SHARE EXCHANGE AGREEMENT
EXHIBIT
99.1
among
RTG
VENTURES, INC.,
ATLANTIC
NETWORK HOLDINGS LIMITED,
THE
OUTSIDE STOCKHOLDERS LISTED ON EXHIBIT A HERETO
and
NEW
MEDIA
TELEVISION (EUROPE) LIMITED.
March
20,
2007
LIST
OF EXHIBITS AND SCHEDULES
|
Exhibits
|
|
|
A
|
List
of stockholders OF New Media Television (Europe) Limited and the
number of
shares of RTG Common Stock to be issued to each Seller.
|
|
B
|
Directors
and Officers of RTG to be Appointed.
|
|
C
|
Form
of Opinion of Xxxxxxx Xxxxxx & Associates, Counsel to
Holdings.
|
|
D
|
Form
of Escrow Agreement.
|
|
E
|
Consulting
Agreement between New Media Television (Europe) Limited and GWR
Enterprises, Inc.
|
|
Schedules
|
|
|
Schedule
|
2.1
|
|
Schedule
|
2.2
|
|
Schedule
|
2.3
|
|
Schedule
|
2.4
|
|
Schedule
|
2.7
|
|
Schedule
|
2.13
|
|
Schedule
|
2.14
|
|
Schedule
|
2.17(a)
|
|
Schedule
|
2.17(b)
|
|
Schedule
|
2.19
|
|
Schedule
|
2.23
|
|
Schedule
|
2.28
|
|
Schedule
|
3.4
|
|
Schedule
|
3.6
|
|
Schedule
|
3.11
|
|
Schedule
|
3.12
|
|
Schedule
|
3.13
|
THIS
SHARE EXCHANGE AGREEMENT is made and entered into on March 20, 2007, by and
among RTG VENTURES, INC., a Florida corporation (“RTG”),
ATLANTIC NETWORK HOLDINGS LIMITED (f/k/a Advanced Risk Management (Guernsey)
Limited), a Guernsey company limited by shares (“Holdings”)
and
NEW MEDIA TELEVISION (EUROPE) LIMITED, a United Kingdom private company limited
by shares (the “Company”)
and
the Stockholders listed on Exhibit
A
hereto
(the “Outside
Stockholders”
and,
together with Holdings, the “Sellers”)
.
W
I
T
N
E S
S
E
T
H:
WHEREAS,
the respective Boards of Directors of RTG and Holdings have determined that
it
is fair to and in the best interests of their respective corporations and
stockholders for RTG and Holdings to effect a share exchange pursuant to which
all of the outstanding shares of the Company will be exchanged for shares of
RTG
(the “Exchange”)
upon
the terms and subject to the conditions set forth herein; and
WHEREAS,
the respective Boards of Directors of RTG and Holdings have approved this
Agreement and the Exchange in accordance with Section 607.0821 of the Florida
Business Corporations Act (the “FBCA”)
and
Bailiwick of Guernsey Company Act (the “Guernsey
Company Act”),
respectively, upon the terms and subject to the conditions set forth herein;
and
WHEREAS,
the respective stockholders of RTG and Holdings have approved by written consent
pursuant to Section 607.0704 of the FBCA and Guernsey Company Act respectively,
this Agreement and the transactions contemplated and described hereby including,
without limitation, the Exchange; and
WHEREAS,
the parties hereto intend that the Exchange contemplated herein shall qualify
as
a tax free exchange within the meaning of Section 368(a)(1)(b) of the Internal
Revenue Code of 1986, as amended (the “Code”).
NOW,
THEREFORE, in consideration of the mutual agreements and covenants hereinafter
set forth, the parties hereto agree as follows:
ARTICLE
1
THE
EXCHANGE.
1.1 Exchange
of Shares.
Subject
to the terms and conditions of this Agreement Sellers shall sell, assign, convey
and set over unto RTG Four Million Two Hundred and fifty Thousand (4,250,000)
ordinary shares, £1 par value per share, of the Company (the “Company
Shares”),
constituting all of the outstanding shares of capital stock of the Company,
and
RTG shall issue and sell to Sellers pro rata
an
aggregate of One Hundred Fifty Two Million Seven
-1-
Hundred
Sixty-Seven Thousand One Hundred Thirty Four (152,767,134) shares of its common
stock, no par value per share (the “RTG
Common Stock”).”
1.2 Directors
and Officers.
At the
Closing (as hereinafter defined), all of the directors and officers of RTG
shall
resign and the directors and officers listed in Exhibit
B
hereto
shall be appointed by Holdings (as the new majority stockholder of RTG) from
and
after the Closing until his or her successor shall have been elected and shall
have qualified in accordance with applicable law, or as otherwise provided
in
the Certificate of Incorporation or By-laws of RTG.
1.3 Name
Change.
At the
Closing, Holdings shall cause RTG to execute and deliver for filing with the
Florida Secretary of State a Certificate of Amendment to the Certificate of
Incorporation of RTG changing the name of RTG to “New Media TV,
Inc.”
1.4 Exchange
of Certificates.
At the
Closing, Sellers shall deliver to RTG all certificates evidencing the Company
Shares, duly endorsed in blank or with appropriate stock powers, and RTG shall
issue to each Seller a certificate, registered in the name of such Seller,
representing the number of shares of RTG Common Stock set forth opposite such
Seller’s name on
Exhibit A
hereto.
1.5 Issuance
of Additional Shares of RTG Common Stock.
(a) Sixty
(60)
days following the Closing, RTG shall issue to Xxxxxx Xxxxxxxxxx Lesser &
Xxxxx, LLP or its designees such number of shares of RTG Common Stock as shall
be equal to the quotient of 90,000 divided by the last reported sale price
of
the RTG Common Stock, as reported by xxxxxxxxxx.xxx on the Closing Date (as
hereinafter defined), and shall deliver one or more certificates evidencing
such
shares, registered in the name of Paykin, Greenblatt, Lesser & Xxxxx, LLP or
such designees, to the offices of Xxxxxx Xxxxxxxxxx Lesser & Xxxxx, LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 or to such other address as may be designated
by Xxxxxx Xxxxxx, Esq.
(b) Sixty
(60)
days following the Closing, RTG shall issue to Xxxxxx & Associates
Solicitors or its designees such number of shares of RTG Common Stock as shall
be equal to the quotient of 20,000 divided by the last reported sale price
of
the RTG Common Stock, as reported by xxxxxxxxxx.xxx on the Closing Date (as
hereinafter defined), and shall deliver one or more certificates evidencing
such
shares, registered in the name of Xxxxxx & Associates, Solicitors or such
designees, to the offices of Xxxxxx & Associates Solicitors, 0 Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx, or to such other address as may be designated by
Xxxxxxx Xxxxxx Esq.
1.6 RTG
Common Stock.
RTG
agrees that it will cause all shares of RTG Common Stock to be issued pursuant
to this Agreement to be reserved and available for such purposes. RTG further
covenants that on the Closing Date there will be no more than 16,974,126 shares
of RTG Common Stock issued and outstanding prior to the issuance of RTG Common
Stock to the Sellers pursuant hereto and that no other common or preferred
stock
or equity securities or any options, warrants, rights or other agreements or
instruments convertible, exchangeable or exercisable into RTG Common Stock
or
preferred stock or other equity securities of RTG shall be issued or
outstanding, except as described herein.
-2-
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES OF HOLDINGS AND THE COMPANY.
Holdings
and the Company hereby jointly and severally represent and warrant to RTG as
follows:
2.1 Organization,
Standing, Subsidiaries, Etc.
(a) Each
of
Holding, the Company and each of the Company’s direct and indirect subsidiaries
(the Company and such Subsidiaries being sometimes hereinafter referred to
collectively as, the “Companies”
and
individually as, as a “Company”)
is a
corporation duly organized and validly existing in good standing under the
laws
of its jurisdiction of organization and has all requisite power and authority
(corporate and otherwise) to carry on its business, to own or lease its
properties and assets, to enter into and perform this Agreement. Copies of
the
Organizational Documents (as defined in Article
10
hereof)
of each of Holdings, the Company and all direct and indirect subsidiaries of
the
Company that have been delivered to PGLK prior to the execution of this
Agreement are true and complete and have not since been amended, modified,
restated or repealed.
(b) Except
as
set forth on Schedule
2.1
hereto,
the Company does not have any subsidiaries or own any direct or indirect
interest (by way of stock ownership or otherwise) in any firm, corporation,
limited liability company, partnership, association or business.
2.2 Qualification.
Each of
the Companies is duly qualified to conduct business as a foreign corporation
and
is in good standing in each jurisdiction wherein the nature of its activities
or
its properties owned or leased makes such qualification necessary, except where
the failure to be so qualified would not have a material adverse effect on
the
condition (financial or otherwise), properties, assets, liabilities, business
operations, results of operations or prospects of the Companies taken as a
whole
(the “Condition
of the Companies”).
None
of the Companies is qualified to conduct business in any jurisdiction other
than
as set forth on Schedule
2.2 hereto.
2.3 Capitalization
of the Companies.
The
authorized and issued shares of each of the Companies is as set forth on
Schedule
2.3
hereto:
None
of
the Companies has authority to issue any other capital stock. All of the
Companies’ outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid; and none of such shares has been issued
in
violation of the preemptive or similar rights of any person. The offer, issuance
and sale of all outstanding shares of capital stock of each of the Companies
were (i) exempt from the registration and prospectus delivery requirements
of
the United States Securities Act of 1933, as amended (the “Securities
Act”),
(ii)
exempt from registration or qualification under applicable securities or similar
laws of each Company’s respective jurisdiction of organization, (iii) exempt
from registration or qualification under applicable securities or similar laws
of each jurisdiction where each Company’s stockholders are located and (iv)
accomplished in conformity with all other applicable securities laws. No shares
of Company Stock are subject to a right of withdrawal or a right of rescission
under any U.S. Federal or state securities or “Blue-sky” law or under any
applicable foreign securities laws.
-3-
Except
as
otherwise set forth in this Agreement, no Company has any outstanding options,
rights or commitments to issue any of its equity securities and there are no
outstanding securities convertible or exercisable into or exchangeable for
any
equity securities of any Company other than the contract with Xxxxxx Media
Limited.
2.4 Indebtedness.
Schedule
2.4
hereto
contains a true and complete list of all outstanding indebtedness of the
Companies. Except as set forth on Schedule
2.4,
the
Companies are current in the payment of all amounts due and owing under such
indebtedness and all of such indebtedness is properly reflected in the
Companies’ respective balance sheets.
2.5 Stock
Ownership.
Sellers
own all of the issued shares of the Company and Holdings owns a majority of
the
issued shares of the Company; the Company owns all of the issued shares of
each
of New Media Studios Limited (“New
Media”),
Hanborough Investments Limited and Atlantic Television Limited; and New Media
owns all of the issued shares of Moonlit Pictures Limited, Purple Haze
Productions Limited and Research Services International Limited, in each case
free and clear of all liens and encumbrances whatsoever. There is no voting
trust, agreement or arrangement affecting the nomination or election of
directors or the exercise of the voting rights of any of the Companies capital
stock.
2.6 Corporate
Acts and Proceedings.
The
execution, delivery and performance of this Agreement have been duly authorized
by the Board of Directors and approved by the requisite vote of the stockholders
of the Company and all of the corporate acts and other proceedings required
for
the due and valid authorization, execution, delivery and performance of this
Agreement and the consummation of the Exchange by Holdings and the Company
have
been validly and appropriately taken.
2.7 Compliance
with Laws and Instruments.
The
business, products and operations of each Company have been and are being
conducted in compliance in all material respects with all applicable laws,
rules
and regulations, except for such violations thereof for which the penalties,
in
the aggregate, would not have a material adverse effect on the Condition of
the
Companies. The execution, delivery and performance by Holdings and the Company
of this Agreement and the consummation by Holdings and the Company of the
transactions contemplated hereby: (i) will not require any authorization,
consent or approval of, or filing or registration with, any court or
governmental agency or instrumentality, except such as shall have been obtained
prior to the Closing, (ii) will not cause Holdings or any of the Companies
to
violate or contravene (1) any provision of law, (2) any rule or regulation
of
any agency or government, (3) any order, judgment or decree of any court, or
(4)
any provision of its Organizational Documents, (iii) will not violate or be
in
conflict with, result in a breach of or constitute (with or without notice
or
lapse of time, or both) a default under, any indenture, loan or credit
agreement, deed of trust, mortgage, security agreement or other contract,
agreement or instrument to which Holdings or any Company is a party or by which
Holdings or any Company or any of their respective assets or properties is
bound
or affected, except as would not have a material adverse effect on the Condition
of the Companies, and (iv) will not result in the creation or imposition of
any
Lien upon any property or asset of Holdings or the Companies. None of Holdings
and the Companies is in violation of, or (with or without notice or lapse of
time, or both) in default under, any term or provision of its Organizational
Documents or of any indenture, loan or credit agreement, deed of trust,
mortgage, security agreement (other than as set forth on Schedule
2.7
hereto)
or, except as would not materially and adversely affect the Condition of the
Companies, any other material agreement or
-4-
instrument
to which any of Holdings and the Companies is a party or by which any of
Holdings and the Companies or any of their respective assets or properties
is
bound or affected.
2.8 Binding
Obligations.
This
Agreement constitutes the legal, valid and binding obligations of Holdings
and
each Company and is enforceable against Holdings and each Company in accordance
with its terms, except as such enforcement is limited by bankruptcy, insolvency
and other similar laws affecting the enforcement of creditors’ rights generally
and by general principles of equity.
2.9 Broker’s
and Finder’s Fees.
No
Person has, or as a result of the transactions contemplated or described herein
will have, any right or valid claim against any of Holdings, the Company or
RTG
for any commission, fee or other compensation as a finder or broker, or in
any
similar capacity. RTG, on the one hand, and Holdings and the Company on the
other, hereby agree to indemnify and hold each other harmless from and against
any and all claims, losses or liabilities for any such commission, fee or other
compensation as a result of the claim by any third Person that the indemnifying
party or parties introduced or assisted them in connection with the transactions
contemplated or described here.
2.10 Financial
Statements.
RTG has
previously been provided with an audited balance sheet as of July 31, 2003,
and
the audited statements of operations and accumulated deficits and cash flows
for
the year ended July 31, 2003 and unaudited Balance Sheet (the “Balance
Sheet”)
and cash
flows as of July 31, 2004 (the “Balance
Sheet Date”)
for
New Media Studios Limited. Such financial statements are collectively referred
to as the “Financial
Statements”.
Such
financial statements (i) are in accordance with the books and records of the
Companies, (ii) present fairly in all material respects the financial condition
of the Companies at the dates therein specified and the results of their
operations and changes in financial positions for the periods therein specified
and (iii) have been prepared in accordance with generally accepted accounting
principles in the United States (“GAAP”)
applied on a basis consistent with prior accounting periods.
2.11 Absence
of Undisclosed Liabilities.
The
Companies have no material obligation or liability (whether accrued, absolute,
contingent, liquidated or otherwise, whether due or to become due), arising
out
of any transaction entered into at or prior to the Closing, except (i) as
disclosed in the Balance Sheets, (ii) to the extent set forth on or reserved
against in the Balance Sheet or the Notes to the Financial Statements, (iii)
current liabilities incurred and obligations under agreements entered into
in
the usual and ordinary course of business since the Balance Sheet Date, none
of
which (individually or in the aggregate) has had or will have a material adverse
effect on the Condition of the Companies, and (iv) by the specific terms of
any
written agreement, document or arrangement identified in the Schedules to this
Agreement.
2.12 Changes.
Since
the Balance Sheet Date, the Companies have not (i) incurred any debts,
obligations or liabilities, absolute, accrued, contingent or otherwise, whether
due or to become due, except for fees, expenses and liabilities incurred in
connection with the Exchange and related transactions and current liabilities
incurred in the usual and ordinary course of business, (ii) discharged or
satisfied any Liens (as defined in Article
10
hereof)
other than those securing, or paid any obligation or liability other than,
current liabilities shown on the Balance Sheets and current liabilities incurred
since the Balance Sheet Date, in each case in the usual and ordinary course
of
business, (iii) mortgaged, pledged or subjected to Lien any of their assets,
tangible or intangible other than in the usual and ordinary course of business,
(iv) sold, transferred
-5-
or
leased
any of their assets, except in the usual and ordinary course of business, (v)
cancelled or compromised any debt or claim, or waived or released any right,
of
material value, (vi) suffered any physical damage, destruction or loss (whether
or not covered by insurance) materially and adversely affecting the Condition
of
the Companies, (vii) entered into any transaction other than in the usual and
ordinary course of business, (viii) encountered any labor union difficulties,
(ix) made or granted any wage or salary increase or made any increase in the
amounts payable under any profit sharing, bonus, deferred compensation,
severance pay, insurance, pension, retirement or other employee benefit plan,
agreement or arrangement, other than in the ordinary course of business
consistent with past practice, or entered into any employment agreement, (x)
issued or sold any shares of capital stock, bonds, notes, debentures or other
securities or granted any options (including employee stock options), warrants
or other rights with respect thereto except as set forth on the Schedules to
this Agreement, (xi) declared or paid any dividends on or made any other
distributions with respect to, or purchased or redeemed, any of their
outstanding capital stock, (xii) suffered or experienced any change in, or
condition affecting, the Condition of the Companies other than changes, events
or conditions in the usual and ordinary course of its business, none of which
(either by itself or in conjunction with all such other changes, events and
conditions) has been materially adverse, (xiii) made any change in the
accounting principles, methods or practices followed by them or depreciation
or
amortization policies or rates theretofore adopted, (xiv) made or permitted
any
amendment or termination of any material contract, agreement or license to
which
it is a party, (xv) suffered any material loss not reflected in the Balance
Sheets or their statements of income for the period ended on the Balance Sheet
Date, (xvi) paid, or made any accrual or arrangement for payment of, bonuses
or
special compensation of any kind or any severance or termination pay to any
present or former officer, director, employee, stockholder or consultant, (xvii)
made or agreed to make any charitable contributions or incurred any non-business
expenses in excess of $20,000 in the aggregate, or (xviii) entered into any
agreement, or otherwise obligated themselves, to do any of the
foregoing.
2.13 Properties
and Leases.
(a) Schedule
2.13
hereto
contains a true and complete list of all real property leased or used by the
Companies, including a brief description of each item thereof and of the nature
of each Company’s interest therein, and of all tangible personal property owned
or leased by the Companies having a cost or fair market value of greater than
$10,000, including a brief description of each item and of the nature of the
interest of each Company therein. All the real property listed in Schedule
2.13
is
leased under valid and enforceable leases having the rental terms, termination
dates and renewal and purchase options described in Schedule
2.13;
such
leases are enforceable in accordance with their terms, and there is not, under
any such lease, any existing default or event of default or event, fact or
circumstance which, with notice or lapse of time or both, would constitute
a
default by any of the Companies, and none of the Companies has received any
notice or claim of any such default.
(b) Except
as set
forth on Schedule 2.13 hereto, the Companies do not own any real property.
The
Company has good and marketable title to all of such real property, free and
clear of all liens and encumbrances except as set forth on Schedule
2.13.
2.14 Material
Contracts and Arrangements.
(a) Except
as set
forth on Schedule
2.14,
none of
the Companies is a party to, nor is any of them or any of their respective
properties subject to or bound by, any:
-6-
(i) lease
agreement (whether as lessor or lessee), where the obligation of the Companies
exceeds $5,000;
(ii) license
agreement, assignment or contract (whether as licensor or licensee, assignor
or
assignee) relating to software, trademarks, trade names, patents, or copyrights
(or applications therefore), unpatented designs or processes, formulae, know-how
or technical assistance, or other proprietary rights;
(iii) employment
or other contract or agreement with an employee or independent contractor which
(1) may not be terminated without liability to the Companies upon notice to
the
employee or independent contractor of not more than 30 days, or (2) provides
for
payments (contingent or otherwise) of more than $15,000 per year (including
all
salary, bonuses and commissions);
(iv) agreement,
contract or order with any buying agent, supplier or other individual or entity
who assists, provides or is otherwise involved in the acquisition, supplying
or
provision of assets or other goods to the Companies’ business;
(v) non-competition,
secrecy or confidentiality agreements;
(vi) agreement
or other arrangement for the sale of goods or services to any third party
(including the government or any other governmental authority);
(vii) agreement
with any labor union;
(viii) agreement,
contract with any distributor, dealer, leasing company, sales agent or
representative, other than contracts or orders for the purchase, sale or license
of goods made in the usual and ordinary course of business at an aggregate
price
per contract of more than $5,000 and a term of more than six months under any
such contract or order;
(ix) agreement,
contract or order with any manufacturer, leasing company, supplier or customer
(including those agreements which allow discounts or allowances or extended
payment terms), of more than $5,000;
(x) agreement
with any distributor or brokerage company, leasing company, management company
or any other individual or entity who assists, places, brokers or otherwise
is
involved with the marketing or distribution of the products of the Companies’
business to their customers;
(xi) agreement
guaranteeing, indemnifying or otherwise becoming liable for the obligations
or
liabilities or another;
(xii) agreement
with any banks or other persons, for the borrowing or lending of money or
payment or repayment of draws on letters of credit or currency swap or exchange
agreements (other than purchase money security interests which may, under the
terms or invoices from its suppliers, be granted to suppliers with respect
to
goods so purchased);
(xiii) agreement
with any bank, finance company or similar organization which acquires from
the
company receivables or contracts for sales on credit;
(xiv) agreement
granting any person a lien, security interest or mortgage on any of the Assets,
including, without limitation, any factoring or agreement for the assignment
of
receivables or inventory;
(xv) agreement
for the incurrence of any capital expenditure in excess of $15,000;
(xvi) advertising,
publication or printing agreement;
(xvii) agreement
which restricts any of the Companies from doing business anywhere in the
world;
(xviii) agreement
or statute or regulation giving any party the right to renegotiate or require
a
reduction in prices or the repayment of any amount previously paid;
or
-7-
(xix) other
agreement or contract, not included in or expressly excluded from the terms
of
the foregoing clauses (i) through (xix), materially affecting the Companies
or
their business, except contracts or purchase orders for the purchase or sale
of
goods or services made in the usual and ordinary course of
business.
(b) Each
of the
items listed on Schedule
2.14
(collectively, the “Commitments”)
is
valid, in full force and effect and enforceable in accordance with its terms
and, except as set forth on Schedule
2.14,
the
Companies have fulfilled, or have taken all action reasonably necessary to
enable them to fulfill when due, all of their respective obligations under
the
Commitments, except where the failure to do so would not, individually or in
the
aggregate, have a material adverse affect on the Condition of the Companies.
Furthermore, there has not occurred any default or any event which, with the
lapse of time or the election of any person other than the Companies, will
become a default under any of the Commitments, except for such defaults, if
any,
which (A) have not resulted and will not result in any material loss to or
liability of the Companies or any of their respective successors or assigns
or
(B) have been indicated on Schedule
2.14.
The
Companies are not in arrears in any material respect with respect to the
performance or satisfaction of the terms or conditions to be performed or
satisfied by them under any of the Commitments and to the Companies’ best
knowledge, no waiver or variance has been granted by any of the parties
thereto.
(c) Except
as set
forth on Schedule
2.14,
none of
the Commitments requires the consent of the other parties thereto as a result
of
the transactions contemplated hereby and, with respect to any of the Commitments
which do require the consent of the other parties thereto as a result of the
transactions contemplated by this Agreement, the Companies will provide RTG
with
copies of such consents between the date hereof and the Closing.
2.15 Employees.
The
Companies have complied in all material respects with all laws relating to
the
employment of labor, and none of the Companies has encountered any material
labor union difficulties. Other than pursuant to ordinary arrangements of
employment compensation, none of the Companies is under any obligation or has
any liability to any officer, director or employee.
2.16 Tax
Returns and Audits.
All
required federal, state, local and foreign Tax Returns (as defined in
Article
10
hereof)
of the Companies have been accurately prepared and duly and timely filed, and
all Taxes (as defined in Article
10
hereof)
required to be paid with respect to the periods covered by such returns have
been paid. None of the Companies is or has been delinquent in the payment of
any
Tax. None of the Companies has had a Tax deficiency proposed or assessed against
it and or has executed a waiver of any statute of limitations on the assessment
or collection of any Tax. None of the Companies’ tax returns has been audited by
any governmental authority. The reserves for Taxes reflected on the Balance
Sheets are and will be sufficient for the payment of all unpaid Taxes payable
by
the Companies as of the Balance Sheet Date. Since the Balance Sheet Date, the
Companies have made adequate provisions on their books of account for all Taxes
with respect to their businesses, properties and operations for such period.
The
Companies have withheld or collected from each payment made to each of their
employees the amount of all taxes required to be withheld or collected
therefrom, and have paid the same to the proper Tax receiving officers or
authorized depositaries. There are no federal, state, local or foreign audits,
actions, suits, proceedings, investigations, claims or administrative
proceedings relating to Taxes or any Tax Returns of the Companies now pending,
and none of the Companies has received any notice of any proposed audits,
investigations, claims or
-8-
administrative
proceedings relating to Taxes or any Tax Returns. None of the Companies has
agreed or is required to make any adjustments by reason of a change in
accounting method or otherwise for any Tax period for which the applicable
statute of limitations has not yet expired. None of the Companies (i) is a
party
to, is bound by or has any obligation under, any Tax sharing agreement, Tax
indemnification agreement or similar contract or arrangement, whether written
or
unwritten (collectively, “Tax
Sharing Agreements”),
or
(ii) has any potential liability or obligation to any person as a result of,
or
pursuant to, any such Tax Sharing Agreements.
2.17 Intellectual
Property.
Schedule
2.17 (a)
hereto
contains a true and complete list of: (i) all trademarks, trade names, service
marks, copyrights and patents owned by the Companies; (ii) all applications
filed by the Companies for or with respect to any of the items listed in (i);
(iii) all licenses or other rights to use any patents, trademarks, service
marks, tradenames, copyrights, proprietary technology or other intellectual
property to which any of the Companies is a party (whether as licensor or
licensee); and (iv) all other proprietary technology and intellectual property
developed by any of the Companies or used in their business (collectively,
the
“Intellectual
Property”).
Each
of the registered trademarks, trade names, service marks, copyrights and patents
listed in Schedule
2.17(a)
has been
validly issued and, except as set forth on Schedule
2.17(b),
is
owned by the Companies free and clear of all liens, claims and encumbrances.
Except as set forth on Schedule
2.17(b),
the
Companies have the exclusive rights to use all such trademarks, trade names,
service marks, copyrights and patents. None of the Intellectual Property is
subject to challenge by any third party and none of the Companies is aware
of
any fact or circumstance which would form the basis for such a challenge. There
is no pending or, to the Companies’ best knowledge, threatened claim, and none
of the Companies is aware of any fact or circumstance which would form the
basis
for any claim, that the Companies’ use or intended use of the Intellectual
Property has, does or would infringe any patent, trademark, trade name, service
xxxx, trade secret, know-how or other proprietary right of any other person
or
entity. The Companies have duly maintained their rights in all of the
Intellectual Property; and none of the Companies is aware of any infringement,
or any fact or circumstance which would form the basis for any claim for
infringement, of any of the Intellectual Property. The Intellectual Property
constitutes all of the proprietary property and rights necessary for the conduct
of the Companies’ business as presently conducted and as proposed to be
conducted.
2.18 Employee
Benefit Plans; ERISA.
The
Company does not have any “employee benefit plans” (within the meaning of
Section 3(3) of the ERISA) or any other employee benefit or fringe benefit
arrangements, practices, contracts, policies, programs or other obligations
of
any type.
2.19 Title
to Property and Encumbrances.
Except
as set forth on Schedule
2.19,
the
Companies have good, valid and indefeasible marketable title to all properties
and assets used in the conduct of their business (except for property held
under
valid and subsisting leases which are in full force and effect and which are
not
in default) free of all Liens and other encumbrances, except Permitted Liens
(as
defined in Article
10
hereof)
and such ordinary and customary imperfections of title, restrictions and
encumbrances as do not, individually or in the aggregate, materially detract
from the value of the property or assets or materially impair the use made
thereof by the Companies in their business. Without limiting the generality
of
the foregoing, the Companies have good and indefeasible title to all of their
respective properties and assets reflected in the Balance Sheets, except for
property disposed of in the usual and ordinary course of business
-9-
since
the
Balance Sheet Date and for property held under valid and subsisting leases
which
are in full force and effect and which are not in default.
2.20 Condition
of Properties.
All
facilities, machinery, equipment, fixtures and other properties owned, leased
or
used by the Companies are in reasonably good operating condition and repair,
subject to ordinary wear and tear, and are adequate and sufficient for the
conduct of the Companies’ business.
All of
such properties are in compliance with all applicable laws and regulations
and,
to the Company’s best knowledge, there is no fact or circumstance which would
give rise to any material violation of any of such laws or
regulations.
2.21 Insurance
Coverage.
There
is in full force and effect one or more policies of insurance issued by insurers
of recognized responsibility, insuring the Companies and their respective
properties, products and businesses against such losses and risks, and in such
amounts, as are customary for corporations of established reputation engaged
in
the same or similar businesses and similarly situated. None of the Companies
has
been refused any insurance coverage sought or applied for, and none of the
Companies has any reason to believe that it will be unable to renew its existing
insurance coverage as and when the same shall expire upon terms at least as
favorable to those currently in effect, other than possible increases in
premiums that do not result from any act or omission of the Companies. No suit,
proceeding or action or, to the Companies’ best knowledge, threat of suit,
proceeding or action has been asserted or made against any of the Companies
within the last five years due to alleged bodily injury, disease, medical
condition, death or property damage arising out of the function or malfunction
of a product, procedure or service designed, manufactured, sold or distributed
by the Companies.
2.22 Litigation.
Except
as set forth on Schedule
2.22
hereof,
there is no legal action, suit, arbitration or other legal, administrative
or
governmental proceeding pending or, to the Companies’ best knowledge, threatened
against or affecting any of the Companies or any of their respective properties,
assets or business, and after reasonable investigation, the Companies are not
aware of any incident, transaction, occurrence, fact or circumstance that might
reasonably be expected to result in or form the basis for any such action,
suit,
arbitration or other proceeding. None of the Companies is in default with
respect to any order, writ, judgment, injunction, decree, determination or
award
of any court or any governmental agency or instrumentality or arbitration
authority.
2.23 Compliance
with Laws; Licenses, Approvals and Other Authorizations.
Schedule
2.23
lists
all licenses, permits, registrations, orders, memberships, approvals and other
authorizations required for the conduct of the Companies’ business. To the
Companies’ best knowledge, the Companies have complied and are currently in
compliance in all material respects with all applicable laws, ordinances, rules,
regulations and orders (including, without limitation, those issued by any
self-regulatory organization or administrative agency), with which failure
to
comply would adversely affect the Condition of the Companies. Each of the
Companies has filed all applications, reports and statements, together with
any
amendments required to be made with respect thereto, required to be filed with
any governmental or regulatory authority, securities exchange or self-regulatory
organization or any agency having jurisdiction over such Company, its business
or operations. Each license, permit, registration, order, membership, approval
and other authorization which is required to carry on the Companies’ business as
presently conducted has been duly obtained and is in full force and effect
and
the Companies are not aware of any fact or circumstance which would result
in
the suspension, limitation, termination or revocation of any of such license,
permit, registration, order, membership, approval or authorization.
-10-
2.24 Interested
Party Transactions.
No
officer, director or stockholder of the Companies or any Affiliate or
“associate” (as such term is defined in Rule 405 under the Securities Act) of
any such Person or the Companies has or has had, either directly or indirectly,
(a) an interest in any Person that (i) furnishes or sells services or products
that are furnished or sold or are proposed to be furnished or sold by the
Companies or (ii) purchases from or sells or furnishes to the Companies any
goods or services, or (b) a beneficial interest in any contract or agreement
to
which any of the Companies is a party or by which any of them may be bound
or
affected.
2.25 Environmental
Matters.
(a) To
the
Companies’ best knowledge, none of the Companies has ever generated, used,
handled, treated, released, stored or disposed of any Hazardous Materials (as
defined in Article
10
hereof)
on any real property on which it now has or previously had any leasehold or
ownership interest, except in compliance with all applicable Environmental
Laws
(as defined in Article
10
hereof).
(b) To
the
Companies’ best knowledge, the historical and present operations of the
Companies’ business are in compliance with all applicable Environmental Laws,
except where any non-compliance has not had and would not reasonably be expected
to have a material adverse effect on the Condition of the
Companies.
(c) There
are no
material pending or, to the Companies’ best knowledge, threatened, demands,
claims, information requests or notices of noncompliance or violation against
or
to any of the Companies relating to any Environmental Law and there are no
conditions or occurrences on any of the real property used by the Companies
in
connection with their business that would reasonably be expected to lead to
any
such demands, claims or notices against or to any of the Companies, except
such
as have not had, and would not reasonably be expected to have, a material
adverse effect on the Condition of the Companies.
(d) To
the
Companies’ best knowledge: (i) none of the Companies has sent or disposed of,
otherwise had taken or transported, arranged for the taking or disposal of
(on
behalf of itself, a customer or any other party) or in any other manner
participated or been involved in the taking of or disposal or release of a
Hazardous Material to or at a site that is contaminated by any Hazardous
Material or that, pursuant to any Environmental Law, is subject to or the source
of a claim, an administrative order or other request to take “removal”,
“remedial”, “corrective” or any other “response” action, as defined in any
Environmental Law, or to pay for the costs of any such action at the site;
(ii)
none of the Companies is involved in (or has any basis to reasonably expect
to
be involved in) any suit or proceeding and none of the Companies has received
(or has any basis to reasonably expect to receive) any notice, request for
information or other communication from any governmental authority or other
third party with respect to a release or threatened release of any Hazardous
Material or a violation or alleged violation of any Environmental Law, and
none
of the Companies has received (or has any basis to reasonably expect to receive)
notice of any claims from any Person relating to property damage, natural
resource damage or to personal injuries from exposure to any Hazardous Material;
and (iii) the Companies have timely filed every report required to be filed,
acquired all necessary certificates, approvals and permits, and generated and
maintained all required data, documentation and records under all Environmental
Laws, in all such instances except where the failure to do so would
not
-11-
reasonably
be expected to have, individually or in the aggregate, a material adverse effect
on the Condition of the Companies.
2.26 Questionable
Payments.
Neither
any Companies nor any director, officer or, to the best knowledge of the
Companies, agent, employee or other Person associated with or acting on behalf
of any of the Companies, has used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, made any direct or indirect unlawful payments to government
officials or employees from corporate funds, established or maintained any
unlawful or unrecorded fund of corporate monies or other assets, made any false
or fictitious entries on the books of record of any such corporations or made
any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
2.27 Obligations
to or by Stockholders.
Except
as set forth in Schedule 2.14, none of the Companies has any liability or
obligation or commitment to any Stockholder or any Affiliate or “associate” (as
such term is defined in Rule 405 under the Securities Act) of any Stockholder,
nor does any Stockholder or any such Affiliate or associate have any liability,
obligation or commitment to any of the Companies.
2.28 Consents.
Schedule 2.28 contains a true and complete list of (i) all consents, approvals,
orders, authorizations of, and registrations, qualifications, designations,
declarations, and filings with, any governmental authority and (ii) all
consents, waivers and approvals of third parties required to be made or obtained
by Holdings or any of the Companies in connection with the consummation of
the
Exchange (collectively, the “Consents”).
All
of the Consents shall have been obtained prior to, and shall be effective as
of,
the Closing.
2.29 Books
and Records.
The
books of account and other financial and corporate records of the Companies
are
in all material respects complete, correct and up to date, with all necessary
signatures, and are in all material respects accurately reflected in the
Financial Statements.
2.30 Accounts
Receivable.
All
accounts receivable of the Companies arose from bona fide transactions made
in
the ordinary course of business and represent services rendered or products
sold
in the ordinary course of business. All such accounts receivable are fairly
presented and are the result of arms-length transactions with third parties.
The
collectability of the accounts receivable will not be impaired by any statute
of
limitations, right of set-off, counterclaim or defense.
2.31 Inventory.
All of
the Companies’ inventory consists of items of a quality usable, marketable or
saleable in the ordinary course of business.
2.32 Duty
to Make Inquiry.
To the
extent that any of the representations or warranties in this Article 2 are
qualified by “knowledge” or “belief,” Holdings and the Company jointly and
severally represent and warrant that they have made due and reasonable inquiry
and investigation concerning the matters to which such representations and
warranties relate, including, but not limited to, diligent inquiry of their
directors, officers and key personnel.
2.33 Disclosure.
There
is no fact relating to the Companies that the Companies have not disclosed
to
RTG in writing which has had or is currently having a material and adverse
effect or, insofar as Holdings and the Company can now foresee, will materially
and adversely
-12-
affect,
the Condition of the Companies. No representation or warranty by the Holdings
and the Company herein and no information disclosed in the Schedules or Exhibits
hereto by Holdings and the Company contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES OF RTG
RTG
represents and warrants to the Holdings and the Company as follows.
Notwithstanding anything to the contrary contained herein, disclosure of items
in the RTG SEC Documents (as defined below) shall be deemed to be disclosure
of
such items for all purposes under this Agreement, including, without limitation,
for all applicable representations and warranties of RTG:
3.1 Organization
and Standing.
RTG is
a corporation duly organized and existing in good standing under the laws of
the
State of Florida. RTG has heretofore delivered to the Company complete and
correct copies of its Articles of Incorporation and By-laws as now in effect.
RTG has full corporate power and authority to carry on its business as it is
now
being conducted and as now proposed to be conducted and to own or lease its
properties and assets. RTG does not have any subsidiaries other than MJWC,
Inc.
or any direct or indirect interest (by way of stock ownership or otherwise)
in
any firm, corporation, limited liability company, partnership, association
or
business. RTG owns all of the issued and outstanding capital stock of MJWC,
Inc., free and clear of all Liens (as defined in Article 10 hereof), and MJWC,
Inc. has no outstanding options, warrants or rights to purchase capital stock
or
other equity securities of MJWC, Inc., other than the capital stock owned by
RTG. Unless the context otherwise requires, all references in this Article
3
to the
“RTG” shall be treated as being a reference to RTG and MJWC, Inc. taken together
as one enterprise.
3.2 Corporate
Authority.
RTG has
full corporate power and authority to enter into and perform this Agreement
and
to carry out the transactions contemplated hereby. All corporate acts and
proceedings required for the authorization, execution, delivery and performance
of this Agreement and all other agreements and documents to be executed and
delivered by RTG hereunder have been duly and validly taken or will have been
so
taken prior to the Closing. Each of such agreements and documents constitutes
a
legal, valid and binding obligation of RTG, enforceable against RTG in
accordance with its respective terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other similar laws affecting
creditors’ rights generally and by general principles of equity.
3.3 Broker’s
and Finder’s Fees.
No
person, firm, corporation or other entity is entitled by reason of any act
or
omission of RTG to any broker’s or finder’s fees, commission or other similar
compensation with respect to the execution and delivery of this Agreement or
with respect to the consummation of the transactions contemplated hereby. RTG
agrees to indemnify and hold Holdings and the Company harmless from and against
any and all loss, claim or liability arising out of any such claim from any
third Person claiming to have introduced RTG to Holdings
-13-
or
the
Company or to have assisted them with the transactions contemplated by or
described herein.
3.4 Capitalization
of RTG.
The
authorized capital stock of RTG consists of 200,000,000 shares of common stock,
no par value per share (the “RTG
Common Stock”),
of
which not more than 16,974,126 shares will be issued and outstanding at the
Closing. Except as set forth on Schedule
3.4
hereto,
RTG has no outstanding options, rights or commitments to issue shares of RTG
Common Stock or any other equity security of RTG and there are no outstanding
securities convertible or exercisable into or exchangeable for shares of RTG
Common Stock. There is no voting trust, agreement or arrangement among any
of
the beneficial holders of RTG Common Stock affecting the nomination or election
of directors or the exercise of the voting rights of RTG Common Stock. All
outstanding shares of the capital stock of RTG have been duly and validly issued
and are fully paid and non-assessable and none of such shares has been issued
in
violation of the preemptive rights of any person.
3.5 Validity
of Shares.
The
shares of RTG Common Stock to be issued at the Closing, when issued and
delivered in accordance with the terms hereof, shall be duly and validly issued,
fully paid and non-assessable. Based in part on the representations and
warranties of Holdings set forth in Article
4
hereof,
and assuming the accuracy thereof, the issuance of the RTG Common Stock upon
the
consummation of the Exchange will be exempt from the registration and prospectus
delivery requirements of the Securities Act and from the qualification or
registration requirements of any applicable state “Blue sky” or securities
laws.
3.6 SEC
Reporting and Compliance.
(a) RTG
filed
with the United States Securities and Exchange Commission (the “SEC”)
a
registration statement on Form SB-2 under the Securities Act which became
effective on or about November 19, 2002. On the Closing Date, RTG shall have
filed with the SEC all registration statements and reports required to be filed
pursuant to the United States Securities and Exchange Act of 1934, as amended
(the “Exchange
Act”)
except
as set forth on Schedule
3.6
hereto.
RTG has not filed with the SEC a certificate on Form 15 pursuant to Rule 12h-3
of the Exchange Act.
(b) RTG
has made
available to Holdings and the Company true and complete copies of the
registration statements, information statements and other reports (collectively,
the “RTG
SEC Documents”)
filed
by RTG with the SEC. None of the RTG SEC Documents, as of their respective
dates, contained any untrue statement of a material fact or omitted to state
a
material fact necessary in order to make the statements contained therein not
misleading.
(c) Prior
to
and until the Closing, RTG will provide to Holdings and the Company copies
of
any and all amendments or supplements to the RTG SEC Documents filed with the
SEC and all subsequent registration statements and reports filed by RTG
subsequent to the filing of the RTG SEC Documents with the SEC and any and
all
subsequent information statements, proxy statements, reports or notices filed
by
the RTG with the SEC or delivered to the stockholders of RTG.
(d) RTG
is
not an investment Company within the meaning of Section 3 of the United States
Investment Company Act of 1940, as amended.
-14-
3.7 Financial
Statements.
The
balance sheets and statements of operations, stockholders’ equity and cash flows
contained in the RTG SEC Documents (the “RTG
Financial Statements”)
(i)
have been prepared in accordance with GAAP applied on a basis consistent with
prior periods (and, in the case of unaudited financial information, on a basis
consistent with year-end audits), (ii) are in accordance with the books and
records of RTG and (iii) present fairly in all material respects the financial
condition of RTG at the dates therein specified and the results of its
operations and changes in financial position for the periods therein specified.
3.8 Compliance
with Laws and Other Instruments.
The
execution, delivery and performance by RTG of this Agreement and the other
agreements to be made by RTG pursuant to or in connection with this Agreement
and the consummation by RTG of the transactions contemplated hereby will not
cause RTG to violate or contravene (i) any applicable provision of law, (ii)
any
rule or regulation of any agency or government, (iii) any order, judgment or
decree of any court, or (v) any provision of its charter or By-laws as amended
and in effect on and as of the Closing Date and will not violate or be in
conflict with, result in a breach of or constitute (with or without notice
or
lapse of time, or both) a default under any material indenture, loan or credit
agreement, deed of trust, mortgage, security agreement or other agreement or
contract to which RTG is a party or by which RTG or any of its assets or
properties is bound.
3.9 No
General Solicitation.
In
issuing the RTG Common Stock in the Exchange hereunder, neither RTG nor anyone
acting on its behalf has offered to sell the RTG Common Stock by any form of
general solicitation or advertising.
3.10 Binding
Obligations.
This
Agreement constitutes the legal, valid and binding obligation of RTG,
enforceable against RTG in accordance with its terms, except as such enforcement
is limited by bankruptcy, insolvency and other similar laws affecting the
enforcement of creditors’ rights generally and by general principles of
equity.
3.11 Absence
of Undisclosed Liabilities.
Other
than as set forth on Schedule
3.11
hereto,
RTG does not have any material obligation or liability (whether accrued,
absolute, contingent, liquidated or otherwise, whether due or to become due),
arising out of any transaction entered into at or prior to the Closing, except:
(i) as disclosed in the RTG SEC Documents; (ii) to the extent set forth on
or
reserved against in the balance sheet of RTG in the most recent RTG SEC Document
filed by RTG (the “RTG
Balance Sheet”)
or the
notes to the RTG Financial Statements; (iii) current liabilities incurred and
obligations under agreements entered into in the usual and ordinary course
of
business since the date of the RTG Balance Sheet which appears in the most
recent RTG SEC Document filed by RTG (the “RTG
Balance Sheet Date”),
none
of which (individually or in the aggregate) materially and adversely affects
the
condition (financial or otherwise), properties, assets, liabilities, business
operations, results of operations or prospects of RTG (the “Condition
of RTG”),
and
(d) by the specific terms of any written agreement, document or arrangement
attached as an exhibit to the RTG SEC Documents.
3.12 Changes.
Since
the RTG Balance Sheet Date, except as disclosed in the RTG SEC Documents or
on
Schedule
3.12
hereto,
RTG has not: (i) incurred any debts, obligations or liabilities, absolute,
accrued or, to RTG’s knowledge, contingent, whether due or to become due, except
for current liabilities incurred in the usual and ordinary course of business;
(ii) discharged or satisfied any Liens other than those securing, or paid any
obligation or liability other than, current liabilities shown on the RTG Balance
Sheet and current liabilities incurred since the RTG
-15-
Balance
Sheet Date, in each case in the usual and ordinary course of business; (iii)
mortgaged, pledged or subjected to Lien any of its assets, tangible or
intangible, other than in the usual and ordinary course of business; (iv) sold,
transferred or leased any of its assets, except in the usual and ordinary course
of business; (v) cancelled or compromised any debt or claim, or waived or
released any right of material value; (vi) suffered any physical damage,
destruction or loss (whether or not covered by insurance) which could reasonably
be expected to have a material adverse effect on the Condition of the RTG;
(vii)
entered into any transaction other than in the usual and ordinary course of
business; (viii) encountered any labor union difficulties; (viii) made or
granted any wage or salary increase or made any increase in the amounts payable
under any profit sharing, bonus, deferred compensation, severance pay,
insurance, pension, retirement or other employee benefit plan, agreement or
arrangement, other than in the ordinary course of business consistent with
past
practice, or entered into any employment agreement; (ix) issued or sold any
shares of capital stock, bonds, notes, debentures or other securities or granted
any options (including employee stock options), warrants or other rights with
respect thereto; (x) declared or paid any dividends on or made any other
distributions with respect to, or purchased or redeemed, any of its outstanding
capital stock; (xi) suffered or experienced any change in, or condition
affecting, the financial condition of RTG other than changes, events or
conditions in the usual and ordinary course of its business, none of which
(either by itself or in conjunction with all such other changes, events and
conditions) could reasonably be expected to have a material adverse effect
on
the Condition of the RTG; (xii) made any change in the accounting principles,
methods or practices followed by it or depreciation or amortization policies
or
rates theretofore adopted; (xiii) made or permitted any amendment or termination
of any material contract, agreement or license to which it is a party; (xiv)
suffered any material loss not reflected in the RTG Balance Sheet or its
statement of income for the year ended on the RTG Balance Sheet Date; (xv)
paid,
or made any accrual or arrangement for payment of, bonuses or special
compensation of any kind or any severance or termination pay to any present
or
former officer, director, employee, stockholder or consultant; (xvi) made or
agreed to make any charitable contributions or incurred any non-business
expenses in excess of $5,000 in the aggregate; or (xvii) entered into any
agreement, or otherwise obligated itself, to do any of the
foregoing.
3.13 Tax
Returns and Audits.
All
required Federal, state and local Tax Returns of the RTG have been accurately
prepared in all material respects and duly and timely filed, and all Federal,
state and local Taxes required to be paid with respect to the periods covered
by
such returns have been paid to the extent that the same are material and have
become due, except where the failure so to file or pay could not reasonably
be
expected to have a material adverse effect upon the Condition of RTG. Except
as
set forth on Schedule
3.13
hereto,
RTG is not and has not been delinquent in the payment of any Tax. Except as
set
forth on Schedule
3.13
hereto,
RTG has not had a Tax deficiency assessed against it and none of RTG’s Federal
income tax returns nor any state or local income or franchise tax returns has
been audited by governmental authorities. The reserves for Taxes reflected
on
the RTG Balance Sheet are sufficient for the payment of all unpaid Taxes payable
by RTG with respect to the period ended on the RTG Balance Sheet Date. There
are
no Federal, state, local or foreign audits, actions, suits, proceedings,
investigations, claims or administrative proceedings relating to Taxes or any
Tax Returns of RTG now pending, and RTG has not received any notice of any
proposed audits, investigations, claims or administrative proceedings relating
to Taxes or any Tax Returns.
3.14 Employee
Benefit Plans; ERISA.
RTG has
no “employee benefit plans” (within the meaning of Section 3(3) of ERISA) or any
other employee benefit or fringe benefit
-16-
arrangements,
practices, contracts, policies or programs other than programs merely involving
the regular payment of wages, commissions, or bonuses established, maintained
or
contributed to by RTG.
3.15 Litigation.
There
is no legal action, suit, arbitration or other legal, administrative or other
governmental proceeding pending or, to the knowledge of RTG, threatened against
or affecting RTG or their properties, assets or business. To the knowledge
of
RTG, RTG is not in default with respect to any order, writ, judgment,
injunction, decree, determination or award of any court or any governmental
agency or instrumentality or arbitration authority.
3.16 Interested
Party Transactions.
Except
as disclosed in the RTG SEC Documents, no officer, director or stockholder
of
the RTG or any Affiliate or “associate” (as such term is defined in Rule 405
under the Securities Act) of any such Person or RTG has or has had, either
directly or indirectly, (i) an interest in any Person that (A) furnishes or
sells services or products that are furnished or sold or are proposed to be
furnished or sold by RTG or (B) purchases from or sells or furnishes to RTG
any
goods or services or (ii) a beneficial interest in any contract or agreement
to
which RTG is a party or by which it may be bound or affected.
3.17 Questionable
Payments.
Neither
RTG nor, to RTG’s knowledge, any director, officer, agent, employee or other
Person associated with or acting on behalf of RTG has used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to political activity; made any direct or indirect unlawful payments
to
government officials or employees from corporate funds; established or
maintained any unlawful or unrecorded fund of corporate monies or other assets;
made any false or fictitious entries on the books of record of any such
corporations; or made any bribe, rebate, payoff, influence payment, kickback
or
other unlawful payment.
3.18 Obligations
to or by Stockholders.
Except
as disclosed in the RTG SEC Documents, RTG has no liability or obligation or
commitment to any stockholder of RTG or any Affiliate or “associate” (as such
term is defined in Rule 405 under the Securities Act) of any stockholder of
RTG,
nor does any stockholder of RTG or any such Affiliate or associate have any
liability, obligation or commitment to RTG.
3.19 Assets
and Contracts.
Except
as expressly set forth in this Agreement, the RTG Balance Sheet or the notes
thereto or the RTG SEC Documents, RTG is not a party to any written or oral
agreement not made in the ordinary course of business that is material to RTG.
RTG does not own any real property. Except as expressly set forth in this
Agreement, the RTG Balance Sheet or the notes thereto, or the RTG SEC Documents,
RTG is not a party to or otherwise barred by any written or oral: (i) agreement
with any labor union; (ii) agreement for the purchase of fixed assets or for
the
purchase of materials, supplies or equipment in excess of normal operating
requirements; (iii) agreement for the employment of any officer, individual
employee or other Person on a full-time basis or any agreement with any Person
for consulting services; (iv) bonus, pension, profit sharing, retirement, stock
purchase, stock option, deferred compensation, medical, hospitalization or
life
insurance or similar plan, contract or understanding with respect to any or
all
of the employees of RTG or any other Person; (v) indenture, loan or credit
agreement, note agreement, deed of trust, mortgage, security agreement,
promissory note or other agreement or instrument relating to or evidencing
Indebtedness for Borrowed Money or subjecting any asset or property of RTG
to
any Lien or evidencing any Indebtedness; (vi) guaranty of any Indebtedness;
(vii) lease or agreement under
-17-
which
RTG
is lessee of or holds or operates any property, real or personal, owned by
any
other Person; (viii) lease or agreement under which RTG is lessor or permits
any
Person to hold or operate any property, real or personal, owned or controlled
by
RTG; (ix) agreement granting any preemptive right, right of first refusal or
similar right to any Person; (x) agreement or arrangement with any Affiliate
or
any “associate” (as such term is defined in Rule 405 under the Securities Act)
of RTG or any present or former officer, director or stockholder of RTG; (xi)
agreement obligating RTG to pay any royalty or similar charge for the use or
exploitation of any tangible or intangible property; (xii) covenant not to
compete or other restriction on its ability to conduct a business or engage
in
any other activity; (xiii) distributor, dealer, manufacturer’s representative,
sales agency, franchise or advertising contract or commitment; (xiv) agreement
to register securities under the Securities Act; (xv) collective bargaining
agreement; or (xvi) agreement or other commitment or arrangement with any Person
continuing for a period of more than three months from the Closing Date that
involves an expenditure or receipt by RTG in excess of $1,000. RTG maintains
no
insurance policies or insurance coverage of any kind with respect to RTG, its
business, premises, properties, assets, employees and agents. No consent of
any
bank or other depository is required to maintain any bank account, other deposit
relationship or safety deposit box of RTG in effect following the consummation
of the Consolidation and the transactions contemplated hereby.
3.20 Employees.
Other
than pursuant to ordinary arrangements of employment compensation, RTG is not
under any obligation or liability to any officer, director, employee or
Affiliate of RTG.
3.21 Disclosure.
There
is no fact relating to RTG that RTG has not disclosed to Holdings and the
Company in writing that materially and adversely affects nor, insofar as RTG
can
now foresee, will materially and adversely affect, the condition (financial
or
otherwise), properties, assets, liabilities, business operations, results of
operations or prospects of RTG. No representation or warranty by RTG herein
and
no information disclosed in the Schedules or Exhibits hereto by RTG contains
any
untrue statement of a material fact or omits to state a material fact necessary
to make the statements contained herein or therein not misleading.
ARTICLE
4
ADDITIONAL
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLERS.
Holdings
hereby jointly and severally represents and warrants, and each Outside Seller
hereby severally and not jointly represents and warrants, to RTG as
follows:
4.1 Reliance
Upon Representations.
This
Agreement is made with RTG in reliance upon such Sellers’ representations to
RTG, which by its execution of this Agreement such Seller hereby confirms,
for
itself and on behalf of its designees to whom shares of RTG Common Stock may
be
issued hereunder (such designees being herein referred to together with Sellers
as, the “Share
Recipients”)
that
the shares of RTG Common Stock to be received by the Share Recipients as
consideration hereunder will be acquired for investment for such Share
Recipients’ own accounts, not as nominees or agents, and not with a view to the
resale or distribution of all or any
-18-
part
thereof, and that no Share Recipient has any present intention of selling,
granting any participation in, or otherwise distributing any of the shares
of
RTG Common Stock to be received by it hereunder. By executing this Agreement,
Holdings further represents, for itself and on behalf of the Share Recipients
that no Share Recipient has any contract, undertaking, agreement or arrangement
with any person to sell, transfer or grant participations to such person or
to
any third person, with respect to any of such shares of RTG Common
Stock.
4.2. Restricted
Stock
Such
Seller understands that the shares of RTG Common Stock to be issued to it
hereunder are not and will not be registered under the Securities Act on the
ground that the sale provided for in this Agreement and the issuance of such
shares hereunder is exempt from registration under the Securities Act pursuant
to section 4(2) thereof, and that RTG’s reliance on such exemption is based
in part on such Seller’s representations set forth herein; and such Seller
acknowledges and agrees that the basis for such exemption may not be present
if,
notwithstanding such representations, such Seller has in mind merely acquiring
such shares for a fixed or determinable period in the future, or for a market
rise, or for sale if the market does not rise. No Share Recipient has any such
intention.
4.3 Receipt
of Information.
Such
Seller believes that it has received all the information it considers necessary
or appropriate for deciding whether to acquire the shares of RTG Common Stock
hereunder. Such Seller further represents that it has had an opportunity to
ask
questions and receive answers from RTG regarding the terms and conditions of
the
offering of the shares of RTG Common Stock and the business, properties,
prospects and financial condition of RTG and to obtain additional information
(to the extent that RTG possessed such information or could acquire it without
unreasonable effort or expense) necessary to verify the accuracy of any
information furnished to it or to which it had access.
4.4 Investment
Experience.
Such
Seller is experienced in evaluating and investing in securities of Company
in
the development stage and acknowledges that it is able to fend for itself,
can
bear the economic risk of its investment, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment in the RTG Common Stock. No Share Recipient is
an
entity organized for the purpose of acquiring the shares of RTG Common
Stock.
4.5 Accredited
Investor.
Except
as otherwise disclosed to RTG in writing, prior to the execution hereof, each
Seller is an “Accredited Investor” (as defined in Rule 501 of Regulation D
under the Securities Act).
4.6 Restricted
Securities.
Each
Seller understands that the shares of RTG Common Stock may not be sold,
transferred or otherwise disposed of without registration under the Securities
Act or an exemption therefrom, and that in the absence of an effective
registration statement covering such shares or an available exemption from
registration under the Securities Act, such shares must be held indefinitely.
In
particular, each Seller is aware that such shares may not be sold pursuant
to
Regulation S or Rule “144” under the Securities Act unless all of the conditions
of such Regulation or Rule (as the case may be) are met. Among the conditions
for use of Rule 144” is the availability of current information to the
public about RTG.
4.7 Legends:
To the
extent applicable, each certificate or other document evidencing any of the
shares of RTG Common Stock shall be endorsed with the legend set
forth
-19-
below,
and no Share Recipient shall transfer any shares represented by any such
certificate without complying with the restrictions on transfer described in
the
legends endorsed on such certificate:
“THE
SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE OFFERED AND SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND THE RELEVANT PROVISIONS OF FEDERAL AND STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM SUCH REGISTRATION
IF
THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT
REQUIRED.”
4.8 Representation
By Counsel.
Such
Seller has been represented by counsel and has had adequate opportunity to
consult with such counsel, in connection with its entering into this Agreement
and agreeing to the transactions contemplated hereby.
ARTICLE
5
CONDUCT
OF THE COMPANIES’ BUSINESS PENDING THE EXCHANGE.
5.1 Conduct
of Business by the Companies Pending the Exchange.
Prior
to the Closing, unless RTG shall otherwise agree in writing or as otherwise
contemplated by this Agreement:
(a) the
business of the Companies shall be conducted only in the ordinary
course;
(b) the
Companies shall not: (i) directly or indirectly redeem, purchase or otherwise
acquire or agree to redeem, purchase or otherwise acquire any shares of their
capital stock; (ii) amend their Organizational Documents, except to effectuate
the transactions contemplated in the Schedules hereto; or (iii) split, combine
or reclassify any of the outstanding Companies Stock or declare, set aside
or
pay any dividend payable in cash, stock or property or make any distribution
with respect to any such stock;
(c) the
Companies shall not: (i) issue or agree to issue any additional shares of,
or
options, warrants or rights of any kind to acquire any shares of, Companies
Stock; (ii) acquire or dispose of any fixed assets or acquire or dispose of
any
other substantial assets other than in the ordinary course of business; (iii)
incur additional Indebtedness or any other liabilities or enter into any other
transaction other than in the ordinary course of business; (iv) enter into
any
contract, agreement, commitment or arrangement with respect to any of the
foregoing; or (v) except as contemplated by this Agreement, enter into any
contract, agreement,
-20-
commitment
or arrangement to dissolve, merge, consolidate or enter into any other material
business combination;
(d) Holdings
and the Company shall use their respective best efforts to preserve intact
the
business organization of the Companies, to keep available the service of its
present officers and key employees, and to preserve the good will of those
having business relationships with it;
(e) the
Companies
will not, nor will they authorize any director or authorize or permit any
officer or employee or any attorney, accountant or other representative retained
by them to, make, solicit, encourage any inquiries with respect to, or engage
in
any negotiations concerning, any Acquisition Proposal (as defined below). The
Holdings and the Company will promptly advise RTG orally and in writing of
any
such inquiries or proposals (or requests for information) and the substance
thereof. As used in this paragraph, “Acquisition
Proposal”
shall
mean any proposal for a consolidation or other business combination involving
any of the Companies or for the acquisition of a substantial equity interest
in
it or any material assets of any of them other than as contemplated by this
Agreement. The Companies will immediately cease and cause to be terminated
any
existing activities, discussions or negotiations with any Person conducted
heretofore with respect to any of the foregoing; and
(f) the
Companies
will not enter into any new employment agreements with any of their officers
or
employees or grant any increases in the compensation or benefits of their
officers and employees or amend any employee benefit plan or
arrangement.
5.2 Conduct
of Business by RTG Pending the Exchange.
Prior
to the Closing, unless Holdings shall otherwise agree in writing or as otherwise
contemplated by this Agreement:
(a) the
business of RTG shall be conducted only in the ordinary course; provided,
however,
that
RTG shall take the steps necessary to have discontinued its existing business
without liability to RTG as of the Closing Date;
(b) RTG
shall
not: (i) directly or indirectly redeem, purchase or otherwise acquire or agree
to redeem, purchase or otherwise acquire any shares of its capital stock; (ii)
amend its charter or By-laws other than to effectuate the transactions
contemplated hereby; or (iii) split, combine or reclassify its capital stock
or
declare, set aside or pay any dividend payable in cash, stock or property or
make any distribution with respect to such stock; and
(c) RTG
shall
not: (i) issue or agree to issue any additional shares of, or options, warrants
or rights of any kind to acquire shares of, its capital stock; (ii) acquire
or
dispose of any assets other than in the ordinary course of business; (iii)
incur
additional Indebtedness or any other liabilities or enter into any other
transaction except in the ordinary course of business; (iv) enter into any
contract, agreement, commitment or arrangement with respect to any of the
foregoing; or (v) except as contemplated by this Agreement, enter into any
contract, agreement, commitment or arrangement to dissolve, merge, consolidate
or enter into any other material business contract or enter into any
negotiations in connection therewith.
-21-
(d) RTG
will
not, nor will it authorize any director or authorize or permit any officer
or
employee or any attorney, accountant or other representative retained by it
to,
make, solicit, encourage any inquiries with respect to, or engage in any
negotiations concerning, any Acquisition Proposal (as defined below for purposes
of this paragraph). RTG will promptly advise Holdings orally and in writing
of
any such inquiries or proposals (or requests for information) and the substance
thereof. As used in this paragraph, “Acquisition
Proposal”
shall
mean any proposal for a consolidation or other business combination involving
RTG or for the acquisition of a substantial equity interest in either of them
or
any material assets of either of them other than as contemplated by this
Agreement. RTG will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any person conducted heretofore
with respect to any of the foregoing; and
(e) RTG
will
not enter into any new employment agreements with any of their officers or
employees or grant any increases in the compensation or benefits of their
officers and employees.
ARTICLE
6
ADDITIONAL
AGREEMENTS.
6.1 Access
and Information.
The
Company, Holdings and RTG shall each afford to the other and to the other’s
accountants, counsel and other representatives full access during normal
business hours throughout the period prior to the Closing to all of its
properties, books, contracts, commitments and records (including but not limited
to tax returns) and during such period, each shall furnish promptly to the
other
all information concerning its business, properties and personnel as such other
party may reasonably request, provided that no investigation pursuant to this
Section
6.1
shall
affect any representations or warranties made herein. Each party shall hold,
and
shall cause its employees and agents to hold, in confidence all such information
(other than such information which: (i) is already in such party’s possession;
(ii) becomes generally available to the public other than as a result of a
disclosure by such party or its directors, officers, managers, employees, agents
or advisors; or (iii) becomes available to such party on a non-confidential
basis from a source other than a party hereto or its advisors, provided that
such source is not known by such party to be bound by a confidentiality
agreement with or other obligation of secrecy to a party hereto or another
party
until such time as such information is otherwise publicly available;
provided,
however,
that
(A) any such information may be disclosed to such party’s directors, officers,
employees and representatives of such party’s advisors who need to know such
information for the purpose of evaluating the transactions contemplated hereby
(it being understood that such directors, officers, employees and
representatives shall be informed by such party of the confidential nature
of
such information), (B) any disclosure of such information may be made as to
which the party hereto furnishing such information has consented in writing,
and
(C) any such information may be disclosed pursuant to a judicial, administrative
or governmental order or request; provided,
that the
requested party will promptly so notify the other party so that the other party
may seek a protective order or appropriate remedy and/or waive compliance with
this Agreement and if such protective order or other remedy is not obtained
or
the other party waives compliance with this provision, the requested party
will
furnish only that portion of such information which is legally required and
will
exercise its best efforts to obtain a protective order
-22-
or
other
reliable assurance that confidential treatment will be accorded the information
furnished. If this Agreement is terminated, each party will deliver to the
other
all documents and other materials (including copies) obtained by such party
or
on its behalf from the other party as a result of this Agreement or in
connection herewith, whether so obtained before or after the execution
hereof.
6.2 Additional
Agreements.
Subject
to the terms and conditions herein provided, each of the parties hereto agrees
to use its commercially reasonable efforts to take, or cause to be taken, all
action and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including using its commercially
reasonable efforts to satisfy the conditions precedent to the obligations of
any
of the parties hereto, to obtain all necessary waivers, and to lift any
injunction or other legal bar to the Exchange (and, in such case, to proceed
with the Exchange as expeditiously as possible). In order to obtain any
necessary governmental or regulatory action or non-action, waiver, consent,
extension or approval, each of RTG, Holdings and the Company agrees to take
all
reasonable actions and to enter into all reasonable agreements as may be
necessary to obtain timely governmental or regulatory approvals and to take
such
further action in connection therewith as may be necessary. In case at any
time
after the Closing any further action is necessary or desirable to carry out
the
purposes of this Agreement, the proper officers and/or directors of RTG,
Holdings and the Company shall take all such necessary action.
6.3 Publicity.
No
party shall issue any press release or public announcement pertaining to the
Exchange that has not been agreed upon in advance by RTG, Holdings and the
Company, except as RTG reasonably determines to be necessary in order to comply
with the rules of the SEC or of the principal trading exchange or market for
RTG
Common Stock, provided,
that in
such case RTG will use its best efforts to allow Holdings review and reasonably
approve any same prior to its release.
6.4 Appointment
of Directors and Officers.
Immediately upon the Closing, RTG shall accept the resignations of the current
officers and directors of RTG as provided by Section 7.2(f)(6) hereof, and
shall
cause the persons listed as directors in Exhibit
F
hereto
to be elected to the Board of Directors of RTG. At the first annual meeting
of
RTG stockholders and thereafter, the election of members of RTG’s Board of
Directors shall be accomplished in accordance with the By-laws of
RTG.
6.5 RTG
Name Change.
At the
Closing, RTG shall take all required legal actions to change its corporate
name
to “New Media TV, Inc.”
6.6 Auditors.
For a
period of three years following the Closing, RTG shall retain the services
of
Sherb & Co., LLP as their independent auditors to review and audit RTG’s
financial statements.
6.7 Counsel.
For a
period of three years following the Closing, RTG shall offer in good faith
to
retain the services of Xxxxxx Xxxxxxxxxx Lesser & Xxxxx, LLP (“PGLK”)
as its
U.S. securities counsel to assist in the preparation and filing of RTG’s reports
under the Exchange Act and
any
registration statements or opinions under the Securities Act; provided,
that
nothing contained herein shall in any way obligate PGLK to perform any
particular services for RTG following the Closing except as may be mutually
agreed to by RTG and PGLK.
-23-
6.8 Transfer
Agent.
For a
period of three years after the Closing Date, RTG shall retain the services
of
Madison Stock Transfer, Inc. as its transfer agent for the RTG Common Stock
and
any other securities issued by RTG during such period.
6.9 Additional
Equity Securities.
For a
period of six months following the Closing Date, RTG shall not issue any
additional equity securities other than as provided in this Agreement or as
consideration for the acquisition of another company or business or
as
part of
a registered public offering.
ARTICLE
7
CLOSING;
CONDITIONS OF PARTIES’ OBLIGATIONS.
7.1 Closing.
The
closing of the Exchange (the “Closing”)
shall
take place on such date (the “Closing
Date”),
and
at such time as the parties shall agree. The Closing shall occur at the offices
of Xxxxxx Xxxxxxxxxx Lesser & Xxxxx, LLP referred to in Section
1.5
hereof.
At the Closing, all of the documents, certificates, agreements, opinions and
instruments referenced in this Article
7
will be
executed and delivered as described herein. All actions to be taken at the
Closing shall be deemed to be taken simultaneously.
7.2 Conditions
to RTG’s Obligations.
The
obligations of RTG under this Agreement are subject to the fulfillment at or
prior to the Closing of the following conditions, any of which may be waived
in
whole or in part by RTG.
(a) No
Errors, etc.
The
representations and warranties of Holdings and the Company under this Agreement
shall be deemed to have been made again on the Closing Date and shall then
be
true and correct in all material respects.
(b) Compliance
with Agreement.
Holdings and the Company shall have performed and complied with in all material
respects all agreements and conditions required by this Agreement to be
performed or complied with by them on or before the Closing Date.
(c) No
Default or Adverse Change.
There
shall not exist on the Closing Date any Default or Event of Default or any
event
or condition that, with the giving of notice or lapse of time, or both, would
constitute a Default or Event of Default (each as defined in Article 10
hereof)
and, since the Balance Sheet Date, there shall have been no material adverse
change in the Condition of the Companies.
(d) Opinion
of Holdings’ and Company’s Counsel.
RTG
hall have received from Xxxxxxx Xxxxxx & Associates Solicitors, counsel for
Holdings and the Company, an opinion, dated the Closing Date, to the effect
set
forth in Exhibit
C
hereto
(e) No
Restraining Action.
No
action or proceeding before any court, governmental body or agency shall have
been threatened, asserted or instituted to restrain or prohibit, or to obtain
substantial damages in respect of, this Agreement or the carrying out of the
transactions contemplated hereby.
-24-
(f) Supporting
Documents.
RTG
shall have received the following:
(i) Copies
of
resolutions of the respective Boards of Directors of the Company and Holdings
and of the majority stockholder of the Company, each certified by the Secretary
of Holdings or the Company (as appropriate), authorizing and approving the
execution, delivery and performance of this Agreement and all other documents
and instruments to be delivered pursuant hereto;
(ii) A
Certificate of incumbency executed by the Secretary of each of Holdings and
the
Company certifying the names, titles and signatures of the officers authorized
to execute any documents referred to in this Agreement and further certifying
that the respective Organizational Documents of Holdings and the Company
delivered to RTG at the time of the execution of this Agreement have been
validly adopted, are in full force and effect and have not been amended,
modified, restated or superseded;
(iii) Evidence
as of a recent date of the good standing and corporate existence of Holdings
and
each of the Companies issued by the relevant authorities acceptable to counsel
for RTG and evidence that Holdings and each of the Companies are qualified
to
transact business as foreign corporations and are in good standing in each
state
of the United States and in each other jurisdiction where the character of
the
properties owned or leased by them or the nature of their activities makes
such
qualification necessary; and
(iv) Such
additional supporting documentation and other information with respect to the
transactions contemplated hereby as RTG may reasonably request.
(g) Proceedings
and Documents.
All
corporate and other proceedings and actions taken in connection with the
transactions contemplated hereby and all certificates, opinions, agreements,
instruments and documents mentioned herein or incident to any such transactions
shall be reasonably satisfactory in form and substance to RTG. Holdings and
the
Company shall furnish to RTG such supporting documentation and evidence of
the
satisfaction of any or all of the conditions precedent specified in this
Section
7.2
as RTG
or its counsel may reasonably request.
(h) Deposit
into Escrow; Severance Payments.
Holdings and the Company shall have deposited into an escrow account, to be
maintained by Xxxxxx Xxxxxxxxxx Lesser & Xxxxx, LLP as escrow agent pursuant
to an Escrow Agreement, substantially in the form annexed hereto as Exhibit
D.
$85,000
are to be deposited into such account with the filing on this agreement with
the
SEC together with an additional $230,000 to be deposited no later than seven
days prior to the Closing hereunder These funds shall be used to satisfy all
of
RTG’s financial liabilities, excluding monies owed to RTG’s President and Chief
Executive Officer, Ms. Xxxxx Xxxxx (“Xxxxx”),
and
to Lancer Corporation (“Lancer”),
a
corporation wholly-owned by RTG’s Secretary and Chief Financial Officer, Xx.
Xxxxxxxxxx Xxxxxxxx, all as Xx. Xxxxx and/or Xx. Xxxxxxxx, in their sole
discretion, shall determine; provided,
that
any balance remaining in such escrow account after the payment of all such
liabilities shall be paid one-half to Perry and one-half to Lancer; and it
is
hereby agreed and acknowledged that such payments to
-25-
Perry
and
Lancer shall be in settlement of outstanding obligations of RTG to Perry and
Lancer, including expenses and severance in connection with the termination
of
their employment with RTG.
(i) Absence
of Liabilities.
The
Companies shall have no outstanding obligations other than: pursuant to this
Agreement and the transactions contemplated hereby, and current trade payables
incurred in the ordinary course of business, including payables to RTG’s
transfer agent and press releases and minor disbursements (each amounting to
less than $1,000) associated with this Agreement and the transactions
contemplated hereby.
(j) Completion
of Due Diligence Review.
RTG
shall have satisfactorily completed its due diligence review of Holdings and
the
Companies.
(k) Consulting
Agreement.
RTG
shall have executed and delivered a Consulting Agreement, substantially in
the
form annexed hereto as Exhibit
E.
(l) Business
Plan.
Holdings and the Company shall have delivered to RTG a three-year business
plan
for RTG’s activities following the Closing.
(m) Investor
Relations Firm.
The
Company shall have caused RTG to have engaged an investor relations firm
reasonably satisfactory to RTG to provide services to RTG following the
Closing.
(n) Working
Capital.
As of
the Closing Date, the Company shall have a minimum of USD$685,000 in working
capital, as shall be reflected on the Companies Balance Sheet, which shall
be
prepared on a cash accounting basis. $500,000 will be placed in an escrow
account with the Company’s US lawyer to mainly further business prospects and
market awareness in the USA.
(o) Completion
of Audits.
The
Company shall have available audited consolidated financial statements prepared
in accordance with US GAAP for each of their past three full fiscal
years.
(p) Compliance
with Exchange Act.
RTG
shall be in material compliance with its obligations under the Exchange
Act.
(q) Purchase
of Property,
Hanborough Investment Limited are in the process of purchasing the property
and
buildings which houses New Media Studios Limited at a value of ₤1,550,000
(approximately $3,000,000). This purchase is a condition of completion of this
agreement.
7.3 Conditions
to Holdings’ and the Company’s Obligations.
The
obligations of Holdings and the Company under this Agreement are subject to
the
fulfillment, at or prior to the Closing, of the conditions precedent specified
in paragraph (e) of Section
7.2
hereof,
and the following additional conditions:
(a) No
Errors, etc.
The
representations and warranties of RTG under this Agreement shall be deemed
to
have been made again on the Closing Date and shall then be true and correct
in
all material respects.
-26-
(b) Compliance
with Agreement.
RTG
shall have performed and complied with in all material respects all agreements
and conditions required by this Agreement to be performed or complied with
by it
on or before the Closing Date.
(c) No
Default or Adverse Change.
There
shall not exist on the Closing Date any Default or Event of Default or any
event
or condition, that with the giving of notice or lapse of time, or both, would
constitute a Default or Event of Default and, since the RTG Balance Sheet Date,
there shall have been no material adverse change in the Condition of
RTG.
(d) Supporting
Documents.
Holdings and the Company shall have received the following:
(i) Copies
of
resolutions of RTG’s Board of Directors and stockholders, certified by its
Secretary, authorizing and approving, to the extent applicable, the execution,
delivery and performance of this Agreement and all other documents and
instruments to be delivered by them pursuant hereto and thereto;
(ii) A
certificate of incumbency executed by the Secretary of RTG certifying the names,
titles and signatures of the officers authorized to execute the documents
referred to in this Agreement and further certifying that the Certificates
of
Incorporation and By-laws of RTG appended thereto are in full force and effect
and have not been amended, modified restated or superseded;
(iii) The
executed resignations of all directors and officers of RTG, with the director
resignations to take effect at the Closing;
(iv) Evidence
as of a recent date of the good standing and corporate existence of each of
issued by the Secretary of State of the States of Florida and evidence that
RTG
is qualified to transact business as foreign corporation and is in good standing
in each state of the United States and each other jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary; and
(v) Such
additional supporting documentation and other information with respect to the
transactions contemplated hereby as Holdings and the Company may reasonably
request.
(e) Proceedings
and Documents.
All
corporate and other proceedings and actions taken in connection with the
transactions contemplated hereby and all certificates, opinions, agreements,
instruments and documents mentioned herein or incident to any such transactions
shall be reasonably satisfactory in form and substance to Holdings. RTG shall
furnish to Holdings and the Company such supporting documentation and evidence
of satisfaction of any or all of the conditions specified in this Section
7.3
as
Holdings may reasonably request.
(f) Completion
of Due Diligence Review.
Holdings and the Company shall have satisfactorily completed their due diligence
review of RTG.
-27-
(g) Absence
of Liabilities.
RTG
shall have no outstanding obligations other than pursuant to this Agreement
and
the transaction contemplated hereby or current trade payables incurred in the
ordinary course of business.
(h) Compliance
with Exchange Act.
RTG
shall be in material compliance with its obligations under the Exchange
Act.
Holdings
may waive compliance with any of the conditions precedent specified in this
Section
7.3.
ARTICLE
8
TERMINATION
PRIOR TO CLOSING.
8.1 Termination
of Agreement.
This
Agreement may be terminated at any time prior to the Closing:
(a) By
the mutual
written consent of Holdings, the Company and RTG;
(b) By
Holdings and the Company, if RTG (i) fails to perform in any material respect
any of its respective agreements contained herein required to be performed
by it
on or prior to the Closing Date, or (ii) materially breaches any of its
representations, warranties or covenants contained herein, which failure or
breach is not cured within thirty (30) days after Holdings or the Company has
notified RTG of its intent to terminate this Agreement pursuant to this
paragraph (b);
(c) By
RTG,
if Holdings and the Company (i) fail to perform in any material respect any
of
their respective agreements contained herein required to be performed by them
on
or prior to the Closing Date, or (ii) materially breach any of their respective
representations, warranties or covenants contained herein, which failure or
breach is not cured within thirty (30) days after RTG has notified Holdings
and
the Company of its intent to terminate this Agreement pursuant to this paragraph
(c);
(d) By
either
Holdings and the Company, on the one hand, or RTG, on the other hand, if there
shall be any order, writ, injunction or decree of any court or governmental
or
regulatory agency binding on RTG, Holdings or any of the Companies which
prohibits or materially restrains any of them from consummating the transactions
contemplated hereby, provided,
that
the parties hereto shall have used their best efforts to have any such order,
writ, injunction or decree lifted and the same shall not have been lifted within
ninety (90) days after entry by any such court or governmental or regulatory
agency; or
8.2 Effect
of Termination.
Termination of this Agreement pursuant to this Article 8 shall terminate all
obligations of the parties hereunder, except for the obligations under Sections
6.3, 11.5, 11.6 and 11.12; provided,
however,
that
termination pursuant to paragraphs (b) or (c) of Section 8.1 shall not relieve
the defaulting or breaching party or parties from any liability to the other
parties hereto.
-28-
ARTICLE
9
INDEMNIFICATION
AND
RELATED MATTERS
9.1 Indemnification
by RTG.
Subject
to Section
9.5,
RTG
shall indemnify and hold harmless Holdings, the Company and their respective
officers, directors, employees, agents, representatives, consultants, attorneys,
successors, transferors and assigns (collectively, the "Company
Group")
from
and against any and all damages, claims, losses, liabilities, fines, penalties
and expenses including, without limitation, reasonable attorneys’ fees,
accounting and other expenses to investigate, defend or mitigate any of the
foregoing (collectively, “Losses”)
asserted against or incurred or sustained by any or all of the Company Group
arising out of: (i) any breach of any covenant or agreement of RTG contained
in
this Agreement; (ii) any breach of any of the warranties or representations
set
forth in Article
3
hereof;
and (iii) the operations of RTG prior to the Closing, to the extent such
operations involve or result in violations of or noncompliance with any
self-regulatory organization's rules and regulations or any foreign, Federal,
state or local law, ordinance, regulation or rule relating to the conduct of
such operations.
9.2 Indemnification
by Holdings and the Company.
Subject
to Section
9.5,
Holdings and the Company shall jointly and severally indemnify and hold harmless
RTG and its officers, directors, employees, agents, representatives,
consultants, attorneys, successors, stockholders, transferors and assigns (the
“RTG
Group”)
from
and against any and all Losses asserted against or incurred or sustained by
any
or all of the RTG Group arising out of: (i) any breach of any covenant or
agreement of Holdings or the Company contained in this Agreement; (ii) any
breach of any of the warranties or representations set forth in Article
2
hereof;
(iii) any litigation, action, claim, proceeding or investigation by any third
party relating to or arising out of the business, operations or actions of
Holdings or any of the Companies prior to the Closing, to the extent such
business, operations or actions involve or result in violations of or
noncompliance with any self-regulatory organization's rules and regulations
or
any applicable foreign, Federal, state or local law, ordinance, regulation
or
rule; (iv) all taxes (including, without limitation, income, payroll,
ad valorem
real and
personal property, gross receipts, sales, use, franchise and stamp taxes)
imposed by any Federal, state or local government or other taxing authority
in
the United States or any foreign government or subdivision or taxing authority
thereof, together with any interest or penalties thereon, which arise from
or
relate to consummation of the transactions contemplated hereby or the operations
of Holdings and the Company prior to the Closing (collectively, "Taxes");
9.3 Indemnification
Procedure.
(a) Upon
obtaining knowledge thereof, a person who may be entitled to indemnification
hereunder (the "Indemnitee")
shall
promptly give the Party who may be obligated to provide such indemnification
(the "Indemnitor")
written notice of any Losses which the Indemnitee has determined has given
or
could give rise to a claim for indemnification hereunder (a "Notice
of Claim").
A
Notice of Claim shall specify in reasonable detail the nature and all known
particulars related to a Loss. The Indemnitor shall perform its obligations
hereunder with respect to a Loss described in a Notice of Claim within 30 days
after the
-29-
Indemnitor
shall have received such Notice of Claim; provided,
however,
that
such obligations shall be suspended so long as the Indemnitor is in good faith
defending, contesting or otherwise opposing pursuant to paragraph (b) a Loss
which constitutes a claim, demand, suit, action or proceeding described in
paragraph (b).
(b) With
respect
to a Loss which constitutes a third-party claim, demand, suit, action or
proceeding and which is the subject of a Notice of Claim, the Indemnitor shall,
in good faith and at its own expense, defend, contest or otherwise oppose such
claim, demand, suit, action or proceeding with legal counsel selected by it.
The
Indemnitee shall have the right, but not the obligation, to participate, at
its
own expense, in the defense, contest or other opposition thereof through legal
counsel selected by it and shall have the right, but not the obligation, to
assert any and all cross-claims or counterclaims which it may have. So long
as
the Indemnitor is, in good faith, defending, contesting or otherwise opposing
such claim, demand, suit, action or proceeding, the Indemnitee shall (i) at
all
times cooperate, at its own expense, in all reasonable ways with, make its
relevant files and records available for inspection and copying by, make its
employees reasonably available to and otherwise render reasonable assistance
to
the Indemnitor upon request; and (ii) not compromise or settle such claim,
demand, suit, action or proceeding without the prior written consent of the
Indemnitor. If the Indemnitor fails to so defend, contest or otherwise oppose
such claim, demand, suit, action or proceeding, the Indemnitee shall have the
right, but not the obligation, to defend, contest or otherwise oppose, to assert
cross-claims or counterclaims with respect to and to compromise and settle
such
claim, demand, suit, action or proceeding without affecting, impairing or
limiting any indemnification to which the Indemnitee is entitled hereunder.
If
the Indemnitee is entitled to indemnification hereunder with respect to such
claim, demand, suit, action or proceeding, the Indemnitor shall also indemnify
the Indemnitee for all of the legal fees and expenses reasonably and actually
incurred in connection with the defense, contest or other opposition of such
claim, demand, suit, action or proceeding pursuant to the immediately preceding
sentence.
9.4 Subrogation.
Any
Indemnitor hereunder shall be subrogated to the rights of the Indemnitee with
respect to any claims, suits or demands for which the Indemnitor has indemnified
the Indemnitee.
9.5 Survival.
All
representations, warranties, covenants and agreements contained in this
Agreement or in any certificate delivered pursuant to this Agreement shall
survive the Closing for a period of
one
year.
ARTICLE
10
DEFINITIONS.
Unless
the context otherwise requires, the terms defined in this Article
10
shall
have the meanings herein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the terms herein
defined.
10.1 “Affiliate”
shall
mean any Person that directly or indirectly controls, is controlled by, or
is
under common control with, the indicated Person.
10.2 “Agreement”
shall
mean this Agreement.
-30-
10.3 “Balance
Sheets”
and
“Balance
Sheet Date”
shall
have the meanings assigned to such terms in Section
2.10
hereof.
10.4 [Intentionally
Left
Blank]
10.5 [Intentionally
Left
Blank]
10.6 “Closing”
and
“Closing
Date”
shall
have the meanings assigned to such terms in Section
11
hereof.
10.7 “Code”
shall
mean the Internal Revenue Code of 1986, as amended.
10.8 “Commission”
or
“SEC”
shall
mean the United States Securities and Exchange Commission.
10.9 “Companies”
shall
mean New Media Television (Europe) Limited, a United Kingdom private Company
limited by shares, Atlantic Television Limited, a Seychelles Islands
international business company, New Media Studios Limited, a United Kingdom
company limited by shares, and Hanborough Investments Limited, a United Kingdom
Company limited by shares.
10.10 [Intentionally
Left
Blank]
10.11 “Company
Stock”
shall
have the meaning assigned to it in Section
1.5(b).
10.12 “Condition
of the Companies”
shall
have the meaning assigned to it in Section
2.2
hereof.
10.13 “Condition
of RTG”
shall
have the meaning assigned to it in Section
3.13
hereof.
10.14 [Intentionally
Left
Blank]
10.15 [Intentionally
Left
Blank]
10.16 “Environmental
Laws”
means
the UK Environmental Laws.
10.17 “ERISA”
shall
mean the Employee Retirement Income Securities Act of 1974, as
amended.
10.18 “Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
10.19 “GAAP”
shall
mean generally accepted accounting principles in the United States, as in effect
from time to time.
10.20 “Hazardous
Material”
means
any substance or material meeting any one or more of the following criteria:
(a)
it is or contains a substance designated as or meeting the characteristics
of a
hazardous waste, hazardous substance, hazardous material, pollutant, contaminant
or toxic substance under any Environmental Law; (b) its presence at some
quantity requires investigation, notification or remediation under any
Environmental Law; or (c) it
-31-
contains,
without limiting the foregoing, asbestos, polychlorinated biphenyls, petroleum
hydrocarbons, petroleum derived substances or waste, pesticides, herbicides,
crude oil or any fraction thereof, nuclear fuel, natural gas or synthetic
gas.
10.21 “knowledge”
and
“know”
means,
when referring to any person or entity, the actual knowledge of such person
or
entity of a particular matter or fact, and what that person or entity would
have
reasonably known after due inquiry. An entity will be deemed to have “knowledge”
of a particular fact or other matter if any individual who is serving, or who
has served, as an executive officer of such entity has actual “knowledge” of
such fact or other matter, or had actual “knowledge” during the time of such
service of such fact or other matter, or would have had “knowledge” of such
particular fact or matter after due inquiry.
10.22 [Intentionally
Left
Blank]
10.23 “Lien”
shall
mean any mortgage, pledge, security interest, encumbrance, lien or charge of
any
kind, including, without limitation, any conditional sale or other title
retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code
of
any jurisdiction and including any lien or charge arising by statute or other
law.
10.24 “RTG”
shall
mean RTG Ventures, Inc., a Florida corporation.
10.25 “RTG
Balance Sheet Date”
shall
have the meaning assigned to it in Section 3.13
hereof.
10.26 “RTG
Common Stock”
shall
mean the common stock, no par value per share, of RTG.
10.27 “RTG
Financial Statements”
shall
have the meaning assigned to it in Section
3.8
hereof.
10.28 “RTG
SEC Documents”
shall
have the meaning assigned to it in Section
3.7
hereof.
10.29 “Permitted
Liens”
shall
mean (a) Liens for taxes and assessments or governmental charges or levies
not
at the time due or in respect of which the validity thereof shall currently
be
contested in good faith by appropriate proceedings; (b) Liens in respect of
pledges or deposits under workmen’s compensation laws or similar legislation,
carriers’, warehousemen’s, mechanics’, laborers’ and materialmens’ and similar
Liens, if the obligations secured by such Liens are not then delinquent or
are
being contested in good faith by appropriate proceedings; and (c) Liens
incidental to the conduct of the business of the Company that were not incurred
in connection with the borrowing of money or the obtaining of advances or
credits and which do not in the aggregate materially detract from the value
of
its property or materially impair the use made thereof by the Company in its
business.
10.30 “Person”
shall
include all natural persons, corporations, business trusts, associations,
limited liability Company, partnerships, joint ventures and other entities
and
governments and agencies and political subdivisions.
-32-
10.31 “Securities
Act”
shall
mean the United States Securities Act of 1933, as amended.
10.32 “Tax”
or
“Taxes”
shall
mean (i) any and all taxes, assessments, customs, duties, levies, fees, tariffs,
imposts, deficiencies and other governmental charges of any kind whatsoever
(including, but not limited to, taxes on or with respect to net or gross income,
franchise, profits, gross receipts, capital, sales, use, ad valorem,
value
added, transfer, real property transfer, transfer gains, transfer taxes,
inventory, capital stock, license, payroll, employment, social security,
unemployment, severance, occupation, real or personal property, estimated taxes,
rent, excise, occupancy, recordation, bulk transfer, intangibles, alternative
minimum, doing business, withholding and stamp), together with any interest
thereon, penalties, fines, damages costs, fees, additions to tax or additional
amounts with respect thereto, imposed by the United States (Federal, state
or
local) the United Kingdom or other applicable foreign jurisdiction; (ii) any
liability for the payment of any amounts described in clause (i) as a result
of
being a member of an affiliated, consolidated, combined, unitary or similar
group or as a result of transferor or successor liability, including, without
limitation, by reason of Regulation section 1.1502-6; and (iii) any liability
for the payments of any amounts as a result of being a party to any Tax sharing
agreement or as a result of any express or implied obligation to indemnify
any
other Person with respect to the payment of any amounts of the type described
in
clause (i) or (ii).
10.33 “Tax
Return”
shall
include all returns and reports (including elections, declarations, disclosures,
schedules, estimates and information returns) required to be filed with or
supplied to a Tax authority relating to Taxes.
ARTICLE
11
MISCELLANEOUS.
11.1 Survival
of Representations and Warranties.
The
representations and warranties of the parties made in Articles
2
and
3
of this
Agreement (including the Schedules hereto, which are hereby incorporated by
reference) shall survive for a period of one year following the Closing Date;
provided,
that
this Section
11.1
shall
not limit any claim described in Section
9.2(iv)
or any
claim in any way based upon any certificate, opinion, covenant or agreement
which by its terms is relied upon by a party or contemplates performance after
the Closing or pursuant to any other certificate, statement or agreement or
any
claim for fraud.
11.2 Amendment.
This
Agreement may be amended or modified at any time in all respects by an
instrument in writing executed by the parties hereto.
11.3 Notices.
Any
notice, request or other communication hereunder shall be given in writing
and
shall be deemed given when delivered personally or by facsimile transmission,
telegraph, telex or electronic mail with printed receipt, or two business days
after
-33-
being
sent by overnight delivery or five business days after sent certified mail,
postage pre-paid and receipt requested, in each case addressed as
follows:
Vika
Corp.
If
to
RTG:
RTG
Ventures, Inc.
c/o
Xxxxxx Xxxxxxxxxx Lesser & Xxxxx, LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx Xxxxx, President
Tel:
(000) 000-0000
Fax:
(000) 000-0000
With
a
copy to:
Xxxxxx
Xxxxxxxxxx Lesser & Xxxxx, LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx Xxxxxx, Esq.
Tel:
(000) 000-0000
Fax:
(000) 000-0000
If
to
Holdings or the Company:
Atlantic
Network Holdings Limited
New
Media
Television (Europe) Limited
Atlantic
Network Holdings,Ltd. (ANHL)
Xx.
Xxxxxx'x Xxxxx
Xx.
Xxxxxx'x Xxxxx
Xx.
Xxxxx
Xxxx
Xxxxxxxx
XX0 0XX
Attn:
Xxxxx Xxxxxx
Tel:
000
00 0000000000
Fax:
000
00 0000000000
With
a
copy to:
Xxxxxxx
Xxxxxx & Associates Solicitors
0
Xxxxx
Xxxx Xxxxxxxx
Xxxxxxx,
Xxxxxxx
Attn:
Xxxxxxx Xxxxxx, Esq.
Tel:
000
00 0000000000
Fax:
000
00 0000000000
Or
at
such other addresses as the Parties may instruct by notice given pursuant to
this Section
11.3.
-34-
11.4 Entire
Agreement.
This
Agreement, including the schedules and exhibits attached hereto and other
documents referred to herein, contains the entire understanding of the parties
hereto with respect to the subject matter hereof. This Agreement supersedes
all
prior agreements and undertakings between the parties with respect to such
subject matter.
11.5 Expenses.
Except
as otherwise provided herein, each party shall bear and pay all of the legal,
accounting and other expenses incurred by it in connection with the transactions
contemplated by this Agreement.
11.6 Dispute
Resolution.
The
Parties agree to attempt initially to solve all claims, disputes or
controversies arising under, out of or in connection with this Agreement by
conducting good faith negotiations. If the Parties are unable to settle the
matter between themselves, the matter shall thereafter be resolved by
alternative dispute resolution, starting with mediation and including, if
necessary, a final and binding arbitration. Whenever a Party shall decide to
institute arbitration proceedings, it shall give written notice to that effect
to the other Party. The Party giving such notice shall refrain from instituting
the arbitration proceedings for a period of sixty (60) days following such
notice. During such period, the Parties shall make good faith efforts to
amicably resolve the dispute without arbitration. Any arbitration hereunder
shall be conducted under the rules of the American Arbitration Association.
Each
such arbitration shall be conducted by a panel of three arbitrators: one
arbitrator shall be appointed by each of RTG and Holdings and the third shall
be
appointed by the American Arbitration Association. Any such arbitration shall
be
held in New York, New York. The arbitrators shall have the authority to grant
specific performance. Judgment upon the award so rendered may be entered in
any
court having jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be. In
no
event shall a demand for arbitration be made after the date when institution
of
a legal or equitable proceeding based on such claim, dispute or other matter
in
question would be barred under this Agreement or by the applicable statute
of
limitations. The prevailing party in any such arbitration shall be entitled
to
recover from the other party, in addition to any other remedies, all reasonable
costs, attorneys’ fees and other expenses incurred by such prevailing
par
11.7 Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
11.8 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, heirs and assigns; provided, however,
that no
party shall directly or indirectly transfer or assign any of its rights
hereunder in whole or in part without the written consent of the others, which
may be withheld in their sole discretion and any such transfer or assignment
without said consent shall be void.
11.9 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original and all of which, taken together, shall constitute one
and the same instrument.
-35-
11.10 Recitals,
Schedules and Exhibits.
The
Recitals, Schedules and Exhibits to this Agreement are incorporated herein
and,
by this reference, made a part hereof as if fully set forth herein.
11.11 Section
Headings and Gender.
The
Section headings used herein are inserted for reference purposes only and shall
not in any way affect the meaning or interpretation of this Agreement. All
personal pronouns used in this Agreement shall include the other genders,
whether used in the masculine, feminine or neuter gender, and the singular
shall
include the plural, and vice versa, whenever and as often as may be
appropriate.
11.12 Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
internal laws of the State of New York without regard to principles of conflicts
of laws.
-36-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be binding
and effective as of the day and year first above written.
RTG:
RTG
VENTURES, INC.
By:
/s/
Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
Chief Executive Officer
HOLDINGS:
ATLANTIC
NETWORK HOLDINGS LIMITED
By:
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman
THE
COMPANY:
NEW
MEDIA TELEVISION (EUROPE) LIMITED
By:
/s/
Xxxxx
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman
-37-
