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EXHIBIT 2.5
AMENDED AND RESTATED
SECURITIES SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED SECURITIES SUBSCRIPTION AGREEMENT dated as of
December 30, 1998 (the "Agreement'), is executed in reliance upon the exemption
from registration afforded by Rule 505 of Regulation D ("Regulation D") as
promulgated by the U.S. Securities and Exchange Commission (the "SEC"), under
the Securities Act of 1933, as amended (the "Securities Act"). Capitalized terms
used herein and not defined shall have the meanings given to them in Regulation
D.
The parties hereto executed a Securities Subscription Agreement dated as
of May 4, 1998 (the "Prior Agreement") and wish to amend and restate the Prior
Agreement in this Agreement. This Agreement has been executed by T.C. Equities,
Ltd., a Bahamas corporation (hereinafter "Buyer"), in connection with the
private placement of 70,000 shares of Redeemable Cumulative Convertible
Preferred Stock in the company Next Generation Media, Corp., also known as
"NexGen", a corporation organized under the laws of Nevada, with its principal
executive offices located at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxx 00000 (hereinafter referred to as "Seller"). Buyer hereby represents
and warrants to, and agrees with Seller:
SECURITIES SUBJECT TO THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND NEITHER THE SECURITIES NOR ANY COMPONENT THEREOF OR
INTEREST THEREIN MAY BE OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS
EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
(2) THE COMPANY RECEIVES AN OPINION OF COUNSEL TO THE OWNER OF SUCH SECURITIES,
WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH
SECURITIES OR COMPONENT THEREOF OR INTEREST THEREIN, MAY BE OFFERED, SOLD,
PLEDGED, ASSIGNED OR TRANSFERRED IN THE MANNER CONTEMPLATED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR APPLICABLE STATE SECURITIES
LAWS.
1. Agreement To Subscribe: Purchase Price
(a) Subscription. The undersigned Buyer hereby has subscribed
for and agreed to purchase 70,000 shares of Redeemable Cumulative Convertible
Preferred Stock in the company called Next Generation Media, Corp., with a
redemption price of $5.00 per share and a face value of $350,000.00 (hereinafter
the "Shares"). The Buyer may redeem at its option (1) 70,000 shares of the
Shares from and after ten business days after the completion of a private
placement transaction by the Seller of Seller's common stock, par value $0.01
per share that raises, in the aggregate, $2,000,000, which the Seller
anticipates will take place on or before December 1, 1998 through the
broker-dealer Xxxxx Xxxx Securities, Inc. (the "Private Placement"), (2) if the
Private Placement has not yet taken place, 52,500 of the Shares from and after
February 4, 1999 and (3) if the Private Placement has not yet taken place,
70,000 shares of the Shares from and after May 4, 1999. In addition, the Seller
has issued to the Buyer 250,000 warrants (together with the Shares, the
"Securities") for common stock, par value $0.01 per share in NexGen (the
"Underlying Securities") at an exercise price of $0.16 per warrant valid for
period of five (5) years from the date of issue which, under the Prior
Agreement, was May 7, 1998.
(b) Payment. The aggregate Purchase Price for the Securities
paid by the Buyer was Three Hundred Fifty Thousand United States Dollars (U.S.
$350,000.00) (the "Purchase Price"), which was paid simultaneously with the
delivery of the Prior Agreement by delivering immediately available funds in
United States Dollars by wire transfer to the designated depository of Xxxxx
Xxxxx Xxxxxx, P.C., as escrow agent (the "Escrow Agent") for closing by delivery
of securities versus payment together with a fully executed Stock Purchase
Agreement dated May 4, 1998, as amended and restated by an Amended and
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Restated Stock Purchase Agreement as of even date hereof (the "T.C. Equities
Stock Purchase Agreement") providing for the delivery of a Controlling Interest
(as defined in the T.C. Equities Stock Purchase Agreement) in UNICO, Inc., a
Delaware Corporation ("UNICO").
(c) Closing. The parties have consummated this transaction
pursuant to the Prior Agreement. The Seller undertakes to proceed with the
Private Placement as promptly as practicable following the execution of this
Agreement. The Seller hereby grants to Buyer "piggy back" registration rights
for the Underlying Securities of the warrants when Seller has an S-1
registration statement declared effective by the SEC.
2. Buyer Representations and Covenants: Access to Information.
In connection with the purchase and sale of the Securities, Buyer
represents and warrants to, and covenants and agrees with Seller as follows:
(i) Buyer is purchasing the Securities for its own account and
Buyer is qualified to purchase the Securities under the laws of its
jurisdiction of residence, is an "accredited investor" as that term is
defined in Regulation D under the Securities Act, and the offer and sale
of the Securities will not violate the securities or other laws of such
jurisdiction; Buyer is not, and on the closing date was not, an affiliate
of Seller;
(ii) All offers and sales of any of the Securities by Buyer
shall be made in compliance with any applicable securities laws of any
applicable jurisdiction and in accordance with Rule 505 under the
Securities Act or pursuant to a registration of the Securities under the
Securities Act and subject to the requirements described in the preamble
of this Agreement;
(iii) The transactions contemplated by this Agreement are not and
will not be part of a plan or scheme by Buyer, to evade the registration
provisions of the Securities Act;
(iv) Buyer understands that the Securities are not registered
under the Securities Act and are being offered and sold to it in reliance
on specific exclusions from the registration requirements of Federal and
State securities laws, and that Seller is relying upon the truth and
accuracy of the representations, warranties, agreements, acknowledgements
and understandings of Buyer set forth herein in order to determine the
applicability of such exclusions and the suitability of Buyer to acquire
the Securities;
(v) Buyer has not conducted or permitted and shall not conduct
or permit any general solicitation relating to the offer and sale of any
of the Securities;
(vi) Buyer has the full right, power and authority to enter into
this Agreement and to consummate the transaction
contemplated herein. This Agreement has been duly
authorized, validly executed and delivered on behalf of
Buyer and is a valid and binding agreement in accordance
with its terms, subject to general principles of equity and
to bankruptcy or other laws affecting the enforcement of
creditors' rights generally;
(vii) The execution and delivery of this Agreement and the
consummation of the purchase of the Securities, and the transactions
contemplated by this Agreement do not and will not conflict with or
result in a breach by Buyer of any of the terms of provisions of, or
constitute a default under, the articles of incorporation or by-laws (or
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similar constitutive documents) of Buyer or any indenture, mortgage, deed
of trust, or other material agreement or instrument to which Buyer is a
party or by which it or any of its properties or assets are bound, or any
existing applicable law, rule or regulation of the United States or any
State thereof or any applicable decree, judgment or order of any Federal
or State court, Federal or State regulatory body, administrative agency
or other United States governmental body having jurisdiction over Buyer
or any of its properties or assets;
(viii) All invitation, offers and sales of or in respect of, any
of the Securities, by Buyer and any distribution of Buyer of any
documents relating to any offer by it of any of the Securities will be in
compliance with applicable laws and regulations;
(ix) Buyer will not make any offer or sale of the Securities by
any means which would not comply with the laws and regulations of the
territory in which such offer or sale takes place;
(x) Buyer has been advised to consult its own legal and tax
advisors with respect to applicable resale restrictions and applicable
tax considerations and it is solely responsible (and Seller is not in any
way responsible) for compliance with applicable resale restrictions and
applicable tax legislation;
(xi) No Government Recommendation or Approval. Buyer understands
that no Federal or State or foreign government agency has passed on or
made any recommendation or endorsement of the Securities;
(xii) Current Public Information. Buyer acknowledges that the
Seller is a "Reporting Issuer" and is current with filings (except for
Seller's periodic report for the second quarter of 1998 on Form 10-QSB
which Seller agrees to file promptly following the execution of this
Agreement), and Buyer and its advisors, if any, have been furnished with
the opportunity to ask questions about, and request copies of materials
relating to, the business, finances and operations of Seller. Buyer
further acknowledges that it and its advisors, if any, have received
complete and satisfactory answers to such inquiries, to the extent made;
on the basis of the foregoing, the Buyer believes that an investment
pursuant to the terms hereof is an appropriate and suitable investment
for the Buyer,
(xiii) Buyer's Sophistication. Buyer acknowledges that the
purchase of the Securities involves a high degree of risk, including the
total loss of Buyer's investment. Buyer has such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of purchasing the Securities. Buyer understands that, at
the time of issuance, the Securities were not registered under the
Securities Act, and therefore Buyer must bear the economic risk of this
investment for the period up to any registration.
(xiv) Tax Status. Buyer is not a "10-percent Shareholder" (as
defined in Section 871(h)(3)(B) of the U.S. Internal Revenue Code of
1986, as amended) of Seller.
(xv) High Degree of Risk. The Buyer realizes that this
investment involves a high degree of risk, including the risk of the
total loss of its investment.
(xvi) Ability to Bear the Risk. The Buyer is able to bear the
economic risk of the investment.
(xvii) Forward Looking Information. The Buyer acknowledges and
understands that any information provided about the Seller's future plans
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and prospects is uncertain and subject to all of the uncertainties
inherent in future predictions.
(xviii) Accredited Investor Status. The undersigned
represents and warrants that it is an "accredited investor" as defined in
Regulation D.
(xix) Independent Investigation. The Buyer, in electing to
subscribe for the Securities hereunder, has relied solely upon the
representations and warranties of the Seller set forth in this Agreement
and on independent investigation made by it and its representatives, if
any, and the Buyer has been given no oral or written representation or
assurance from the Seller or any representative of the Seller other than
as set forth in this Agreement or in a document executed by a duly
authorized representative of the Seller making reference to this
Agreement.
3. Seller Representations and Covenants.
(a) Reporting Company Status. Seller is a "Reporting Issuer"
and is current in its filings with the SEC (except for Seller's periodic report
for the second quarter of 1998 on Form 10-QSB which Seller agrees to file
promptly following the execution of this Agreement). The Underlying Securities
are not yet listed on any exchange; however after the filing of an S-1
registration statement Seller undertakes to immediately list the Underlying
Securities on NASDAQ or other equivalent national stock exchange.
(b) Current Publication Information. To the extent requested by
the Buyer, Seller has furnished Buyer with copies of materials relating to the
business finances and operations of the Seller's business.
(c) Concerning the Securities. The issuance, sale and delivery
of the Securities have been duly authorized by all required corporate action on
the part of Seller, and when issued, sold and delivered in accordance with the
terms hereof and thereof for the consideration expressed herein and therein,
will be duly and validly issued, fully paid and non-assessable. The Underlying
Securities issuable upon the close of this Agreement and the exercise of the
warrants being sold herein have been duly and validly reserved for issuance and,
upon issuance shall be duly and validly issued, fully paid, and non-assessable
and will not subject the holders thereof, if such persons are non-U.S. persons,
to personal liability by reason of being such holders. There are no pre-emptive
rights for any shareholder of Seller.
(d) Subscription Agreement. This Agreement has been duly
authorized, validly executed and delivered on behalf of Seller and is a valid
and binding agreement in accordance with its terms, subject to general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors' rights generally.
(e) Non-contravention. The execution and delivery of this
Agreement and the consummation of the issuance of the Securities and the
transactions contemplated by this Agreement do not and will not conflict with or
result in a breach by Seller of any of the terms or provisions of, or constitute
a default under, the articles of incorporation or by-laws of Seller, or any
indenture, mortgage, deed of trust, or other material agreement or instrument to
which Seller is a party or by which it or any of its properties or assets are
bound, or any existing applicable law, rule or regulation of the United States
or any State thereof or any applicable decree, judgment or order of any Federal
or State court, Federal or State regulatory body, administrative agency or other
United States governmental body having jurisdiction over Seller or any of its
properties or assets.
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(f) Approvals. Seller is not aware of any authorization,
approval or consent of any U.S. governmental body which is legally required for
the issuance and sale of the Securities as contemplated by this Agreement.
(g) Filings. Seller has made or undertakes and agrees pursuant
to the sale of its Securities under Regulation D to make all necessary filings
in connection with the sale of its Securities as required by the laws and
regulations of the United States.
(h) No Prior Offerings. Seller has not undertaken any offerings
in the last six (6) months which should be integrated into the transaction.
(i) Non-Dilution. Seller agrees that, after the close of the
merger between United Marketing Solutions, Inc., a subsidiary of UNICO and
United Marketing Merger Corp., a subsidiary of Seller (the "Merger"), it shall
not dilute the net share value or interest of the Buyer in the Seller either by
issuing additional common shares (other than through the Private Placement) or
by the means of a reverse stock split. In the event that, after the close of the
Merger, additional shares of the Seller are issued to any member of the board of
directors of the Seller or Xxxx Xxxx, the Buyer shall receive an equal number of
shares, pari passu, to retain its equity position in the Seller. However, after
the close of the Merger, in the event that Seller needs to issue additional
shares within twelve months from the date of the Prior Agreement (May 4, 1998),
as part of an offer to raise capital in the first six months, Buyer will consent
to such dilution and in consideration Seller will accelerate Buyer's option to
redeem 70,000 Shares as set out in Clause 1 (a) hereof and repay to Buyer the
amount of $350,000.00 at the close of Seller's funding transaction as provided
for in Clause 1 (a) hereof. In the event that such consent is required in the
second six month period, Seller shall accelerate the remaining obligations to
Buyer, which shall then be fully discharged. In all other respects, the terms of
Clause 1 (a) shall remain unchanged. Seller shall have, as of the date hereof,
no more than 3,700,000 shares of issued and outstanding common stock and 320,000
shares of issued and outstanding preferred stock. There shall be no more than
450,000 options to purchase common stock of Seller at $.50 per share, and the
Seller represents that, prior to the redemption of the Shares, no additional
options shall be granted to any party after the date hereof other than pursuant
to the Private Placement.
(j) Obligation to Provide Information. Seller agrees that it
shall keep Buyer informed as to the progress of (1) any registration statement
and filings with the SEC and provide copies of all such filings to Buyer and (2)
the Private Placement.
4. Exemption; Reliance on Representations. Buyer understands that the
offer and sale of the Securities are not being registered under the Securities
Act at the time of issue.
5. Instructions.
(a) Subject to Section 11 hereof, it is the Seller's
responsibility to take all necessary actions and to bear all such costs to issue
the Securities and deliver them to the Escrow Agent as provided herein,
including the responsibility and cost for delivery of any necessary opinion
letter to the transfer agent, if so required, provided Buyer provides such
certificates and information as may be reasonably required to support that
opinion. The Buyer, in whose name the certificate of Shares has been registered,
shall be treated as a shareholder of record from and after the issuance of the
Shares.
(b) The issuance of certificates representing the Securities
hereunder does not in any manner imply that such shares are free from the resale
restrictions more fully described in Section 11 hereof.
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6. Registration. Seller acknowledges that Buyer is an offshore trust
company and acknowledges that it shall make no inquiry as to the accredited
status of Buyer and in the event that the Seller fails to issue certificates for
the Underlying Securities as provided hereunder to the Buyer for any reason
other than the Seller's reasonable good faith belief that the representations
and warranties made by the Buyer in this Agreement are invalid or incorrect then
the Seller shall be required, at the request of the Buyer and at the Seller's
expense, to effect the registration of the Underlying Securities as promptly as
is practical. The Seller and the Buyer shall cooperate in good faith in
connection with the furnishing of information required for such registration and
the taking of such other actions as may be legally or commercially necessary in
order to effect such registration. The Seller shall file such a registration
statement within four (4) weeks of Buyer's demand and shall use its diligent
efforts to cause such registration statement to become effective as soon as
practicable thereafter. Such diligent efforts shall include, but not be limited
to, promptly responding to all comments received from the staff of the SEC,
providing Buyer's counsel with a contemporaneous copy of all written
communications from and to the staff of the SEC with respect to such
registration statement and promptly preparing and filing amendments to such
registration statement which are responsive to the comments received from the
staff of the SEC. Once declared effective by the SEC, the Seller shall cause
such registration statement to remain effective until the sale by the Buyer of
all Underlying Securities registered. The Seller shall include on the applicable
registration form the Buyer as a selling shareholder in connection with the
Underlying Securities and upon the effectiveness of such registration statement
Buyer shall have the option to sell the Underlying Securities.
7. Authorized and Issued Shares. The Seller shall at all times
reserve and have available all Securities necessary to comply with the terms of
this Agreement.
8. Delivery Instructions. The Securities being purchased hereunder
have been delivered to the Escrow Agent.
9. Conditions to Seller's Obligation To Sell. Seller's obligation to
sell the Securities is conditioned upon:
(a) The receipt and acceptance by Seller of this Agreement
executed by Buyer.
(b) Delivery to the Escrow Agent of good funds by Buyer as
payment in full of the purchase price of the Securities.
(c) All of the representations and warranties of the Buyer
contained in this Agreement shall be true and correct on the payment date with
the same force and effect as if made on and as of the payment date. The Buyer
shall have performed or complied with all agreements and satisfied all
conditions on its part to be performed, complied with or satisfied at or prior
to the payment date.
(d) No order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the Securities
Act shall have been issued, and no proceedings for that purpose shall have been
commenced or shall be pending or, to the knowledge of the Seller, be
contemplated. No stop order suspending the sale of the Securities shall have
been issued, and no proceedings for that purpose shall have been commenced or
shall be pending or, to the knowledge of the Seller, contemplated.
(e) No action shall have been taken and no statue, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would prevent the issuance of the Securities. No
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injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction shall have been issued that would prevent the issuance
of the Securities.
10. Conditions To Buyer's Obligation To Purchase. Buyer's obligation
to purchase the Securities is conditioned upon:
(a) The confirmation of receipt and acceptance by Seller of
this Agreement as evidenced by execution of this Agreement by the duly
authorized officer of Seller;
(b) delivery of the Securities to the Escrow Agent; and
(c) the transfer to the Escrow Agent of a fully executed
Agreement for the delivery of a Controlling Interest in UNICO, to the Buyer.
10A. Conditions Satisfied. Buyer and Seller hereby confirm that the
conditions precedent in Sections 9 and 10 hereof were satisfied pursuant to the
Prior Agreement, that the Buyer has purchased the Securities, and that the
Seller has received payment therefor in accordance with the Prior Agreement and
this Agreement.
11. Offering Materials and Resale Restrictions. Except for this
Subscription Agreement, no offering materials and documents have been issued in
connection with the offer and sale of the Securities. The Securities and
Underlying Securities have not been registered under the Securities Act or
applicable state securities laws; neither Buyer, nor any direct or indirect
purchaser of the Securities from Buyer, may directly or indirectly offer or sell
the Securities or Underlying Securities unless the Securities or Underlying
Securities are registered under Securities Act, any applicable state securities
laws, or any exemption from the registration requirements of the Securities Act.
Such statements shall appear (1) on the cover of any prospectus or offering
circular used in connection with the offer or sale of the Securities, (2) in the
underwriting section of any prospectus or offering circular used in connection
with the offer or sale of the Securities, and (3) in any advertisement made or
issued by Seller, Buyer, any other distributor, any of their respective
affiliates, or any person acting on behalf of any of the foregoing. In order to
prevent resale transactions in violation of state securities laws, the Buyer may
only engage in resale transactions, to the extent otherwise permitted, in
jurisdictions in which an applicable exemption is available.
12. Miscellaneous.
(a) Except as specifically referenced herein, this Agreement
constitutes the entire contract between the parties in conjunction with the T.C.
Equities Stock Purchase Agreement, and neither party shall be liable or bound to
the other in any manner by any warranties, representations or covenants except
as specifically set forth herein and therein. Any previous agreement among the
parties related to the transactions described herein or therein is superseded
hereby or thereby. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto. Nothing in this Agreement, express or implied, is intended to
confer upon any party, other than the parties hereto, and their respective
successors and assigns, any rights, remedies, obligations or liabilities under
or by reason of this Agreement, except as expressly provided herein. Neither
party may assign its rights or obligations under this Agreement without the
written consent of the other party.
(b) Buyer is an independent contractor, and is not the agent of
Seller. Buyer is not authorized to bind Seller, or to make any representations
or warranties on behalf of Seller.
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(c) Seller represents that Buyer will receive all the benefits
of the representations in the annexed Amended and Restated Stock Purchase
Agreement among UNICO, United Marketing Solutions, Inc., Seller and United
Marketing Merger Corp. dated as of December 30, 1998 in relation to the Seller,
its finances, assets, business prospects or otherwise. Buyer will advise each
purchaser, if any, and potential purchaser of the Securities, of the foregoing
sentence, and that such purchaser is relying on its own investigation with
respect to all such matters, and that such purchaser will be given access to any
and all documents and Seller personnel as it may reasonably request for such
investigation.
(d) All representations and warranties contained in this
Agreement by Seller and Buyer shall survive the closing of the transactions
contemplated by this Agreement.
(e) This Agreement shall be construed in accordance with the
laws of New York applicable to contracts made and wholly to be performed within
the State of New York and shall be binding upon the successors and assigns of
each party hereto. Buyer and Seller hereby waive trial by jury and consent to
exclusive jurisdiction and venue in the State of New York. This Agreement may be
executed in counterparts, and the facsimile transmission of an executed
counterpart to this Agreement shall be effective as an original.
(f)Each of the parties hereto shall assume and bear all
expenses, costs and fees incurred or assumed by it in
connection with the preparation and execution of this
Agreement. Each party hereto, by its execution and delivery
of this Agreement, agrees to, and shall indemnify and hold
harmless, the other parties hereto from and against any and
all liabilities or claims in respect to any such expenses,
costs or fees.
(g)The descriptive headings of the several Articles and
sections of this Agreement are inserted for convenience
only and shall not control or affect in any way or to any
extent the meaning, construction or interpretation of this
Agreement or of any of the provisions hereof.
(h)For the convenience of the parties, any number of
counterparts of this Agreement may be executed by any one
or more parties hereto and each such executed counterpart
shall be, and shall be deemed to be, an original
instrument, and to have the force and effect of an
original, but all of which shall constitute, and shall be
deemed to constitute, in the aggregate, but one and the
same instrument.
(g) The provisions of all Articles hereof and all warranties
and representations herein shall survive the closing and shall not be merged in
the instrument or instruments of conveyance from Seller to Buyer.
(h)The Buyer and Seller, respectively, covenant and agree,
each with the other, that each such party hereto shall from
time to time execute and deliver or cause to be executed
and delivered all such further instruments of conveyance,
transfer, assignments, bills of sale, receipts and other
instruments, and shall take or cause to be taken such
further or other action as the Buyer or Seller, as the case
may be, may reasonably deem necessary in order to transfer
and assign to and to vest in and confirm to the Buyer or to
Seller, as the case may be, title to and possession of all
of the rights, privileges, powers, franchises and property
agreed to be and intended to be so transferred, assigned,
vested and confirmed in such party
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hereunder, respectively, and otherwise to carry out the
intent and purposes of this Agreement.
13. Escrow Agent. Seller and Buyer, pursuant to the Prior Agreement,
appointed the Escrow Agent to receive the Purchase Price and the Securities
(together with the Purchase Price, the "Escrowed Property"), and to hold and
disburse the Escrowed Property in accordance with the terms of this Agreement.
The Escrow Agent accepted such appointment on the following terms and
conditions:
(a) It is specifically understood and agreed that the only
obligation of Escrow Agent hereunder is to disburse the Escrowed Property
pursuant to the terms hereof, and Escrow Agent shall have no obligation to
Seller, Buyer or any other party whatsoever, including but not limited to any
party claiming by or through Seller or Buyer upon such disbursement.
(b) Escrow Agent shall not be under any duty to give the
Escrowed Property any greater degree of care than it gives its own similar
property, and it shall have no liability hereunder, whether for negligence or
otherwise, except for the intentional breach of its duties hereunder. Escrow
Agent shall have no duties or responsibilities except those as expressly set
forth herein, and no implied duties or obligations may be read into this
Agreement against the Escrow Agent.
(c) Escrow Agent may consult with counsel and shall be fully
protected, indemnified and held harmless with respect to any action taken or
omitted by Escrow Agent in good faith on advice of counsel.
(d) Escrow Agent makes no representation as to the validity,
value, genuineness or collectability of the Funds or of the Securities or any
other document or instrument held by or delivered to Escrow Agent.
(e) Seller and Buyer hereby unconditionally agree to indemnify
the Escrow Agent and hold it harmless from and against any and all taxes (except
those taxes duly payable by Escrow Agent as a result of the compensation derived
by Escrow Agent hereunder, but including any other federal, state and local
taxes of any kind and other governmental charges), expenses, damages, actions,
suits or other charges incurred by or brought or assessed against Escrow Agent:
(i) for anything done or omitted by Escrow Agent in the
performance of its duties hereunder; or
(ii) on account of its acting in its capacity as Escrow
Agent or stakeholder hereunder, except as a result of its intentional breach of
its duties under this Agreement.
(f) The agreements contained herein shall survive any
termination of this Agreement and the duties of the Escrow Agent hereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
Official Signatory of Seller:
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NEXT GENERATION MEDIA CORP.
/s/ Xxxxx Xxxxxx
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By: Xxxxxxxx Xxxxxx
Title: President
Official Signatory of Buyer:
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T.C. EQUITIES:
/s/ Xxxxx Xxxxxxxx
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By: Xxxxx Xxxxxxxx
Title: Director
