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Exhibit 10.4 -- Agreements with Lloyds regarding Financing
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FUNDING AGREEMENT
This Agreement is entered into this 22th day of October, 1999 by and
between LLOYDS BAHAMAS SECURITIES, LTD. ("Lloyds") and SELECT MEDIA
COMMUNICATIONS, INC., a New York corporation (the "Company"). The term the
"Company" also includes any entity into which the Company is merged, which
acquires or is acquired by the Company.
RECITALS
WHEREAS, the Company is seeking funding of $1,000,000 through sale of
shares of common stock (the "Shares" of "Common Stock") for cash flow and
operations purposes; and
WHEREAS, the Company will undertake a 1 for 200 reverse stock split as
a condition of this Agreement; and
WHEREAS, Lloyds is willing to act as agent to procure such funds from
its clients under the terms set forth below; and
WHEREAS, Lloyds may also make arrangements with the Company's creditors
and shareholders to attempt to settle any disputes between each shareholder and
the Company,
NOW, THEREFORE, in consideration of the mutual terms and conditions;
set forth below, and intending to be legally bound, the parties hereto agree as
follows:
Section 1 SALE OF SHARES; ISSUANCE OF SHARES
1.1. Subject to the terms of this Agreement, Lloyds, as agent, shall
purchase 4,000,000 Shares from the Company on a post-split basis (the
"Post-Split Shares") for the aggregate price of $1,000,000 (the
"Purchase Price") in an offering exempt under Rule 504 of Regulation
D, which the Company will use for operating capital and expenses.
1.2. Disbursal of Funds. Lloyds, as agent, will provide the Purchase Price
to the Company as soon as the proper offering documents are available,
with the first tranche of $200,000 to be disbursed as a note
convertible into Post-Split Shares issued pursuant to the Rule 504
Offering upon the signing of this Agreement. All funding under this
Agreement will be provided within 45 days of the signing of this
Agreement.
1.3. Issuance of Shares. In consideration for Lloyds, as agent, entering
into this Agreement, arranging for the funding and settling claims
with creditors and shareholders, the Company will issue to Lloyds, or
to its order, a total of 1,000,000 Post-Split Shares of Common Stock
subject to restrictions under Rule 144 and as otherwise agreed between
Lloyds and such persons.
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SECTION 2 CONDITIONS TO BE MET
2.1. Before Lloyds is obligated to provide any funding under this Agreement,
the Company must take the following actions by Board of Directors
("Board") approval:
2.1.1. Approve this Agreement and all of its terms;
2.1.2. A 1 for 200 reverse stock split effective as soon as
practicable;
2.1.3. Elect a sufficient number of new members of the Company's
Board to give such new directors a majority of seats on the
Board, with such new members to be named by Lloyds;
2.1.4. Approve new agreements with the Company's key employees, as
described on Exhibits A, B, C and D.
2.2. The Company's choice of legal counsel and independent accountant must
be acceptable to Lloyds.
2.3. The Company may not issue additional Shares of Common Stock (except as
provided in this Agreement) without the approval of the Board
(including the Lloyds designees).
2.4. All management salaries must be capped at $200,000.
2.5. The Board must approve all new hires with salaries of over $50,000 per
year, and the hiring of any family members of current management.
2.6. All employees, officers, directors and affiliates must forgive in
writing the repayment of any monies owed by the Company to them.
2.7. The Board will name Xxxxxx Xxxxxx as Co-Chairman.
2.8. The Company will enter into the agreement with Xxxxxxxxxxxx.xxx, Inc.
("Nationsmusic") whereby Nationsmusiic will be merged into the Company
in exchange for 3,000,000 Post-Split Shares and Xxxx X. Xxxxxx will be
hired as executive producer of all Nationsmusic projects at a salary to
be determined by the Company's Board of Directors.
2.9. The Board must approve any expenditure over $15,000.
2.10. The Company may not seek other financing of any kind, or discuss the
Company's financing or capitalization with any party, including, but
not limited to, investment bankers, fundraisers, bankers or others,
without the express written consent of Lloyds and Bryn Mawr Investment
Group, Inc.
SECTION 3 USE OF PROCEEDS
3.1. The Company will use the proceeds of the funding for the Company's
reasonable and ordinary
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day-to-day expenses and to resolve the Company's outstanding
liabilities.
3.2. Within ten days of signing, the Company will give Lloyds a detailed use
of proceeds for the $1,000,000 funding. Within thirty (30) business
days of the signing of this Agreement, the Company will provide Lloyds
with a detailed budget approved by the Company's Board for the next
twelve (12) months ("Budget"). The Budget will detail the uses of funds
for operations.
3.3. The Company is a non-reporting company. Select Media will file the
necessary documents and take all other steps necessary to become a
reporting company under the Securities Exchange Act of 1934 at the
request of Lloyds.
SECTION 4 REPRESENTATIONS AND WARRANTIES
4.1. The Company represents and warrants to Lloyds and its clients as
follows:
4.1.1 The Company has all necessary power to carry on its present
business and has full right, power and authority to enter
into this Agreement, make the agreements and representations
herein, issue the Shares and otherwise perform and consummate
the transactions contemplated by this Agreement. This
Agreement does not, and the performance or observance by the
Company of any of the matters and things herein provided will
not constitute an event of default or event which with the
lapse of time, the giving of notice or both would constitute
an event of default under any other agreement to which the
Company is a party or by which it is bound.
4.1.2 None of the information or representations provided by the
Company to Lloyds, whether in written, oral or electronic
form, including the information provided in this Agreement,
contained any misrepresentations of any material facts or
omitted any material facts necessary to keep the information
not misleading. None of the information the Company will
provide in the future to Lloyds, whether in written, oral or
electronic form, will contain any misrepresentations of any
material facts or omit any material facts necessary to keep
the information not misleading.
4.1.3 The Company is a duly organized and validly existing
corporation under the laws of the State of New York. The
Company is duly qualified and in good standing in every
jurisdiction in which any property owned, leased or operated
by it or the nature of the business conducted by it, if any,
makes such qualification necessary to avoid material
liability or material interference in its business
operations, and is not subject to any agreement, commitment
or understanding which restricts or may restrict the conduct
of its business in any jurisdiction or location. All of the
Company's outstanding debt or equity securities were issued
in full compliance with all applicable federal and state
securities laws.
4.1.4 Except as disclosed to Lloyds in writing on Schedule 4.1(d),
the Company has duly reported, fully paid and discharged all
federal, state, foreign, county and local income, profits,
franchise, occupation, property, sales, use, gross receipts
and other taxes (including any interest or penalties relating
thereto) and assessments which are due and
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payable by the Company, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of
the Company, except as have been incurred in the normal
course of business of the Company. The Company has filed all
tax returns of any kind required to be filed and has paid or
accrued any taxes due. If such taxes have been accrued, the
Company has sufficient funds segregated to pay such taxes.
4.1.5 The Board has authorized the execution and performance of this
Agreement and the issuance of the Shares. In addition, the
Board has authorized the additional Board seats, with the new
directors to be nominated by Lloyds, subject to the formal
approval of the existing Board members, which approval shall
not be unreasonably withheld.
SECTION 5 COVENANTS
5.1. From the date hereof and so long as any payment to Lloyds or its
clients remains due or Lloyds or its clients own any equity securities
of the Company, the Company covenants and agrees that:
5.1.1. Preservation of Existence. The Company will preserve and keep
in full force and effect its existence as a corporation under
the laws of the State of New York and its qualification to do
business in good standing in New York and will not amend or
modify or permit the amendment or modification of its
certificate of incorporation under which it is formed in any
manner without the express written consent of Lloyds.
5.1.2. Inspection of Records. The Company will permit Lloyds or its
representatives at all reasonable times, and as often as
Lloyds may reasonably request, to examine and copy all books
and records and other papers relating to the organization or
business of the Company.
Section 6 EVENTS OF DEFAULT
6.1. The following Events of Default will trigger immediate return of the
amounts advanced to the Company up to the date of the Default and will
cease any further obligations to make advances under this Agreement:
6.1.1. Any material misrepresentation by the Company, its officers,
directors, employees, consultants or affiliates to Lloyds.
6.1.2. The final determination of any legal action against the
Company or its management by any shareholder or creditor, or
by any other party arising from any fraud or misrepresentation
by the Company or its officers or directors.
SECTION 7 MISCELLANEOUS PROVISIONS
7.1. Notices. All communication regarding this Agreement shall be in writing
and shall be deemed to be given or made when served personally or when
deposited in the United States mail addressed, if to the Company at 000
Xxxxx Xxxxxx, XX, XX 00000, Attention: Chief Executive Officer, or if
to the Lloyds, at Xxxxxxx Xxxxxx, Xxxxx 000, X.X. Xxx X-0000, Nassau,
N.P., the Bahamas, Attention X. X. Xxxxxxx, Managing Director, or at
such other address as shall be designated by any party hereto in
writing to the other party delivered pursuant to this paragraph.
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7.2. Default. Should either party hereto default in any of the covenants,
conditions, or promises contained herein, the defaulting party shall
pay all costs and expenses, including a reasonable attorney's fee,
which may arise or accrue therefrom, or in pursuing any remedy provided
hereunder or by the statutes of any state.
7.3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto, their successors and assigns.
7.4. Holidays. If any obligation or act required to be performed hereunder
shall fall due on a Saturday, Sunday or other day which is a legal
holiday established by the State of New York, such obligation or act
may be performed on the next succeeding business day with the same
effect as if it had been performed upon the day appointed.
7.5. Computation of Time. The time in which any obligation or act provided
by this Agreement is to be performed is computed by excluding the first
day and including the last, unless the last day is a holiday, in which
event such day shall also be excluded.
7.6. Partial Invalidity. If any term, covenant, condition or provision of
this Agreement or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable, the remainder of this
Agreement or application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant,
condition or provision of this Agreement shall be valid and shall be
enforceable to the fullest extent permitted by law.
7.7. No Other Agreements. This Agreement constitutes the entire Agreement
between the parties and there is and will be no oral representations
that will be binding upon any of the parties hereto.
7.8. Rights are Cumulative. The rights and remedies granted to the parties
hereunder shall be in addition to and cumulative of any other rights or
remedies either may have under any document or documents executed in
connection herewith or available under applicable law. No delay or
failure on the part of a party in the exercise of any power or right
shall operate as a waiver thereof nor as an acquiescence in any default
nor shall any single or partial exercise of any power or right preclude
any other or further exercise thereof or the exercise of any other
power or right.
7.9. Waiver. None of the provisions hereof may be changed, waived,
terminated or discharged orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver,
termination or discharge is sought.
7.10. Survival of Covenants, Etc. All covenants, representations, and
warranties made herein to any parties or in any statement or document
delivered to any party hereto, shall survive the making of this
Agreement and shall remain in full force and effect until the
obligations of such party hereunder have been fully satisfied.
7.11. Further Action. The parties hereto agree to execute and deliver such
additional documents and
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to take such other and further action as may be required to carry out
fully the transaction(s) contemplated herein.
7.12. Headings. The descriptive headings of the various Sections or parts of
this Agreement are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
7.13. Counterparts. This Agreement may be executed in two or more partially
or fully executed counterparts, each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument, provided that Purchaser
shall have no obligations hereunder until all Shareholders have become
signatories hereto.
7.14. For this Agreement to be effective, the Company must sign and return a
signed copy by mail, courier or facsimile (215-790-0509) to Lloyds'
attorney, Xxxxxxxxxxx X. Xxxxxxxx, Esq., 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxxxx, 00000.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Funding
Agreement as of the day and year first above written.
LLOYDS BAHAMAS SECURITIES, LTD.
By: /s/ X.X. XXXXXXX
-----------------------------------
X. X. Xxxxxxx, Managing Director
SELECT MEDIA COMMUNICATIONS, INC.
By: /s/ XXXXX XXXXXXXXX
-----------------------------------
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ADDENDUM TO FUNDING AGREEMENT
This Addendum to the Funding Agreement between Select Media and Lloyds
is made this 1st day of November, 1999. Unless otherwise noted, all terms
capitalized in this Addendum have the same meaning as in the Funding Agreement.
The parties hereby amend the Funding Agreement as follows:
1. In exchange for its initial $1,000,000 in funding,
Lloyds or its designee will receive 4,500,000 New Shares.
2. Select will authorize a 1 for 300 reverse stock split
for its Common Stock, effective as soon as practicable.
3. Select will arrange to renew its listing with
Standard & Poors as soon as possible, at Select's sole expense.
4. Select will arrange to file a Form 10-SB Registration
Statement, including audited financial statements as soon as possible, but
Select will not file any documents without the consent of Lloyds.
Except as specifically amended above, all other terms, conditions,
representations and warranties found in the Funding Agreement remain in full
force and effect.
Executed this 1st day of November, 1999.
Select Media Communications, Inc.
By: /S/ XXXXX XXXXXXXXX
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Lloyds Bahamas Securities, LTD
By: /S/ X. X. XXXXXXX
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FUNDING AGREEMENT
This Agreement, entered into this 15th day of January, 2000 by and
between Lloyds Bahamas Securities, Ltd. (hereinafter "Lloyds") and Select Media
Communications, Inc., a New York corporation (hereinafter the "Company").
RECITALS
WHEREAS, Company is seeking funding through sale shares of its Common
Stock to investors for use in the business of Company; and
WHEREAS, Lloyds has identified such investors (the "Investors") who are
willing to invest sums in the Company under the terms set forth below;
NOW, THEREFORE, in consideration of the mutual terms and conditions;
set forth below, and intending to be legally bound, the parties hereto agree as
follows:
SECTION 1 INVESTMENT
1.01 Amount. Subject to the terms stated herein, the Investors
shall purchase up to 4,000,000 shares of Common Stock of the
Company ("Shares") for a price of $0.50 per Share (up to
$2,000,000 in the aggregate) (the "Investment"). The Investors
will fund the Company on an as-needed basis from the date
hereof until June 30, 2000. Lloyds, as agent of the Investors,
will advance funds to the Company as needed for cash flow
purposes or expenses, which will be credited to the
Investment. At any time the Company needs funds, Lloyds, as
agent of the Investors has the option of providing or not
providing funding on the terms of this Agreement.
1.02 Disbursal of Funds. Disbursal of the Investment shall occur
as needed by the Company.
SECTION 2 USE OF PROCEEDS
The Company will use the proceeds of this Investment for
working capital and general business expenses. At each requested funding, the
Company will disclose the particular uses and Lloyds has the option of providing
the funding in its discretion.
SECTION 3 REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to Lloyds that all the
representations and warranties heretofore made to Lloyds or
any Investors are still in full force and effect.
SECTION 4 MISCELLANEOUS PROVISIONS
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4.01 Notices. All communication provided for herein shall be in
writing and shall be deemed to be given or made when served
personally or when deposited in the United States mail
addressed to the addresses appearing on the signature page of
this Agreement, or at such other addresses as shall be
designated by any party hereto in written notice to the other
party hereto delivered pursuant to this paragraph.
4.02 Default. Should either party hereto default in any of the
covenants, conditions, or promises contained herein, the
defaulting party shall pay all costs and expenses, including a
reasonable attorney's fee, which may arise or accrue
therefrom, or in pursuing any remedy provided hereunder or by
the statutes of any state.
4.03 Assignment. The Company may not assign this Agreement or any
related documents in whole or in part without the prior
written consent of Lloyds.
4.04 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their
successors and assigns.
4.05 Holidays. If any obligation or act required to be performed
hereunder shall fall due on a Saturday, Sunday or other day
which is a legal holiday established by the State of Florida,
such obligation or act may be performed on the next succeeding
business day with the same effect as if it had been performed
upon the day appointed.
4.06 Computation of Time. The time in which any obligation or act
provided by this Agreement is to be performed is computed by
excluding the first day and including the last, unless the
last day is a holiday, in which event such day shall also be
excluded.
4.07 Partial Invalidity. If any term, covenant, condition or
provision of this Agreement or the application thereof to any
person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or application
of such term or provision to persons or circumstances other
than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term,
covenant, condition or provision of this Agreement shall be
valid and shall be enforceable to the fullest extent permitted
by law.
4.08 No Other Agreements. This Agreement constitutes the entire
Agreement between the parties and there are and will be no
oral representations which will be binding upon any of the
parties hereto.
4.09 Rights are Cumulative. The rights and remedies granted to the
parties hereunder shall be in addition to and cumulative of
any other rights or remedies either may have under any
document or documents executed in connection herewith or
available under applicable law. No delay or failure on the
part of a party in the exercise of any power or right shall
operate as a waiver thereof nor as an acquiescence in any
default nor shall any single or partial exercise of any power
or right preclude any other or further exercise thereof or the
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exercise of any other power or right.
4.10 Waiver. None of the provisions hereof may be changed, waived,
terminated or discharged orally, but only by an instrument in
writing signed by the party against whom enforcement of the
change, waiver, termination or discharge is sought.
4.11 Survival of Covenants, Etc. All covenants, representations,
and warranties made herein to any parties or in any statement
or document delivered to any party hereto, shall survive the
making of this Agreement and shall remain in full force and
effect until the obligations of such party hereunder have been
fully satisfied.
4.12 Further Action. The parties hereto agree to execute and
deliver such additional documents and to take such other and
further action as may be required to carry out fully the
transaction(s) contemplated herein.
4.13 Headings. The descriptive headings of the various Sections or
parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions
hereof.
4.14 Counterparts. This Agreement may be executed in two or more
partially or fully executed counterparts, each of which shall
be deemed an original and shall bind the signatory, but all of
which together shall constitute but one and the same
instrument, provided that Purchaser shall have no obligations
hereunder until all Shareholders have become signatories
hereto.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement
as of the day and year first above written.
LLOYDS BAHAMAS SECURITIES, LTD. SELECT MEDIA COMMUNICATIONS, INC.
By: /S/ XXXXXX XXXXXXX By: /S/ XXXXX XXXXXXXXX
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Xxxxxx Xxxxxxx, Managing Director Xxxxx Xxxxxxxxx, President
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