EXHIBIT 99.2
COMMON STOCK PURCHASE AGREEMENT
COMMON STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of April
13, 2004, by and among ▇▇▇▇▇▇-VECTOR INVESTMENT TRUST, a revocable trust
organized under the laws of the State of California (the "STOCKHOLDER"), on the
one hand, and WESTERN PACIFIC INVESTMENT CORP., a California corporation
("WPIC"), on the other hand.
WHEREAS:
A. The Stockholder is a major stockholder of Penthouse International,
Inc. (the "Company"), a corporation organized under the laws of the State of
Florida. Shares of the common stock, $0.0025 par value per share, of the Company
(the "COMMON STOCK") are quoted on the OTC Bulletin Board under the symbol
PHSL.OB.
B. The Stockholder and WPIC are executing and delivering this Agreement
in reliance upon the exemption from securities registration afforded by the
provisions of Section 4(1) of the Securities Act of 1933, as amended (the
"SECURITIES ACT").
C. The Company andWPIC are concurrently entering into a Subscription
Agreement of even date herewith (the "STOCK PURCHASE AGREEMENT") pursuant to
which the Company will issue and sell to WPIC or its designees, and WPIC or its
designees will purchase from the Company for One Million Two Hundred Thousand
and Seven Dollars and 30/100 Dollars ($1,200,007.30), an aggregate of 10,909,158
shares of Common Stock (the "PURCHASED COMPANY STOCK"); which Purchased Common
Stock will, upon issuance, represent approximately 3.5% of the issued and
outstanding shares of Common Stock of the Company.
D. The parties hereto agree that concurrently with the closing under
the Stock Purchase Agreement, the Stockholder will sell to WPIC or its
designees, and WPIC or its designees will purchase from the Stockholder,
additional shares of the Common Stock on the terms and conditions set forth
below.
E. Contemporaneous with the execution and delivery of this Agreement
and the Stock Purchase Agreement, the Company and WPIC are executing and
delivering a Registration Rights Agreement in the form attached to the Stock
Purchase Agreement as EXHIBIT C (the "REGISTRATION RIGHTS AGREEMENT"), pursuant
to which the Company has agreed to provide certain registration rights to WPIC
or its designees, with respect to the resale of the Purchased Company Stock and
the Trust Common Shares (as defined below) in order to provide for an orderly
disposition of the Purchased Company Stock and the
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Trust Common Shares if WPIC or its designees decides to do so under the
Securities Act and the rules and regulations promulgated thereunder, and
applicable state securities laws.
NOW, THEREFORE, the Stockholder and WPIC hereby agree as follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the terms AGREEMENT, COMMON STOCK,
COMPANY, WPIC, SECURITIES Act, STOCK PURCHASE AGREEMENT, PURCHASED COMPANY STOCK
and STOCKHOLDER shall have the meanings set forth above, the term "TRUST COMMON
SHARES" shall have the meaning set forth in Section 2(a) below, the terms
CLOSING and CLOSING DATE shall have the meanings set forth in Section 2(b)(iii)
below, and the terms TRUSTEE and BENEFICIARIES shall have the meanings set forth
in Section 4(a) below.
2. PURCHASE AND SALE OF COMMON SHARES.
(1) GENERALLY. Except as otherwise provided in this Section 2 and
subject to the satisfaction (or waiver) of the conditions set forth in Section 6
and Section 7 below, on the "CLOSING DATE" (as hereinafter defined) the
designees of WPIC set forth below in this Section 2(a) (the "WPIC DESIGNEES")
shall purchase from the Stockholder an aggregate of 2,424,242 shares of the
Common Stock of the Company (the "TRUST COMMON SHARES") for cash in the amount
of $0.0025 per share, and the Stockholder shall sell the Trust Common Shares to
the designees of WPIC in such amounts.
The WPIC Designees and the number of Trust Common Shares purchased by
each such WPIC Designee are as follows: (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Weiner - 1,212,121
Trust Common Shares; (ii) ▇▇▇▇▇ May Essers - 606,060.5 Trust Common Shares, and
(iii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - 606,060.5 Trust Common Shares.
(2) PURCHASE OF TRUST COMMON SHARES; FORM OF PAYMENT; CLOSING DATE.
(1) On the Closing Date (as defined below), the Stockholder shall
sell 2,424,242 of the Trust Common Shares to the WPIC Designees and the WPIC
Designees shall purchase such Trust Common Shares from the Stockholder and pay
to the Stockholder an aggregate of $6,060.61 as the purchase price of such Trust
Common Shares. The Stockholder shall deliver to the WPIC Designees stock
certificates duly endorsed and registered in the name of the WPIC Designees
evidencing their record ownership of the Trust Common Shares by a date that
shall be not later than five (5) business days following the Closing Date.
Notwithstanding the foregoing deliveries or any other provision of this
Agreement to the contrary, the WPIC Designees shall, for all purposes, be deemed
to be the record and beneficial owner of the aforesaid Trust Common Shares as of
the Closing Date described below.
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(2) The WPIC Designees shall pay the purchase price for the Trust
Common Shares to be purchased by them to the Stockholder against delivery by the
Stockholder of certificates representing such shares, and the Stockholder shall
deliver such certificates to WPIC Designees against delivery by WPIC Designees
of the purchase price.
(3) Subject to the satisfaction (or waiver) of the conditions
thereto set forth in Section 6 and Section 7 below, the date and time of the
sale of the Trust Common Shares pursuant to this Agreement (the "CLOSING") shall
be concurrent with the Closing under the Stock Purchase Agreement or such other
date or time as WPIC and the Stockholder may mutually agree ("CLOSING DATE").
The Closing shall occur at the Los Angeles offices of WPIC, or at such other
place as WPIC and the Stockholder may otherwise mutually agree.
3. WPIC'S REPRESENTATIONS AND WARRANTIES.
WPIC hereby represents and warrants to the Stockholder on behalf of
itself and all WPIC Designees, as follows:
(1) ORGANIZATION, GOOD STANDING AND QUALIFICATION. WPIC is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all the requisite power and authority to
carry on its business as now conducted and as proposed to be conducted.
(2) PURCHASE FOR OWN ACCOUNT. WPIC is purchasing the Trust Common
Shares for WPIC's own account and not with a present view towards the
distribution thereof; provided, however, that WPIC may at its option elect to
assign all or a portion of the Trust Common Shares to the WPIC Designees; all of
which transfers are acceptable to the Stockholder. WPIC understands that it and
WPIC Designees must bear the economic risk of this investment indefinitely,
unless the Trust Common Shares are registered pursuant to the Securities Act and
any applicable state securities or blue sky laws or an exemption from such
registration is available, and that the Company has no present intention of
registering any of the Trust Common Shares other than as contemplated by the
Registration Rights Agreement. Notwithstanding anything in this Section 3(b) to
the contrary, by making the foregoing representation, neither WPIC nor any WPIC
Designee does not agree to hold the Trust Common Shares for any minimum or other
specific term and reserves the right to dispose of the Trust Common Shares at
any time in accordance with or pursuant to a registration statement or an
exemption from registration under the Securities Act and any applicable state
securities laws.
(3) INFORMATION. WPIC has been furnished all materials relating to the
business, finances and operations of the Company and its subsidiaries and
materials relating to the offer and sale of the Trust Common Shares, which have
been requested by WPIC. WPIC has been afforded the opportunity to ask questions
of the Company and has received what WPIC believes to be satisfactory answers to
any such inquiries. WPIC understands that
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its investment in the Trust Common Shares involves a high degree of risk.
Neither such inquiries nor any other due diligence investigation conducted by
WPIC or its counsel or any of its representatives shall modify, amend or affect
WPIC's right to rely on the Stockholder's representations and warranties
contained in Section 4 below.
(4) GOVERNMENTAL REVIEW. WPIC understands that no United States federal
or state agency or any other government or governmental agency has passed upon
or made any recommendation or endorsement of the Trust Common Shares.
(5) ACCREDITED INVESTOR STATUS. WPIC is an "Accredited Investor" as
that term is defined in Rule 501(a) of Regulation D.
(6) AUTHORIZATION; ENFORCEMENT. WPIC has the requisite power and
authority to enter into and perform its obligations under this Agreement and to
purchase the Trust Common Shares in accordance with the terms hereof. This
Agreement has been duly and validly authorized, executed and delivered on behalf
of WPIC and is a valid and binding agreement of WPIC enforceable against WPIC in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(7) RESTRICTIONS ON TRANSFER. WPIC understands and acknowledges that
the Trust Common Shares have not been registered under the Securities Act.
Unless and until otherwise permitted, the Trust Common Shares and each
certificate and other document evidencing any of the Trust Common Shares shall
be endorsed with the legend substantially in the following form:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED
UNLESS (A) COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT, (B) IN COMPLIANCE WITH RULE 144 UNDER SUCH ACT, OR (C) THE COMPANY
HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO
THE COMPANY TO THE EFFECT THAT NO REGISTRATION IS REQUIRED FOR SUCH
TRANSFER."
4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER.
The Stockholder hereby represents and warrants to WPIC as follows:
(1) ORGANIZATION AND POWER. The Stockholder is a trust established by
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ G. (the "Trustee") for the benefit of members of his family
(the "BENEFICIARIES") duly organized and validly existing under the laws of the
State of California. The Stockholder has full legal capacity to enter into this
Agreement and the
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other documents contemplated hereby to which the Stockholder is a party, and to
perform its obligations hereunder and thereunder.
(2) AUTHORIZATION. The execution, delivery and performance by the
Stockholder of this Agreement and the other documents contemplated hereby to
which the Stockholder is a party and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
requisite action, and no other act, consent, approval or order of or proceeding
on the part of the Stockholder, the Trustee or the Beneficiaries or notice to or
filing with, any tribunal or third party is necessary to authorize the
execution, delivery or performance of this Agreement or the other documents
contemplated hereby to which the Stockholder is a party and the consummation of
the transactions contemplated hereby or thereby. This Agreement has been duly
executed and delivered by the Stockholder and this Agreement constitutes, and
the other documents contemplated hereby to which the Stockholder is a party upon
execution and delivery by WPIC will each constitute, a valid and binding
obligation of the Stockholder, enforceable in accordance with its terms.
(3) ABSENCE OF CONFLICTS. Neither the execution and the delivery of
this Agreement and the other documents contemplated hereby to which the
Stockholder is a party, nor the consummation of the transactions contemplated
hereby and thereby, including without limitations the transfer and sale of the
Trust Common Shares will (a) conflict with, result in a breach of any of the
provisions of, (b) constitute a default under, (c) result in the violation of,
(d) give any third party the right to terminate or to accelerate any obligation
under, (e) result in the creation of any lien upon the Trust Common Shares or
upon any assets or properties of Stockholder under, or (f) require any
authorization, consent, approval, execution or other action by or notice to any
court or other governmental body or any person under, any indenture, mortgage,
lease, loan agreement or other agreement or instrument to which the Stockholder
is bound or affected, or any statute, regulation, rule, judgment, order, decree
or other restriction of any government, governmental agency or court to which
the Stockholder is subject.
(4) Litigation. There are no notices, actions, suits, proceedings,
orders, violations of law or investigations pending or any other matters, to the
best of the Stockholder's knowledge, threatened against or affecting the
Stockholder or the Trust Common Shares, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which would adversely
affect the Stockholder's performance under this Agreement, the other documents
contemplated hereby to which the Stockholder is a party or the consummation of
the transactions contemplated hereby or thereby, which may result in an
obligation or liability on WPIC after the closing of this transaction or which
have created or might in the future create a lien or adverse claim against the
Trust Common Shares, that have not been corrected or disclosed in writing to
WPIC, nor are there any threats thereof known to Stockholder.
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(5) TRUST COMMON SHARES. Stockholder has sole legal, nominal and
beneficial ownership and title to the Trust Common Shares, free and clear of all
adverse interests, liens, claims and encumbrances, and has the sole right to
vote or direct the voting of the Trust Common Shares. The delivery of the
Certificate or certificates representing the Trust Common Shares owned by the
Stockholder, duly endorsed or accompanied by duly executed stock ▇▇▇▇▇▇, ▇▇▇▇
transfer to WPIC good and indefeasible title to such shares, free and clear of
all liens, proxies, encumbrances and claims of every kind and Stockholder will
forever warrant and defend (with counsel acceptable to WPIC) such title, and
indemnify WPIC for all adverse claims, demands, or liability with respect to the
validity of such title or transfer thereof, against any claimants thereto. Upon
delivery at Closing of certificates representing the Trust Common Shares, good
and valid title to the Trust Common Shares will pass to WPIC free and clear of
any liens or restrictions of any kind.
(6) DISCLOSURE. Neither this Article 4 nor any document delivered by
such the Stockholder to WPIC on the Closing Date contains or, on the Closing
Date, will contain, when taken as a whole, any untrue statement of a material
fact or omits a material fact necessary to make the statements contained herein
not misleading. Prior to the close of this transaction, Stockholder shall give
WPIC immediate notice of the occurrence of any event or the receipt by
Stockholder of any notice or knowledge the effect of which would be to make a
representation or warranty of Stockholder herein untrue or misleading if made on
or immediately following the occurrence of such event or the receipt of such
notice or knowledge. Stockholder hereby agrees to protect, indemnify, and defend
WPIC, and WPIC's nominee, against and to hold WPIC, and WPIC's nominee, harmless
from any and all costs, claims, losses, attorneys' fees, liabilities, and other
expenses that WPIC, or WPIC's nominee, may incur or to which WPIC, or WPIC's
nominee, may be exposed as a result of Stockholder's breach of or the falsity of
any of Stockholder's representations or warranties in this Agreement or as a
result of Stockholder's breach of or failure to perform or observe any of
Stockholder's covenants in this Agreement.
5. COVENANTS.
(1) SATISFACTION OF CONDITIONS. The parties shall use their best
efforts to satisfy in a timely manner each of the conditions set forth in
Section 6 and Section 7 of this Agreement.
(2) BLUE SKY LAWS. The Stockholder shall, on or before the Closing
Date, take such action as the Stockholder shall reasonably determine is
necessary to qualify the Trust Common Shares for sale to WPIC pursuant to this
Agreement under applicable securities or "blue sky" laws of the applicable
states of the United States or obtain exemption therefrom, and shall provide
evidence of any such action so taken to WPIC on or prior to the Closing Date.
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6. CONDITIONS TO THE STOCKHOLDER'S OBLIGATION TO SELL.
The obligation of the Stockholder hereunder to issue and sell Trust
Common Shares to WPIC at the Closing hereunder is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions thereto;
PROVIDED, HOWEVER, that these conditions are for the Stockholder's sole benefit
and may be waived by the Stockholder at any time in its sole discretion.
(1) WPIC shall have executed the signature page to this Agreement and
the Registration Rights Agreement, and delivered the same to the Stockholder.
(2) The representations and warranties of WPIC shall be true and
correct as of the date when made and as of the Closing Date as though made at
that time (except for representations and warranties that speak as of a specific
date, which representations and warranties shall be true and correct as of such
date), and WPIC shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by WPIC at or prior to the
Closing Date.
(3) No statute, rule, regulation, executive order, decree, ruling,
injunction; action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
(4) All of the conditions to the obligations of the Company to sell the
Purchased Company Stock to WPIC under the Stock Purchase Agreement shall have
been satisfied.
7. CONDITIONS TO WPIC'S OBLIGATION TO PURCHASE COMMON SHARES.
The obligation of WPIC hereunder to purchase common Shares to be
purchased by it hereunder is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that these
conditions are for WPIC's sole benefit and may be waived by WPIC at any time in
WPIC's sole discretion:
(1) The Stockholder shall have executed the signature pages to this
Agreement and delivered the same to WPIC.
(2) The representations and warranties of the Stockholder shall be true
and correct as of the date when made and as of the Closing Date as though made
at that time (except for representations and warranties that speak as of a
specific date, which representations and warranties shall be true and correct as
of such date) and the Stockholder shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required
by this Agreement to be performed, satisfied or complied with by the Stockholder
at or prior to the Closing Date.
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(3) No statute, rule, regulation, executive order, decree, ruling,
injunction, action, proceeding or interpretation shall have been enacted,
entered, promulgated, endorsed or adopted by any court or governmental authority
of competent jurisdiction or any self-regulatory organization, or the staff of
any thereof, having authority over the matters contemplated hereby which
questions the validity of, or challenges or prohibits the consummation of, any
of the transactions contemplated by this Agreement.
(4) All of the conditions to the obligations of WPIC to purchase the
Purchased Company Stock from the Company under the Stock Purchase Agreement
shall have been satisfied.
(5) The Company shall have executed the Registration Rights Agreement
and delivered same to WPIC.
8. MISCELLANEOUS.
(1) GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of California applicable
to contracts made and to be performed in the State of California. Each of the
parties irrevocably agrees that any and all suits or proceedings based on or
arising under this Agreement may be brought only, and shall be resolved in the
federal or state courts located in the City of Los Angeles, California and
consents to the jurisdiction of such courts for such purpose. Each of the
parties irrevocably waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding in any such court. Each of the parties
further agrees that service of process upon such party mailed by first class
mail to the address set forth in Section 8(f) shall be deemed in every respect
effective service of process upon such party in any such suit or proceeding.
Nothing herein shall affect the right of WPIC to serve process in any other
manner permitted by law. Each of the parties agrees that a final non-appealable
judgment in any such suit or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on such judgment or in any other lawful manner.
(2) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
(3) HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
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(4) SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
(5) ENTIRE AGREEMENT; AMENDMENTS; WAIVER. This Agreement and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Stockholder nor WPIC make
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the Stockholder and by WPIC. Any waiver by
WPIC, on the one hand, or the Stockholder, on the other hand, of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision of or any breach of any other provision of
this Agreement. The failure of WPIC, on the one hand, or the Stockholder, on the
other hand to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
(6) NOTICES. Any notices required or permitted to be given under the
terms of this Agreement shall be sent by certified or registered mail (return
receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five days after being placed in the mail, if
mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
If to the Stockholder
▇▇▇▇▇▇-Vector Investment Trust
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ G., Trustee
If to WPIC or any WPIC Designee
Western Pacific Investment Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Each party hereto may from time to time change its address or facsimile number
for notices under this Section 8 by giving at least ten (10) days' prior written
notice of such changed address or facsimile number, in the case of WPIC to the
Stockholder, and in the case of the Stockholder to all of WPIC.
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(7) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. The
Stockholder shall not assign this Agreement or any rights or obligations
hereunder without the prior written consent of each of WPIC.
(8) THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto, the WPIC Designees and their respective permitted
successors and assigns, and is not for the benefit of nor may any provision
hereof be enforced by any other person.
(9) SURVIVAL. The representations and warranties of the Stockholder and
the agreements, indemnities and covenants of the Stockholder shall survive the
Closing notwithstanding any due diligence investigation conducted by or on
behalf of WPIC. Moreover, none of the representations and warranties made by the
Stockholder herein shall act as a waiver of any rights or remedies WPIC may have
under applicable federal or state securities laws. The Stockholder agrees to
indemnify and hold harmless WPIC and each of its officers, directors, employees,
partners, stockholders, agents and affiliates for loss or damage relating to the
Trust Common Shares purchased hereunder arising as a result of or related to any
breach by the Stockholder or any of its representations or covenants set forth
herein, including advancement of expenses as they are incurred.
(10) FURTHER ASSURANCES. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
(11) TERMINATION. In the event that the Closing Date shall not have
occurred on or before April 15, 2004, unless the parties agree otherwise, this
Agreement shall terminate at the close of business on such date. Notwithstanding
any termination of this Agreement, any party not in breach of this Agreement
shall preserve all rights and remedies it may have against another party hereto
for a breach of this Agreement prior to or relating to the termination hereof.
(12) JOINT PARTICIPATION IN DRAFTING. Each party to this Agreement has
participated in the negotiation and drafting of this Agreement. As such, the
language used herein shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction will
be applied against any party to this Agreement.
(13) EQUITABLE RELIEF. Each party acknowledges that a breach by it of
its obligations hereunder will cause irreparable harm to the other parties by
vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, each party acknowledges that the remedy at law for a breach of its
obligations hereunder will be inadequate and agrees, in the event of a breach or
threatened breach by such party of the
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provisions of this Agreement, that the other parties shall be entitled, in
addition to all other available remedies, to an injunction restraining any
breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.
(14) DETERMINATIONS. Except as otherwise expressly provided herein, all
consents, approvals and other determinations to be made by WPIC pursuant to this
Agreement and all waivers and amendments to or of any provisions in this
Agreement prior to the Closing Date to be binding upon WPIC shall be made by
WPIC and except as otherwise expressly provided herein, all consents, approvals
and other determinations (other than amendments to the terms and provisions of
this Agreement) to be made by WPIC pursuant to this Agreement and all waivers
and amendments to or of any provisions in this Agreement after the Closing Date
shall be made by WPIC.
(15) ATTORNEYS' FEES AND DISBURSEMENTS. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement, the
prevailing party or parties shall be entitled to receive from the other party or
parties reasonable attorneys' fees and disbursements, including all costs and
expenses incurred, in addition to any other relief to which the prevailing party
or parties may be entitled.
(16) ASSUMPTION. By entering into this Agreement, WPIC is not assuming
or agreeing to assume or discharge any liability or obligation of the
Stockholder whatsoever, whether now existing or hereinafter incurred, including
without limitation, any liability or obligation relating to the Trust Common
Shares or the sale thereof.
(17) EXPENSES. The Company shall pay the expenses of the Stockholder
and WPIC, representing the fees and expenses of their respective legal counsel.
(18) WAIVERS. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action, or compliance with any representation,
warranty, covenant or agreement contained herein. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach. The waiver by any party hereto at or
before the closing of this transaction of any condition to its obligations
hereunder which is not fulfilled shall preclude such party from seeking redress
from the other party hereto for breach of any representation, warranty, covenant
or agreement contained in this Agreement.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
THE STOCKHOLDER:
▇▇▇▇▇▇-VECTOR INVESTMENT TRUST
By: Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ G. Title: Trustee
--------------------------------- -------------------
WPIC:
WESTERN PACIFIC INVESTMENT CORP.
By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Title: President
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The Transaction contemplated by this Agreement has been reviewed and
approved by Company on this 13th day of April, 2004
PENTHOUSE INTERNATIONAL, INC., A FLORIDA CORPORATION
By: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President
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