Exhibit 10.31
STOCK PURCHASE AGREEMENT
BY AND BETWEEN
SEDMET EXPLORATION, INC.
AND
INTERNATIONAL NET BROADCASTING, INC.
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") is dated as of January 15,
1999, by and between Sedmet Exploration, Inc., a Nevada corporation
("Sedmet"), and International Net Broadcasting, a California limited
liability company, (as used herein "Broadcasting" includes, as context
dictates, International Broadcasting, Inc. and/or its stockholders).
WHEREAS, Sedmet desires to purchase all the shares of capital stock of
Broadcasting ("Broadcasting Common Stock"), and Broadcasting desires to sell
all the Broadcasting Common Stock to Sedmet, subject to the terms and
conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the covenants set
forth herein, the parties hereto (the "Parties" and, individually, a "Party")
hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE OF STOCK
1.1 PURCHASE AND SALE. Subject to the terms and conditions of this
Agreement, Sedmet will purchase at the Closing (as hereinafter
defined), and Broadcasting will sell to Sedmet at the Closing, all the
Broadcasting Common Stock;
1.2 PURCHASE PRICE. In consideration for the Broadcasting Common Stock and
in full payment therefor, Sedmet will pay to Broadcasting at the
Closing the following amount (the "Purchase Price"); delivery of
certificate(s) for 2,600,000 shares of Sedmet common stock, $.001 par
value per share ("Sedmet Shares of Common Stock").
1.3 EXEMPTION FROM REGISTRATION. The Sedmet Shares to be issued to
Broadcasting will be issued in a transaction exempt from registration
under the Securities Act of 1933, as amended (the "Securities Act").
1.4 DIRECTOR AND OFFICER OF SEDMET. The officer and director of Sedmet is
as follows:
Akbar Alikban President, Secretary/Treasurer and a Director
ARTICLE 2
CLOSING
2.01 CLOSING. The transactions contemplated by this Agreement shall be
completed on the first business day on which the last of the conditions
contained in Article 6 hereof is fulfilled or waived (the "Time of
Closing"), with the expectation that the Closing shall occur on or
before January 22, 1999 at 1:00 P.M., Western Time. The Closing shall
take place at the offices of Sedmet, Xxxx 000, 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0. The "Closing" shall mean the
deliveries to be made by the Parties hereto at the Time of Closing in
accordance with this Agreement.
2.02 DELIVERIES BY BROADCASTING. At the Closing, Broadcasting shall deliver
to Sedmet certificates, all duly and properly executed, representing
all the issued and outstanding shares of Broadcasting Common Stock,
with stock powers attached which validly evidence the transfer of the
certificates.
2.03 DELIVERIES BY SEDMET. At the Closing, Sedmet shall deliver or cause to
be delivered to Broadcasting all duly and properly executed,
certificates or certificates representing the Sedmet shares issuable to
the stockholders of Broadcasting, as provided in Section 1.2 of this
Agreement in the names and denominations as shall be provided at the
Closing by Broadcasting.
2.04 FURTHER ASSURANCES. At or after the Time of Closing, each Party shall
prepare, execute, and deliver, at the preparer's expense, such further
instruments of conveyance, sale, assignment, or transfer, and shall
take or cause to be taken such other or further action, as any Party
shall reasonably request of
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any other Party at any time or from time to time in order to consummate,
in any other manner, the terms and provisions of this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BROADCASTING
In this Agreement, any reference to any event, change, condition or
effect being "material" with respect to any entity or group of entities means
any material event, change, condition or effect related to the financial
condition, properties, assets (including intangible assets), liabilities,
business, operations or results of operations of such entity or group of
entities. In this Agreement, any reference to a "Material Adverse Effect"
with respect to any entity or group of entities means any event, change or
effect that is materially adverse to the financial condition, properties,
assets, liabilities, business, operations or results of operations of such
entity.
In this Agreement, any reference to a Party's "knowledge" means such
Party's actual knowledge after reasonable inquiry of officers, directors and
other employees of such Party reasonably believed to have knowledge of such
matters.
Broadcasting represents and warrants to Sedmet as follows:
3.01 ORGANIZATION, STANDING AND POWER. Broadcasting is a corporation duly
organized, validly existing and in good standing under the laws of
California. Broadcasting has the corporate power to own its properties
and to carry on its business as now being conducted and as proposed to
be conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the failure to be so qualified
and in good standing would have a Material Adverse Effect on
Broadcasting. Broadcasting is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Broadcasting has the corporate power to own its
properties and to carry on its business as now being conducted.
Broadcasting has delivered a true and correct copy of the certificate
of incorporation and bylaws or other charter documents, as applicable,
of Broadcasting, each as amended to date, to Sedmet. Broadcasting is
not in violation of any of the provisions of its certificate of
incorporation or bylaws or equivalent organizational documents.
Broadcasting is the owner of all outstanding shares of Broadcasting
Common Stock (there being no other classes of capital stock
outstanding) and all such shares are duly authorized, validly issued,
fully paid and nonassumable. Broadcasting does not directly or
indirectly own any equity or similar interest in, or any interest
convertible or exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or other
business association or entity.
3.02 AUTHORITY. Broadcasting has all requisite corporate power and
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the
part of Broadcasting. This Agreement has been duly executed and
delivered by Broadcasting and constitutes the valid and binding
obligation of Broadcasting enforceable against Broadcasting in
accordance with its terms, except that such enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to creditors' rights generally, and is subject
to general principles of equity. The execution and delivery of this
Agreement by Broadcasting does not, and the consummation of the
transaction contemplated hereby will not, conflict with, or result in
any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation,
or acceleration of any material obligation or loss of any material
benefit under (i) any provision of the certificate of incorporation or
bylaws of Broadcasting, or (ii) any material mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession,
franchise, license, judgement, order, decree, statute, law, ordinance,
rule or regulation applicable to Broadcasting or any of its properties
or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or
instrumentality ("Governmental Entity") is required by or with respect
to Broadcasting or
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Broadcasting in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby,
except for (i) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required under
applicable state securities laws and the securities laws of any
foreign country, and (ii) such other consents, authorizations,
filings, approvals and resignations which, if not obtained or made,
would not have a Material Adverse Effect on Broadcasting and/or and
would not prevent, or materially alter or delay any of the
transactions contemplated by this Agreement.
3.03 FINANCIAL STATEMENTS. Broadcasting will deliver to Sedmet its
financial statements for each of the fiscal years ended December 31,
1997 and 1998, respectively (the "Financial Statements"). The
Financial Statements will be complete and correct in all material
respect and will be prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods indicated and with each other. The Financial Statements will
accurately set out and describe in all material respects the financial
condition and operating results of Broadcasting as of the dates, and
for the periods, indicated therein, subject to normal year-end
adjustments. Broadcasting maintains and will continue to maintain a
standard system of accounting established and administered in
accordance with generally accepted accounting principles.
3.04 ABSENCE OF CERTAIN CHANGES. Since December 31, 1998, (the
"Broadcasting Financial Statement Date") except as otherwise
disclosed, Broadcasting has conducted its business in the ordinary
course consistent with past practice and there has not occurred:
(i) any change, event or condition (whether or not covered by
insurance) that has resulted in, or might reasonably be expected to
result in, a Material Adverse Effect to Broadcasting; (ii) any
acquisition, sale or transfer of any material asset of
Broadcasting other than in the ordinary course of business
and consistent with past practice; (iii) any material change in
accounting methods or practices (including any change in depreciation
or amortization policies or rates) by Broadcasting; (iv) any
declaration, setting aside, or payment of a dividend or other
distribution with respect to the shares of Broadcasting, or any direct
or indirect redemption, purchase or other acquisition by Broadcasting
of any of an shares of Broadcasting Capital Stock; (v) any material
contract entered into by Broadcasting, other than in the ordinary
course of business and as provided to Sedmet, or any material
amendment or termination of, or default under, any material contract
to which Broadcasting is a part or by which it is bound; (vi) any
material amendment or change to the certificate of incorporation or
bylaws of Broadcasting; (vii) any increase in or modification of the
compensation or benefits payable or to become payable by Broadcasting
to any of its directors or employees other than in the ordinary
course of business and consistent with past practice or (viii) any
negotiation or agreement by Broadcasting or Broadcasting to do any of
the things described in the preceding clauses (i) through (vii) (other
than negotiations with Sedmet and its representatives regarding the
transactions contemplated by this Agreement).
3.05 ABSENCE OF UNDISCLOSED LIABILITIES. Broadcasting has no material
obligations or liabilities of any nature (matured or unmatured, fixed
or contingent) other than (i) those set forth or adequately provided
for in the Broadcasting Financial Statements; (ii) those incurred in
the ordinary course of business and not required to be set forth in
the Broadcasting Financial Statements under generally accepted
accounting principles; (iii) those incurred in the ordinary course of
business since the Broadcasting Financial Statements and consistent
with past practice; and (iv) those incurred in connection with the
execution of this Agreement.
3.06 LITIGATION. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any
agency, court or tribunal, foreign or domestic, or, to the knowledge
of Broadcasting, threatened against Broadcasting or any of its
properties or any of their respective officers or directors (in their
capacities as such) that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on
Broadcasting except as has been previously disclosed to Sedmet. There
is no judgment, decree or order against Broadcasting, or, to the
knowledge of Broadcasting, any of its directors or officers (in their
capacities as such), that could
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prevent, enjoin, or materially alter or delay any of the transactions
contemplated by this Agreement, or that could reasonably be expected to
have a Material Adverse Effect on Broadcasting.
3.07 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement,
judgement, injunction, order or decree binding upon Broadcasting which
has or could reasonably be expected to have the effect of prohibiting
or materially impairing any current or future business practice of
Broadcasting, any acquisition of property by Broadcasting or the
conduct of business by Broadcasting as currently conducted or as
proposed to be conducted by Broadcasting.
3.08 GOVERNMENTAL AUTHORIZATION. Broadcasting has obtained each federal,
state, county, local or foreign governmental consent, license, permit,
grant, or other authorization of a Governmental Entity (i) pursuant to
which Broadcasting currently operates or holds any interest in any of
its properties or (ii) that is required for the operation of
Broadcasting (i) and (ii) herein collectively called "Broadcasting
Authorizations"), and all of such Broadcasting Authorizations are in
full force and effect, except where the failure to obtain or have any
such Broadcasting Authorizations could not reasonably be expected to
have a Material Adverse Effect on Broadcasting.
3.09 TITLE TO PROPERTY. Broadcasting has good and marketable title to all
of its respective properties, interests in properties and assets, real
and personal, reflected in the Broadcasting Financial Statements or
acquired after the Broadcasting Financial Statements. The property and
equipment of Broadcasting that are used in the operations of its
businesses are in all material respects in good operating condition
and repair, ordinary wear and tear excepted.
3.10 INTELLECTUAL PROPERTY.
(a) Broadcasting owns or is licensed or otherwise possesses legally
enforceable rights to use all trademarks, trade names,, service
marks, copyrights, and any applications therefor, and tangible or
intangible proprietary information or material ("Intellectual
Property") that are used in the business of Broadcasting as
currently conducted by Broadcasting, except to the extent that
the failure to have such rights has not had and would not
reasonably be expected to have a Material Adverse Effect on
Broadcasting.
(b) Broadcasting has not been sued in any suit, action or proceeding
which involves a claim of not brought any action, suit or
proceeding for infringement of Intellectual Property or breach of
any license or agreement involving Intellectual Property against
any third part. The conduct of its business does not infringe any
trademark, service xxxx, copyright, trade secret or other
proprietary right of any third part, where such infringement
would have a Material Adverse Effect on Broadcasting.
3.11 INTERESTED PARTY TRANSACTIONS. Broadcasting is not indebted to any
director, officer, employee or agent of Broadcasting (except for
amounts due as normal salaries and bonuses and in reimbursement of
ordinary expenses), and no such person is indebted to Broadcasting.
3.12 INSURANCE. Broadcasting has policies of insurance and bonds of the
type and in amounts customarily carried by business entities similar
to those of Broadcasting. There is no material claim pending under any
of such policies or bonds as to which coverage has been questioned,
denied or disputed by the underwriters of such policies or bonds.
All premiums due and payable under all such policies and bonds
have been paid and Broadcasting is otherwise in compliance with the
terms of such policies and bonds. Broadcasting has no knowledge of
any threatened termination of, or material premium increase with
respect to, any of such policies.
3.13 COMPLIANCE WITH LAWS. To Broadcasting's best knowledge, Broadcasting
has complied with, is not in violation of, and have not received any
notices of violation with respect to, any federal, state, local or
foreign statute, law or regulation with respect to the conduct of its
business, or the ownership or operation of its business, except for
such violations or failures to comply as could not be reasonably
expected to have a Material Adverse Effect on Broadcasting.
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3.14 MINUTE BOOKS. Broadcasting will prepare and make available to Sedmet
contain a complete and accurate summary of all meetings of directors
and shareholders or actions by written consent since the time of
incorporation of Broadcasting, and reflect all transactions referred to
in such minutes accurately in all material respects.
3.15 COMPLETE COPIES OF MATERIALS. Broadcasting has delivered or made
available true and complete copies of each agreement not in the
ordinary course of business to which Broadcasting is a party.
3.16 BROKERS' AND FINDERS' FEES. Broadcasting has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or investment brokers' fees or any similar
charges in connection with this Agreement or any transaction
contemplated hereby.
3.17 BOARD APPROVAL. The Board of Directors and stockholders of
Broadcasting have unanimously approved this Agreement.
3.18 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by Broadcasting, or schedules, exhibits or certificates furnished
by Broadcasting pursuant to this Agreement or any written statement
furnished to Sedmet pursuant hereto or in connection with the
transactions contemplated hereby, when all such documents are read
together in their entirety, contains or will contain at the Time of
Closing any untrue statement of a material fact, or omits or omit at
the Time of Closing to state any material fact necessary in order to
make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading, provided, however, that
for purposes of this representation, any document attached hereto as a
"Superseding Document" (even if not attached hereto) that provides
information inconsistent with or in addition to any other written
statement furnished to Sedmet in connection with the transaction
contemplated hereby, shall be deemed to supersede any other document
or written statement furnished to Sedmet with respect to such
inconsistent or additional information.
3.19 AUTHORIZATION. All acts and conditions required by law on the part of
Broadcasting to authorize the execution and delivery of this Agreement
by Broadcasting and the transactions contemplated herein and the
performance of all obligations of Broadcasting hereunder have been
duly performed and obtained, and this Agreement constitutes a valid
and legally binding obligation of the Broadcasting, enforceable in
accordance with its terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally,
to general equitable principles and to limitations on the
enforceability of indemnification provisions as applied to certain
types of claims arising hereafter, if may, under the federal
securities laws.
3.20 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or default of any
provision of any instrument, judgment, order, writ, decree or contract
to which Broadcasting is a party or by which it is bound, or require
any consent under or be in conflict with or constitute, with or
without the passage of time and giving of notice, either a violation
or default under any such provision.
3.21 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing
with, any federal, regional, state or local governmental authority of
the United States on the part of Broadcasting is required in
connection with the consummation of the transactions contemplated by
this Agreement except for filings, if any, required pursuant to
applicable federal and state securities laws, which filings will be
made within the required statutory period.
3.22 LITIGATION. There is no action, suit, proceeding, or investigation
pending or, to Broadcasting's knowledge, currently threatened against
Broadcasting or Broadcasting which questions the validity
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of this Agreement or the right of Broadcasting to enter into this
Agreement or to consummate the transactions contemplated hereby.
3.23 TITLE TO STOCK. Stockholders of Broadcasting have good title to the
capital stock to be transferred to Sedmet under this Agreement, free
and clear of any lien, pledge, security, interest or other encumbrance
(other than restrictions on transfer arising under applicable
securities laws) and, upon delivery of the shares of capital stock at
the Closing as provided for in this Agreement, and assuming Sedmet is
acquiring the capital stock in good faith and without notice of any
adverse claim, Sedmet will acquire good title thereto, free and clear
of any lien, pledge, security interest or encumbrance (other than
restrictions on transfer arising under applicable securities laws).
3.24 DISCLOSURE. Broadcasting has fully provided Sedmet and Sedmet's legal
counsel with all the information in Broadcasting's possession that
Sedmet has requested in determining whether to purchase the capital
stock offered by Broadcasting. Neither Article 3 of this Agreement nor
any schedule attached to this Agreement nor any certificate delivered
pursuant hereto that, in any such case, has been or will be provided
by or on behalf of Broadcasting contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements made herein or therein not misleading in light of the
circumstances under which they were made.
3.25 DELIVERY OF DOCUMENTS. Broadcasting has delivered or will deliver to
Sedmet at or prior to the Closing all documents required to be
delivered under this Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SEDMET
Sedmet hereby represents and warrants to Broadcasting as follows:
4.01 ORGANIZATION, STANDING AND POWER. Sedmet is a corporation duly
organized, validity existing and in good standing under the laws of
Nevada. Sedmet has the corporate power to own its properties and to
carry on its business as now being conducted and as proposed to be
conducted and is duly qualified to do business and is in good standing
in each jurisdiction in which the failure to be as qualified and in
good standing would have a Material Adverse Effect on Sedmet. Sedmet
has delivered a true and correct copy of its certificate of
incorporation and bylaws or other charter documents, as applicable,
each as amended to date, to Broadcasting. Sedmet is not in violation
of any of the provisions of its certificate of incorporation or bylaws
or equivalent organizational documents. Sedmet does not directly or
indirectly own any equity or similar interest in, or any interest
convertible or exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or other
business association or entity.
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4.02 AUTHORITY. Sedmet has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of
Sedmet. This Agreement has been duly executed and delivered by Sedmet
and constitutes the valid and binding obligations of Sedmet. The
execution and delivery of this Agreement do not, and the consummation
of the transaction contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or
lapse of time, or both), or give rise to a right of termination,
cancellation or acceleration of any material obligation or loss of a
material benefit under (i) any provision of the certificate of
incorporation or bylaws of Sedmet, as amended, or (ii) any material
mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Sedmet or its
properties or assets. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Governmental Entity,
is required by or with respect to Sedmet in connection with the
execution and delivery of this Agreement by Sedmet or the consummation
by Sedmet of the transactions contemplated hereby.
4.03 CURRENT STATUS OF SEDMET. Sedmet Common Stock currently trade on the
NASD Electronic Bulletin Board. It does not file periodic reports with
the United States Securities and Exchange Commission.
4.04 AUTHORIZATION. All acts and conditions required by law on the part of
the Sedmet to authorize the execution and delivery of this
agreement by Sedmet and the transactions contemplated herein and the
performance of all obligations of Sedmet hereunder have been duly
performed and obtained, and this Agreement constitutes a valid and
legally binding obligation of the Broadcasting, enforceable in
accordance with its terms, subject, as to the enforcement of remedies,
to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting creditors rights generally, to general
equitable principles and to limitations on the enforceability of
indemnification provisions as applied to certain types of claims
arising hereafter, if any, under the federal securities laws.
4.05 COMPLIANCE WITH OTHER INSTRUMENTS. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation or default of any
provision of any instrument, judgment, order, writ, decree or
contract to which Sedmet is a party or by which it is bound, or
require any consent under or be in conflict with or constitute, with
or without the passage of time and giving of notice, either a
violation or default under any such provision.
4.06 TITLE TO STOCK. Sedmet has good title to the capital stock to be
transferred pursuant to this Agreement, free and clear of any lien,
pledge, security interest or other encumbrance (other than restriction
on transfer arising under applicable securities laws) and, upon
delivery of the shares of capital stock at the Closing as provided for
in this Agreement, Broadcasting will acquire good title thereto, free
and clear of any lien, pledge, security interest or encumbrance (other
than restrictions on transfer arising under applicable securities laws).
ARTICLE 3
COVENANTS OF BROADCASTING
CONDUCT OF BUSINESS OF BROADCASTING. During the period from the date of
this Agreement and continuing until the earlier of the termination of
this Agreement or the Time of Closing, except as expressly contemplated
by this Agreement, Broadcasting and Broadcasting shall not do, cause or
permit any of the following, or allow, cause or permit Broadcasting's
subsidiary, Broadcasting, to do, cause or permit any of the following,
without the prior written consent of Sedmet:
(a) MATERIAL CONTRACTS. Enter into any material contract or
commitment or violate, amend or otherwise modify or waive any
of the terms of any of its material contracts, other than in
the ordinary course of business consistent with past practice.
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(b) ISSUANCE OF SECURITIES. Issue, deliver or sell or authorize or
propose the issuance, delivery or sale of, or purchase or
propose the purchase of, any shares of its capital stock or
securities convertible into, or subscriptions, rights, warrants
or options to acquire, or other agreements or commitments of
any character obligating it to issue any such shares or other
convertible securities;
(c) INTELLECTUAL PROPERTY. Transfer to any person or entity any
rights to its intellectual Property other than in the ordinary
course of business consistent with past practice;
(d) EXCLUSIVE RIGHTS. Enter into or amend any material agreements
pursuant to which any other party is granted exclusive
marketing or other exclusive rights of any type or accept with
respect to any of Broadcasting's services;
(e) DISPOSITIONS. Sell, lease, license or otherwise dispose of or
encumber any of its properties or assets which are material,
individually or in subsidiaries' business, taken as a whole,
except in the ordinary course of business consistent with past
practices;
(f) INDEBTEDNESS. Incur any indebtedness for borrowed money or
guarantee any such indebtedness or issue or sell any debt
securities or guarantee any debt securities of others;
(g) LEASES. Enter into any operating lease in excess of $10,000 per
annum;
(h) PAYMENT OF OBLIGATIONS. Pay, discharge or satisfy in an amount
in excess of $10,000 in any one case of $100,000 in the
aggregate, any claim, liability or obligation (absolute,
accrued, asserted or unasserted, contingent or otherwise)
arising other than in the ordinary source of business, other
than the payment, discharge or satisfaction of liabilities
reflected or reserved against in the Broadcasting Financial
Statements;
(i) CAPITAL EXPENDITURES. Make any capital expenditures, capital
additions or capital improvements except in the ordinary course
of business and consistent with past practices;
(j) INSURANCE. Materially reduce the amount of any material
insurance coverage provided by existing insurance policies;
(k) TERMINATION OF WAIVER. Terminate or waive any rights of
substantial value, other than in the ordinary course of
business;
(l) EMPLOYEE BENEFIT PLANS; NEW HIRES; PAY INCREASES. Adopt or
amend any employee benefit or stock purchase or option plan,
or hire any new officer level employee, or increase the
salaries or wage rates of its employees except in the ordinary
course of business in accordance with its standard past
practice;
(m) SEVERANCE ARRANGEMENTS. Grant any severance or termination pay
(i) to any director or officer or (ii) to any other employee
except (A) payments made pursuant to written agreements
outstanding on the date hereof or (B) grants which are made in
the ordinary course of business in accordance with its
standard past practice;
(n) LAWSUITS. Commence a lawsuit other than (i) for the routine
collection of bills, (ii) in such cases where it in good faith
determines that failure to commence suit would result in the
material impairment of a valuable aspect of its business,
provided that it consults with Sedmet prior to the filing of
such a suit, or (iii) for a breach of this Agreement;
(o) ACQUISITIONS. Acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of
the assets of, or by any other manner, any business or any
corporation, partnership, association or other business
organization or division thereof, or otherwise acquire or
agree to acquire any assets which are material, individually
or in the aggregate, to its and its parent's subsidiaries'
business, taken as a whole;
(p) TAXES. Other than in the ordinary course of business, make or
change any material election in respect of Taxes, adopt or
change any accounting method in respect of Taxes, file any
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material Tax Return or any amendment to a material Tax Return,
enter into any closing agreement, settle any material claims
or assessment in respect of Taxes, or consent to any extension
of waiver of the limitations period applicable to any material
claim or assessment in respect of Taxes;
(q) NOTICES. Broadcasting shall give all notices and other
information required to be given to the employees of
Broadcasting any collective bargaining unit representing any
group of employees of Broadcasting, the National Labor
Relations Act, the Internal Revenue Code, the Consolidated
Omnibus Budget Reconciliation Act, and other applicable law
in connection with the transactions provided for in the
Agreement;
(r) REVALUATION. Revalue any of its assets, including without
limitation writing down the value of inventory or writing off
notes or accounts receivable other than in the ordinary course
of business; or
(s) OTHER. Take or agree in writing or otherwise to take, any
action which would cause a material breach of its
representations or warranties contained in this agreement or
prevent it from materially performing or cause it not to
materially perform its covenants hereunder.
ARTICLE 6
CONDITIONS TO OBLIGATIONS OF SEDMET AND BROADCASTING
The obligations of Sedmet on the one hand, and Broadcasting, on the
other hand, to the following conditions on or prior to the Closing:
6.01 CONSENTS AND APPROVALS. The Parties hereto shall have obtained all
consents and approvals of third parties and Governmental Authorities,
if any, required to consummate the transactions contemplated by this
Agreement.
6.02 REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All representations and
warranties made herein by Sedmet and Broadcasting, shall be true,
accurate and correct in all respects as of the date made and as of
the Closing. Sedmet and Broadcasting shall have performed all
obligations and agreements undertaken by each of them herein to be
performed at or prior to the Closing.
6.03 CERTIFICATE. Sedmet shall have received from Broadcasting, and
Broadcasting shall have received from Sedmet, a certificate, dated as
of the Closing and executed by the President and Secretary of Sedmet
or Broadcasting, as the case may be, to the effect that the conditions
set forth in Section 6.1 and 6.2 respectively, shall have been
satisfied.
6.04 NO MATERIAL ADVERSE CHANGES. There shall not have occurred any
material adverse change in the financial condition, properties, assets
(including intangible assets), liabilities, operations or results of
operations of Sedmet, Broadcasting, Broadcasting, if any, taken as a
whole.
6.05 NO ACTIONS. Consummation of the transactions contemplated by this
Agreement shall not violate any order, decree or judgment of any court
or governmental body having jurisdiction.
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6.06 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
connection with the transaction contemplated hereby and all documents
and instruments incident to such transactions shall be in form and
substance reasonably satisfactory to counsel for each of the Parties
hereto, and each such Party (or its counsel) shall have received all
such counterpart originals or certified or other copies of such
documents as it may reasonably request.
6.07 ACCURACY OF DOCUMENTS AND INFORMATION. The copies of all material
instruments, agreements, other documents and written information
delivered to any Party by any other Party or its representatives shall
be complete and correct in all material respects as of the Closing.
ARTICLE 7
INDEMNIFICATION
7.01 INDEMNIFICATION. Broadcasting will indemnify and hold harmless Sedmet
and its respective officers, directors, agents and employees, and each
person, if any, who controls or may control Sedmet within the meaning
of the Securities Act from and against any and all losses, costs,
damages, liabilities and expenses arising from claims, demands,
actions, causes of action, including, without limitation, reasonable
legal fees, net of any recoveries under existing insurance policies,
tax benefits received by Sedmet or its affiliates as a result of such
damages, indemnities from third parties or in the case of third party
claims, by any amount actually recovered by Sedmet or its affiliates
pursuant to counterclaims made by any of them directly relating to the
facts giving rise to such third party claims (collectively, "Damages")
arising out of any misrepresentation or breach of or default in
connection with any of the representation, warranties, covenants, and
agreements given or made by Broadcasting in this Agreement, or any
exhibit or schedule to this Agreement. Sedmet and its affiliates shall
act in good faith and in a commercially reasonable manner to
estimate any Damages they may suffer.
ARTICLE 8
TERMINATION
8.01 TERMINATION BY MUTUAL CONSENT. At any time prior to the Closing, this
Agreement may be terminated by written consent of Sedmet and
Broadcasting.
8.02 TERMINATION BY SEDMET. Sedmet may terminate this Agreement at any time
prior to the Closing by delivery of written notice to Broadcasting if
(1) Broadcasting has breached or violated any covenant or agreement
contained in this Agreement in any material respect and, if such
breach or violation is curable, has failed to cure such violation
within ten (10) days of receiving written notice thereof; (2)any
representation or warranty made by Broadcasting relating to
Broadcasting or otherwise is false or inaccurate in any material
respect or there is any material misrepresentation or omission by
Broadcasting; or (3) the Closing has not occurred by January 22, 1999.
8.03 EFFECT OF TERMINATION. In the event of termination as provided above,
all Parties hereto shall bear their own costs associated with this
Agreement and all transactions mentioned herein and there shall be no
obligation on the part of any Party's officers, director or
shareholder; provided, however, that (a) Sections 9.5 and 9.9 shall
survive such termination and continue in full force and effect and (b)
nothing herein will relieve any Party from liability for any breach of
this Agreement prior to such termination.
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ARTICLE 9
MISCELLANEOUS
9.01 NOTICES. Any notice given hereunder shall be in writing and shall be
deemed effective upon the earlier of personal delivery (including
personal delivery by facsimile) or the third day after mailing by
certified or registered mail, postage prepaid, as follows:
(a) If to Sedmet:
Sedmet Exploration, Inc.
Xxxx 000
0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0XX
Xxxxxx
(b) If to Broadcasting:
0000 Xxx Xxx Xxxxxx
Xxxxx 000
Xxxxxx Xxx Xxx, Xxxxxxxxxx 00000
or to such other address as any Party may have furnished in writing to
the other Party in the manner provided above.
9.02 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement and the
documents and instruments and other agreements specifically referred
to herein constitutes the final, exclusive and complete
understanding of the Parties with respect to the subject matter
hereof and supersedes any and all prior agreements,
understandings and discussions with respect thereto. No
variation or modification of this Agreement and no waiver of any
provision or condition hereof, or granting of any consent
contemplated hereby, shall be valid unless in writing and signed by
the Party against whom enforcement of any such variation,
modification, waiver or consent is sought. The rights and remedies
available to each Party pursuant to this Agreement and all exhibits
hereunder shall be cumulative.
9.03 CAPTIONS. The captions in this Agreement are for convenience only and
shall not be considered a part of or affect the construction or
interpretation of any provision of this Agreement.
9.04 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which whom so executed shall constitute an
original copy hereof, but all of which together shall constitute one
agreement.
9.05 PUBLICITY. Except for disclosure (if any) required by any law to which
any Party is subject, the timing and content of any announcements,
press releases and public statements to be made prior to the Closing
concerning the transactions contemplated hereby shall be determined
solely by Sedmet in consultation with Broadcasting.
9.06 SUCCESSORS AND ASSIGNS. No Party may, without the prior express
written consent of such other Party, assign this Agreement in whole
or in part. This Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the
Parties hereto.
9.07 GOVERNING LAWS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada as applied to
contracts to be performed entirely within the State of Nevada.
9.08 FURTHER ASSURANCES. At the request of any of the Parties, and
without further consideration, the other Parties agree to execute such
documents and instruments and to do such further acts as may be
necessary or desirable to effectuate the transactions contemplated
hereby, required by law, statute, rule or regulation, all confidential
information.
9.09 CONFIDENTIALITY AND NONDISCLOSURE AGREEMENTS. Except as which shall
have been furnished or disclosed by one Party to the other pursuant to
this Agreement, including without limitation,
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business, financial and customer development plans, forecasts,
strategies and information, shall be held in confidence pursuant hereto
and shall not be disclosed to any person other than their respective
employees, directors, legal counsel, accountants or financial advisors,
with a need to have access to such information, and shall not make any
use whatsoever of such information except to evaluate such information
internally. The confidentiality provisions set forth herein shall
survive until two years from the date hereof, unless the Party desiring
to disclose the information can document that (i) such information is
(through no improper action or inaction by such Party or any affiliate,
agent, consultant or employee) generally available to the public, or
(ii) was in its possession or known by it prior to receipt from the
other Party, or (iii) was rightfully disclosed to it by a third party,
or (iv) was independently developed by employees of such Party who have
had no access to such information.
9.10 TRANSFER OF BROADCASTING BOOKS AND ASSETS. Broadcasting agrees, upon
the request of Sedmet to do, execute, acknowledge and deliver or to
cause to be done, executed, acknowledged and delivered, all such
further acts, deeds, assignments, transfers, conveyances, power of
attorney and assurances as may be required for the better assigning,
transferring, conveying and confirming to Sedmet, or to its successors
and assigns, or for the aiding, assisting, collecting and reducing to
possession of any or all of the books and records of Broadcasting.
9.11 SEVERABILITY. The invalidity or unenforceability of any one or more
phrases, sentences, clauses or provisions of this Agreement shall not
affect the validity or enforceability of the remaining portions of
this Agreement or any part thereof.
IN WITNESS WHEREOF, each Party has executed this Agreement as of the
date first above written.
SEDMET EXPLORATION, INC.
By: /s/ Akbar Alikban
-----------------------------
Akbar Alikban
Its President
INTERNATIONAL NET BROADCASTING, INC.
By: /s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
Its Chairman of the Board
And Attorney-in-fact for its Stockholders
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