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EXHIBIT 6.15.1
ACQUISITION AGREEMENT
THIS PURCHASE AGREEMENT made, entered into, and effective as of this
29th day of September, 1998, by and among MIRACOM Corporation, a Nevada
corporation ("Buyer"), MTV/Pinnacle Advertising Group, Inc., a Florida
corporation (MTV/Pinnacle) and Xxxxxxx Xxxxx and Xxxx Xxxxx, individuals (Xxxxx
and Xxxxx):
W I T N E S S E T H:
WHEREAS, Buyer wishes to acquire MTV/Pinnacle Advertising Group, Inc. as set
forth herein; and
WHEREAS, MTV/Pinnacle Advertising Group, Inc. has agreed to sell, and Buyer has
agreed to purchase MTV/Pinnacle Advertising Group, Inc. and to enter into
certain other agreements with MTV/Pinnacle Advertising Group, Inc., Xxxxx and
Xxxxx as set forth and upon the terms and conditions set forth herein below.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, the parties do hereby agree as
follow:
1. DEFINITIONS.
The following definitions shall apply herein and in all other documents
executed in connection herewith unless the contract clearly requires otherwise:
a. "ACTUAL KNOWLEDGE" shall mean those specific facts and that
specific information which is and are actually known by a person
or company. With regard to MTV/Pinnacle Advertising Group, Inc.,
the term "Actual Knowledge" shall mean, the actual knowledge of
the personnel running the day to day business of MTV/Pinnacle
Advertising Group, Inc.; provided, however, that MTV/Pinnacle
Advertising Group, Inc., Xxxxx and Xxxxx may rely upon
certificates of such personnel as to the knowledge of such
personnel concerning MTV/Pinnacle Advertising Group, Inc., its
operations and the representations and warranties contained in
this Agreement.
b. "ASSETS" shall mean and refer to those items set forth on
Exhibit "A" attached hereto and hereby made a part hereof.
c. "ASSUMED LIABILITIES" shall mean and refer to those liabilities
and obligations of MTV/PINNACLE ADVERTISING GROUP, INC. referred
to in paragraph 12 below.
d. "BEST KNOWLEDGE" shall mean that level of specific knowledge and
information of a person or company which either is actually
known or reasonably should have been known upon first, receiving
and/or obtaining actual knowledge of specific information and
facts. Second, making the same level of reasonable inquiry which
a reasonable person would be expected to make upon receiving the
same specific information and facts. With regard to MTV/PINNACLE
ADVERTISING GROUP, INC., the term "Best
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Knowledge," shall mean to the best knowledge of the personnel
running the day to day business of MTV/PINNACLE ADVERTISING
GROUP, INC.; provided, however, that MTV/PINNACLE ADVERTISING
GROUP, INC., Xxxxx and Xxxxx may rely upon certificates of such
personnel as to the knowledge of such personnel concerning
MTV/PINNACLE ADVERTISING GROUP, INC., its operations and the
representations and warranties contained in this Agreement.
e. "BUSINESS" shall mean the business currently conducted by
MTV/PINNACLE ADVERTISING GROUP, INC. of operating a full service
advertising and marketing company specializing in the retail
advertising and media buying and analysis.
f. "BUSINESS EQUIPMENT" shall mean and refer to all equipment,
automobiles, trucks and all other machinery, equipment and
personal property regularly used in the Business on the Closing
Date, whether leased or owned by MTV/PINNACLE ADVERTISING GROUP,
INC.
g. "BUSINESS FINANCIAL STATEMENTS" shall mean and refer to those
financial statements for the year 1997 (or MTV/PINNACLE
ADVERTISING GROUP, INC.'s fiscal year commencing in 1997) and
each of the calendar months thereafter ending September 30,
1998, prepared by MTV/PINNACLE ADVERTISING GROUP, INC., copies
of which are attached hereto and made a part hereof as Exhibit
"B."
h. "BUYER" shall mean and refer to MIRACOM Corporation, a Nevada
corporation.
i. "CLOSING" shall mean and refer to the consummation of the
transactions contemplated to occur on the Closing Date.
j. "CLOSING DATE" shall mean and refer to October 22, 1998 or such
later time as shall be mutually agreed by the parties.
k. "CUT OFF TIME" shall mean and refer to 11:59 p.m., October 22,
1998,
l. "XXXXX AND XXXXX EMPLOYMENT AGREEMENT" shall mean and refer to
that certain Employment Agreement attached hereto and hereby
made a part hereof as Exhibit "C."
m. "MTV/PINNACLE ADVERTISING GROUP, INC." shall mean and refer to
MTV/Pinnacle Advertising Group, Inc., a Florida Corporation.
n. "EQUIPMENT LEASES" shall mean and refer to all leases of
Business Equipment to which MTV/PINNACLE ADVERTISING GROUP, INC.
is a party either as lessor or lessee.
o. "GOODWILL" shall mean the goodwill associated with the Business
and shall include the Marks, if any.
p. "LEASE" shall mean and refer to that certain lease of real
property referred to in paragraph 10 hereof.
q. "MARKS" shall mean and refer to all patents, trademarks, service
marks, logos, trade names, copyrights, licenses, sublicenses,
fictitious names and agreements pertaining to
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any of the foregoing, and any applications for any of the
foregoing, used in the Business, all of which are listed on
Exhibit "D" attached hereto and hereby made a part hereof.
r. "MATERIAL CONTRACTS" shall mean and refer to all agreements,
whether written or oral, which relate to the Business and which
have not been fully performed prior to the Closing, including
but not limited to media orders, licenses, leases (as landlord
or tenant), indentures, loan agreements, notes, mortgages,
undertakings and any other agreements with clients, suppliers,
governmental entities, inter exchange carriers, local exchange
carriers, service bureaus, TV and radio stations, publications,
lenders, producers, directors, talent, employees, independent
contractors and any other person or entity.
s. "ORDINARY COURSE OF BUSINESS" shall mean and refer to the
ordinary course of conduct of the Business.
t. "PURCHASE PRICE" shall mean the issuance of MIRACOM stock in the
amount of 582,000 shares to Xxxxx and Xxxxx together with
employment agreements and Board seat appointment as described in
Exhibit "F."
u. "RETAINED LIABILITIES" shall mean and refer to all liabilities
and obligations of MTV/PINNACLE ADVERTISING GROUP, INC. other
than the assumed Liabilities.
v. "TRADE ACCOUNTS RECEIVABLE" shall mean and refer to all accounts
receivable owed to MTV/PINNACLE ADVERTISING GROUP, INC. as of
the Closing as a trade creditor in the Ordinary Course of the
Business. Outlined in Exhibit "E."
w. "TRADE RECEIVABLES" shall mean and refer to the Trade Accounts
Receivable listed on Exhibit "EE" attached hereto and hereby
made a part hereof, together with any and all other accounts
receivable generated by the Business.
2. PURCHASE.
At the Closing, the Assets, Goodwill and other rights set forth herein shall be
held by MTV/PINNACLE ADVERTISING GROUP, INC. and purchased by Buyer for a
purchase price as described above in Paragraph 1(t) above.
The Purchase Price shall be allocated as set forth on Exhibit "F" attached
hereto and hereby made a part hereof.
Each party shall file an IRS Form 8594, if applicable, containing such
allocations with its respective year end tax return, if applicable.
3. PURCHASE OF GOODWILL.
At the Closing, MTV/PINNACLE ADVERTISING GROUP, INC. will assign the Goodwill
to Buyer. The Goodwill shall include, but is limited to, the right of Buyer to
use all Marks associated with the business or used by MTV/PINNACLE ADVERTISING
GROUP, INC. in connection with the business. The Goodwill Shall include the
name United Equity Partners, Incorporated and all other names associated with
the business. All such names are listed on Exhibit "H" attached hereto and
hereby made a part hereof. MTV/PINNACLE ADVERTISING GROUP, INC. will cause all
other persons and entities
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having an interest in such Marks to execute valid and legally binding
agreements transferring all right to the Marks to Buyer.
4. XXXXX AND XXXXX EMPLOYMENT AGREEMENT; BOARD APPOINTMENTS DOCUMENTS.
(a) Xxxxx and Xxxxx Agreements and Documents: It is essential and
material consideration for buyers acquisition hereunder that
Xxxxx and Xxxxx agree to stay on for a period of 7 years
pursuant to the terms and conditions of their Employment
Agreement outlined in Exhibit "C." Such agreements is a material
agreement which Seller would not have entered into this
agreement. The parties agree that damage to the business of the
Buyer and Seller by virtue of the violation of this Covenant is
impossible to ascertain with any certainty at the date hereof.
As a result, in addition to any other remedy permitted by law,
the Buyer and Seller shall be entitled to the remedy of
injunction, both temporary and permanent, restraining the
violating party or any other person or entity acting in concert
with them, either directly or indirectly, from a violation of
this Covenant. In addition to such injunction, the Buyer or
Seller shall have all rights and remedies at law, equity or
otherwise and all such rights and remedies shall be cumulative
and non-exclusive and the exercise of one such remedy shall not
bar the exercise of any other remedy.
5. CLOSING.
The Closing shall be held in the offices, or at such other place within
Florida, as shall be agreed upon by Buyer and MTV/PINNACLE ADVERTISING GROUP,
INC.
6. PAYMENTS.
All payments required to be made at Closing shall be made by bank cashier's
check drawn on a banking institution which is a member of the U.S. Federal
Reserve System or by wire transfer of funds to an account designated by
MTV/PINNACLE ADVERTISING GROUP, INC., if applicable. Any and all securities
which require transfer shall be accomplished pursuant to all State and Federal
requirements and shall be performed in a timely manner.
7. LEASE.
At the Closing, MTV/PINNACLE ADVERTISING GROUP, INC. will assign to Buyer all
its rights (including the security deposit) under, and Buyer will assume all
obligations of MTV/PINNACLE ADVERTISING GROUP, INC. under the Lease. At the
Closing, MTV/PINNACLE ADVERTISING GROUP, INC. shall furnish Buyer with an
estoppel letter and consent to the assignment of the Lease from the current
lessor under the Lease in form and substance reasonably satisfactory to Buyer.
8. EQUIPMENT LEASES.
At the Closing, MTV/PINNACLE ADVERTISING GROUP, INC. will (if applicable)
assign to Buyer ail its rights (including the security deposit) under, and
Buyer will assume all obligations of MTV/PINNACLE ADVERTISING GROUP, INC.
under, the Equipment Leases. At the Closing, if applicable, MTV/PINNACLE
ADVERTISING GROUP, INC. shall furnish Buyer with an estoppel letter and consent
to the assignment from each lessor under each Equipment Lease in form and
substance reasonably satisfactory to Buyer. If leases are not assignable then
Buyer hereby assumes all responsibility for same and hold seller harmless.
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9. MATERIAL CONTRACTS.
At the Closing, MTV/PINNACLE ADVERTISING GROUP, INC. will assign to Buyer all
of its rights under, and Buyer will assume all obligations of MTV/PINNACLE
ADVERTISING GROUP, INC. under the Material Contracts. The assignment of the
Material Contracts shall be in form and substance reasonably satisfactory to
Buyer. At the Closing, MTV/PINNACLE ADVERTISING GROUP, INC. shall furnish Buyer
with an estoppel letter and consent to the assignment from each contracting
party, if requested by Buyer.
10. REPRESENTATIONS AND WARRANTIES OF MTV/PINNACLE ADVERTISING GROUP, INC.
MTV/PINNACLE ADVERTISING GROUP, INC. represents and warrants to Buyer as
follows, and agrees that all such representations and warranties shall survive
the Closing hereunder for a period of three (3) years:
a. EXISTENCE AND GOOD STANDING. MTV/PINNACLE ADVERTISING GROUP,
INC. is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida; it has the
requisite corporate power and authority to own or lease its
property and to conduct its business as now being conducted. The
State of Florida is the only jurisdictions in which MTV/PINNACLE
ADVERTISING GROUP, INC. is registered to do business.
b. AUTHORITY RELATIVE TO THIS AGREEMENT AND THE ESCROW AGREEMENT.
MTV/PINNACLE ADVERTISING GROUP, INC. has full corporate power
and authority to execute and deliver this Agreement and the
other agreements delivered pursuant hereto (the "Related
Agreements") (collectively, this Agreement and the Related
Agreements are sometimes referred to herein as the "Closing
Documents 11) and to consummate the transactions contemplated
hereby and thereby. The execution and delivery of the Closing
Documents and the consummation of the transactions contemplated
thereby have been duly and validly adopted and approved by the
Board of Directors and shareholders of MTV/PINNACLE ADVERTISING
GROUP, INC. and no other corporate proceedings on the part of
MTV/PINNACLE ADVERTISING GROUP, INC. are necessary to authorize
the Closing Documents or to consummate the transactions
contemplated thereby. The Closing Documents have each been duly
and validly executed and delivered by MTV/PINNACLE ADVERTISING
GROUP, INC. and each constitutes a valid and binding agreement
of MTV/PINNACLE ADVERTISING GROUP, INC. enforceable against
MTV/PINNACLE ADVERTISING GROUP, INC. in accordance with its
respective terms.
c. PERMIT REQUIREMENTS. Except as heretofore disclosed in writing
by MTV/PINNACLE ADVERTISING GROUP, INC. to Buyer, to the actual
knowledge of MTV/PINNACLE ADVERTISING GROUP, INC., no filing
with, and no permit, authorization, consent or approval of, any
public body or authority, the absence of which would, either
individually or in the aggregate, have a material adverse effect
on the Assets, or the operations or financial condition of the
Business, is necessary for the consummation by MTV/PINNACLE
ADVERTISING GROUP, INC. of the transactions contemplated by this
Agreement. The execution and delivery of this Agreement and the
consummation of
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the transactions contemplated hereby will not (i) violate any
provision of the Certificate of Incorporation or By-Laws of
MTV/PINNACLE ADVERTISING GROUP, INC., or, to the actual
knowledge of MTV/PINNACLE ADVERTISING GROUP, INC., any statute,
rule, regulation, order or decree of any public body or
authority by which MTV/PINNACLE ADVERTISING GROUP, INC. or any
of the Assets is bound, or (ii) to the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC. result in a violation or
breach of, or constitute (with or without due notice or lapse of
time or both) a default under, any license, franchise, permit,
indenture, agreement or other instrument to which MTV/PINNACLE
ADVERTISING GROUP, INC. is a party, or by which any of the
Assets and rights being purchased hereunder is bound.
d. SUBSIDIARIES. MTV/PINNACLE ADVERTISING GROUP, INC. owns no
shares or securities of, and has no ownership interest in, any
corporation, partnership, joint venture, trust, association or
other enterprise, other than those outlined in Exhibit "G,"
which is conducting the Business or owns or has any interest in
any of the Assets and this Business is presently being and has
heretofore been conducted by MTV/PINNACLE ADVERTISING GROUP,
INC.
e. FINANCIAL STATEMENTS AND NO MATERIAL CHANGES. To the best
knowledge of MTV/PINNACLE ADVERTISING GROUP, INC., date line the
Business Financial Statements fairly present the results of
operation of the Business for the periods covered in accordance
with generally accepted accounting principles consistently
applied. To the best knowledge of MTV/PINNACLE ADVERTISING
GROUP, INC., the Business Financial Statements do not contain
any untrue statements of any material fact or omit to state any
material fact necessary in order to make the statements
contained in this Section or therein not misleading. To the best
knowledge of MTV/PINNACLE ADVERTISING GROUP, INC., the books and
records of MTV/PINNACLE ADVERTISING GROUP, INC. relating to the
Business reflect only valid transactions. Except as set forth on
Exhibit "H" attached hereto and hereby made a part hereof, to
the best knowledge of MTV/PINNACLE ADVERTISING GROUP, INC. there
has not been any material and adverse change in the assets or
liabilities or in the condition, financial or otherwise, of the
Business and there has not been any change except in the
Ordinary Course of the Business, and, to the actual knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC., no fact or condition
exists or is contemplated or threatened which will cause such a
material, adverse change in the Business in the future.
f. THE LEASE. The only real property utilized in the Business is
the real property subject to the Lease. To the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC. all buildings, structures,
appurtenances and all machinery and equipment utilized by
MTV/PINNACLE ADVERTISING GROUP, INC. in connection with the
Business are in good operating condition and are adequate and
suitable for the purposes for which they are presently being
used, and in conformity with all applicable laws, ordinances and
regulations. To the best knowledge of MTV/PINNACLE ADVERTISING
GROUP, INC. the Lease is in full force and effect; all rents and
additional rents due to date on such Lease have been paid;
MTV/PINNACLE ADVERTISING GROUP, INC. has been in peaceable
possession in and to the Lease since February, 1997, and is not
in default thereunder; no waivers, indulgences or postponements
of the lessee's obligations under the Lease have been granted by
the lessor. and there exists no event of default or event,
occurrence, condition or act which, with the giving of notice,
the lapse of time or the
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happening of any further event or condition would become a
default under such Lease; to the best knowledge of MTV/PINNACLE
ADVERTISING GROUP, INC. neither the lessee, nor the lessor have
violated any of the terms or conditions under the Lease; and to
the best knowledge of MTV/PINNACLE ADVERTISING GROUP, INC. all
of the covenants to be performed under the Lease have been fully
performed. MTV/PINNACLE ADVERTISING GROUP, INC. has no agreement
with the lessor of the Lease other than as reflected in the
Lease.
g. EQUIPMENT. A true, correct and complete list as of the date
hereof of all Equipment containing a description of each item
(and MTV/PINNACLE ADVERTISING GROUP, INC.'s best estimate of the
condition thereof) is set forth on Exhibit "I" attached hereto
and hereby made a part hereof. MTV/PINNACLE ADVERTISING GROUP,
INC. has and will have on the Closing Date good and marketable
title and/or valid leasehold rights to all such property, free
and clear of all liens, claims and encumbrances.
h. EQUIPMENT LEASES. A true, correct and complete copy of all
Equipment Leases, is attached hereto and hereby made a part
hereof as Exhibit "J." MTV/PINNACLE ADVERTISING GROUP, INC. has
no agreement with any lessor or lessee, if applicable, other
than as set forth in writing in each respective lease. To the
best knowledge of MTV/PINNACLE ADVERTISING GROUP, INC. and
except as described in Exhibit "J": each such lease is in full
force and effect; all rents and additional rents due to date on
each such lease have been paid; in each case the lessee has been
in peaceable possession since the commencement date set forth in
the Exhibit and is not now in default thereunder; no waiver,
indulgence or postponement of the lessee's obligations
thereunder has been granted by the lessor; and to the best
knowledge of MTV/PINNACLE ADVERTISING GROUP, INC. there exists
no event of default or event, occurrence, condition or act
which, with the giving of notice, the lapse of time or the
happening of any further event or condition would become a
default under any such lease; to the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC. neither the lessor or the
lessee has violated any of the terms or conditions under any
such lease; and to the best knowledge of MTV/PINNACLE
ADVERTISING GROUP, INC. all of the covenants to be performed
under any such lease have been fully performed.
i. MATERIAL CONTRACTS, ETC. Attached hereto and hereby made a part
hereof as Exhibit "K" is a true, correct and complete list of
all Material Contracts, together with copies thereof to the
extent the same are in writing. To the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC., MTV/PINNACLE ADVERTISING
GROUP, INC. is not in default under any Material Contract and
knows of no default by any other party thereto. No consent or
approval of any other party to any Material Contract is required
to transfer MTV/PINNACLE ADVERTISING GROUP, INC.'s rights
thereunder to Buyer pursuant to this Agreement. Attached as part
of said Exhibit "L" is a list of principal suppliers of the
Business.
j. CLIENT LIST. Delivered herewith is a true, correct and complete
list of all clients of MTV/PINNACLE ADVERTISING GROUP INC.
MTV/PINNACLE ADVERTISING GROUP, INC. knows of no dispute arising
in connection with any of the clients. At closing, MTV/PINNACLE
ADVERTISING GROUP, INC. will certify the correctness and
completeness of the Client List.
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k. TRADEMARKS. Attached hereto and hereby made a part hereof as
Exhibit "M" is a true, correct and complete list of all patents,
trademarks, service marks, trade names, copyrights, licenses,
sublicenses, fictitious names, and agreements pertaining to any
of the foregoing, and any applications for any of the foregoing,
used in the business. MTV/PINNACLE ADVERTISING GROUP, INC. is
not in default under any agreement relating to the marks and
knows of no default by any other party thereto. No consent or
approval of any other party is required to transfer the Marks to
Buyer.
l. EMPLOYEE AGREEMENTS AND EMPLOYEE BENEFITS. To the best knowledge
of MTV/PINNACLE ADVERTISING GROUP, INC., and except as set forth
in the Business Financial Statements and on Exhibit "M" (i)
MTV/PINNACLE ADVERTISING GROUP, INC. has no obligation, whether
contingent or otherwise, under any employment contract,
consulting agreement, collective bargaining agreement, executive
compensation agreement, personal, services agreement, deferred
compensation agreement, pension plan, retirement plan,
profit-sharing plan, stock purchase plan, stock option plan,
group life insurance, hospitalization insurance, vacation pay
plan, severance pay plan or any other similar agreements or
employee benefit plans or any other arrangement or
understanding, whether written or otherwise, with any employee,
independent contractor, agent, stockholder, or any other person
relating to the Business; (ii) No labor unions are representing
or attempting to represent employees of MTV/PINNACLE ADVERTISING
GROUP, INC. or any alleged bargaining unit thereof; and (iii)
MTV/PINNACLE ADVERTISING GROUP, INC. has not agreed to pay any
bonuses or made or agreed to make any increase in the rate of
wages, salaries, or other remuneration of any of its employees,
which has not already become effective.
m. LIABILITIES. To the best knowledge of MTV/PINNACLE ADVERTISING
GROUP, INC. and except as set forth on Exhibit "N" attached
hereto and hereby made a part hereof and except for the Retained
Liabilities, MTV/PINNACLE ADVERTISING GROUP, INC. has no
outstanding or threatened claims against it, or liabilities or
indebtedness, whether fixed, contingent (including potential
product liability claims) or otherwise relating to the Business,
other than liabilities incurred in connection with this
transaction.
n. LITIGATION. To the best knowledge of MTV/PINNACLE ADVERTISING
GROUP, INC. and except as set forth on Exhibit "N" attached
hereto and hereby made a part hereof, MTV/PINNACLE ADVERTISING
GROUP, INC. is not engaged in or a party to, or threatened with,
any legal action or other proceeding before any court, tribunal
or administrative agency, or by any action of any local or inter
exchange carrier or service bureau. To the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC., MTV/PINNACLE ADVERTISING
GROUP, INC. has complied in all material respects with all
federal, local, state or foreign laws, rules, regulations and
orders applicable to the Business. To the best knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC., MTV/PINNACLE ADVERTISING
GROUP, INC. is not under investigation with respect to any
charge concerning any violation of any law, order, rule, policy
or regulation, whether federal, local, state or foreign, in
respect of the Business.
o. INSURANCE. A true and correct list of all policies of insurance
covering any of the Assets or otherwise relating to the Business
owned by MTV/PINNACLE ADVERTISING GROUP, INC. or in which
MTV/PINNACLE ADVERTISING GROUP, INC. is named as the insured
party, including the amounts thereof, hereto and hereby made a
party
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hereof as Exhibit "O," knowledge of MTV/PINNACLE ADVERTISING
GROUP, INC. and except as disclosed in Exhibit "O," all such
policies are valid, outstanding and enforceable and issued by
financially sound and responsible insurance companies, and will
remain in full force and effect through the Closing Date;
MTV/PINNACLE ADVERTISING GROUP, INC. maintains insurance of the
type and amount adequate for the conduct of the Business;
MTV/PINNACLE ADVERTISING GROUP, INC. has not been refused any
insurance, nor has is attached To the best its coverage been
limited, by any insurance carrier to which it has applied for
insurance or with which it has carried insurance during the last
five years.
p. NO DISPOSITION OF ASSETS OR OTHER CHANGES. There has not been
since October 15, 1998, a sale or any other disposition or
distribution of any Assets of MTV/PINNACLE ADVERTISING GROUP,
INC. except those which were made in the Ordinary Course of
Business or which were not, individually or in the aggregate,
material to the Business.
q. COMPENSATION OF EMPLOYEES, ETC. Attached hereto and hereby made
a part hereof as Exhibit "O" is a true, correct and complete
list of all employees, agents and independent contractors who
are presently rendering services with respect to the Business,
together with a statement of the full amount paid to such
persons during calendar year 1998, a statement of all amounts
payable to each such person in the future, and a statement of
the nature of the services rendered by each such person.
r. MTV/PINNACLE ADVERTISING GROUP, INC. STOCKHOLDERS. Xxxxx and
Xxxxx own one hundred (100%) percent of all classes of issued
outstanding stock of MTV/PINNACLE ADVERTISING GROUP, INC. All
Xxxxx and Xxxxx'x ownership interest, if any, directly or
indirectly, in whole or in part, in any and all Assets, Goodwill
and other rights which are required to be conveyed hereunder are
in fact being conveyed to Buyer.
s. OPERATIONS. Except as set forth in Exhibit "L" attached hereto
and hereby made a part hereof, to the Actual Knowledge of
MTV/PINNACLE ADVERTISING GROUP, INC., no labor disputes or work
stoppages involving the Business are pending or, threatened. To
the Actual Knowledge of MTV/PINNACLE ADVERTISING GROUP, INC., no
customer or supplier of the Business is involved in, or
threatened with or affected by, any labor dispute, arbitration,
lawsuit or administrative proceeding which will adversely
affect, or might reasonably be expected to adversely affect the
Business (financial or otherwise).
t. NO MISLEADING STATEMENTS. Neither the representations of
MTV/PINNACLE ADVERTISING GROUP, INC. in this Agreement nor any
exhibit, financial statement, list or other document delivered
by MTV/PINNACLE ADVERTISING GROUP, INC. pursuant hereto contain
any untrue material statement or omit to state a material fact
necessary in order to make the statements contained therein or
herein not misleading. No information material to this
transaction necessary to make any of the representations and
warranties herein contained not misleading has been withheld
from, or has not been disclosed in writing to, Buyer.
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11. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to MTV/PINNACLE ADVERTISING GROUP, INC. as
follows, and agrees that all such representations and warranties shall survive
the Closing hereunder.
a. EXISTENCE AND GOOD STANDING. Buyer is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Nevada; it has the requisite corporate power and
authority to own or lease its property and to conduct its
business as contemplated herein.
b. AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has full corporate
power and authority to execute and deliver the Closing Documents
and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of the Closing Documents and
the consummation of the transactions contemplated thereby have
been duly and validly authorized and approved by the Board of
Directors of Buyer, and no other corporate proceedings on the
part of Buyer are necessary to authorize the Closing Documents
or to consummate the transactions contemplated thereby. The
Closing Documents have each been duly and validly executed and
delivered by Buyer and each constitutes a valid and binding
agreement of Buyer enforceable against Buyer in accordance with
its respective terms. The execution and delivery of the Closing
Documents and the consummation of the transactions contemplated
thereby will not (i) violate any provision of the Certificate of
Incorporation or By-Laws of Buyer, or, to the Actual Knowledge
of Buyer, any statute, rule, regulation, order or decree of any
public body or authority by which Buyer or any of the Assets is
bound, or (ii) to the Best Knowledge of Buyer result in a
violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, any license,
franchise, permit, indenture, agreement or other instrument to
which Buyer is a party, or by which any of the Assets is bound.
12. LIABILITIES.
a. Buyer shall assume and pay for the following disclosed
liabilities and obligations in a timely manner as required by
law, prior agreement between MTV/PINNACLE ADVERTISING GROUP,
INC. and third parties, and/or in the ordinary course of Buyer's
business. These disclosed liabilities and obligations constitute
the Assumed Liabilities:
i. Those accounts payable listed on Exhibit "BB" attached
hereto and hereby made a part hereof.
ii. Liabilities under Leases from and after the Cut Off Time.
iii. Liabilities under the Equipment Leases from and after the
Cut Off Time.
iv. Liabilities under the Material Contracts from and after
the Cut off Time.
13. MTV/PINNACLE ADVERTISING GROUP, INC. INDEMNITY.
a. INDEMNITY. MTV/PINNACLE ADVERTISING GROUP, INC. agrees to
indemnify, defend and hold harmless Buyer from and against any
and all demands, claims, actions, causes of action, debts, dues,
judgments, awards, assessments, losses, damages,
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11
liabilities, costs and expenses, of any type or nature arising
out of the Business, including without limitation interest,
penalties, attorneys' fees (at trial and appellate levels) and
expenses asserted against, resulting to, imposed upon or
incurred by Buyer arising out of or resulting from (i) the
breach of any representation, warranty or covenant made by
MTV/PINNACLE ADVERTISING GROUP, INC. contained in this
Agreement, (ii) the Retained Liabilities, (iii) the failure of
MTV/PINNACLE ADVERTISING GROUP, INC. to qualify to do business
in any State in which MTV/PINNACLE ADVERTISING GROUP, INC. is
legally required to do so, (iv) the failure of MTV/PINNACLE
ADVERTISING GROUP, INC. to comply with any Bulk Sales Act in
effect and applicable to MTV/PINNACLE ADVERTISING GROUP, INC.,
and (iv) any action, inaction, misfeasance or malfeasance of
MTV/PINNACLE ADVERTISING GROUP, INC. attributable to the period
of time ending at the Cut Off Time whether or not damage or
injury occurs prior to the Cut Off Time.
MONETARY OF INDEMNITY. Buyer shall not make a claim for
indemnity for any amount less than Two Thousand Five Hundred and
00/100 ($2,500.00) Dollars in the aggregate. The obligation of
the indemnifying parties shall not exceed in the aggregate Four
Hundred Ninety Thousand and 00/100 ($490,000.00) Dollars. A
variance amount not to exceed One Hundred Thousand 00/100
($100,000) is acceptable on the not to exceed Aggregate amount
outlined above.
14. BUYER'S INDEMNITY.
Buyer agrees to indemnify, defend and hold harmless MTV/PINNACLE ADVERTISING
GROUP, INC. its officers and assigns from and against any and all demands,
claims, actions, causes of action, debts, dues, judgments, awards, assessments,
losses, damages, liabilities, costs and expenses, of any type or nature,
including without limitation interest, penalties, attorneys' fees (at trial and
appellate levels) and expenses asserted against, resulting to, imposed upon or
incurred by MTV/PINNACLE ADVERTISING GROUP, INC., arising out of or resulting
from (i) the breach of any representation, warranty or covenant made by Buyer
contained in this Agreement (ii) the Assumed Liabilities, and (iii) the conduct
of the Business by Buyer after the Closing Date.
15. CONDITIONS OF INDEMNIFICATION.
The obligations and liabilities of either party with respect to claims for
which it is to be indemnified hereunder resulting from the assertion of
liability by third parties shall be subject to the following terms and
conditions:
a. NOTICE. The Claimant believing itself entitled to indemnity (the
"Claimant") will give the party which it believes must
"Indemnitor" any such notice of indemnify it (the indemnifiable
claim, and the Indemnitor will undertake the defense thereof by
counsel chosen by it and will advise the Claimant concerning
such defense on a timely basis during the course thereof.
b. FAILURE TO DEFEND. In the event that the Indemnitor, within ten
(10) days from notice of any indemnifiable claim, fails to a
defense, the Claimant engage counsel and commence will, upon
further notice to the Indemnitor have the right to immediately
undertake the defense, for the account and risk of the
Indemnitor.
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12
c. SETTLEMENT BY INDEMNITOR. Indemnitor may at anytime settle any
indemnifiable claim at its sole cost and expense. Indemnitor
shall be required to obtain the prior written consent of the
Claimant only if Claimant reasonably believes that the
settlement of the indemnifiable claim may materially and
adversely affect the ability to do business of the Claimant or
otherwise prejudice the Claimant in its business operations.
Notwithstanding anything contained herein to the contrary, the
consent of Claimant shall be required in the event --- a
settlement to be entered into the Indemnitor requires the
admission of any wrongdoing on the part of the Claimant or in
the event that any third party in order to settle such
indemnifiable claim requires the execution of any document by
the Claimant.
Claimant shall receive copies of all proposed settlement
documents and shall have a right to review and comment thereon
and consult with Indemnitor concerning the term of such proposed
settlement documents.
d. LIMITATION OF TIME. Any claim for which indemnity is sought
hereunder shall be brought within two years from the date that
such claim matures, but in no vent later than sixty (60) days
following the expiration of the representations and warranties.
The date of maturity of the claim shall be the later of (i) the
date upon which the claimant becomes aware of the claim, (ii)
the date upon which the claimant should have become aware of the
claim in the exercise of reasonable diligence, or (iii) the date
upon which the last element necessary for the assertion of the
claim takes place.
16. TERMINATION.
a. WITHOUT DEFAULT. This Agreement may be terminated at any time
prior to the Closing Date without liability of any party.
i. By mutual consent of the Boards of Directors of
MTV/PINNACLE ADVERTISING GROUP, INC. and Buyer; or
ii. If the transactions contemplated by this Agreement shall
not have been consummated on or before October 31, 1998,
provided that the transactions which were not due to the
breach or default of the party seeking to were not
consummated terminate. In the event of termination by
Buyer, or by MTV/PINNACLE ADVERTISING GROUP, INC., or
both as permitted, written notice thereof shall forthwith
be given to the other and this Agreement shall terminate
without further action by any of the parties hereto.
If this Agreement is terminated as permitted herein:
a. Upon request therefore, each party will redeliver all
documents, work papers and other material of any other
party relating to the transactions contemplated hereby,
whether obtained before or after the execution hereof, to
the party furnishing the same; and
b. Each party hereto shall have no liability or further
obligation to the other party to this Agreement with
respect to the matters covered by this Agreement except
as provided in paragraph 17.
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13
b. AS A RESULT OF DEFAULT. This Agreement may be terminated at any
time prior to the closing Date as a result of the default of a
party without a prior default by the other party upon written
notice to the defaulting party by the non-defaulting party after
the expiration of any applicable cure period set forth herein.
Reference is made to paragraph 20 of this Agreement containing
events of default by the parties as well as the remedies of the
parties thereafter.
17. COVENANTS OF THE PARTIES.
The parties covenant to one another as follows:
a. ACCESS TO INFORMATION. Between the date of this Agreement and
the Closing Date, MTV/PINNACLE ADVERTISING GROUP, INC. and Xxxxx
and Xxxxx will facilitate the access of representatives to Buyer
during normal business hours and in such a manner as not to
unduly disrupt normal activities of MTV/PINNACLE ADVERTISING
GROUP, INC.
b. GOVERNMENTAL AND OTHER APPROVALS. The parties will cooperate in
the preparation and filing by any party of such applications
and/or amendments thereto as shall be necessary or desirable in
order to consummate the transactions contemplated by this
Agreement as soon as reasonably practicable following the date
of this Agreement and will use their best efforts to have such
applications and/or amendments thereto approved.
c. ADDITIONAL AGREEMENTS. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all
actions, 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. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the
purposes of this Agreement, each party shall take all such
necessary action.
d. CONSENTS. Each party will use their best efforts to obtain
consents of any third parties (such as but not limited to inter
exchange carriers, service bureaus, local exchange carriers,
media and lessors) and governmental authorities necessary to the
consummation of the transactions contemplated by this Agreement,
if any.
e. DISCLOSURE SUPPLEMENTS. From time to time prior to the Closing
Date, each party shall supplement, amend and update all Exhibits
relating to its' respective representations and warranties
contained herein with respect to any matter hereafter arising
which comes to its attention and which may effect the truth of
such representation and warranties.
f. PUBLIC ANNOUNCEMENTS. Except as may be required by law or
regulation, no public disclosure relating to the transactions
contemplated by this Agreement (including disclosure intended
for shareholders and employees of the parties other than those
for whom disclosure is necessary to carry out the proposed
transactions) shall be made by any party prior to the Closing
unless the other parties shall have approved such disclosure.
Except as may be required by law or regulation, any press
release approved by MTV/PINNACLE ADVERTISING
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14
GROUP, INC. and Buyer will not contain the price or any other
terms of this Agreement. MTV/PINNACLE ADVERTISING GROUP, INC.
will cooperate with Buyer after the closing in the issuance of
letters to suppliers, clients, media and all other persons and
entities with whom MTV/PINNACLE ADVERTISING GROUP, INC. has been
conducting business.
g. ACCOUNTS. All communications and funds received by MTV/PINNACLE
ADVERTISING GROUP, INC. pertaining to the Business shall be
referred to Buyer. Neither MTV/PINNACLE ADVERTISING GROUP, INC.
nor Xxxxx and Xxxxx shall take any act which is intended to
cause the loss of good will of a client of MTV/PINNACLE
ADVERTISING GROUP, INC. or Buyer or which otherwise adversely
affects Buyer or the Business.
h. USE OF COUNSEL. The parties confirm and agree that both intend
to utilize to be determined, as their corporate counsel for
various aspects of their business. Although they do not consider
that the use of this firm and its lawyers would be a conflict of
interest between them, they confirm that each party may utilize
the firm and its lawyers as its counsel (other than in
connection with a dispute between them).conduct of Business
Prior to the Closing.
18. DATE.
During the period from prior to the closing Date(the "Transition Period"
MTV/PINNACLE ADVERTISING GROUP, INC. will conduct the Business in its ordinary
and usual course. During the Transition Period, funds sufficient to pay the
payroll and Trade Accounts Payable shall be deposited in the MTV/PINNACLE
ADVERTISING GROUP, INC. account as necessary by Buyer. During the Transition
Period, MTV/PINNACLE ADVERTISING GROUP, INC. will convert all accounting
functions MTV/PINNACLE ADVERTISING GROUP, INC. to Miracom. All work in
progress, all funds, receivables, and entitlements held by MTV/PINNACLE
ADVERTISING GROUP, INC. shall be transferred to Buyer at the Closing. At
closing MTV/PINNACLE ADVERTISING GROUP, INC. shall execute and Buyer shall file
with the Secretary of State of Florida Articles of Amendment to the Articles of
Incorporation of MTV/PINNACLE ADVERTISING GROUP, INC.
reflecting the changes herein.
19. COSTS.
Whether or not the Closing is consummated, each party shall bear its own costs
and expenses in connection with the negotiation, execution and performance of
this Agreement and the transactions contemplated hereby except as provided
herein.
20. DEFAULT PRIOR TO THE CLOSING.
a. DEFAULT BY MTV/PINNACLE ADVERTISING GROUP, INC. The failure of
MTV/PINNACLE ADVERTISING GROUP, INC. to comply in all material
respects without a prior material breach or default by Buyer
with any provision herein or in any document delivered in
connection herewith shall be an event of default by MTV/PINNACLE
ADVERTISING GROUP, INC. hereunder.
b. DEFAULT BY BUYER. The failure of Buyer to comply in all material
respects without a prior material breach or default by
MTV/PINNACLE ADVERTISING GROUP, INC. with any provision herein
or in any document delivered in connection herewith shall be an
event of default by Buyer hereunder.
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15
c. REMEDIES OF MTV/PINNACLE ADVERTISING GROUP, INC. If an event of
default by Buyer shall have occurred and shall not have been
cured within five(5) days from written notice to Buyer from
MTV/PINNACLE ADVERTISING GROUP, INC., without a prior uncured
material default by MTV/PINNACLE ADVERTISING GROUP, INC.,
MTV/PINNACLE ADVERTISING GROUP, INC. shall be entitled to pursue
all legal and equitable rights and remedies available under law
including, but not limited to rights to terminate this
Agreement, to recovery of damages, and to specific performance
of this Agreement.
d. REMEDIES OF BUYER. If an event of default by MTV/PINNACLE
ADVERTISING GROUP, INC. shall have occurred and shall not have
been to be cured within five (5) days from written notice to
MTV/PINNACLE ADVERTISING GROUP, INC. from Buyer, without a prior
uncured material default by Buyer, pursue all legal and
equitable rights and remedies available under Buyer shall be
entitled to applicable law including, but not limited to rights
to terminate this Agreement, to recovery of damages, and to
specific performance of this Agreement.
21. CONSENT TO SERVICE.
MTV/PINNACLE ADVERTISING GROUP, INC., Buyer and Xxxxx and Xxxxx consent the
jurisdiction of any geographically situated in Seminole County, Florida,
whether state or Federal, in connection with the subject matter of any dispute
arising under this Agreement and agree further that service of process or
notice in any such action, suit or proceeding shall be effective to confer
personal jurisdiction if given in the manner permitted in this Agreement for
notices hereunder. Each party does hereby appoint the Clerk of the United
States District Court for court of competent jurisdiction to Altamonte Springs,
Florida as its agent to accept service of process issued by that Court or any
of the Courts of the State of Florida in connection with any suit arising under
this Agreement.
22. CLOSING ITEMS.
a. Buyer's Items At the closing, Buyer shall execute and deliver to
MTV/PINNACLE ADVERTISING GROUP, INC., Xxxxx and Xxxxx the
following:
i. The Purchase Price or Miracom shares as may be required.
ii. Assumption Agreement in the form attached hereto and
hereby made a part hereof as Exhibit "S" (the "Assumption
Agreement").
iii. A corporate resolution in the attached hereto and made a
part hereof as Exhibit "T."
iv. A current Certificate of Good standing of Buyer as a
Nevada corporation from the Secretary of State of Nevada.
b. MTV/PINNACLE ADVERTISING GROUP, INC. and Xxxxx and Xxxxx'x
Items. At closing, MTV/PINNACLE ADVERTISING GROUP, INC. and
Xxxxx and Xxxxx, as applicable, shall execute and deliver to
Buyer the following:
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i. A Xxxx of Sale in the form set forth as Exhibit "U"
attached hereto and hereby made part hereof transferring
all of the Assets to Buyer.
ii. The originals of all contracts which relate to any
liability or obligation of MTV/PINNACLE ADVERTISING
GROUP, INC. which is to be assumed by Buyer hereunder.
The Xxxxx and Xxxxx Consulting Agreement duly executed by
Xxxxx and Xxxxx.
iii. The employment Agreement duly executed by MIRACOM.
iv. An Omnibus Assignment in the form attached hereto and
hereby made a part hereof as Exhibit "V" together with
such separate assignments of the Marks as shall be deemed
necessary by Buyer to vest the Marks in Buyer of record.
v. A list of all suppliers, customers and employees
certified to be true, complete and correct by
MTV/PINNACLE ADVERTISING GROUP, INC.
vi. List of all existing Material Contracts A certified to be
true, complete and correct by MTV/PINNACLE ADVERTISING
GROUP, INC.
vii. A list of all Marks certified to be true, complete and
correct by MTV/PINNACLE ADVERTISING GROUP, INC.
viii. A list of all clients of MTV/PINNACLE ADVERTISING GROUP,
INC. certified to be true, complete and correct by
MTV/PINNACLE ADVERTISING GROUP, INC.
ix. A corporate resolution in the form attached hereto and
hereby Made a part hereof as Exhibit "W."
x. A current Certificate of Good Standing from Secretary of
Florida.
xi. An Indemnity Agreement from MTV/ADVERTISING GROUP, INC.,
Attached hereto as Exhibit "Y."
xii. Documentation necessary to notify the state of Florida of
the change of name of MTV/PINNACLE ADVERTISING GROUP,
INC. and documents sufficient to change the name of
MTV/PINNACLE ADVERTISING GROUP, INC., in the State of
Florida.
23. COOPERATION WITH EMPLOYEES.
Buyer shall be free to conduct interviews with all employees of MTV/PINNACLE
ADVERTISING GROUP, INC. to determine which of these employees Buyer will offer
employment. MTV/PINNACLE ADVERTISING GROUP, INC. will use its reasonable best
efforts to obtain full cooperation from the employees utilized in the Business
for such interviews. Buyer shall be free to offer employment to such of the
employees of MTV/PINNACLE ADVERTISING GROUP, INC. engaged in the Business as
Buyer shall determine. Buyer has no obligation to employ any employees of
MTV/PINNACLE ADVERTISING GROUP, INC. and has not agreed to assume any
obligations of MTV/PINNACLE
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17
ADVERTISING GROUP, INC. to such employees. Buyer shall not, by employing any of
said persons or as a result of anything set forth herein, assume any
liabilities in connection with the prior employment of such persons by
MTV/PINNACLE ADVERTISING GROUP, INC. including, but not limited to, liability
for pension plan payments, unemployment compensation, salary, bonuses,
commissions or any other form of remuneration and, all of the employees of
MTV/PINNACLE ADVERTISING GROUP, INC. shall for purposes of this Agreement be
deemed to have been terminated by MTV/PINNACLE ADVERTISING GROUP, INC. as of
the Cut off Time.
24. MISCELLANEOUS.
a. NOTICES. All notices which any party may be required or
permitted to give on any other party in connection with this
Agreement shall be in writing and deemed sufficient if either
mailed by registered or certified mail postage prepaid (return
receipt requested) or delivered by hand to the party whom such
notice is required or permitted to be given at the address set
forth below. Service of any such notice shall be deemed complete
on the date of actual delivery as shown by the addressee's
registry or certification receipt, or when received if delivered
by hand, or five (5) days after the post office first notifies
an intended recipient of an attempt to deliver such notice. Any
party hereto may from time to time, by notice in writing served
upon any other as aforesaid, designate a different mailing
address or a different person to whom all such notices are
thereafter to be addressed; provided that any and all such
addresses shall be street addresses, not post office or other
boxes. All notices to Buyer shall be addressed as follows:
25. MULTIPLE COUNTERPARTS. This Agreement may be signed in multiple
counterparts on facsimile paper or with original, but facsimile
transmitted signatures. Documents with facsimile signatures shall be
considered original documents and binding on the parties to this
Agreement.
With a copy to:
MTV/PINNACLE ADVERTISING GROUP, INC., A Florida Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
By Its:
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18
MIRACOM, a Nevada Corporation
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
By Its:
All notices to MTV/PINNACLE ADVERTISING GROUP, INC. shall be addressed as
follows:
Xxxxx Xxxxx Xxxxxxx X. Xxxxx
0000 Xxxx Xxxx Xxxxx 0000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
Xxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
b. GOVERNING LAW. The laws of the State of Florida (without
reference to laws applicable to conflicts of law) shall govern
the interpretation of this Agreement.
c. MODIFICATION AND WAIVER. No provision of this Agreement shall be
amended, waived or modified except by an instrument in writing
signed by the parties hereto.
d. SURVIVAL. All covenants, agreements, representations and
warranties made herein, including but not limited to all
agreements to purchase specific portions of the Business shall
be deemed to have been material and relied upon by each party
and shall survive the execution and delivery of this Agreement.
e. HEADINGS. All sections and headings of this Agreement are
inserted for convenience only and shall not affect the
construction or interpretation hereof.
f. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall
be an original, but all counterparts shall together constitute
one and the same instrument.
g. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties and no promises, inducements,
assurances, guaranties, representations, or solicitations,
either expressed or implied, oral or written, have been made
other than as expressly set forth herein. This Agreement
supersedes all such promises, inducements, assurances,
guaranties, warranties, representations, or solicitations,
either expressed or implied, oral or written, whenever made.
h. SEVERABILITY. Inapplicability or unenforceability of any
provision of this Agreement or any instrument executed and
delivered pursuant thereto shall not limit or impair the
operation or validity of any other provision of this Agreement
or any other such instrument.
i. EXCLUSIVENESS OF AGREEMENT. This Agreement is made for the sole
benefit and
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19
protection of the parties and the and their respective
successors and assigns, and no other person or entity shall have
any right of action hereunder or right to rely hereon.
j. VENUE. The parties hereby waive the privilege of venue and agree
that the venue of all litigation arising here from shall be Los
Angeles County, California and that the courts of the State of
California shall have exclusive jurisdiction of all such
litigation.
k. WAIVER OF DEFAULTS. The waiver by any party of any breach or
default by any other party under any of the terms of this
Agreement, shall not be deemed to be, nor shall the same
constitute a waiver of any subsequent breach or default on the
part of any other party.
l. AGREEMENT NOT RECORDABLE. This Agreement is not recordable and
shall not be recorded by any party hereto.
m. INTERPRETATION OF AGREEMENT. This Agreement has been negotiated
by each of the parties both as to its substance and as to its
form. There shall not be applied a rule of law or rule of
construction whereby this Agreement or any of the terms or
provisions hereof or documents attached hereto shall be
construed in favor of or against either party by reason of the
stationery upon which it was finalized or the attorney for the
party by whom it was prepared. The language of this Agreement
shall be construed according to its fair meaning and not
strictly for or against any party.
n. CONSTRUCTION OF AGREEMENT. All words in this Agreement refer to
whatever number or gender the context requires; if more than one
party or person is referred to, their obligations and
liabilities shall be joint and several. All the terms and words
used in this Agreement, regardless of the number and gender in
which they are used, shall be deemed and construed to include
any other number (singular or plural) or any other gender
(masculine, feminine or neuter) as the context or sense of this
Agreement, or any section or clause hereof may require. The
locative adverbs "herein," "hereunder," "hereto," "hereinafter"
and the like words wherever the same appear therein, mean and
refer to this Agreement in its entirety and not to any specific
paragraph, section or subsection hereof unless otherwise
expressly designated in context.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth on the first page hereof.
Witnesses:
/s/ Xxxxxxx X. Xxxxx By Its: President
--------------------
MTV/PINNACLE ADVERTISING GROUP, INC.
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
/s/ Xxxxx Xxxxx By Its: CEO and President
--------------------
MIRACOM CORPORATION
0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
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