AGREEMENT
Exhibit
10.4
AGREEMENT:
CR#SM 266
AGREEMENT
AGREEMENT
made this 10 day of December by and between LIMELIGHT MEDIA GROUP, INC, a Nevada
corporation (hereinafter “SELLER”) and AMERICAN MARKETING COMPLEX, INC.
(hereinafter “AMC”)
IT IS
HEREBY AGREED AS FOLLOWS:
|
1. |
TRANSFER
OF ASSETS: PURCHASE PRICE |
|
1.1 |
At
the Closing referred to in Section 3.1, SELLER shall sell to AMC and AMC
shall purchase, the inventory as listed on Exhibit A (hereinafter the
“GOODS”). |
|
1.2 |
As
full consideration for the GOODS, AMC shall issue to SELLER CREDITS (
hereinafter the “CREDITS”) in the aggregate amount of One Million Five
Hundred Thousand Dollars ($1,500,000) to purchase merchandise and services
to be selected by SELLER as provided in Section 4. (See Exhibit A for
details) |
|
1.3 |
All
of the goods shall be sold packed in the master cartons as they would be
in the normal course of Seller’s distribution. Product packaging shall be
in the retail packaging if normally used for retail sales to consumers (
containing all normal printed warranties and labels) except as may be
disclosed by Seller prior to Closing.
|
|
2. |
REPRESENTATIONS
AND WARRANTIES |
|
2.1 |
AMC
represents and warrants that (i) it is a corporation duly organized,
validly existing and in good standing under the laws of New York, (ii) it
has full power and authority to enter into and perform this AGREEMENT in
accordance with its terms; (iii) the execution, delivery and performance
of this AGREEMENT by AMC have been duly authorized by all requisite
corporate action of AMC, and (iv) this AGREEMENT is a valid and binding
obligation of AMC, enforceable in accordance with its
terms. |
|
2.2 |
SELLER
represents and warrants that (i) it is a corporation duly organized,
validly existing and in good standing under the laws of NEVADA: (ii) it
has full power and authority to enter into and perform this AGREEMENT in
accordance with its terms; (iii) the execution, delivery and performance
of this AGREEMENT by SELLER have been duly authorized by all requisite
corporate actions of SELLER; (iv) this AGREEMENT is a valid and binding
obligation of SELLER enforceable in accordance with its terms, and (v)
SELLER has, and at the closing AMC will obtain, good and marketable title
to all of the GOODS, free and clear of any claims, liens or encumbrances.
SELLER agrees to indemnify AMC and to litigate all claims against AMC at
SELLER’S expense which concern SELLER’S good and marketable title to all
of the GOODS. |
|
2.3 |
SELLER
represents, warrants and agree that (i) no consent of any person or
entity, including any lender, secured or unsecured, is required in order
for SELLER to effectuate the transaction contemplated hereunder. SELLER
agrees that AMC will no suffer any financial harm from SELLER’S failure to
obtain any consent and further agrees to indemnify AMC, as well as
litigate on behalf of AMC at SELLER’S expense to insure that AMC will not
suffer any harm from the failure to obtain any consent. AMC shall have the
right to sell the GOODS using the SELLER’S name or any other trade name
attributed to the GOODS by SELLER in the same manner of any other trade
name attributed to the GOODS by the SELLER will be done in connection with
the registration symbol, LMMG, and will be used in a manner to protect the
ownership rights to such name or trade name. AMC expressly disclaims any
right, title or interest in any name, trade name or trademark owned by
SELLER. |
Page 1 of 8 initial
_________/____________
|
3. |
CLOSING |
|
3.1 |
The
CLOSING (the “CLOSING”) under the AGREEMENT shall be held in NEW YORK/
TENNESSEE on Dec 10, 2004 or at such other place as the parties
agree. |
|
3.2 |
At
the CLOSING, SELLER shall deliver to AMC a Xxxx of Sale conveying the
GOODS in the form of Exhibit B, and AMC shall issue the credits to
SELLER’S account with AMC. |
|
4. |
AVAILABILITY
OF CREDITS |
|
4.1 |
Not
less frequently then every ninety (90) days, AMC shall deliver to SELLER
written material describing the merchandise and services that can be
purchased by SELLER for credits, or, for a combination of credits and
cash. These descriptions may or may not be for the merchandise and
services previously submitted to SELLER by AMC. Such merchandise and
services shall include any merchandise and services which AMC makes
available to any third party. In addition, if SELLER desires to purchase
for credits, or, a combination of cash and credits, merchandise or
services through AMC other than those described in the material, SELLER
shall notify AMC and AMC shall then determine within a reasonable period
of time whether the merchandise and services requested can be purchased
for credits (or for a combination determined by AMC, of cash and credits)
and shall notify SELLER. |
|
4.2 |
AMC
shall exercise its best efforts, and SELLER agrees to accept AMC’s best
efforts, to offer merchandise and services which shall be competitive and
prices quoted to SELLER in proposed arm’s length transactions with
unrelated third parties for the same merchandise and services. Such
merchandise and services shall be of comparable quality to those offered
in the marketplace. Every request for AMC to provide merchandise and
services shall be accompanied by written prices quoted to SELLER for
similar merchandise and service at arm’s length transactions with
unrelated third parties. |
|
4.3 |
AMC
agrees to use its best efforts, and SELLER agrees to accept AMC’S best
efforts, to obtain merchandise or services which SELLER can purchase for
credits, or, a combination of cash and credits. If AMC is able to obtain
merchandise or services to submit to SELLER for its consideration, or, is
able to obtain merchandise or services which SELLER may request, AMC will
then advise SELLER of the cost at which AMC can obtain such merchandise or
services, and if such cost is lower than SELLER would normally pay, AMC
will acquire the merchandise or services for SELLER (with SELLER
approval), upon prepayment by SELLER to AMC of AMC’S cost. However, AMC
makes no representation as to the obtainability of any merchandise or
services. The difference between AMC’S cost and the cost at which the
merchandise or services are made available to SELLER shall be charged
against SELLER’s credits. |
Page 2 of 8 initial
_________/____________
|
4.4 |
AMC
shall deliver to SELLER quarterly statements indicating (i) the amount of
each credit used by SELLER to purchase merchandise and services that
quarter, and (ii) the aggregate amount of credits still available to
SELLER as of the end of that
quarter. |
|
4.5 |
Any
credits not utilized on or before Dec 8, 2009 shall expire on that date,
and AMC shall have no further obligation under this AGREEMENT; provided,
however, that SELLERE may solely at its option extend this AGREEMENT
CR#SM266 for one year ending Dec. 10, 2010. |
|
4.6 |
The
merchandise and services offered by AMC for credits (or for a combination
of cash and credits) under this AGREEMENT are subject to prior sale/or
withdrawal without
notification. |
|
4.7 |
In
the event AMC shall receive a request from SELLER to procure merchandise
or services accompanied by the price at which SELLER can obtain such
merchandise and services from its current unrelated third party vendor
(the “BENCHMARK PRICE”) and AMC identifies an alternate vendor prepared to
provide merchandise or services comparable to those requested at a cash
savings to SELLER and SELLER as a result thereof thereafter negotiates a
more favorable price with its current vendor (the “REDUCED PRICE”), then
and in that event, the spread between the BENCHMARK PRICE and the REDUCED
PRICE shall be deemed a partial fulfillment of AMC’S obligation to
liquidate the credits established under the AGREEMENT. AMC’S obligation to
liquidate such credits shall be reduced pro rata with any such
savings. |
|
4.8 |
SELLER
and AMC acknowledge that meetings have transpired in an effort to outline
the merchandise and services that may possibly be available to clients of
AMC and other merchandise and service which SELLER may request AMC to
provide quotations for in the future. SELLER and AMC have reviewed several
examples of the cash/cash equivalent credit ratios that could be
applicable to other transactions between AMC and other customers for
merchandise and services similar to those which SELLER contemplates
receiving from AMC as consideration for the GOODS sold to AMC hereunder.
SELLER acknowledges that it has evaluated the advantages and risks of this
undertaking and has consulted its own accountants, auditors, and legal
advisors and confirms that it is satisfied that its expectations can be
realized within the period set forth herein.
|
|
5. |
ADDITIONAL
AGREEMENTS OF THE PARTIES |
|
5.1 |
The
title to the GOODS shall vest in AMC upon the CLOSING, and all risk of
loss passes upon the transfer of possession of the
GOODS. |
Page
3 of 8 initial _________/____________
|
6. |
MISCELLANEOUS |
|
6.1 |
This
AGREEMENT contains a complete statement of the total understanding and all
the arrangements between the parties with respect to its subject matter
and supercedes all previous agreements, written or oral, between these
parties concerning the subject matter herein, and cannot be revised,
modified, or terminated orally. Both parties to this AGREEMENT, SELLER and
AMC agree that there are no representations , warranties, or agreements,
written or oral, upon which they have relied, other than those set forth
specifically in this AGREEMENT. |
|
6.2 |
AMC’S
obligations under this AGREEMENT may not be assigned except (i) with the
prior written consent of SELLER or (ii) to a subsidiary or affiliate of
AMC, provided, in either case, that AMC shall remain fully liable for the
performance of all its obligations under this
agreement. |
|
6.3 |
All
or any portion of the credits may be assigned by SELLER only to a
subsidiary, parent or controlled affiliate without the consent of AMC. If
all or any portion of the credits are assigned under this Section 6.3 all
references to SELLER shall, where appropriate, be deemed to refer to the
assignee of the credits. No assignment of credits can be effected by
SELLER, except as set forth in this Section 6.3 unless AMC shall have
given its prior written consent which shall not be reasonably withheld. It
is agreed if AMC shall withhold its written consent to a proposed transfer
by reason of the transferee conducting a business in competition with AMC;
such consent shall be deemed to be reasonably withheld.
|
|
6.4 |
If
either party to this AGREEMENT shall consider the other in default of its
obligations hereunder, such party shall not be entitled to pursue either
rights or remedies provided under this AGREEMENT or by law unless and
until (i) it shall have served a notice of default and demand for cure
upon the defaulting party which shall describe the circumstances of the
breach in detail, and (ii) the defaulting party shall have had a period of
sixty (60) days from the date of its receipt of the aforesaid default
notice to cure and correct the alleged default or compromise the dispute
to the satisfaction of all parties. |
|
6.5 |
All
notices and other communications under this AGREEMENT shall be in writing
and shall be considered given when delivered personally or mailed by
registered mail, return receipt requested, to the parties at the following
addresses (or at such other address as a party may designate by notice to
the other): |
|
IF
TO SELLER: |
Limelight
Media Group, Inc |
|
0000
Xxxxxxxxxx Xxxxxxx, Xxxxx 000 | |
|
Xxxxxxx,
XX 00000 | |
|
000-000-0000 | |
|
IF
TO AMC: |
American
Marketing Complex |
|
000
X. 00xx Xx. Xxxxx 00-X | |
|
XX,
XX 00000 | |
|
000-000-0000 | |
|
WITH
COPY TO: |
Xxxxxxx
Xxxx, XX |
|
Ruffa
and Ruffa | |
|
000
Xxxx 00xx Xx. | |
|
XX,
XX 00000 | |
|
000-000-0000 |
Page 4 of 8 initial
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|
6.6 |
|
6.7 |
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
instrument. |
|
6.8 |
Any
dispute or controversy arising under or in connection with this AGREEMENT
shall be settled only by arbitration to be held in the City of New York in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any court
having jurisdiction, and the parties consent to the jurisdiction of the
New York courts having jurisdiction, of the New York courts for this
purpose. It is agreed between SELLER and AMC than any dispute or
controversy arising under or in connection with this AGREEMENT shall be
solely a corporate responsibility, and any monetary award that may be
sought by either party to this AGREEMENT may not exceed twenty five
percent (25%) of the net amount actually received (less any normal third
party commissions) by AMC from the sale of the GOODS AMC has received from
the seller. AMC will use its best efforts to keep complete records of the
sale of GOODS transactions, including contracts for sale, bills of sale,
receipts, correspondence, copies of checks,
etc. |
|
6.9 |
Paragraph
6.8 of this AGREEMENT CR#SM266 shall have no application regarding the
SELLER’S obligation in Exhibit “A” hereto. |
|
6.10 |
Neither
party shall be deemed to be the preparer of this
document. |
| LIMELIGHT MEDIA GROUP, INC | AMERICAN MARKETING COMPLEX, INC. |
|
BY:___/s/
Xxxxx X. Lott________ |
BY:___/s/
Xxxxxx King___________ |
|
President |
TITLE:
__Chairman - CEO__________ |
Page5 of
8 initial _________/____________
AGREEMENT CR#SM266
Date: 10 Dec 2004
EXHIBIT
“A”
AMERICAN
MARKETING COMPLEX, INC.
AND
LIMELIGHT
MEDIA GROUP, INC.
INVENTORY
LIST
Six
Thousand (6,000) advertising exposures (spots) each fifteen seconds (15 seconds)
in length showing on the Limelight Media Group Network of Grocery Stores. Each
spot or exposure will play no less than once every 10 minutes in each grocery
store for one month .
Rate Card
is $250.00 per single spot.
____/s/
Xxxxx X. Lott___
Xxxxx X.
Xxxx
President
Limelight
Media Group, Inc.
TOTAL:
$1,500,000.00
* The
purchase price of the Products is set forth in Paragraph 1 and the amount of
credit set forth in paragraph 1.2 will be appropriately adjusted for any
increase or decrease in the quantity of the product delivered hereunder based
upon the trade values set forth above.
Page
6 of 8 initial _________/____________
AGREEMENT CR#SM266
Date: 10 Dec 2004
EXHIBIT
“B”
XXXX
OF SALE
For good
and valuable consideration, receipt of which is hereby acknowledged, and subject
to the Agreement executed by the parties on10 Dec 2004, Agreement CR#SM266 (i)
Limelight Media Group, Inc. a Nevada Corporation (hereinafter “ Seller”) sells,
transfers and conveys to American Marketing Complex, Inc. (hereinafter “AMC”)
all rights, title and interest, free and clear and unencumbered in and to those
items described on Exhibit A attached hereto and by this reference made a part
hereof (the “GOODS”); (ii) Seller warrants and represents to AMC that Seller has
owner of the goods transferred hereby and that Seller has good and marketable
title thereto free and clear of all liens, encumbrances, creditor’s right,
consignments, agreements and trust agreement; that Seller has full right, power
and authority to convey the goods and that Sellere will indemnifyAMC for any and
all actual damages including reasonable attorney’s fees incurred by AMC as a
result of Seller’s failure to transfer possession and unencumbered title to the
goods to AMC.
It is
also agreed that Seller shall have the use of the cash equivalent credits as
described in Paragraph 4 of this Agreement CR#SM266 only upon the completion of
the sale of the 6000 spots to third party advertisers and has received payment
for these spots.
AMC will
only use what it considers to be its best efforts to attempt to sell these spots
and makes no representation or guarantees that it will be able to do so. In the
event of a sale and only upon receipt of payment, AMC will remit seventy five
(75%) of that payment to Seller.
__/s/
Xxxxx X. Lott______________________
Xxxxx X.
Xxxx
President
Limelight
Media Group, Inc.
Page 7 of 8 initial
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