PURCHASE AGREEMENT AND ASSIGNMENT
THIS PURCHASE AGREEMENT AND ASSIGNMENT ("Agreement") is made and
entered into this 4th day of April, 2000 by and between (a) Home Line Talk
Radio, Inc., a Texas corporation (the "Corporation"), Xxx Xxxxxxx ("Xxxxxxx")
and Xxxxxxx Xxxxxxxx ("Pizalate ") (each of the Corporation, Neidner and
Pizalate is referred to hereinafter singly, as a "Seller" and collectively, as
the "Sellers"), on the one hand, and (b) JVWeb, Inc., a Delaware corporation
("Purchaser"), on the other hand.
RECITALS:
WHEREAS, the Corporation is the sole owner of a radio talk show now
know as "Homeline Talk Radio Show," and the title, format, concept, ideas, and
all other rights, interests, elements, characteristics and incidents, pertaining
thereto (collectively, the "Show"); and
WHEREAS, each Seller desires to sell and transfer to Purchaser, and
Purchaser desires to purchase and acquire from Sellers, full right, title and
interest in and to the Show and the "Related Property" (as defined herein),
subject to no liens, security interests, encumbrances, claims, charges or
restrictions on the transfer thereof, all upon and subject to the terms,
provisions and conditions set forth herein;
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants, agreements, representations and warranties set forth
hereinafter, and subject to the terms, provisions and conditions hereof, the
parties hereto agree as follows:
ARTICLE ONE
SALE AND PURCHASE
1.1 Sale and Purchase. In consideration of the purchase price provided
for in Section 1.3 hereof and without any further act or deed, each Seller
hereby sells, assigns, transfers and conveys to Purchaser, and Purchaser hereby
purchases and receives from each Seller, full right, title and interest of every
kind and nature in and to the Show and the Related Property (free and clear of
any and all liens, security interests, encumbrances, claims, charges and
restrictions on transfer). The Related Property includes all of the following,
as well as those items listed on Schedule 1.1 hereto:
(a) All of the copyrights, business names (including, without
limitation, the title of the Show), registered designs, trademarks,
trade names, service marks, patents, and applications and registrations
thereof, and any and all other intangible rights whatsoever used in
connection with the Show and the goodwill of the business symbolized by
such copyrights, business names, registered designs, trademarks, trade
names, service marks, and patents; and all of the trade secrets and
confidential know-how used in connection with the Show; and
(b) All rights, titles and interests in and to prior episodes
of the Show, including those described on Schedule 1.1 hereto under the
caption "PRIOR EPISODES", which items are referred to hereinafter as
the "Prior Episodes", including, without limitation, all rights, titles
and interests in and to all intellectual property comprising the Prior
Episodes and in and to all tangible mediums on which the Prior Episodes
have been recorded; and
(c) The sole and exclusive right to produce new episodes of
the Show (which are referred to hereinafter as the "New Episodes") and
to record, or to authorize others to record, the New Episodes by means
of electromagnetic tapes, film, video tape or any other means now or
hereafter known; and
(d) The sole and exclusive right to, or to authorize others
to, broadcast, remake, project, transmit, televise, perform, exhibit,
distribute, exploit, sell, license for exhibition, dispose of and
generally deal in any manner with, the Prior Episodes and live or
recorded versions of New Episodes, or any part of any Prior Episode or
New Episode, by radio, webcast, television, phonovision and any other
process or means now or hereafter; and
(e) The sole and exclusive rights to translate into all
languages; to make any and all changes in the Show and its title, theme
and content; to freely adapt, revise, rearrange, modify, interpolate,
add to or subtract from any or all Prior Episodes or New Episodes, or
any part thereof, and the contents thereof; to make sequels to and new
versions or adaptations of any or all Prior Episodes or New Episodes,
or any part thereof; to make serials or series (alone or in combination
with one or more programs based on other material) of any or all Prior
Episodes or New Episodes, or any part thereof; to use any part or parts
of any or all Prior Episodes or New Episodes or the content theme
thereof in conjunction with any other material or materials; and to
separately or cumulatively do any or all of the foregoing, to such
extent as Purchaser in Purchaser's sole discretion may deem expedient
or desirable; and
(f) The sole and exclusive right to secure copyright
registration (or equivalent protection in countries where no copyright
law exists) of New Episodes, and any other versions or adaptations of
any or all Prior Episodes or New Episodes, in all countries of the
world under any now existing or hereafter created laws, regulations or
rules, in the name of Purchaser or any other person, firm or
corporation; and
(g) The sole and exclusive right, for the purpose of
promoting, advertising and exploiting the Show, to make, exhibit and
market, or cause to be made, exhibited and marketed, all forms of
promotional and advertising materials based upon or adapted from the
Show or any broadcast thereof, and to copyright the same in the name of
Purchaser or its licensees; and
(h) The non-exclusive right to use Neidner's name and
likeness in connection with promoting, advertising and exploiting
the Show until the end of the term provided for in his employment
agreement with xXxxxxxxx.xxx, Inc. (the "Employment Agreement"); and
(i) The sole and exclusive right to license or sublicense to
others all or any of the rights sold or granted pursuant to this
Agreement; and
(j) All rights of each Seller in, to and under any and all
contracts, agreements, commitments, leases, licenses, franchises, and
permits relating to the Show (including, without limitation, those
pertaining to suppliers, customers, employees, equipment, and motor
vehicles), including those items described on Schedule 1.1 hereto under
the caption "CONTRACTS", which items are referred to hereinafter as the
"Contracts"; and
(k) Copies of all records relating to the Show in whatever
form (originals of which the Corporation may retain), including
accounting records, tax records, property records, personnel records,
and credit records, and all of the Corporation's customer lists,
supplier lists, catalogs, and brochures; and
(l) All accrued, but unbilled or (in the case of contracts
which involve no billing) uncollected, amounts owed to the Corporation
under any agreement or contract that the Corporation has with any
advertiser or sponsor, including those amounts described on Schedule
1.1 hereto under the caption "ACCRUED AMOUNTS".
1.2 Scope, Duration and Manner of Use of Rights. Purchaser shall have,
own and enjoy the rights sold pursuant to Section 1.1 above throughout the
entire world in perpetuity. Purchaser shall have the right to use and exercise
such rights without restriction or limitation of any kind, even though such use
and enjoyment may compete or interfere with the use and enjoyment of any rights
of any Seller not sold pursuant hereto. Purchaser may use any of such rights
singly or in combination, or together with other rights independently acquired.
The enumeration of the Related Rights shall not be deemed to restrict or limit
in any way the generality of the sale and grant made herein.
1.3 Purchase Price and Payment Thereof. The aggregate purchase price
for the Show and the Related Rights is 200,000 registered shares of the common
stock of Purchaser ("Common Stock") issued in the name of the Corporation. Each
Seller hereby acknowledges that the Corporation received a stock certificate
issued in its name representing such shares.
1.4 No Obligation to Produce. Purchaser intends to use the rights sold
and granted to it pursuant to Section 1.1 above. However, nothing herein
contained shall be interpreted or construed to obligate Purchaser to produce the
Show, or exercise any of the other rights, licenses or privileges herein
conveyed. In no event shall the Show, the Related Rights or any of them revert
to any Seller for Purchaser's failure of use.
1.5 Assumed Liabilities. Purchaser does not hereby or otherwise assume
and shall not be obligated to pay, perform or discharge any obligation,
liability or debt of any Seller whether written or oral, existing or contingent,
except for obligations accruing after the date hereof (but not obligations,
liabilities or debts accrued as of the date hereof) with respect to the
Contracts. Each Seller hereby agrees to pay, perform or discharge after the date
hereof all of such Seller's obligations, liabilities and debts relating to the
Show and the Related Property not expressly assumed by Purchaser in this Section
1.5.
1.6 Control Over Production. All decisions in connection with the
exploitation of the Show and the Related Rights (including, without limitation,
the creative, production and business decisions) shall be made by and in the
sole discretion of Purchaser and/or its designee, and no Seller shall have any
control, right of consultation or decision-making authority whatsoever.
ARTICLE TWO
REPRESENTATIONS, WARRANTIES, AND
AGREEMENTS OF SELLERS
Each Seller hereby represents, warrants and agrees, jointly and
severally, to and with Purchaser that (except as expressly set forth on a
disclosure schedule attached hereto and signed by Purchaser):
2.1 Organization and Standing of the Corporation. The Corporation is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Texas. The Corporation has full requisite corporate power
and authority to carry on its business as it is now being conducted, and to own,
operate, and lease the properties now owned, operated, or leased by it. The
Corporation is duly authorized and qualified to carry on its business in the
manner as now conducted in state in which authorization and qualification is
required. The Corporation has made available to Purchaser true, correct and
complete copies of the corporate authorization for the sale of the Show and
Related Rights, and such other contents of its minute book as Purchaser has
reasonably requested.
2.2 Capacity to Enter into Agreement. Each Seller has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform such
its obligations hereunder and thereunder. The execution and delivery by the
Corporation of this Agreement and all other agreements, documents and
instruments to be executed by the Corporation in connection herewith have been
authorized by all necessary corporate action by the Corporation. When this
Agreement and all other agreements, documents and instruments to be executed by
a Seller in connection herewith are executed by a Seller and delivered to
Purchaser, this Agreement and such other agreements, documents and instruments
will constitute the valid and binding agreements of such Seller enforceable
against such Seller in accordance with their respective terms. When this
Agreement is executed and delivered to Purchaser, this Agreement will vest in
Purchaser full right, title and interest in and to the Show and Related Rights,
free and clear of any and all encumbrances, security interests, liens, charges,
claims, restrictions or limitations, whatsoever, by any person of any kind,
including those on the transfer thereof, whether known or unknown.
2.3 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
any Seller is a party or by which any Seller is bound or by which any of the
Show or Related Rights is bound or affected, (b) violate any judgment against,
or binding upon, any Seller or upon any of the Show or Related Rights, (c)
result in the creation of any lien, charge or encumbrance upon any of the Show
or Related Rights pursuant to the terms of any such contract, or (d) violate any
provision in the charter documents, bylaws or any other agreement affecting the
governance and control of the Corporation.
2.4 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by any
Seller.
2.5 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of any Seller, threatened against any Seller by persons not
a party to this Agreement wherein an unfavorable decision, ruling, or finding
would render unlawful or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
2.6 Financial Statements. Sellers have delivered to Purchaser copies of
the following financial statements (hereinafter collectively referred to as the
"Financial Statements"): an interim balance sheet of the Corporation as of March
31, 2000 (the "Balance Sheet"), an interim statement of income for the
Corporation for the three-month period ended March 31, 2000 and other historical
financial information. The Financial Statements are complete and correct,
present fairly the financial condition of the Corporation as at the respective
dates thereof, and the results of operations for the respective periods covered
thereby, and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis. There is no basis for the assertion of
any liabilities or obligations, either accrued, absolute, contingent, or
otherwise, which might adversely affect Purchaser's ownership of the Show or
Related Rights or the value, use, operation or enjoyment of the Show or Related
Rights by Purchaser which is not expressly set forth on the Balance Sheet. The
Corporation is not a party to or bound either absolutely or on a contingent
basis by any agreement of guarantee, indemnification, assumption or endorsement
or any like commitment of the obligations, liabilities or indebtedness of any
other person (whether accrued, absolute, contingent or otherwise).
2.7 Absence of Certain Changes and Events. Since the date of the
Balance Sheet, there has not been:
(a) Financial Change. Any adverse change in the financial
condition, operations, business prospects, employee relations, customer
relations, assets, liabilities (accrued, absolute, contingent, or otherwise) or
income of the Corporation, or the business of the Corporation, from that shown
on the Financial Statements, except that the figures for current cash balance,
accounts receivable and deposits have been reduced to zero;
(b) Incurrence of Debt. Any borrowing of, or agreement to
borrow any funds or any debt, obligation, or liability (absolute or contingent)
incurred by the Corporation (whether or not presently outstanding) except
current liabilities incurred, and obligations under agreements entered into in
the ordinary course of business;
(c) Creation of Liens. Any mortgage, pledge, lien, security
interest, charge, claim or other encumbrance created on or in any of the
Corporation's properties or assets, except liens for current taxes not yet due
and payable;
(d) Assets. Any sale, assignment, or transfer of the
Corporation's assets, except in the ordinary course of business, any
cancellation of any debts or claims owed to the Corporation, any capital
expenditures or commitments therefor exceeding in the aggregate $5,000, any
damage, destruction or casualty loss exceeding in the aggregate $5,000 (whether
or not covered by insurance), or any charitable contributions or pledges, except
for the reduction of current cash balances, accounts receivable and deposits to
zero;
(e) Material Contracts. Any amendment or termination of any
contract, agreement, license, or arrangement to which the Corporation is or was
a party or to which any properties or assets are or were subject, which
amendment or termination has had, or may be reasonably expected to have, an
adverse effect on the financial condition, properties, assets, liabilities
(accrued, absolute, contingent, or otherwise), or income of the Corporation, or
the business of the Corporation; or
(f) Other Material Changes. Any other material transaction by
the Corporation outside the ordinary course of business or any other event or
condition pertaining to, and adversely affecting the operations, assets,
liabilities (accrued, absolute, contingent, or otherwise) or income of the
Corporation, or the business of the Corporation.
2.8 Assets. The Sellers are the sole owners of all rights, titles and
interests in and to the Show and the Related Rights, free and clear from all
liens, security interests, encumbrances, claims, charges or restrictions on the
transfer thereof. The title of the Show has been at all times used by the
Corporation in connection with the Show, and the Corporation's right to such use
has at no time been questioned or challenged. No Seller has heretofore made any
grant, license, sale, assignment or other transfer, nor done or caused or
permitted to be done any act or thing, whereby any of the rights herein granted
and sold or agreed to be granted or sold have been or may be in any way
impaired. No Seller shall hereafter make any such inconsistent agreement, grant,
conveyance, license, sale, assignment, or other transfer. No part of the Show or
Related Rights has been taken from or based upon any other copyrighted work.
Purchaser's acquisition of the Show and the Related Rights will not in any way,
directly or indirectly, infringe upon the rights of any individual, firm or
corporation including, without limitation, rights of copyright or trademark.
Purchaser's broadcast of the Show will not constitute a libel, slander, or
violation of the privacy of any individual, firm or corporation. There are no
claims, litigation or other proceedings in effect, pending or threatened, which
could in any way impair, limit or diminish the rights sold to Purchaser
hereunder.
2.9 Contracts. The Contracts constitute all contracts, agreements,
commitments, leases, licenses, franchises, and permits (including, without
limitation, those pertaining to suppliers, customers, employees, equipment, and
motor vehicles) of the Corporation. All Contracts are in good standing, valid,
and effective. There is not, under any Contract any existing or prospective
default or event of default by the Corporation or event which with notice or
lapse of time, or both would constitute a default and in respect to which the
Corporation has not taken adequate steps to prevent a default from occurring;
and, to the knowledge of each Seller, no other party to any Contract is in
default or breach thereof nor has any event occurred which with notice or lapse
of time would constitute a breach or default of any of the Contracts.
2.10 Permits. Schedule 2.10 contains a listing and summary description
of all licenses, permits, registrations, and authorizations held by the
Corporation. The Corporation holds all licenses, permits, registrations, and
authorizations required to carry on its business and all licenses, permits,
registrations, and authorizations are in good standing. The Corporation is in
full compliance with and not in default or violation with respect to any term or
provision of any of its licenses, permits, registrations, and authorizations. No
notice of pending, threatened, or possible violation or investigation in
connection with, or loss of, any license, permit, registration, or authorization
of the Corporation, has been received by the Corporation. No Seller has any
knowledge that the issuance of such a notice is being considered or of any facts
or circumstances which form the basis for the issuance of such a notice. No
license, permit, registration, or authorization of the Corporation is affected
by the transactions provided for herein or contemplated hereby.
2.11 Intellectual Property. Schedule 2.11 contains a listing and
summary description of all of the Corporation's patents, trademarks, service
marks, trade names, business names, copyrights, and registered designs, and
applications and registrations thereof, trade secrets and confidential know-how,
including, but not limited to, product formulations, drawings, technical
specifications, manufacturing data, and test and development data (the foregoing
intellectual property is collectively referred to hereinafter as the
"Intellectual Property"). The Corporation possesses all Intellectual Property
necessary to the conduct of its businesses, and the loss or expiration of any of
the Corporation's Intellectual Property or group of the Corporation's
Intellectual Property would not have an adverse effect on the conduct of its
businesses. No such loss or expiration is threatened, pending or reasonably
foreseeable. Except as indicated on Schedule 2.11, (a) the Corporation owns all
right, title, and interest in and to all of its Intellectual Property, (b) there
have been no claims made against the Corporation for the assertion of the
invalidity, abuse, misuse, or unenforceability of any of such rights, and there
are no grounds for the same, (c) no Seller has received a notice of conflict
with the asserted rights of others within the last five years, and (d) the
conduct of the Corporation's business has not infringed any Intellectual
Property of others and, to the best of the knowledge of each Seller, the
Intellectual Property of the Corporation has not been infringed by other
persons.
2.12 Compliance with Law. The Corporation is in violation of, or in
default with respect to, or in alleged violation of or alleged default with
respect to, any applicable law, rule, regulation, permit, or any writ or decree
of any court or any governmental commission, board, bureau, agency, or
instrumentality, including without limitation, any laws, ordinances, rules,
regulations, permits, or orders relating to the business of the Corporation, or
the business operations and practices, health and safety, and employment
practices of the Corporation. The Corporation is not delinquent with respect to
any report required to be filed with any governmental commission, board, bureau,
agency, or instrumentality, or with any trade association or certification
organization that has in the past certified or endorsed the business of the
Corporation. The Corporation is not delinquent with respect to any reports
required by private covenants or agreements to which it is a party.
2.13 Successor Liability. Purchaser shall have no successor
liability for any liability of any Seller as a result of the acquisition of the
Show and Related Property.
2.14 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by each Seller, and its
counsel directly with Purchaser and its counsel, without the intervention of any
other person as the result of any act of any of them, and as far as is known to
any Seller, without the intervention of any other person in such manner as to
give rise to any valid claim against any of the parties hereto for a brokerage
commission, finder's fee, or any similar payment.
2.15 Untrue Statements. This Agreement, the schedules and exhibits
hereto, and all other documents and information furnished by any Seller or its
representatives pursuant hereto or in connection herewith do not include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements made herein and therein not misleading or otherwise.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES, AND
AGREEMENTS OF PURCHASER
Purchaser hereby represents, warrants and agrees to and with each
Seller that (except as expressly set forth on a disclosure schedule attached
hereto and signed by each Seller):
3.1 Organization and Standing of Purchaser. Purchaser is a corporation
duly organized, validly existing, and in good standing under the laws of the
state of Delaware. Purchaser has full requisite corporate power and authority to
carry on its business as it is now being conducted, and to own, operate, and
lease the properties now owned, operated, or leased by it. Purchaser is duly
authorized and qualified to carry on its business in the manner as now conducted
in state in which authorization and qualification is required. Purchaser has
made available to each Seller true, correct and complete copies of the corporate
authorization for the purchase of the Show and Related Rights, and such other
contents of its minute book as Seller has reasonably requested.
3.2 Capacity to Enter into Agreement. Purchaser has full right, power
and authority to execute and deliver this Agreement and all other agreements,
documents and instruments to be executed in connection herewith and perform such
its obligations hereunder and thereunder. The execution and delivery by
Purchaser of this Agreement and all other agreements, documents and instruments
to be executed by Purchaser in connection herewith have been authorized by all
necessary corporate action by Purchaser. When this Agreement and all other
agreements, documents and instruments to be executed by Purchaser in connection
herewith are executed by Purchaser and delivered to Purchaser, this Agreement
and such other agreements, documents and instruments will constitute the valid
and binding agreements of Purchaser or enforceable against Purchaser in
accordance with their respective terms.
3.3 Conflicts. The execution, delivery, and consummation of the
transactions contemplated by this Agreement will not (a) violate, conflict with
or result in the breach or termination of, or otherwise give any other
contracting party the right to terminate, or constitute a default (by way of
substitution, novation or otherwise) under the terms of, any contract to which
Purchaser is a party or by which Purchaser is bound or by which any of the
assets of Purchaser is bound or affected, (b) violate any judgment against, or
binding upon, Purchaser or upon the assets of Purchaser, (c) result in the
creation of any lien, charge or encumbrance upon any assets of Purchaser
pursuant to the terms of any such contract, or (d) violate any provision in the
charter documents, bylaws or any other agreement affecting the governance and
control of Purchaser.
3.4 Consents. No consent from, or other approval of, any governmental
entity or any other person, which has not been obtained, is necessary in
connection with the execution, delivery, or performance of this Agreement by
Purchaser.
3.5 Litigation. There is no action, suit, proceeding, or claim pending
or, to the knowledge of Purchaser, threatened against Purchaser by persons not a
party to this Agreement wherein an unfavorable decision, ruling, or finding
would render unlawful or otherwise adversely affect the consummation of the
transactions contemplated by this Agreement.
3.6 Finder's Fees. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried on by Purchaser and its
counsel directly with the Sellers, and their counsel, without the intervention
of any other person as the result of any act by Purchaser, and so far as is
known to Purchaser, without the intervention of any other person in such manner
as to give rise to any valid claim against any of the parties hereto for a
brokerage commission, finders' fee, or any similar payment.
ARTICLE FOUR
ADDITIONAL AGREEMENTS
4.1 Further Assurances. At any time after the date hereof, each Seller
shall execute and deliver such other documents, and take such other actions, as
may be reasonably requested by Purchaser to complete the transactions
contemplated by this Agreement, and to perfect in Purchaser title to the Show
and Related Rights as contemplated herein.
4.2 Consents. Each Seller shall use its best efforts to assist in
obtaining any third party consents necessary to sell to Purchaser the Show and
Related Rights (including, without limitation, the Contracts). To the extent
that any of the Show and Related Rights are not assignable without the consent
of another party and such consent has not been obtained on or prior to the date
hereof, such Show and Related Rights shall not be assigned or attempted to be
assigned if such assignment or attempted assignment would constitute a breach
thereof. While each Seller is trying to procure all necessary consents, each
Seller and Purchaser shall cooperate in any reasonable arrangements designed to
provide to Purchaser the benefits of the Show and Related Rights, including
enforcement at the cost and for the account of Purchaser of any and all rights
of a Seller against the other party thereto arising out of a cancellation or
breach by such other party or otherwise. Notwithstanding the preceding,
Purchaser hereby acknowledges and accepts that Sellers have not and will not
obtained any required written consents of KPRC to the Corporation's assignment
of its contract with KPRC. Nevertheless, Purchaser agrees to reimburse Sellers
on the first day of each month during the term of such contract for the payments
made by Sellers to KPRC during such month pursuant to such contract to the
extent that Purchaser received the benefits of such contact during such month.
4.3 Employees. Each Seller hereby acknowledges that Purchaser has not
agreed to employ any employee of or any other person associated with the
Corporation except as provided in Section 4.6 below, and the Corporation hereby
agrees to satisfy all of its obligations with respect to each such employee and
other person.
4.4 Successor Liability and Taxes. Sellers have given to Purchaser
assurances satisfactory to Purchaser in its sole discretion that Purchaser will
have no successor liability for any liability of any Seller as a result of the
acquisition of the Show and Related Property. Sellers agree to pay timely all
taxes resulting from the sale of the Show and Related Property.
4.6 On-Air Host. Neidner hereby agrees that, from the date of this
Agreement until the expiration of the term provided for in the Employment
Agreement, he shall continue to serve as the host of the Show. In this
connection, Neidner agrees to use reasonable and his best efforts, and to
perform in a competent manner. Neidner's obligations in this connection shall be
comparable to the amount of time and work that he has heretofore devoted to the
Show.
4.7 Non-Compete Agreement.
(a) Agreement. In consideration of 75,000 registered shares of
Common Stock (referred to hereinafter as the "Non-Compete Shares"), for
a period of three years after the date hereof, Neidner shall not,
directly or indirectly, acting alone or as a member of a partnership,
or as an officer, director, shareholder, employee, consultant, or
representative of any corporation or in any other capacity with any
other business entity: (i) engage in the production of any radio,
webcast, television, video or other media show featuring subject matter
pertaining to home, garden or lawn issues (such activity is referred to
hereinafter as the "Restricted Activity") anywhere in the entire world
(such area is referred to hereinafter as the "Restricted Area"),
Neidner hereby acknowledging that Purchaser's proposed media broadcasts
are expected to be world-wide and any engagement by Neidner in the
Restricted Activity could harm the value of the Show and Related
Property being acquired by Purchaser pursuant to this Agreement; or
(ii) solicit, deal, negotiate, enter into an arrangement or contract,
or attempt to do any of the foregoing, in any manner with respect to
the Restricted Activity in the Restricted Area with respect to any
person that had a contractual relationship with the Corporation as of
the date of this Agreement, or attempt to cause any such person not to
continue the business relationship that it has heretofore had with the
Corporation.
(b) Permitted Exception. Notwithstanding the foregoing
provisions of this section, Neidner shall be permitted to (i) own up to
five percent of the publicly-traded securities, registered under
Section 12 or 15(d) of the Securities Exchange Act of 1934, of any
competitor of Purchaser, and (ii) continue to own an interest in and
fully participate in the business of xXxxxxxxx.xxx, Inc., a Delaware
corporation.
(c) Reasonableness. Neidner hereby specifically acknowledges
and agrees that the temporal and other restrictions contained in this
section are reasonable and necessary to protect the business of the
Corporation being acquired by Purchaser pursuant to this Agreement, and
that the enforcement of the provisions of this section will not work an
undue hardship on Neidner.
(d) Reformation. Neidner further agrees that in the event
either the length of time or any other restriction, or portion thereof,
set forth in Section 4.7(a) above is held to be overly restrictive and
unenforceable in any court proceeding, the court may reduce or modify
such restrictions to those which it deems reasonable and enforceable
under the circumstances and the parties agree that the restrictions of
Section 4.7(a) will remain in full force and effect as reduced or
modified.
(e) Injunctive Relief. Neidner further agrees and acknowledges
that Purchaser does not have an adequate remedy at law for the breach
or threatened breach by Neidner of the covenants contained in this
Section and Neidner therefore specifically agrees that Purchaser, in
addition to other remedies which may be available to it hereunder, may
file a suit in equity to enjoin Neidner from such breach or threatened
breach.
(f) Severability. Neidner further agrees, in the event that
any provision of Section 4.7(a) is held to be invalid or against public
policy, the remaining provisions of Section 4.7(a) and the remainder of
this Agreement shall not be affected thereby.
4.8 Lock-Up Agreement. Neidner hereby agrees that he shall not, without
the prior express written consent of Purchaser, (a) sell any Non-Compete Shares
until 90 days after the date of this Agreement, and (b) thereafter sell in any
month more than 12,500 Non-Compete Shares. Neidner hereby agrees that all
certificates representing Non-Compete Shares shall bear a restrictive legend in
order to implement the restrictions imposed by this Section.
4.9 Accounts Receivable. Sellers agree to invoice and collect, or cause
to be invoiced and collected, all amounts that accrue under the Contracts and
become owing by the other parties to the Contracts, and upon receipt of such
amounts, Sellers shall hold such amounts in trust for Purchaser and shall remit
such amounts to Purchaser as promptly after receipt as is possible. Sellers
obligations under this Section 4.9 shall commence on the date hereof and shall
continue with respect to a Contract until such Contract expires or terminates.
ARTICLE FIVE
SURVIVAL AND INDEMNITY
5.1 Survival. All of the representations, warranties, covenants, and
agreements made by the parties hereto in this Agreement or pursuant hereto,
shall be continuing and shall survive the closing hereof and the consummation of
the transactions contemplated hereby, notwithstanding any investigation at any
time made by or on behalf of any party hereto.
5.2 Indemnities Relating to Representations, Warranties and Agreements.
Each Seller, jointly and severally, on the one hand, and Purchaser, on the other
hand, shall protect, indemnify and hold harmless the other, and the other's
directors, officers, employees, agents, successors and assigns, from any and all
losses, damages, injuries, obligations, liabilities, expenses and costs
(including costs of litigation and attorney's fees), demands, claims, suits,
proceedings, actions and causes of actions arising from the breach of any
representation, warranty, covenant, agreement, or promise made by the
indemnifying party to the indemnified party herein or pursuant hereto.
ARTICLE SIX
MISCELLANEOUS
6.1 Governing Law and Jurisdiction. THIS AGREEMENT HAS BEEN ENTERED
INTO IN THE STATE OF TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS. The parties hereto stipulate and agree that
the courts of the State of Texas shall have in personam jurisdiction for any
claim, lawsuit or proceeding regarding this Agreement, and that mandatory venue
for any such claim, lawsuit or proceeding shall be in any state or federal court
having competent jurisdiction located in Xxxxxx County, Texas. The prevailing
party in any proceeding brought pursuant to or with respect to this Agreement
shall be entitled to recover from the losing party all reasonable attorneys'
fees and costs incurred by the prevailing party in connection with the
proceeding.
6.2 Notices. Any notices, requests, demands, or other communications
herein required or permitted to be given shall be in writing and may be
personally served, sent by United States mail, or sent by an overnight courier
who keeps proper records regarding its deliveries. Notice shall be deemed to
have been given if personally served, when served, or if mailed, on the third
business day after deposit in the United States mail with postage pre-paid by
certified or registered mail and properly addressed, or if sent by overnight
courier as aforesaid with charges being billed to the sender, when received by
the party being notified. As used in this Agreement, the term "business day"
means days other than Saturdays, Sundays, and holidays recognized by Federal
banks. For purposes of this Agreement, the physical addresses of the parties
hereto shall be the physical addresses as set forth on the signature pages of
this Agreement. Any party to be notified hereunder may change its physical
address by notifying each other party hereto in writing as to the new physical
address for sending notices.
6.3 Headings. The headings of the paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
modify any of the terms or provisions hereof.
6.4 Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement and the remaining
provisions of this Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement.
6.5 Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, whether written or
oral, relating to the subject matter hereof.
6.6 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each party hereto and its successors and assigns, but
neither this Agreement nor any rights hereunder may be assigned by any party
hereto without the consent in writing of the other party.
6.7 Cumulative Remedies. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies by any party
hereto shall not constitute a waiver of the right to pursue other available
remedies.
IN WITNESS WHEREOF, the parties hereto have executed and made effective
this Agreement as of the day and year first above written.
"SELLER"
HOME LINE TALK RADIO, INC.
By: /s/ Xxx Xxxxxxx
---------------------------
Name:______________________________
Title: President
--------------------------------------------
Address: #00 Xxxxxx Xxx
Xxxxxxxxxx, Xx 00000
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
Address: #00 Xxxxxx Xxx
Xxxxxxxxxx, Xx 00000
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Address: 000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xx. 00000
"PURCHASER"
JVWEB, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------
Xxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
SCHEDULE 1.1
PRIOR EPISODES
See attached list of prior episodes.
Seller has no registered copyrights, trademarks, service marks, patents or
business names.
CONTRACTS
Seller has no written contracts except of the attached agreement with KPRC radio
station.
ACCRUED AMOUNTS
See attached list.
NEIDNER
CONSTRUCTION/REMODELING INC.
00000 Xxxxxxx Xxxx, Xxxxx 0
Xxxxxxx, Xxxxx 00000
1999 National/State/Local Award Winner ?
1999 Prism Award Winner-GHBA
www.iHomeline, eom
OFFICE: 0-000-000-0000
PAGER: 1-713-76S-1695
FAX: 000-0000-0000
To: Xxxx Xxxxx
From: Xxx Xxxxxxx
Re: Recording of Homeline Shows inventory for future broadcast and editing.
Dear Xxxx:
We have two hundred and forty five taped shows.
Many of the attached tapes have another different show on the other side, which
could give us almost 325 total taped shows.
Some shows are of same subject matter at later dates during the years.
Thanks,
Xxx Xxxxxxx
Home Line Show
KPRC - Sunday's
One Hour. Show 10AM- 11 AM
Monthly Rate: $2,800
2/6/00- 2/25/00
TERMS
1. At the end of the month, Home Line Show will receive a notarized
invoice from SuperTalk KSEV reflecting the date and time of their show.
2. Home Line Show will have up to 12 - 60 commercials to air during their
l-hour program.
3. Home Line Show option to renew when contract has ended. Price to be
negotiated.
4. SuperTalk Radio reserves the right to cancel at their discretion.
All monies owed for remainder of contract will be
cancelled.
5. SuperTalk Radio will agree to promote the Home Line Show with 5- :10
second promotional ads per week.
6. SuperTalk Radio will furnish a producer for each show at no cost to
Home Line and will allow Home Line prc-recording/time in the studio.
7[ SuperTalk Radio will furnish :60-second carts needed for Home Line
commercials.
8. If Home Line has to be pre-empted for any reason, SuperTalk Radio will
make every effort to allow Home Line notice of time change for this
temporary time slot and will tell listeners of such time change.
9. SuperTalk's goal is for a long-term contract and relationship.
Total 1 Hour Show Cost: $37,440
00 Xxxxxx Xxx
Xxxxxxxxxx, Xx. 00000
4/1/00
Xxxxxx Xxxxx
Fax: 713/433/2029
Cellbar Insulation System
HOMELINE
TALK RADIO
KPRC.950
INVOICE #2OO4
281/579/3581
409/447/6896 FAX
April billing ..........4/2,4/9,4/16,4/23,4/30
One 60 second ad~ $195.00 weekly
Total
$975.00
00 Xxxxxx Xxx
Xxxxxxxxxx, Xx. 00000
HOMELINE
TALK RADIO
KPRC.950
281/579/3581
409/447/6896 FAX
April 1, 2000
Carol's Lighting & Fan Shop
0000 XX 0000 XXXXXX
Xxxxxx, Xx. 00000
FAX: 281.446-3688
INVOICE #4
April billing ..... 4/2,4/9,4/16, 4/23,4/30
One sixty second ad per show ~ $195. O0
$975.00
00 Xxxxxx Xxx
Xxxxxxxxxx, Xx 00000
4/1/00
Xxxxxx Art
Flooring Department
Neidner Construction
KPRC-950
xxx.xxxxxxxxxx.xxx
INVOICE
#4aO0
281/579/3581
409/447/6896 FAX
April Billing ..... 4/2,4/9,4/16, 4/23,4/30 One 30 sec ad per show @ $95.00
Total
$475.00
