Exhibit 99.1
2KSOUNDS CORPORATION,
a Nevada corporation
SUBSCRIPTION AGREEMENT
2KSounds Corporation
00000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
As of Xxxxx 00, 0000
Xxxxxxxxx:
By execution of this subscription agreement (the "Subscription Agreement")
the undersigned, Big Interactive Group, LLC, a Delaware limited liability
company (the "Subscriber"), evidences the Subscriber's desire to purchase
90,000,000 shares of common stock, $.001 par value per share (the "Shares"),
from 2KSounds Corporation, a Nevada corporation (the "Company"). By the
Subscriber's execution hereof, the Subscriber expressly acknowledges and agrees
that the Company is relying upon the accuracy and completeness of the
representations of Subscriber contained herein in complying with the Company's
obligations under applicable securities laws.
1. Purchase Price; Payment. The aggregate purchase price for the Shares to
be purchased by the Subscriber hereunder shall be $270,000 (the "Purchase
Price"). The Purchase Price shall be payable by the Subscriber to the Company at
the Closing (as defined hereafter) in the form of a promissory note in the
principal amount of $270,000 in the form attached hereto as Exhibit A (the
"Subscription Note"). The Subscription Note shall be for a term of 12 months
from the Closing Date (as defined hereafter) and shall bear simple interest at
the rate of 6% per annum; provided however Subscriber shall be required to make
an initial payment on the Subscription Note pursuant to the terms thereof on or
before 5:00 PM, March 27, 2003. Interest on the Subscription Note shall be
payable on a monthly basis and principal shall be due and payable at maturity.
Payment of the Initial Note shall be personally guaranteed by Xxxx Xxxxxx
("Xxxxxx"), the sole member of the Subscriber, pursuant to the form of personal
guaranty attached as an exhibit to the Subscription Note (the "Guaranty").
2. Closing. The consummation of the purchase and sale of the Shares (the
"Closing") provided for in this Subscription Agreement shall take place at the
offices of Liner Yankelevitz Sunshine & Regenstreif LLP, counsel to the
Subscriber, at 0000 Xxxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
concurrently with the execution and delivery of this Subscription Agreement by
the parties, or at such other place, time or date as the parties may agree (the
"Closing Date").
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3. Closing Deliveries.
(a) Deliveries by the Company. At the Closing, the Company shall deliver
to the Subscriber the following:
(i) A copy of irrevocable instructions to the Company's transfer
agent, as executed by the Company, authorizing the Company's transfer agent to
issue and deliver the Shares to the Subscriber;
(ii) Resignations of each director of the Company;
(iii) An opinion from Richman, Mann, Chizever, Xxxxxxxx & Xxxxxx,
counsel to the Company ("Company Counsel"), dated as of the Closing Date, with
respect to: (A) the Company's good standing, based solely on the good standing
certificate delivered to Company Counsel by the State of Nevada; (B) the due
authorization, execution and delivery of this Subscription Agreement and the
transactions contemplated hereby (including, without limitation, the due
authorization of the issuance of the Shares), based solely on a certificate of
the officers' of the Company; (C) as applicable to the Company, the validity and
enforceability of this Subscription Agreement and the other instruments and
agreements entered into in connection herewith (collectively, the "Transaction
Documents"), subject to and limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and general principles of equity, regardless of
whether such enforceability is considered in a proceeding of equity or at law;
(D) the exemption from registration under the Securities Act of 1933, as amended
(the "Act") of the Shares; and (E) the knowledge of Company Counsel, no
approvals of any governmental entity are required to be obtained by the Company
for the execution and delivery of, or the consummation of the transactions
contemplated by the Transaction Documents; and
(iv) A certificate of incumbency executed by the Secretary of the
Company (A) certifying the names, titles and signatures of the officers
authorized to execute the Transaction Documents to be executed by the Company,
(B) further certifying that the Articles of Incorporation and By-Laws of the
Company in existence at the time of the execution of this Agreement have been
validly adopted, and (C) attaching copies of resolutions of the Board of
Directors of the Company authorizing and approving the execution, delivery and
performance of the Transaction Documents;
(v) A general release from each of Xxxxx Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxxxx Xxxxxx and the other officers of the Company in substantially
the form attached hereto as Exhibit 3(a)(v);
(b) Deliveries by the Subscriber. At the Closing, the Subscriber shall
deliver to the Company and cause the Company to deliver the following:
(i) The Subscription Note;
(ii) The Guaranty;
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(iii) The Gladstone Note (as defined hereafter);
(iv) The Vacation Pay Notes (as defined hereafter);
(v) The Xxxxxxxxx Xxxxxxxxx Note (as defined hereafter); and
(vi) The Severance Pay (as defined hereafter).
4. Representations and Warranties of the Subscriber. To induce the Company
to accept this Subscription Agreement, the Subscriber hereby represents and
warrants to, and covenants with, the Company as follows:
(a) The Subscriber is familiar with the business operations and
financial affairs of the Company and acknowledges that the Company files
periodic reports with the Securities and Exchange Commission ("SEC"), which
reports are generally available to the public. The Subscriber shall use
commercially reasonable efforts" to cause the Company to continue to file with
the SEC all reports and filings required by the Securities Exchange Act of 1934,
as amended, including, without limitation, a Form 10-KSB due on March 31, 2003
and Form 8-K due within 15 days of the consummation of the transaction
contemplated hereby. The Subscriber has been given reasonable opportunity to ask
questions of, and receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Shares, the business
prospects and financial condition of the Company, and to obtain any additional
information required by the Subscriber, to the extent available. As of the date
hereof, the Subscriber has received from the Company all the information that
the Subscriber has requested and considers necessary or appropriate for deciding
whether to purchase the Shares.
(b) The Subscriber believes that the purchase of the Shares and an
investment in the Company are suitable for the Subscriber based upon the
Subscriber's investment objectives and financial needs. The Subscriber: (i) has
adequate means of providing for the Subscriber's current financial needs and
personal contingencies; (ii) has no need for liquidity in this investment; (iii)
can afford a complete loss of such investment; and (iv) does not have an overall
commitment to investments which are not readily marketable that is
disproportionate to the Subscriber's net worth, and the Subscriber's investment
in the Shares will not cause such overall commitment to become excessive.
(c) The Subscriber, in reaching a decision to subscribe for the
Shares, has knowledge and experience in financial and business matters, is
capable of reading and interpreting financial statements and evaluating the
merits and risk of an investment in the Shares, and has the net worth to
undertake such risks.
(d) The Subscriber was not offered or sold the Shares, directly or
indirectly, by means of any form of general advertising or general solicitation,
including, but not limited to: (i) any advertisement, article, notice or other
communication published in any newspaper, magazine, or similar medium or
broadcast over television or radio; or (ii) any seminar or meeting whose
attendees had been invited by any general solicitation or general advertising;
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(e) The Subscriber has obtained, to the extent the Subscriber deems
necessary, the Subscriber's own personal professional advice with respect to the
risks inherent in an investment in the Shares and the suitability of an
investment in the Shares in light of the Subscriber's financial condition and
investment needs.
(f) The representations made by the Subscriber herein are true,
complete and correct in all respects as of the date hereof. The Subscriber
understands that the Company's determination that exemptions from the
registration and qualification provisions of the ("Act"), and applicable state
securities laws exist for the offer and sale of the Shares is based, in part,
upon the representations, warranties, agreements and statements made by the
Subscriber herein.
(g) The Subscriber acknowledges that the Shares have not been
registered under the Act or qualified under any applicable state securities laws
or regulations and that the Shares are being offered in reliance upon exemptions
from the registration requirements of the Act and such laws and regulations. The
Subscriber understands that the Shares are "restricted securities" under the Act
and that, as such, the Shares may not be resold without registration under the
Act and applicable state securities laws or an applicable exemption therefrom.
The Subscriber understands that the Company has no obligation to register the
Shares. The Subscriber acknowledges that the certificate or certificates
evidencing the Shares will bear a legend, generally in the form provided in
Section 5(j) hereof, indicating that the Shares are subject to restrictions on
resale under the Act and applicable state securities laws and regulations.
(h) Xxxxxx is the sole member of the Subscriber and is an "accredited
investor" within the meaning of Rule 501(a) of Regulation D as promulgated under
the Act.
(i) The Subscriber is an "accredited investor" within the meaning of
Rule 501(a) of Regulation D as promulgated under the Act.
(j) The Subscriber is purchasing the Shares solely for the
Subscriber's own account, for investment only, and the Shares are not being
purchased for the account of any other person or entity and not with a view to
or for sale in connection with any distribution of all or any part of the
Shares. The Subscriber has no contract, undertaking, agreement or arrangement
with any person or entity to sell, distribute, pledge or transfer to any person
or entity all or any portion of the Shares, and the Subscriber has no present
plan to enter into any such contract, undertaking, agreement or arrangement.
(k) The Subscriber has the power to execute and deliver this
Subscription Agreement and to consummate the transactions contemplated hereby.
This Subscription Agreement constitutes the valid and binding obligation of the
Subscriber, enforceable in accordance with its terms.
(l) The Subscriber is not a party to, bound or affected by or subject
to any indenture, mortgage, lease, agreement, instrument, statute, regulation,
order, judgment, decree or law which would be violated, contravened or breached
by, or under which any default would occur, as a
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result of the execution and delivery of this Subscription Agreement or the
consummation of any of the transactions provided for herein.
5. Understandings and Acknowledgments of the Subscriber. The Subscriber
understands and acknowledges the following:
(a) The Subscriber recognizes that an investment in the Shares
involves a high degree of risk and is subject to a number of risk factors,
including, but not limited to, the risk factors set forth in the Company's
filings of periodic reports with the SEC.
(b) The Subscriber understands and acknowledges that 2KSounds, Inc.,
a wholly -owned subsidiary of the Company ("2KSounds Subsidiary"), and certain
of the Company's former and current officers and directors are defendants in a
lawsuit brought by certain shareholders of the Company (Xxxx Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxxx and Xxxx Xxxxx and Xxxx Xxxxxx v. 2KSounds, Inc., Lord Xxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, et. al.) pursuant to which the
plaintiffs seek damages in excess of $3,500,000 claiming a breach of fiduciary
duty by the named officers and directors and the improper determination of the
value of dissenting shares with respect to the merger of 2KSounds Subsidiary
with and into a subsidiary of the Company. The Subscriber further understands
and acknowledges that a judgment against 2K Sounds Subsidiary and the named
officers and directors in such lawsuit would have a material adverse effect on
the Company's business, financial condition and operations.
(c) The Subscriber understands and acknowledges that 2KSounds
Subsidiary is a defendant in a lawsuit brought by Masters Investors Associates,
Ltd. (Masters Investors Associates, Ltd. v. 2KSounds, Inc.) for breach of the
implied covenant of good faith and fair dealing in connection with the
exploitation of the "Xxxxx Xxxxx Duets" Album.
(d) The Subscriber understands and acknowledges that the Company and
certain of its officers and shareholders have been threatened with litigation by
J. Xxxxxxx Xxxxx ("Xxxxx"), a former director of the Company, for claims of
fraud arising from Xxxxx'x investment in the Company.
(e) The Subscriber understands and acknowledges that the Company is a
plaintiff in an action pending in Los Angeles Superior Court against Virgin
Records America (2Ksounds Corporation v. Virgin Records America) for breach of
contract and fraud arising from Virgin's failure to return to the Company
certain master recordings of Xxxxxx Xxxxxxx.
(f) The Subscriber understands and acknowledges that the Company
filed a claim against Lord Xxxx Xxxxxx ("Guidon"), the Company's former Chief
Executive Officer and Chief Financial Officer and a current director, for
damages arising from the breach of the Credit Facility Agreement between the
Company and Guidon pursuant to which Guidon was obligated to loan $700,000 to
the Company. On February 27, 2003, the Company dismissed the lawsuit without
prejudice.
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(g) The Subscriber understands and acknowledges that on January 9,
2003, the Company terminated the employment of Guidon for cause, and that there
can be no assurance that Guidon will not bring a wrongful termination claim
against the Company.
(h) The Subscriber understands and acknowledges that the Company has,
as of February 28, 2003, an accumulated deficit of approximately $6,459,434
(based on unaudited financial statements), and losses, for the year ended
December 31, 2002, of approximately $4,453,843 (based on unaudited financial
statements) and that there can be no assurance that the Company will be able to
generate revenues in the future. The Subscriber further understands and
acknowledges that as of the Closing Date, the Company will have approximately
$144,460 in cash and/or cash equivalents, of which $55,133.27 is required to be
set aside to secure the payment of the Company's commercial lease.
(i) The Subscriber understands and acknowledges that Company makes no
representations or warranties to the Subscriber other than those representations
and warranties made by the Company in Section 7 of this Subscription Agreement.
(j) Stop transfer instructions will be placed on the books of the
Company, and a legend may be placed on any instrument or certificate
representing the Shares, substantially as follows:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY APPLICABLE STATE SECURITIES LAWS. NO SALE OR OTHER
TRANSFER OF THE SECURITIES EVIDENCED HEREBY, OR OF ANY
INTEREST THEREIN, MAY BE EFFECTED WITHOUT COMPLIANCE WITH
THE REGISTRATION AND QUALIFICATION REQUIREMENTS OF SUCH ACT
AND LAWS OR THE AVAILABILITY OF APPLICABLE EXEMPTIONS FROM
SUCH REQUIREMENTS, THE AVAILABILITY OF WHICH IS TO BE
ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
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6. Indemnification. The Subscriber shall indemnify and hold harmless the
Company and its directors, officers, stockholders, employees, counsel, agents,
successors and assigns from and against all losses, damages, liabilities and
actual expenses (including, without limitation, reasonable attorneys' fees), as
and when incurred, due to or arising out of, in whole or in part, any breach of
any representation or warranty made by the Subscriber set forth herein or
arising out of the resale or distribution by the Subscriber of the Shares, or
any portion thereof, in violation of the Act or any applicable state securities
laws or arising out of or in connection with the transactions contemplated by
this Subscription Agreement; provided that such breach does not arise out of or
result from a breach of the Company's representations, warranties or covenants
set forth herein.
7. Representations and Warranties of the Company. The Company hereby
represents and warrants, and covenants with the Subscriber as follows:
(a) Authorization. All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the authorization,
execution and delivery of this Subscription Agreement, the performance of the
obligations of the Company hereunder and the authorization, issuance, sale and
delivery of the Shares to be issued hereunder, has been taken.
(b) Issuance of the Shares. The Shares being issued hereunder, when
issued, sold and delivered in accordance with the terms of this Subscription
Agreement for the consideration expressed herein, will be duly and validly
issued, fully paid and nonassessable, and will be free of restrictions on
transfer other than restrictions on transfer under the Act and applicable state
securities laws.
(c) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal, state or local governmental authority on the part of
the Company is required in connection with the consummation of the transactions
contemplated by this Subscription Agreement.
(d) Offering. Subject in part to the truth and accuracy of the
Subscriber's representations set forth in Section 4 of this Subscription
Agreement, the offer, sale and issuance of the Shares as contemplated by this
Subscription Agreement is exempt from the registration requirements of the Act.
(e) Due Issuance and Authorization of Capital Stock. All of the
outstanding shares of capital stock of the Company have been validly issued and
are fully paid and nonassessable. No shares of capital stock of the Company are
subject to (a) preemptive rights or any other similar rights of the stockholders
of the Company or (b) any lien, claim, judgment, charge, mortgage, security
interest, pledge, escrow equity or other encumbrance of any kind (including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement, and any lease in the nature thereof) and any option, trust
or other preferential arrangement having the practical effect of any of the
foregoing (collectively, "Encumbrances") and the sale and delivery of the Shares
to Subscriber pursuant to the terms hereof will vest in Subscriber legal and
valid title to such Shares free and clear of all Encumbrances.
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(f) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
(g) Capitalization. As of the Closing Date, and after giving effect
to the transactions contemplated by the Transaction Documents, the authorized
capital stock of the Company consists of 500,000,000 shares of common stock,
$.001 par value per share, and 100,000,000 shares of blank check preferred
stock, $.001 par value per share of which 482,993,622 shares of common stock are
issued and outstanding and 0 shares of preferred stock are issued and
outstanding.
(h) Litigation. Except as set forth in Section 5 hereof, as of the
Closing Date, there is no claim, action, proceeding, lawsuit, inquiry,
arbitration or investigation before or by any court, public board, arbitrator,
governmental body, agency or official, self-regulatory organization or body,
pending or, to the knowledge of the Company, threatened against the Company or
its properties or its directors or officers in their capacities as such. To the
knowledge of the Company, there are no facts which, if known by a potential
claimant or governmental authority, could reasonably be expected to give rise to
a claim or proceeding which, if asserted or conducted with results unfavorable
to the Company, could have a material adverse effect on the business or
operations of the Company or could prevent or materially delay the consummation
of the transactions contemplated hereby.
(i) Compliance with Laws. The Company has not received notification
from any governmental entity, board, court, commission, or agency (a) asserting
a violation of any law, statute, ordinance or regulation or the terms of any
judgments, orders, decrees, injunctions or writs applicable to the conduct of
its business, (b) threatening to revoke any license, franchise, permit or
government authorization, or (c) restricting or in any way limiting its
operations as currently conducted or proposed to be conducted.
(j) Taxes. (a) The Company has timely filed (or there has been filed
on its behalf) with the appropriate taxing authorities all returns, reports or
similar statements required to be filed with respect to any Tax (as hereinafter
defined), including, without limitation, any information return, claim for
refund, amended return or declaration of estimated Tax and any similar return
(herein collectively called "Tax Returns") required to be filed by it, and such
Tax Returns are true, correct and complete in all material respects. The Company
has made adequate reserves in its books and records for the payment of all Taxes
for periods subsequent to the periods to which such Tax Returns apply; (b) All
material federal, state, local or foreign income, gross receipts, property,
sales, use, license, excise, franchise, employment, payroll, withholding,
alternative or add-on minimum, ad valorem, transfer or excise tax, or any other
tax, custom, duty, governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or penalty, imposed by any
Governmental Entity (herein collectively called "Taxes") whether or not
reflected on any Tax Return that are due and payable by the Company have been
duly and timely paid, except those Taxes being contested in good faith and for
which adequate reserves have been made; (c) There are no liens for Taxes upon
any property or assets of the Company, except liens for Taxes not yet due and
payable; (d) No federal, state, local or foreign audits or examinations are in
progress and the Company has not received written notice of any pending actions
or proceedings with regard to any Taxes payable or
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Tax Returns filed by or on behalf of the Company, except for actions or
proceedings related to such Taxes being contested in good faith and for which
adequate reserves have been made; (e) There are no outstanding written requests,
agreements, consents or waivers to extend the statutory period of limitations
applicable to the assessment of any Taxes or deficiencies against the Company;
(f) The Company is not a party to any material tax sharing, tax indemnity or
other agreement or arrangement relating to the allocation or sharing of Taxes
with any person.
8. Conditions to the Obligations of the Subscriber. The obligation of
the Subscriber to purchase the Shares shall be subject to the satisfaction, as
of the Closing Date or as soon as reasonably practicable thereafter, of the
following conditions, unless waived by the Subscriber:
(a) Resignation of Certain Officers and All Directors. Each of Xxxxxxx
Xxxxxx ("Xxxxxx"), Xxxxx Xxxxxxxxx ("Gladstone") and Xxxxxxx Xxxxxx ("Xxxxxx"),
shall have resigned as officers of the Company and all of the directors of the
Company shall have resigned.
(b) Appointment of Director Nominees of the Subscriber. The existing
Board of Directors of the Company shall cause Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxx
XxXxx and Xxxxxx Xxxxx to be appointed to serve as directors of the Company.
9. Covenants of the Subscriber. The Subscriber covenants and agrees that:
(a) Gladstone Loan. On the Closing Date, the Subscriber shall cause the
Company to issue to Gladstone a promissory note in the principal amount of
$303,156.48 in the form attached hereto as Exhibit B as repayment for the prior
loan made by Gladstone to the Company pursuant to an existing credit facility
(the "Gladstone Note"). The Gladstone Note shall be for a term of 12 months from
the Closing Date and shall bear simple interest at the rate of 6% per annum.
Interest on the Gladstone Note shall be payable on a monthly basis and principal
shall be due and payable at maturity. Payment of the Gladstone Note shall be
personally guaranteed by Xxxxxx pursuant to the form of guaranty attached as an
exhibit to the Gladstone Note.
(b) Vacation Pay. On the Closing Date, the Subscriber shall cause the
Company to issue to each of Gladstone and Xxxxxx, a promissory note in the
principal amount of $6,874 and $15,973, respectively, in the form attached
hereto as Exhibit B as payment for vacation time accrued by each of Gladstone
and Xxxxxx during their employment with the Company (the "Vacation Pay Notes").
The Vacation Pay Notes shall be based on the same terms and conditions as the
Gladstone Note set forth in Section 9(a) above.
(c) Severance Pay. The Subscriber shall cause the Company to make cash
severance payments to those employees and in the amounts and on such dates as
set forth next to their names as set forth in Exhibit C attached hereto (the
"Severance Pay"). In addition, on the Closing Date, the Subscriber shall cause
the Company to issue to Gladstone a promissory note in the principal amount of
$13,747 in the form attached hereto as Exhibit B in settlement of all severance
obligations (the "Xxxxxxxxx Xxxxxxxxx Note"). The Xxxxxxxxx Xxxxxxxxx Note shall
be based on the same terms and conditions as the Gladstone Note set forth in
Section 9(a) above. Notwithstanding the foregoing, the parties acknowledge that
Xxxxx Xxxxxx ("Xxxxxx") shall remain in the employ of
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the Company subsequent to the Closing Date in order to assist the Company in
meeting its SEC filing obligations including the Company's 10-K for 2002.
Provided Xxxxxx delivers the services referenced in the immediately preceding
sentence, then upon Xxxxxx'x resignation or termination from the Company, the
Company shall be obligated to pay to Barton a cash severance payment in an
amount equal to four weeks salary.
(d) Deferred Compensation. On March 27, 2003, the Subscriber shall
cause the Company to pay to each of Gladstone and Xxxxxx a cash payment of
$44,057 and $29,854, respectively, as payment for compensation earned and
accrued by each of Gladstone and Xxxxxx during their employment with the
Company.
(e) Legal Fees and Expenses. On the Closing Date, the Subscriber
shall cause the Company to pay the legal fees and expenses of Company Counsel,
as of and through the Closing Date as set forth on Exhibit 9(e).
(f) Prepayment of the Notes. In the event all of the promissory notes
issued by the Company and the Subscriber pursuant to the transactions
contemplated by this Subscription Agreement and all of the promissory notes
issued by the Subscriber pursuant to that certain Common Stock Purchase
Agreement by and among the Subscriber, Gladstone and Xxxxxx of even date
herewith (collectively, the "Notes") are repaid within six months of the Closing
Date, the principal amount due under each of the Notes shall be reduced by 10%.
10. Consultation Services. For a period of six months from the Closing
Date, Gladstone and Xxxxxx may, but shall not be obligated to, assist the
Company in generating revenue (by the sale of assets, settlement of claims
and/or collection of accounts receivable) with respect to the Company's assets,
claims and accounts receivable listed on Exhibit D attached hereto (the "Project
Assets"). In consideration for such assistance, the Subscriber shall cause the
Company to pay to Gladstone and Xxxxxx a consultation fee equal to 25% of the
gross revenues received by the Company arising from a transaction agreed upon or
consummated during such six month period with respect to the Project Assets
(i.e. 25% of the gross purchase price received from the sale of such assets, 25%
of the gross revenue received by the Company from settlement or judgment awards
of such claims and/or 25% of the gross revenue received by the Company from the
collection of such accounts receivable). Notwithstanding the foregoing, the
Subscriber and the Company agree that the Company may not dispose of the Project
Assets or make any settlements with respect to the Project Assets without the
prior written consent of Gladstone and Xxxxxx. The Subscriber further agrees to
cause the Company to use the revenues generated from the Project Assets, if any,
to pay down the existing debts of the Company.
11. Further Assurances. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Subscription Agreement.
12. Irrevocability. This Subscription Agreement, upon execution by both
the Company and Subscriber shall be a binding obligation of Subscriber and the
Company.
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13. Entire Agreement. This Subscription Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and may be amended only by a writing executed by both of the parties.
14. Governing Law. This Subscription Agreement shall be construed in
accordance with and be governed by the laws of the State of California.
15. Counterparts; Facsimile Signatures. This Subscription Agreement may
be executed in two or more counterparts, each of which, when taken together,
shall constitute one and the same instrument. The instrument may be executed by
facsimile, and upon such execution, shall have the same force and effect as an
original.
(Signatures on the following page)
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IN WITNESS WHEREOF, the undersigned do hereby execute this Subscription
Agreement this 20th day of March, 2003.
BIG INTERACTIVE GROUP, LLC 2KSOUNDS CORPORATION
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
--------------- -------------------
Its: Manager Its: CEO
Address:
Big Interactive Group, LLC
000 Xxxxx Xxxxxxx Xxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
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