meaning set forth in Section 1.1(a)(iii)
of the Separation Agreement.
6. "Consents" means any consents, waivers or approvals from, or
notification requirements to, any third Parties.
7. "Excluded Assets" has the meaning set forth in Section 1.1(b) of the
Separation Agreement.
8. "Governmental Approvals" means any notices, reports or other filings to
be made, or any consents, registrations, approvals, permits or authorizations to
be obtained from, any Governmental Authority.
9. "Governmental Authority" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative authority.
10. "Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
11. "Retained Liabilities" has the meaning set forth in Section 1.3 of the
Separation Agreement.
12. "Tax" has the meaning set forth in the Tax Sharing Agreement described
in Section 2.1(b)(iii)(1) of the Separation Agreement.
ARTICLE I
SALE AND PURCHASE OF ASSETS; ASSUMED OBLIGATIONS
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1.1 SALE AND PURCHASE OF ASSETS; ASSUMPTION OF OBLIGATIONS.
(a) Transfer of Assets. Effective on the Separation Date, Seller hereby
assigns, transfers, conveys and delivers to Buyer, and Buyer hereby accepts from
Seller, all of Seller's right, title and interest in all Assets other than
Excluded Assets; provided, however, that any Assets that are specifically
assigned or transferred pursuant to another Ancillary Agreement shall not be
assigned or transferred pursuant to this Section 1.1(a).
(b) Assumed Obligations. Effective on the Separation Date, Buyer hereby
assumes and agrees faithfully to perform and fulfill, all the Assumed
Obligations other than Retained Liabilities in accordance with their respective
terms, and agrees to cause its applicable Subsidiaries to assume, perform and
fulfill all the Assumed Obligations held by its Subsidiaries, in accordance with
their respective terms.
(c) Misallocated Assets and Assumed Obligations. In the event that at
any time or from time to time, any Party shall receive or otherwise possess any
Asset or Assumed Obligation that is allocated to any other Person pursuant to
this Agreement or any Ancillary Agreement, such Party shall promptly transfer,
or cause to be transferred, such Asset or Assumed Obligation to the Party to
which it belongs. Prior to any such transfer, the Party receiving or possessing
such Asset or Assumed Obligation shall hold such Asset or Assumed Obligation in
trust for any such other Party.
1.2 METHODS OF TRANSFER AND ASSUMPTION.
(a) Terms of Other Ancillary Agreements Govern. The Parties shall enter
into the other Ancillary Agreements, on the date of this Agreement. To the
extent that the transfer of any Asset or the assumption of any Assumed
Obligation is expressly provided for by the terms of any other Ancillary
Agreement, the terms of such other Ancillary Agreement shall effect, and
determine the manner of, the transfer or assumption. It is the intent of the
Parties that pursuant to Section 1.1, the transfer and assumption of all other
Assets and Assumed Obligations shall be made effective as of the Separation
Date.
(b) Mistaken Assignments and Assumptions. Subsequent to the Separation
Date, the Parties may discover that: (i) Assets were, contrary to the agreements
between the Parties, by mistake or omission, transferred to Buyer or retained by
Seller or (ii) Assumed Obligations were, contrary to the agreements between the
Parties, by mistake or omission, assumed by Buyer or not assumed by Buyer. The
Parties shall cooperate in good faith to effect the transfer or re-transfer of
such Assets, and/or the assumption or re-assumption of such Assumed Obligations,
to or by the appropriate Party. Each Party shall reimburse the other or make
other financial adjustments or other adjustments to remedy any mistakes or
omissions relating to any of the Assets transferred hereby or any of the Assumed
Obligations assumed hereby.
(c) Documents Relating to Other Transfers of Assets and Assumption of
Assumed Obligations. In furtherance of the assignment, transfer and conveyance
of Assets and the assumption of Assumed Obligations set forth in Sections 1.2(a)
and (b) or other Ancillary Agreements, simultaneously with the execution and
delivery of this Agreement (i) Seller shall execute and deliver such bills of
sale, stock powers, certificates of title, assignments of contracts and other
instruments of transfer, conveyance and assignment as and to the extent
necessary to evidence the transfer, conveyance and assignment of all of Seller's
right, title and interest in and to the Assets to Buyer as Buyer shall
reasonably request, and (ii) Buyer shall execute and deliver, to Seller such
assumptions of the Assumed Obligations and other instruments of assumption as
and to the extent necessary to evidence the valid and effective assumption of
the Assumed Obligations by Buyer as Seller shall reasonably request.
(d) Cooperation as to Books and Records. Buyer and Seller shall
cooperate fully, including making employees available on a mutually convenient
basis to provide additional explanation of any material provided hereunder, as
and to the extent reasonably requested by the other Party, at the other Party's
expense for out-of-pocket costs, in connection with assuring the transfer of
Assets and Business and the assumption of Assumed Obligations as provided by
this Agreement. To implement such cooperation, Buyer and Seller shall: (i)
retain all books and records with respect to matters pertinent to the Business
prior to the Separation Date for all legally required retention periods; and
(ii) allow the other Party to make copies of such books and records prior to
their destruction after the expiration of such periods if requested in writing
by the other Party.
1.3 GOVERNMENTAL APPROVALS AND OTHER CONSENTS.
(a) Transfer In Violation of Laws or Requiring Consent or Governmental
Approval. If and to the extent that the valid, complete and perfected transfer
assignment or novation to Buyer of any Assets and Assumed Obligations, including
those in Contracts, would be a violation of applicable laws or require any
Consent or Governmental Approval in connection with the transactions
contemplated by this Agreement, then, unless Seller shall otherwise determine,
the transfer, assignment or novation to or from Buyer of such Assets shall be
automatically deemed deferred and any such purported transfer, assignment or
novation shall be null and void until such time as all legal impediments are
removed and/or such Consents or Governmental Approvals have been obtained.
Notwithstanding the foregoing, such Asset shall still be considered an Asset for
purposes of determining whether any Assumed Obligation related thereto is an
Assumed Obligation; provided, however, that if such Consents or Governmental
Approvals have not been obtained within six months of the Separation Date, the
Parties will use their reasonable commercial efforts to achieve an alternative
solution in accordance with the Parties' intentions, including the efforts
described in Section 1.3(b), below.
(b) Transfers Not Consummated as of The Separation Date. If the
transfer, assignment or novation of any Assets, including Contracts, intended to
be transferred or assigned
hereunder is not consummated prior to or on the Separation Date, whether as a
result of the provisions of Section 1.3(a) or for any other reason, then Seller
shall, at Buyer's expense, including in respect of all liabilities associated
with such Asset, thereafter hold such Asset for the use and benefit, insofar as
reasonably possible, of Buyer. In such case, Seller shall take such other
actions as may be reasonably requested by Buyer in order to place Buyer, insofar
as reasonable, in the same position as if such Asset had been transferred as
contemplated hereby so that the benefits and burdens relating to such Assets
inure from and after the Separation Date to Buyer. If and when the legal
impediment to the transfer is removed or the Consents and/or Governmental
Approvals, the absence of which caused the deferral of transfer of any Asset
pursuant to Section 1.3(a), are obtained, as the case may be, the transfer of
the applicable Asset shall be effected in accordance with the terms of this
Agreement and/or the applicable Ancillary Agreement.
(c) Reasonable Commercial Efforts Concerning Assumed Obligations. Buyer
shall use its reasonable commercial efforts to obtain, or to cause to be
obtained, any Consent, substitution, approval or amendment required to or assign
all rights and obligations under Contracts, agreements, leases, licenses and
other obligations or liabilities of any nature whatsoever that constitute
Assumed Obligations or to obtain in writing the unconditional release of all
Parties to such arrangements, so that, in any such case, Buyer, and not Seller,
shall be solely responsible for such Assumed Obligations; provided, however,
that neither Seller nor Buyer shall be obligated to pay any consideration
therefor to any third Person from whom such Consents, approvals, substitutions
and amendments are requested.
(d) Inability to Obtain Novation. If Seller or Buyer is unable to
obtain, or to cause to be obtained, any such required Consent, approval,
release, substitution or amendment, Seller shall continue to be bound by such
Contracts, agreements, leases, licenses and other obligations and, unless not
permitted by law or the terms thereof (except to the extent expressly set forth
in this Agreement, the Separation Agreement or any other Ancillary Agreement),
Buyer shall, as agent or subcontractor for Seller, pay, perform and discharge
fully, or cause to be paid, transferred or discharged, without reimbursement,
all the obligations or other Assumed Obligations of Seller thereunder from and
after the Separation Date. Seller shall, without further consideration, pay and
remit, or cause to be paid or remitted, to Buyer promptly all money, rights and
other consideration received by it in respect of such performance (unless any
such consideration is an Excluded Asset). If and when any such Consent,
approval, release, substitution or amendment shall be obtained or such Contract,
agreement, lease, license or other rights or obligations shall otherwise become
assignable or able to be novated, Seller shall thereafter assign, or cause to be
assigned, all of its rights and the Assumed Obligations to Buyer without payment
of further consideration and Buyer shall, without the payment of any further
consideration, assume such rights and Assumed Obligations.
(d) Expenses of Seller Retaining an Asset. If Seller retains an Asset
due to the deferral of the transfer of such Asset, Seller shall not be
obligated, in connection with the foregoing, to expend any money unless the
necessary funds are advanced by Buyer, other than reasonable out-of-pocket
expenses, attorneys' fees and recording or similar fees, all of which shall be
promptly reimbursed by Buyer upon Seller's written demand.
(e) Nonrecurring Costs And Expenses. Notwithstanding anything in this
Agreement to the contrary, any nonrecurring costs and expenses incurred by the
Parties to effect the transactions contemplated hereby which are not allocated
pursuant to the terms of the Separation Agreement or any other Ancillary
Agreement shall be the responsibility of the Party which incurs such costs and
expenses.
1.4 BUYER'S AND SELLER'S RESTAURANT SUBSIDIARIES.
(a) MIE Hospitality, Inc. All of the capital stock of MIE Hospitality,
Inc. ("MIE") shall be transferred by Seller to Buyer, or its designee (appointed
as described in Section 1.4(b), below). As such, all of the Assets and Assumed
Obligations of MIE shall remain with MIE as an entity separate and independent
from Seller.
(b) Subsidiaries of Buyer. Except with respect to MIE, which subsidiary
shall be governed by Section 1.4(a), above, whenever this Agreement refers to an
obligation of Buyer or Seller, as the case may be, it shall be deemed to
include: (a) an obligation of Seller to cause any of its majority-owned and
controlled subsidiaries that owns or holds an Asset to transfer such Asset to
Buyer or to a wholly-owned subsidiary of Buyer, as Buyer shall designate in
writing delivered to Seller at least three (3) days prior to the Separation
Date; (b) an obligation of Buyer to cause any of its wholly-owned subsidiaries
that it desires to assume an Assumed Obligation from Seller (or a subsidiary of
Seller) to assume such Assumed Obligation from Seller (or its subsidiary), as
Buyer shall designate in writing delivered to Seller at least three (3) days
prior to the Separation Date; provided that, in no event shall Buyer designate a
subsidiary to assume an Assumed Obligation unless such subsidiary also has the
Asset, if any, associated with such Assumed Obligation; and (c) an obligation to
cause their respective subsidiaries to comply with Buyer's or Seller's
respective obligations under this Agreement, the Separation Agreement and the
other Ancillary Agreements.
(c) Buyer Primarily Liable for Assumed Obligations. Notwithstanding
anything in this Agreement to the contrary, Buyer shall be and remain primarily
responsible for the satisfaction by any and all of its subsidiaries designated
under Section 1.4(b), above, of any Assumed Obligation assumed by such
subsidiary.
1.5 SPECIAL PROVISIONS WITH RESPECT TO EMPLOYEE MATTERS.
(a) The Xxxxxx Xxxxxxxx'x 401(k) Plan. Notwithstanding anything to the
contrary in this Agreement, Seller shall use commercially reasonable efforts to
transfer to Buyer, or a subsidiary of Buyer designated under Section 1.4(b),
above, the plan and assets constituting the Xxxxxx Xxxxxxxx'x 401(k) Plan and
Buyer or a subsidiary of Buyer so designated shall assume and accept such plan
and assets. In the event that such transfer is not available under applicable
law, the Parties shall cooperate to effect a distribution of plan assets to
employees in a manner to allow employees, if possible, to elect a rollover and
avoid withholding penalties.
(b) Employment. Effective on the Separation Date, Buyer, or a
subsidiary of Buyer designated under Section 1.4(b), above, shall provide
employment to all of the persons who were employed by Seller, or a subsidiary of
Seller, in the Business on an at will basis immediately prior to the Separation
Date on at least as beneficial terms and conditions of employment as were
available to such person from Seller. Similarly, Buyer, or a subsidiary of Buyer
designated under Section 1.4(b), above, shall offer employment to all other such
employees of Seller, or a subsidiary of Seller, on the same or better terms and
conditions of employment provided in any employment agreement between Seller, or
such subsidiary, and such employee for the term remaining in such employment
agreement.
(c) Welfare and Other Benefits. Seller shall cause MIE to cooperate
with Buyer at its cost to effect the implementation of The Major Medical Policy
sponsored by MIE for employees of the Business with Capital Blue Cross/Blue
Shield of Pennsylvania, including the term life insurance policy offered in
connection therewith. The Parties understand and agree that there are no
accruals for any employee benefit of Seller, or any subsidiary of Seller, which
is
required to be transferred to Buyer by this Agreement or the Separation and
Distribution Agreement. Buyer, or a subsidiary of Buyer designated under Section
1.4(b), above, shall be liable for all Assumed Obligations in connection with
any such benefit.
(d) Indemnity. In all cases, Buyer shall indemnify, defend and hold
harmless Seller, or the applicable subsidiary of Seller, as the case may be,
with respect to all Assumed Obligations arising out of the plan described in
Section 1.5(a), above, the employment relationships described in Section 1.5(b),
above, and the benefits described Section 1.5(c), above, to the extent of and in
accordance with the provisions of the Indemnification and Insurance Matters
Agreement referred to in Section in 2.1(b)(iii)(3) of the Separation Agreement.
ARTICLE II
SPECIAL PROVISIONS CONCERNING LITIGATION
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2.1 LITIGATION TO BE TRANSFERRED TO BUYER. Notwithstanding any contrary
provisions in the provisions of the Indemnification and Insurance Matters
Agreement, on the Separation Date, the responsibilities for management of the
litigation identified in Schedule 3.6 of the Separation Agreement (the
"Scheduled Litigation"), shall be transferred in their entirety from Seller to
Buyer. As of the Separation Date and thereafter, Buyer shall manage the defense
of the litigation. Seller must first obtain the prior consent of Buyer for any
action taken subsequent to the Separation Date in connection with the Scheduled
Litigation, which consent cannot be unreasonably withheld, delayed or
conditioned. All other matters relating to such litigation, including but not
limited to indemnification, shall be governed by the provisions of the
Indemnification and Insurance Matters Agreement.
2.2 COOPERATION. Seller and Buyer shall cooperate with each other in the
defense of any Scheduled Litigation and shall afford to each other reasonable
access upon reasonable advance notice to witnesses and information (other than
information protected from disclosure by applicable privileges) that is
reasonably required to defend the Scheduled Litigation. The foregoing agreement
to cooperate includes an obligation to provide access to qualified assistance to
provide information, witnesses and documents to respond to discovery requests in
specific lawsuits. In such cases, cooperation shall be timely so that the Party
responding to such requests may meet all statutory and court-imposed deadlines.
Upon demand, the Party requesting information shall reimburse the Party
providing information its out-of-pocket costs.
ARTICLE III
MISCELLANEOUS
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3.1 BINDING EFFECT. Except as otherwise provided in this Section 3.1, this
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns.
3.2 NO ASSIGNMENT. Except as expressly provided in this Agreement, this
Agreement may not be assigned by either Party hereto without the prior written
consent of the other Party. Any attempted or purported assignment by either
Party, other than in accordance with this Section 3.2, shall be null and void
and of no force or effect.
3.3 COUNTERPARTS. This Agreement may be executed 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. This Agreement may be
delivered by delivery of facsimile signatures.
3.4 GOVERNING LAW; JURISDICTION.
(i) THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS
AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW
ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
(ii) SUBJECT TO ARTICLE IV, EACH PARTY CONSENTS THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
AGREEMENT, OR ANY OTHER INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH, SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR IF SUCH COURT LACKS SUBJECT
MATTER JURISDICTION THEN IN THE SUPERIOR COURT OF THE STATE OF NEW YORK FOR NEW
YORK COUNTY. EACH PARTY, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF
ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDINGS. EACH PARTY AGREES THAT TO
THE EXTENT PERMITTED BY APPLICABLE LAW PERSONAL JURISDICTION OVER IT MAY BE
OBTAINED BY THE DELIVERY OF A SUMMONS (POSTAGE PREPAID) IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.7 OF THIS ARTICLE. ASSUMING DELIVERY OF THE SUMMONS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.7 OF THIS ARTICLE, EACH PARTY HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES ANY ALLEGED LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OF FORUM NON CONVENIENS OR ANY SIMILAR BASIS.
3.5 INVALIDITY. In the event that any one or more of the provisions
contained in this Agreement, or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument, except that this
Agreement shall not be reformed in any way if such reformation will deny to
either Party the essential benefits of this Agreement, unless the benefited
Party waives in writing its right to such benefits. In the event that such
reformation is not undertaken as provided herein, the Parties shall place
themselves as closely as practicable in the positions they were in immediately
prior to the Closing Date.
3.6 SURVIVAL. The representations, warranties, indemnities and agreements
of the Parties to this Agreement shall survive the Closing for a period of three
(3) years. The period of limitations set forth above shall be in lieu of all
statutes of limitations otherwise applicable having a duration of more than that
period.
3.7 NOTICES. All notices required to be given under the terms of this
Agreement or which either of the Parties desires to give hereunder shall be in
writing and personally delivered or sent by certified mail, return receipt
requested, addressed as follows:
(a) If to Buyer:
Xxxxxx Xxxxxxxx'x, Inc.
0 Xxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: President
with a copy to:
[counsel to AT]
(b) If to Seller:
Digital Creative Development Corporation
00 Xxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman
with a copy to:
Piliero Xxxxxxxxx Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Any Party may designate a change in address at any time upon written notice
to the other Party.
3.8 NO THIRD-PARTY BENEFICIARIES. Notwithstanding anything to the contrary
contained in this Agreement, no provision of this Agreement is intended to
benefit any person other than the signatories hereto or their permitted assigns,
nor shall any such provision be enforceable by any such other person.
3.9 EXHIBITS AND SCHEDULES. The Exhibits and Schedules referred to herein
form a part of this Agreement, and are hereby incorporated herein by this
reference.
3.10 ENTIRE AGREEMENT; AMENDMENTS; HEADINGS; WAIVERS, ETC. This Agreement
and the Schedules and Exhibits hereto contain the entire agreement of the
Parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, either oral or written, between the Parties with
respect to such subject matter. No understandings, representations or warranties
made or agreed to by either Party prior to or contemporaneously with the
execution of this Agreement, except understandings, representations and
warranties contained in the Separation Agreement or in any other Ancillary
Agreement, shall be binding upon either Party or shall otherwise affect this
Agreement, and no amendment, modification or waiver of any provision of this
Agreement will be binding unless in writing and signed by authorized
representatives of both Parties. The headings in this Agreement, its Schedules
and Exhibits are for convenience of reference only and shall not constitute a
part of this Agreement or of such Schedules or Exhibits. No failure or delay on
the part of any Party hereto in the exercise of any right hereunder shall impair
such right or be construed to be a waiver of, or acquiescence in, any breach of
any representation, warranty or agreement herein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof or
of any other right. Except where a right or remedy is expressly stated to be
exclusive, all rights and remedies existing under this Agreement are cumulative
to, and not exclusive of, any rights or remedies available in the
Separation Agreement or in any other Ancillary Agreement; provided, however,
that in the event of any irreconcilable conflict between the provisions of this
Agreement and the Separation Agreement, the provisions of this Agreement shall
prevail and govern and in the event of any irreconcilable conflict between the
provisions of this Agreement and the provisions of any other Ancillary
Agreement, the provisions of such other Ancillary Agreement shall prevail and
govern. References to Sections are to Sections in this Agreement and in each
case include references to all subsections under the referenced Section. Words
denoting the singular tense or person shall include the plural and vice versa
and references to the masculine gender shall, where the context permits, include
the feminine and/or neuter genders and vice versa. The words "including,"
"includes," "include" as used in this Agreement mean, respectively, "including,
without limitation," "includes, without limitation," and "include, without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import shall refer to all applicable provisions of this Agreement and not to any
particular provision. This Agreement is the result of negotiation and,
accordingly, no presumption or burden of proof will arise with respect to any
ambiguity or question of intent concerning this Agreement favoring or
disfavoring any Party to this Agreement by virtue of the authorship of any
provision of this Agreement. All references to statutory provisions shall
include all amendments and reenactments thereof.
ARTICLE IV
ARBITRATION
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4.1 ARBITRATION PANEL. Except with respect to the remedies provided for in
Section 5.2(b), above, and 9.11(d) of the Separation Agreement, any controversy
or claim arising out of or relating to this Agreement or any instrument or
document provided pursuant thereto, or the breach thereof, whether common law or
statutory, including without limitation claims asserting violations of the
antitrust laws, shall be settled exclusively and finally by arbitration in New
York, New York, using the American Arbitration Association. The arbitration
shall be heard before three arbitrators, one to be chosen by Seller, one to be
chosen by Buyer and the third to be chosen by those two arbitrators.
4.2 POWER OF ARBITRATORS. The arbitrators shall apply the internal law of
the State of New York without regard to principles of conflicts of laws in
determining the rights, obligations and liabilities of the Parties. The
arbitrators shall not have the power to alter, modify, amend, add to or subtract
from any term or provision of this Agreement, nor to grant injunctive relief,
including interim relief, of any nature, nor to award punitive damages of any
nature. In all other respects, the commercial rules of the American Arbitration
Association shall govern the arbitration. Judgment on the award of the
arbitrators may be entered by any court having jurisdiction to do so, and Buyer
and Seller hereby irrevocably consent and submit to the personal jurisdiction of
the federal and state courts of the State of New York for that purpose as well
as for any and all other permitted purposes in connection with this Agreement.
4.3 FAILURE TO ARBITRATE. The failure or refusal of either Party to submit
to arbitration shall constitute a breach of this Agreement. Judicial action may
be commenced in order to compel arbitration. If such action is commenced and if
arbitration is in fact compelled, the Party that shall have resisted arbitration
shall be required to pay to the other Party all costs and expenses, including,
without limitation, reasonable attorneys' fees, that it incurs in compelling
arbitration. The prevailing Party in arbitration (i.e., the Party prevailing on
the substantive merits) shall be entitled to its reasonable attorneys' fees and
costs. Otherwise, costs shall be determined as the arbitrators shall order.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives in the presence of
the designated witnesses on the date first above written.
DIGITAL CREATIVE DEVELOPMENT CORPORATION
By:
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Name:
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Title:
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Date:
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XXXXXX XXXXXXXX'X, INC.
By:
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Name:
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Title:
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Date:
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