VIDEOTALK PURCHASE AGREEMENT
AGREEMENT made this 31st day of March, 1998 by and between,
XXXXXXXXX XXXX INVESTMENTS, (USA), INC. located at Xxxxxxxx
Xxxx, 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx XX0 0XX hereinafter
referred to as "AMI", and THIRD PLANET PUBLISHING, INC. a
Florida corporation located at 0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx 00000, hereinafter referred to as "TPP".
WHEREAS, TPP wishes to sell all its interest in the
VideoTalk [TM] videoconferencing product;
WHEREAS, AMI wishes to purchase the VideoTalk product;
NOW, THEREFORE, in consideration of the mutual covenants
and agreements, the said parties hereby agree as follows:
I. ASSIGNMENT AND PURCHASE
1.1 TPP agrees to grant, sell, transfer, assign, and deliver
to AMI all right, title, and interest of every kind and
character throughout the world (including but not limited to
all copyrights, moral rights, trade secret rights, patent
rights, and other proprietary rights) in the VideoTalk
product for $ 7,002,056 payable as set out below.
1.02 AMI agrees to accept the assignment and purchase the
VideoTalk product for $ 7,002,056 as set out below.
II. CLOSING
2.01 On the Closing Date set forth in paragraph 2.03
hereof, TPP agrees to deliver all written information,
manuals, hardware, prototypes, software and all related
information pertaining to the VideoTalk product;
2.02 On the Closing Date set forth in paragraph 2.03 hereof,
AMI agrees to deliver 1,028,000 restricted common ($0.002
stated value) AMI Shares, $5,000,000 worth of non-voting
preferred (such preferred stock to have rights and
preferences as set out in the Certification in Exhibit A),
and a 10% note in the amount of $2,000,000 all properly
registered in the name of TPP;
2.03 If all conditions are met Closing shall be effective
March 31, 1998 at the offices of TPP or such other time and
place as TPP and AMI may agree;
2.4 Closing shall be subject to:
1. The completion of a shareholders' meeting wherein the
following items are approved:
a. AMI shareholders approving a 100-1 forward split;
b. AMI shareholders approving this transaction;
c. AMI shareholders approving the creation of preferred
stock on the terms as set out in the agreement.
III. TPP REPRESENTATIONS
3.01 TPP hereby warrants and represents the following facts,
the truth and accuracy of which are conditions precedent to
the Closing:
(a)TPP is not required by any provision of federal, state, or
local law to take any further action or to seek any
governmental approval of any nature prior to the acquisition
by it of the AMI Shares;
(b)TPP will provide to the extent available all necessary
information to AMI to permit the due filing of disclosure
documents required of TPP or AMI;
(c)The representations, warranties, and covenants in this
Agreement, in the Exhibits to this Agreement, in the
documents and information presented from TPP to AMI do not
contain and will not contain any untrue statements of
material facts that are necessary to the statements contained
in this Agreement, in the Exhibits and in the documents and
information furnished to AMI which would render them
misleading;
(d)TPP is acquiring the AMI Shares for itself and not with
a view towards its distribution and is acting solely for
itself and for no other person, firm, partnership,
corporation, or entity
(e) TPP represents and warrants to AMI that TPP has full
right, power and authority to make this Assignment and
Purchase Agreement pertaining to the VideoTalk product,and
that TPP is transfering to AMI good and marketable title to
the VideoTalk product, free and clear of all liens, security
interests, options, encumbrances, or indebtedness of any
kind.
(f) AMI representatives have had full opportunity to review
and test the VideoTalk product and TPP makes no warranties
other than those expressly stated in this Agreement..
.
IV. AMI'S REPRESENTATIONS
4.01AMI hereby warrants and represents the following facts,
the truth and accuracy of which are conditions precedent to
the Closing:
(a) AMI is not prevented by any federal, state, or local law
or by any provision of any contract, mortgage, indenture, or
other instrument from entering into this Agreement;
(b)AMI will duly file all required disclosure documents
required by the Federal Securities Laws upon the execution
and consummation of this Agreement.
(c)The shares when issued will be fully paid and non-
assessable;
(d)There are no undisclosed interests, present or future, in
the AMI Shares, nor does AMI know of any assertion of such an
interest;
(e)There are no provisions of any contract, indenture, or
other instrument to which AMI is a party or to which the AMI
Shares, are subject which would prevent, limit, or condition
the sale and transfer of the AMI Shares to Xxxxxx.
(f)The representations, warranties, and covenants in this
Agreement, in the Exhibits to this Agreement, in the
documents and information presented from AMI to TPP do not
contain and will not contain any untrue statements of
material facts that are necessary to the statements contained
in this Agreement, in the Exhibits and in the documents and
information furnished to TPP which would render them
misleading;
V. AMI'S COVENANTS
5.01AMI hereby covenants as follows:
(a)On the Closing Date, AMI shall deliver to TPP
certificates for the AMI common shares properly registered,
certificates for the AMI Preferred Shares, and a fully
executed note substantially in the form of Exhibit A of this
Agreement.
(b)From the date hereof, AMI will not assign or grant any
interest or agree to assign or grant any interest in this
Agreement without the prior written consent of TPP.
VI. TPP'S COVENANTS
6.01 (a)TPP will not assign or grant any interest or agree
to assign or grant any interest in this Agreement or the AMI
Shares without the prior written consent of AMI.
(b)TPP will provide AMI and its Counsel, accountants and
other representatives with full access to all documents,
manuals, prototypes and source code relating to the VideoTalk
product;
.
VII. CONDITIONS OF CLOSING
It is a condition to Closing that:
7.01AMI
(a) AMI shall deliver to TPP a certificate dated as of the
Closing Date that all the representations of AMI remain true
and correct without change and that AMI has performed or
complied with all covenants;
(b) AMI has obtained its Board of Directors approval;
(c) AMI will file all required documents pursuant to the
Federal Securities Law and obtained all required approvals;
(d) AMI will have arranged for AMI to have a shareholder
meeting for the shareholders to vote on the following items:
a. AMI shareholders approving a 100-1 forward split;
b. AMI shareholders approving this transaction;
c. AMI shareholders approving the creation of preferred
stock;
(e) The AMI shareholders will have approved the listed items
in subsection (d) of this paragraph;
(f) The Stock Purchase Agreement by and between Xxxxx Xxxxxx
and Forsam Venture Funding, Inc., shall have closed either
prior to or simultaneously with this Agreement.
7.02TPP
(a)TPP shall deliver to AMI a certificate dated as of the
Closing Date that all the representations of TPP remain true
and correct without change and that TPP has performed or
complied with all covenants;
(b)TPP will file all required documents pursuant to the
Federal Securities Law and obtain all required approvals.
7.03TPP and AMI will furnish to each other such other
documents and opinions as may be reasonably requested by each
of them to the other.
VIII. MISCELLANEOUS
8.01It is understood and agreed that both parties and their
representatives (including counsel and accountants) shall
keep confidential any information (unless readily
ascertainable from public or published information or trade
sources) obtained from the either party concerning the
Agreement and this cancellation. In the event of the
termination of this Agreement, both parties and their
representatives shall promptly return to the other any
statements, documents, and other written information obtained
from the other party in connection therewith and without
retaining copies thereof.
8.02All representations and warranties by TPP, and AMI shall
be true and correct as of the Closing Date, shall survive the
Closing Date, and shall bind AMI, and TPP and their heirs and
assigns as to any breach thereof not disclosed in writing or
known to the parties prior to the Closing Date.
8.03Notwithstanding anything to the contrary herein
contained, if prior approval of the transaction contemplated
by this Agreement is required from any local, state, or
federal governmental board, commission, or other agency
("Approval"), then TPP and AMI hereby agree to use their best
efforts to obtain such Approval as expeditiously as possible,
the costs and expenses of which shall be borne by the party
whose primary responsibility it is under the law to obtain
such approval. It is the intent of the parties hereto that
if title to the AMI Shares may not be transferred prior to
the granting of this Approval,.then title to the AMI Shares
shall not pass from AMI to TPP nor shall title to the
VideoTalk product pass from TPP to AMI until Approval has
been obtained.
8.04No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other
remedy, and each remedy shall be cumulative and shall be in
addition to all other remedies given hereunder or now or
hereafter existing at law or in equity or by statute or
otherwise. The election of any one or more remedies by TPP
or AMI shall not constitute a waiver of the right to pursue
other available remedies.
8.05In the event that any part of this Agreement is
determined by a court of competent jurisdiction to be
unenforceable, the balance of the Agreement shall remain in
full force and effect.
8.06This Agreement shall be construed according to the laws
of the State of Texas.
8.07This Agreement may be executed in counterparts which
when taken together shall constitute one document.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties as of the date first written above.
THIRD PLANET PUBLISHING, INC.:
By:________________________
Xxxxxx Xxxxxxxxx, CEO
XXXXXXXXX XXXX INVESTMENTS, (USA) INC.:
______________________
Xxxxx Xxxxxx, CEO
EXHIBIT A - SECRETARY'S CERTIFICATION
SECRETARY'S CERTIFICATION
I, Xxxxxxxx Xxxxxxxxxx, the Corporate Secretary for Xxxxxxxxx
Xxxx Investments (USA), Inc. hereby certify this to be a
valid resolution of the Board of directors that has not been
superseded by any other resolutions:
RESOLVED, subject to shareholder approval of the creation of
preferred shares, the Corporation shall establish the terms
of the Preferred Shares, Series A (the "Preferred Shares")
having a total of 5,000 shares, which shall have the
following rights:
1)the Preferred Shares shall pay a cumulative dividend, when
and as declared by the Board of Directors out of funds
legally available therefor, of ten (10%) percent of the
purchase price, per annum, payable in cash. Further such
dividends shall accrue and be cumulative from the date of
issuance, whether or not declared and whether or not in any
dividend period there shall be surplus or net profits of the
Corporation legally available for the payment of such
dividends. No dividend shall be declared or set apart for
any series of preferred shares for any period unless at the
same time a like proportionate dividend for the same period
shall be declared or set apart for any the other class of
Preferred Shares then outstanding and entitled to receive
such dividend. So long as any shares of the Preferred shares
shall remain outstanding, no dividend shall be declared or
paid or set apart for payment on the common stock or any
other class of stock ranking junior to the Preferred Shares
in either payment of dividends or liquidation (all such
junior classes of stock including, without limitation, the
common stock, hereinafter referred to collectively as the
"Junior Stock") unless full dividends (including interest on
any accumulations of dividends) on all outstanding Preferred
Shares shall have been paid in full for all past dividend
periods and the dividends on all outstanding Preferred Shares
for the then current dividend period shall have been paid or
declared and sufficient funds set apart for payment thereof;
2)In the event of (i) any declaration by the Corporation of
a record date of the holders of any class of securities for
the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution or
(ii) any capital reorganization of the Corporation, any
reclassification or recapitalization of the capital stock of
the Corporation, any merger or consolidation of the
Corporation, and any transfer of all or substantially all of
the assets of the Corporation to any other Corporation, or
any other entity or person, or any voluntary or involuntary
dissolution, liquidation or winding up of the Corporation,
the Corporation shall mail to each holder of Preferred Shares
at least 20 days prior to the record date specified therein a
notice specifying (A) the date on which any such record is to
be declared for the purpose of such dividend or distribution
and a description of such dividend or distribution, (B) the
date on which any such reorganization, reclassification,
transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, and (C) the time,
if any, that is to be fixed, as to when the holders of record
of common stock (or other securities) shall be entitled to
exchange their shares of common stock (or other securities)
for securities or other property deliverable upon such
reorganization, reclassification, transfer, consolidation,
merger, dissolution or winding up;
3)the outstanding Preferred shares, at the liquidation price
equal to $1000.00 per share plus all accrued but unpaid
dividends (the "Liquidation Amount"), shall have a
liquidation preference over the outstanding common shares in
the event of any liquidation or sale of the Corporation.
Upon the occurrence of such event, the holders of the
Preferred shares shall be entitled to receive, after payment
or provision for payment of the debts and other liabilities
of the Corporation, out of the assets of the Corporation
available for distribution to its shareholders, the
liquidation amount before any distribution of the assets
shall be made to the holders of the common shares. After
payment of the liquidation amount on the Preferred shares
shall have been made in full as provided in the preceding
sentence, but not prior thereto, the Preferred shares, and
the common shares shall, subject to the respective terms and
provisions, if any, applying thereto, be entitled to receive
any and all assets remaining to be paid or distributed, with
the Preferred shares on an as converted basis sharing with
the common shares pro-rata therein. However, should the
amounts payable on or with respect to the Preferred shares,
together with the amounts payable on or with respect to all
classes or series of stock ranking on a parity with the
Preferred shares as to distribution of assets, are not paid
in full, the holders of Preferred shares together with all
classes or series of stock ranking on a parity with the
Preferred shares as to distribution of assets, shall share
pro rata in any distribution of assets in respect of the
shares held by them upon such distribution in proportion to
the amounts that would have been distributable to each such
class or series if all amounts payable on or with respect to
the Preferred shares and any other class or series of stock
that so ranks on a parity with the Preferred shares had been
paid in full;
4)in the case of a merger or consolidation of the
Corporation with or in to another corporation, or the sale or
transfer of all, or substantially all, of the property or
assets of the Corporation, the holders of the Preferred
shares shall thereafter have the right to elect by giving
written notice to the Corporation to treat any of the
following as a liquidation, dissolution or winding up of the
Corporation: (i) all or substantially of all of the assets of
the Corporation, (ii) a merger where the Corporation is not
the surviving entity except a merger effected solely for the
purpose of incorporating in a new jurisdiction.
6) the Preferred Shares shall not be subject to
redemption unless the shareholder and the Corporation agree.
7)the Preferred shares shall only have voting rights as
required pursuant to the Colorado Corporation Code and the
Corporation shall not:
(a)create any new class or series of stock that has a
preference over the Preferred shares or increase the number
of authorized Preferred shares.
(b)do any act or thing not authorized or contemplated by
this Designation which would result in taxation of the
Holders of Preferred shares under Section 305 of the Internal
Revenue Code of 1986, as amended (or any comparable provision
of the Internal Revenue Code as hereafter from time to time
amended).
Ceritified as true this 31st day of March, 1998.
____________________
Corporate Secretary
EXHIBIT B - FORM OF PROMISSORY NOTE
PROMISSORY NOTE
US$2,000,000 Dallas, Texas March 31, 1998
FOR VALUE RECEIVED, Wincroft, Inc. (hereinafter called
"Maker"), located at Xxxxxxxx Xxxx 00 Xxxx Xxxxxx, Xxxxxx
Xxxxxxxxx XX0 0XX hereby promises to pay to the order of
THIRD PLANET PUBLISHING, INC.("Third Planet"), 0000 Xxxxxx
Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000 the sum of TWO MILLION
DOLLARS (US $2,000,000) with interest at ten (10%) percent
per annum in United States dollars as hereinafter provided.
1. The principal of this note shall be due and payable on
the fifth year anniversary of the date of this Note, and for
payment at the above address, but without other notice or
demand. Interest shall be due annually on the anniversary of
the date of this Note. Presentment for payment may be made
between the hours of 10:00 a.m. CST and 4:00 p.m. CST.
Maker's failure to pay the amount due hereunder within ten
(10) days from the date of demand shall be deemed a default
hereunder.
2. All past due amounts hereunder, principal, or costs of
collection including reasonable attorney's fees, shall bear
interest at the lessor of the highest rate permitted by law
or Eighteen Percent (18%) per annum from the date the payment
thereof shall have become due, until fully paid.
3. On the occurrence of an Event of Default, Third Planet
may xxx for default and any other remedy available at law or
equity with no remedy being exclusive. In the event that
Third Planet shall employ an attorney to recover on this
Note Third Planet shall be entitled to receive compensation
for its expenses for attorneys fees.
4. Maker hereby represents that it has full authority to
enter into this Promissory Note, that is it duly incorporated
and in good standing in the state or country of
incorporation, that by entering into this Promissory Note it
is not breaching any mortgage, indenture, or any other
agreement which would prevent it from entering into this
Promissory Note. Further, the Maker represents that this is
a valid and binding obligation of the Maker, enforceable in
accordance with its terms, except as the same may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws effecting the rights of
creditors generally and available equitable remedies.
5. This Promissory Note along with the VideoTalk Assignment,
executed simultaneously set out all the terms of the parties
and may be amended only by a writing executed by all of the
parties hereto. These Agreements supersedes all prior
arrangements or understandings with respect thereto, whether
verbal or written. Maker represents that it has obtained
shareholder approval to execute this Agreement and the
Note.The terms and conditions of these Agreements shall inure
to the benefit of and be binding upon the parties and their
respective successors, heirs and assigns.
6. Any controversy or claim arising out of or relating to
this Promissory Note or any alleged breach thereof shall be
settled by binding arbitration in the State of Texas and
judgment upon the award rendered by the arbitrator shall be
final and may be entered into any court having jurisdiction
in the State of Texas. (Notwithstanding the foregoing,
nothing in this Agreement shall be interpreted to bar any
party hereto from seeking injunctive relief with respect to
any controversy or claim arising out of or relating to this
Promissory Note.) The party desiring arbitration shall serve
notice upon the other party, together with designation of the
first party's representative. If the person designated by
the first party is acceptable to the second party as an
arbitrator, the second party shall so notify the first party
within ten days and such representative shall serve as the
sole arbitrator, if not acceptable, the second party shall
designated his or its own representative in a notice to the
first party within the same 10-day period. The two
representatives so named, if such is the case, shall within
10 days thereafter appoint an arbitrator, and the arbitrator
shall then proceed forthwith to hear and unilaterally
determine the matter. If either party fails, within the
within allowed therefore, to appoint its representative, the
representative named by the other party shall act as the sole
arbitrator and unilaterally decide the matter. If the two
representatives are unable to agree upon an arbitrator within
10 days allowed therefor, either party may at any time apply
to the presiding Judge of any court of competent jurisdiction
for the appointment of an arbitrator, and the arbitrator
shall proceed forth with to hear and unilaterally determine
the matter, The arbitrator selected shall comply with the
rules of the American Arbitration Association as then in
effect. In no event shall the demand for arbitration be made
after the date when institution of legal or equitable
proceedings based on such claim, dispute or other matter in
question would be barred by the applicable statute of
limitation. This agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration law
in Texas.
8. Dissolution or change of control without the
prior approval of the Third Planet, of Maker shall constitute
an Event of Default, which shall result in an acceleration of
the due date of this Note to the Event occurs.
"MAKER"
_____________________________________
________________________
By: _______________________
Its:_________________________
