AGREEMENT
AGREEMENT
THIS
CANCELLATION AGREEMENT (this “Agreement”), dated as
of January 27, 2009, is entered into by Entertainment Management Services, Inc.,
having its principal office at 000-000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“EMS”), and Scores Holding Company, Inc.,
having its principal office at 000-000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (“SCRH”).
WHEREAS, EMS and SCRH are
parties to the Amended and Restated Master License Agreement (the “MLA”) by and
between EMS and SCRH.
WHEREAS, both parties desire
to cancel and rescind the MLA and to mutually release each other from any and
all obligations past, present and future to each other.
NOW, THEREFORE, in
consideration of the mutual benefits to be derived from this Agreement and of
the representations, warranties, conditions, agreements and promises contained
herein and other good and valuable consideration, the parties agree as
follows:
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1.
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CANCELLATION
OF MLA.
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Effective
on the date hereof, the MLA is hereby cancelled and rescinded in its entirety,
and the obligations of each Party to the other Party shall be
terminated. The parties hereby cancel and terminate the
MLA.
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2.
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MUTUAL
RELEASE.
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Each
Party hereby releases and forever discharge the other Party and their
predecessors, successors, subsidiaries, affiliates, officers, directors,
employees, attorneys, insurers, agents, representatives and assigns, past,
present or future, from any and all claims, losses, liabilities, obligations,
suits, debts, liens, contracts, agreements, promises, demands and damages, of
any nature whatsoever, known or unknown, suspected or unsuspected, fixed or
contingent, that each party ever had, now have, or hereafter may have, related
to or arising out of the MLA.
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3.
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REPRESENTATIONS
AND WARRANTIES OF SCRH.
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SCRH
represents and warrants to EMS:
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a.
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Organization, Standing
and Power. SCRH is a company duly organized, validly
existing and in good standing under the laws of the State of Utah and
has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being
conducted.
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b.
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Authority; Binding
Agreements. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of SCRH.
SCRH has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by
SCRH and is a valid, legal and binding obligation of SCRH enforceable in
accordance with its terms.
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c.
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Conflicts;
Consents. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby or thereby nor compliance by SCRH with any of the provisions hereof
or thereof will (i) conflict with or result in a breach of the certificate
of incorporation, by-laws, shareholders’ agreement or other constituent
documents of SCRH, (ii) conflict with or result in a breach or default (or
give rise to any right of termination, cancellation or acceleration) under
any provision of any contract or agreement of any kind to which SCRH is a
party or by which SCRH is bound, (iii) violate any law, regulation,
permit, authorization, order or decree applicable to SCRH or (iv) require
any consent or approval by, or any notification of, or filing with, any
Person (governmental or private), except in the case of subclauses (ii) or
(iii) immediately preceding, those conflicts, breaches, defaults, or
violations which, individually or in the aggregate, would not have a
material adverse effect on the ability of SCRH to consummate the
transactions contemplated by this
Agreement.
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4.
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REPRESENTATIONS
AND WARRANTIES OF EMS.
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EMS
represents and warrants to SCRH as follows:
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a.
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Organization, Standing
and Power. EMS is a company duly organized, validly
existing and in good standing under the laws of the State of New York and
has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being
conducted.
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b.
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Authority; Binding
Agreements. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of EMS. EMS
has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by
EMS and is a valid, legal and binding obligation of EMS enforceable in
accordance with its terms.
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c.
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Conflicts;
Consents. Neither the execution, delivery or performance
of this Agreement nor the consummation of the transactions contemplated
hereby or thereby nor compliance by EMS with any of the provisions hereof
or thereof will (i) conflict with or result in a breach of the certificate
of incorporation, by-laws, shareholders’ agreement or other constituent
documents of EMS, (ii) conflict with or result in a breach or default (or
give rise to any right of termination, cancellation or acceleration) under
any provision of any contract or agreement of any kind to which EMS is a
party or by which EMS is bound, (iii) violate any law, regulation, permit,
authorization, order or decree applicable to EMS or (iv) require any
consent or approval by, or any notification of, or filing with, any Person
(governmental or private), except in the case of subclauses (ii) or (iii)
immediately preceding, those conflicts, breaches, defaults, or violations
which, individually or in the aggregate, would not have a material adverse
effect on the ability of EMS to consummate the transactions contemplated
by this Agreement.
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5.
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MISCELLANEOUS
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a.
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Entire
Agreement. This Agreement and the schedules and exhibits
contain the entire agreement among the parties with respect to the
transactions contemplated by this Agreement and supersede all prior
agreements or understandings among the
parties.
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b.
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Descriptive Headings;
Certain
Interpretations.
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1.
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Descriptive
headings are for convenience only and shall not control or affect the
meaning or construction of any provision of this
Agreement.
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2.
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Whenever
any party makes any representation, warranty or other statement to such
party’s knowledge, such party will be deemed to have made due inquiry into
the subject matter of such representation, warranty or other
statement.
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3.
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All
references to the singular include the plural and the plural includes the
singular as the context may
require.
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c.
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Notices. All
notices, requests and other communications to any party hereunder shall be
in writing and sufficient if delivered personally, by facsimile
transmission, sent by U.S. express mail, or a nationally recognized
overnight courier services (e.g. Federal Express) or sent by registered or
U.S. certified mail, postage prepaid, return receipt requested, addressed
as follows: (i) if to EMS to EMS’s address listed in the preamble, Attn:
Xxxxxxx Xxxxxxxx, Facsimile: (000) 000-0000; with a copy simultaneously by
like means to: Xxxxxx Xxxxxxxx, Esq., 000 Xxxx Xxxxxx, Xxxxx 000, Xxx
Xxxx, Xxx Xxxx 00000, Facsimile: 000-000-0000; and (ii) if to SCRH, to
SCRH’s address listed the preamble, Attn: Xxxxxx Xxxxx; or to such other
address or facsimile number as the party to whom notice is to be given may
have furnished to the other parties in writing in accordance
herewith. Each such notice, request or communication shall be
effective when given if delivered by hand or by facsimile transmission, or
the next business day after being given if delivered by a nationally
recognized overnight courier service or by U.S. express mail, or with
respect to all other forms of delivery, when actually delivered at the
address specified in this Section or on the fifth Business Day following
the date on which such communication is posted, whichever occurs
first.
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d.
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Counterparts. This
Agreement may be executed in any number of original, facsimile or
electronic counterparts, and each such counterpart hereof shall be deemed
to be an original instrument, but all such counterparts together shall
constitute but one agreement.
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e.
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Amendments and
Waivers. No modification, amendment or waiver, of any
provision of, or consent required by, this Agreement, nor any consent to
any departure here from, shall be effective unless it is in writing and
signed by the parties hereto. Such modification, amendment,
waiver or consent shall be effective only in the specific instance and for
the purpose for which given.
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f.
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Assignment. This
Agreement and the rights and obligations hereunder shall not be assignable
or transferable by either party without the prior written consent of the
other party. Any purported assignment not permitted by this section shall
be void.
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g.
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Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflict of laws principles. All of the parties hereto
irrevocably consent to the exclusive jurisdiction and venue of the federal
and state courts located in the State of New York, County of New York, and
all of the parties hereto irrevocably waive the right to a jury
trial.
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h.
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Legal
Invalidity. If any part or provision of this Agreement
is or shall be deemed violative of any applicable laws, rules or
regulations, such legal invalidity shall not void the Agreement or affect
the remaining terms and provisions of this Agreement, and the Agreement
shall be construed and interpreted to comport with all such laws, rules or
regulations to the maximum extent
possible.
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be executed
and delivered as of the day and year first above written.
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ENTERTAINMENT
MANAGEMENT
SERVICES,
INC.
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By:
______________________________
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Name:
______________________________
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Title:
______________________________
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By:
______________________________
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Name:
______________________________
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Title:
______________________________
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SCORES
HOLDING COMPANY, INC.
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By:
______________________________
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Name:
______________________________
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Title:
______________________________
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[ACKNOWLEDGED
AND AGREED TO AS
APPLICABLE]
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ENTERTAINMENT
MANAGEMENT
ERVICES,
INC.
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By:
______________________________
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Name:
______________________________
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Title:
______________________________
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By:
______________________________
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Name:
______________________________
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Title:
______________________________
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