Exhibit 1.1
MERGER AND STOCK PURCHASE AGREEMENT
This MERGER AND STOCK PURCHASE AGREEMENT (the "Agreement" or "MSPA") is
dated as of June 23, 2008, by and between Xxxxxxx X'Xxxx, XX (the "Seller"), an
individual resident of the State of Florida with mailing address C/O Dolphin
Digital Media, Inc. (the "Company" or "Dolphin Digital Media," a Delaware
corporation, 000 Xxxxxxx Xxxx, Xxxxxxxxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxx, XX
00000, and Logica Holdings, Inc., a Nevada corporation with a mailing address of
00 Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0 (the "Purchaser" or "Logica"). The
Seller and the Purchaser sometimes being referred to herein each as a "Party"
and collectively as the "Parties."
WHEREAS, the Seller owns all of the outstanding shares of common stock
in the Company (the "Company Shares"), and is willing to sell the Company Shares
to Purchaser; and
WHEREAS, Purchaser wishes to acquire all of the Company Shares of the
Seller;
WHEREAS, the Parties hereto wish to adopt an agreement pursuant to
which Purchaser will acquire all of the Company Shares of the Seller solely in
exchange for shares of Purchaser's Common Stock ("Logica Common Stock"); and
NOW, THEREFORE, in consideration for the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
Purchase and Sale of Company Shares
Section 1.1 Purchase and Sale of Company Shares. Subject to the terms
and conditions hereof, the Seller agrees to sell to the Purchaser and, in
consideration of and in express reliance upon the representations, warranties,
covenants, terms and conditions of this Agreement, the Purchaser agrees to
purchase from the Seller one hundred percent (100%) of the Seller's Company
Shares.
Section 1.2 Purchase Price. The Company Shares shall be purchased by
Purchaser in exchange for that whole number of duly authorized, validly issued,
fully paid and non-assessable shares of Logica Common Stock (the "Logica
Shares") as in the aggregate shall constitute no less than fifty-one percent
(51%) of the total issued and outstanding common stock of the Purchaser on a
fully diluted basis (the "Majority Share") as of the date of the Closing
(defined below) (the "Purchase Price"). The Purchase Price shall be
$20,213,537.40 and shall reflect a total of 24,063,735 Logica Shares. The
Purchase Price shall be calculated by taking the average closing price of Logica
Common Stock during the five (5) trailing trading days prior to the Closing,
which price has been calculated at $.84 per Share. Certificates of the Logica
Shares in the amount of the Purchase Price, registered in the name of the
Seller, shall be delivered at the Closing.
Section 1.3 Closing. The closing of the purchase and sale of the
Company Shares to be acquired by the Purchaser from the Seller under this
Agreement shall take place at the offices of Xxxxx Xxxxxxx, LLP, 000 Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Closing") at 1 p.m., EDT, (i) on or before
June 23, 2008; provided, that all of the conditions set forth in Article III
hereof and applicable to the Closing shall have been fulfilled or waived in
accordance herewith, or (ii) at such other time and place or on such date as the
Purchaser and the Seller may agree upon.
ARTICLE II
Representations and Warranties
Section 2.1 Representations and Warranties of the Seller. The Seller
hereby jointly represents and warrants to Purchaser, as of the date hereof and
the Closing Date, as follows:
(a) Organization, Good Standing and Power. The Company is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Florida and has the requisite corporate power to own, lease and operate
its properties and assets and to conduct its business as it is now being
conducted. The Company does not have any subsidiaries. The Seller has furnished
or made available to the Purchaser true and correct copies of the Company's
Articles of Incorporation as in effect on the date hereof (the "Articles").
(b) Authorization, No Conflict. The execution and delivery by the
Seller of, and the performance by the Seller of its obligations under, this
Agreement have been duly authorized by all necessary action on the part of the
Company, and this Agreement is a legal, valid and binding obligation of the
Seller. No further consent or authorization of the Company or its Board of
Directors or members is required. The execution, delivery and performance by the
Seller of this Agreement do not violate, conflict with or result in any breach
or contravention of any agreement or other instrument binding upon the Seller or
the Company or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Seller and the Company, or any requirement of
law applicable to the Seller and the Company. No approval, consent, order,
authorization or other action by, or notice to, or filing with, any governmental
authority or agency and no lapse of a waiting period under a requirement of law,
is necessary or required in connection with the performance by the Seller of
this Agreement.
(c) Title to Company Shares. The Company Shares have been duly and
validly authorized. The Seller is the record owner of, and has (and on the
Closing Date will have) valid marketable title to, the Company Shares to be sold
to the Purchaser by the Seller pursuant to this Agreement. The Company Shares
owned by Seller are not subject to any claim, lien, pledge, security interest or
other encumbrance. The Company Shares owned by Seller are not subject to any
preemptive rights, rights of first refusal or similar rights, and Seller has not
granted any rights to purchase the Company Shares to any other person or entity.
(d) No Third Party Consents. The Seller has, and on the Closing Date
will have, the sole right to transfer the Company Shares to the Purchaser,
without obtaining the consent of any other person, governmental authority or
entity (other than the consent of the Company which consent has been duly
obtained). Seller has, and on the Closing Date will have, legal right and power,
and all authorization and approval required by law, to enter into this Agreement
and to transfer the Company Shares to be sold by the Seller. Delivery to the
Purchaser of the Company Shares will pass title to such Company Shares free and
clear of any claim, lien, pledge, security interest or other encumbrance.
(e) Opportunity to Inquire. The Seller has had an opportunity to ask
questions and receive answers from representatives of the Purchaser concerning
the Purchaser, the terms of this Agreement and related transactions.
(f) Seller's Investment Intent. The Seller is acquiring the Logica
Shares for Seller's own account and solely for investment and not for
distribution or resale. The Seller understands that the Logica Shares have not
been, and may not be, registered under the United States federal securities law
by reason of a specific exemption from the registration provisions thereof, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the Seller's representations as
expressed herein. Seller acknowledges that the Logica Shares may not be
transferred, offered, sold, pledged or hypothecated in the absence of
registration under such laws or an exemption from such registration (e.g.,
pursuant to Rule 144).
(g) Seller's Accredited Investor Status. The Seller is an "accredited
investor" as defined in Rule 501(a) of Regulation D under the Securities Act of
1933 (the "1933 Act").
(h) Seller's Tax Responsibility. The Seller has had an opportunity to
review with its own tax advisors the United States (federal, state and local),
and/or other tax consequences of this Agreement to the Seller and the
transactions contemplated hereby. Seller understands that it must rely solely on
its advisors and not on any statements or representations of the Purchaser or
any of its agents.
(i) No Material Adverse Change. Since June 16, 2008, through the date
hereof, the Company has not experienced or suffered any "Material Adverse
Effect." For purposes of this Agreement, Material Adverse Effect means any
material adverse effect on the business, operations, properties, prospects, or
financial condition of the Company and its subsidiaries and/or any condition,
circumstance, or situation that would prohibit or otherwise materially interfere
with the ability of the Company to perform any of its obligations under this
Agreement in any material respect.
(j) No Undisclosed Liabilities. The Company has no liabilities,
obligations, claims or losses (whether liquidated or unliquidated, secured or
unsecured, absolute, accrued, contingent or otherwise) other than those incurred
in the ordinary course of the Company's business which, individually or in the
aggregate, do not or would not have a Material Adverse Effect on the Company or
its subsidiaries.
(k) Indebtedness. As of the date hereof, the Company has no secured or
unsecured indebtedness.
(l) Actions Pending. There is no suit, claim, investigation,
arbitration, alternate dispute resolution proceeding or any other proceeding
pending or, to the knowledge of the Company, threatened, against or involving
the Company or any of its properties or assets. There are no outstanding orders,
judgments, injunctions, awards or decrees of any court, arbitrator or
governmental or regulatory body against the Company or any officers or directors
of the Company in their capacities as such.
(m) Compliance with Law. The business of the Company has been and is
presently being conducted in accordance with all applicable federal, state and
local governmental laws, rules, regulations and ordinances, except for such
noncompliance that, individually or in the aggregate, would not cause a Material
Adverse Effect. The Company has all franchises, permits, licenses, consents and
other governmental or regulatory authorizations and approvals necessary for the
conduct of its business as now being conducted by it unless the failure to
possess such franchises, permits, licenses, consents and other governmental or
regulatory authorizations and approvals, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(n) Company Taxes. The Company has not yet been required to file any
federal or state tax returns and has no knowledge of any assessments,
adjustments or contingent tax liability (whether federal or state) of any nature
whatsoever, whether pending or threatened against the Company for any period,
nor of any basis for any such assessment, adjustment or contingency.
(o) Disclosure. Neither this Agreement, the Schedules hereto nor any
other documents, certificates or instruments furnished to the Purchaser by or on
behalf of the Company in connection with the transactions contemplated by this
Agreement contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made herein or therein,
in the light of the circumstances under which they were made herein or therein,
not misleading.
(p) Transactions with Affiliates. There are no loans, leases,
agreements, contracts, royalty agreements, management contracts or arrangements
or other continuing transactions between (a) the Company on the one hand, and
(b) on the other hand, any officer, employee, consultant or director of the
Company, or any of its subsidiaries, or any person owning any capital stock of
the Company or any subsidiary or any member of the immediate family of such
officer, employee, consultant, director or stockholder or any corporation or
other entity controlled by such officer, employee, consultant, director or
stockholder, or a member of the immediate family of such officer, employee,
consultant, director or stockholder other than the Licensing Agreement
referenced herein.
(q) Officers, Key Persons. The Company does not have any employees. No
officer or consultant of the Company whose termination could have a Material
Adverse Effect, has terminated or, to the knowledge of the Company, has any
present intention of terminating his or her engagement with the Company.
Section 2.2 Representations and Warranties of the Purchasers. The
Purchaser hereby makes the following representations and warranties to the
Seller:
(a) Organization and Standing of the Purchasers. The Purchaser is a
corporation duly incorporated or organized, validly existing and in good
standing under the laws of the state of Nevada.
(b) Authorization and Power. The Purchaser has the requisite power and
authority to enter into and perform this Agreement and to purchase the Company
Shares being sold to it hereunder. The execution, delivery and performance of
this Agreement and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Purchaser or its Board of
Directors or stockholders, as the case may be, is required. This Agreement has
been duly authorized, executed and delivered by the Purchaser and constitutes,
or shall constitute when executed and delivered, a valid and binding obligation
of the Purchaser enforceable against the Purchaser in accordance with the terms
hereof.
(c) No Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Purchaser of the transactions contemplated
hereby and thereby or relating hereto do not and will not (i) result in a
violation of the Purchaser's charter documents or bylaws or other organizational
documents or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of any
agreement, indenture or instrument or obligation to which the Purchaser is a
party or by which its properties or assets are bound, or result in a violation
of any law, rule, or regulation, or any order, judgment or decree of any court
or governmental agency applicable to the Purchaser or its properties (except for
such conflicts, defaults and violations as would not, individually or in the
aggregate, have a Material Adverse Effect on Purchaser). The Purchaser is not
required to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement or to purchase
the Company Shares in accordance with the terms hereof, provided that for
purposes of the representation made in this sentence, the Purchaser is assuming
and relying upon the accuracy of the relevant representations and agreements of
the Seller and the Company herein.
(d) Acquisition for Investment. The Purchaser is acquiring the Company
Shares solely for its own account for the purpose of investment and not with a
view to or for sale in connection with distribution. The Purchaser does not have
a present intention to sell the Company Shares, nor a present arrangement
(whether or not legally binding) or intention to effect any distribution of the
Company Shares to or through any person or entity; provided, however, that by
making the representations herein and subject to Section 2.2(h) below, the
Purchaser does not agree to hold the Company Shares for any minimum or other
specific term and reserves the right to dispose of the Company Shares at any
time in accordance with Federal and state securities laws applicable to such
disposition. The Purchaser acknowledges that it is able to bear the financial
risks associated with an investment in the Company Shares and that it has been
given full access to such records of the Company and to the officers of the
Company and received such information as it has deemed necessary or appropriate
to conduct its due diligence investigation and has sufficient knowledge and
experience in investing in companies similar to the Company in terms of the
Company's stage of development so as to be able to evaluate the risks and merits
of its investment in the Company.
(e) Status of Purchaser. The Purchaser is not required to be registered
as a broker-dealer under Section 15 of the Exchange Act and the Purchaser is not
a broker-dealer.
(f) Opportunities for Additional Information. The Purchaser
acknowledges that it has had the opportunity to ask questions of and receive
answers from, or obtain additional information from, the Seller concerning the
financial and other affairs of the Company, and to the extent deemed necessary
in light of the Purchaser's knowledge of the Company's affairs, the Purchaser
has asked such questions and received answers to the full satisfaction of the
Purchaser, and the Purchaser desires to acquire the Company Shares.
(g) No General Solicitation. The Purchaser acknowledges that the
Company Shares were not offered to the Purchaser by means of any form of general
or public solicitation or general advertising, or publicly disseminated
advertisements or sales literature, including (i) any advertisement, article,
notice or other communication published in any newspaper, magazine, or similar
media, or broadcast over television or radio, or (ii) any seminar or meeting to
which the Purchaser was invited by any of the foregoing means of communications.
(h) Rule 144. The Purchaser understands that the Company Shares must be
held indefinitely unless such Company Shares are registered under the Securities
Act or an exemption from registration is available. The Purchaser acknowledges
that it is familiar with Rule 144 of the rules and regulations of the Securities
and Exchange Commission, as amended, promulgated pursuant to the 1933 Act, and
that it has been advised that Rule 144 permits resales only under certain
circumstances. The Purchaser understands that to the extent that Rule 144 is not
available, the Purchaser will be unable to sell any Company Shares without
either registration under the Securities Act or the existence of another
exemption from such registration requirement.
(i) General. The Purchaser understands that the Company Shares are
being offered and sold in reliance on a transactional exemption from the
registration requirement of federal and state securities laws and the Seller is
relying upon the truth and accuracy of the representations, warranties,
agreements, acknowledgments and understandings of the Purchaser set forth herein
in order to determine the applicability of such exemptions and the suitability
of the Purchaser to acquire the Company Shares.
ARTICLE III
Conditions
Section 3.1 Conditions Precedent to the Obligation of the Seller to
Sell the Company Shares. The obligation hereunder of the Seller to sell the
Company Shares to the Purchaser is subject to the satisfaction at or before the
Closing, of each of the conditions set forth below. These conditions are for the
Seller's sole benefit and may be waived by the Seller at any time in its sole
discretion.
(a) Accuracy of the Purchaser's Representations and Warranties. The
representations and warranties of the Purchaser shall be true and correct in all
material respects as of the date when made and as of the Closing as though made
at that time, except for representations and warranties that are expressly made
as of a particular date, which shall be true and correct in all material
respects as of such date.
(b) Seller's Incentive. As further consideration for the Company
Shares, Purchaser agrees and covenants to provide to Seller anti-dilution
protection for the Majority Share as follows: from the date hereof and for five
(5) years thereafter, Purchaser shall grant to Seller such number of Logica
Common Stock as shall be necessary for Seller to maintain the Majority Share
each and any time that Purchaser issues additional Logica Shares to a party or
parties other than the Seller, or upon the exercise by any party or parties
other than the Seller of any form of securities or instruments in the Purchaser
whether now existing or hereafter created in the form of options, warrants,
notes or other securities exercisable or exchangeable for, or convertible into,
any shares of Logica Common Stock. This covenant contained in this Section 3.1
shall survive the Closing for five (5) years from the date hereof.
(c) Performance by the Purchaser. The Purchaser shall have performed,
satisfied and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Purchaser at or prior to the Closing.
(d) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(e) Delivery of Purchase Price. The Purchase Price for the Company
Shares has been delivered to the Seller at the Closing Date.
(f) Delivery of Executed Documents. This Agreement shall have been duly
executed and delivered by the Purchaser.
(g) Resolutions. The Board of Directors of the Purchaser shall have
adopted resolutions duly authorizing the execution of this Agreement and the
consummation of the transactions contemplated hereby in a form reasonably
acceptable to the Seller (the "Resolutions").
(h) Secretary's Certificate. The Purchaser shall have delivered to the
Seller a secretary's certificate, dated as of the Closing Date, as to (i) the
Resolutions, (ii) the Purchaser's Articles of Incorporation, (iii) the
Purchaser's bylaws, each as in effect at the Closing, and (iv) the authority and
incumbency of the officers of the Purchaser executing this Agreement and any
other documents required to be executed or delivered in connection therewith.
(i) Officer's Certificate. The Purchaser shall have delivered to the
Seller a certificate of an executive officer of the Purchaser, dated as of the
Closing Date, confirming the accuracy of the Purchaser's representations,
warranties and covenants as of such Closing Date and confirming the compliance
by the Company with the conditions precedent set forth in this Section as of the
Closing Date.
Section 3.2 Conditions Precedent to the Obligation of the Purchaser to
Purchase the Company Shares. The obligation hereunder of the Purchaser to
acquire and pay for the Company Shares is subject to the satisfaction or waiver,
at or before the Closing, of each of the conditions set forth below. These
conditions are for the Purchaser's sole benefit and may be waived by the
Purchaser at any time in its sole discretion.
(a) Accuracy of the Seller's and the Company's Representations and
Warranties. Each of the representations and warranties of the Seller and the
Company in this Agreement shall be true and correct in all respects as of the
date when made and as of the Closing Date as though made at that time (except
for representations and warranties that are expressly made as of a particular
date), which shall be true and correct in all respects as of such date.
(b) Performance by the Seller. The Seller shall have performed,
satisfied and complied in all respects with all covenants, agreements and
conditions required by this Agreement to be performed, satisfied or complied
with by the Seller at or prior to the Closing.
(c) No Injunction. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction which
prohibits the consummation of any of the transactions contemplated by this
Agreement.
(d) No Proceedings or Litigation. No action, suit or proceeding before
any arbitrator or any governmental authority shall have been commenced, and no
investigation by any governmental authority shall have been threatened, against
the Seller seeking to restrain, prevent or change the transactions contemplated
by this Agreement, or seeking damages in connection with such transactions.
(e) Intellectual Property Licenses. The Seller shall have delivered to
the Purchaser a fully executed copy of the Licensing Agreement.
(f) Material Adverse Effect. No Material Adverse Effect shall have
occurred at or before the Closing Date.
ARTICLE IV
Indemnification
Section 4.1 Mutual Indemnity. The Parties agree to indemnify and hold
harmless each other (and their respective directors, officers, managers,
partners, members, shareholders, affiliates, agents, successors and assigns, as
applicable) from and against any and all losses, liabilities, deficiencies,
costs, damages and expenses (including, without limitation, reasonable
attorneys' fees, charges and disbursements) incurred by the other as a result of
any inaccuracy in or breach of the representations, warranties or covenants made
by the a Party hereto.
Section 4.2 Indemnification Procedure. Any Party entitled to
indemnification under this Article V (an "Indemnified Party") will give written
notice to a Party required to furnish indemnification hereunder (an
"Indemnifying Party") of any matters giving rise to a claim for indemnification;
provided, that the failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Article V except to the extent that the Indemnifying Party is actually
prejudiced by such failure to give notice. In case any action, proceeding or
claim is brought against an Indemnified Party in respect of which
indemnification is sought hereunder, the Indemnifying Party shall be entitled to
participate in and, unless in the reasonable judgment of the Indemnified Party a
conflict of interest between it and the Indemnifying Party may exist with
respect of such action, proceeding or claim, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. In the event that the
Indemnifying Party advises an Indemnified Party that it will contest such a
claim for indemnification hereunder, or fails, within thirty (30) days of
receipt of any indemnification notice to notify, in writing, such person of its
election to defend, settle or compromise, at its sole cost and expense, any
action, proceeding or claim (or discontinues its defense at any time after it
commences such defense), then the Indemnified Party may, at its option, defend,
settle or otherwise compromise or pay such action or claim. In any event, unless
and until the Indemnifying Party elects in writing to assume and does so assume
the defense of any such claim, proceeding or action, the Indemnified Party's
costs and expenses arising out of the defense, settlement or compromise of any
such action, claim or proceeding shall be losses subject to indemnification
hereunder. The Indemnified Party shall cooperate fully with the Indemnifying
Party in connection with any negotiation or defense of any such action or claim
by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the indemnified party which relates to such
action or claim. The indemnifying party shall keep the indemnified party fully
apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. If the Indemnifying Party elects to defend
any such action or claim, then the Indemnified Party shall be entitled to
participate in such defense with counsel of its choice at its sole cost and
expense. The Indemnifying Party shall not be liable for any settlement of any
action, claim or proceeding effected without its prior written consent.
Notwithstanding anything in this Article V to the contrary, the Indemnifying
Party shall not, without the Indemnified Party's prior written consent, settle
or compromise any claim or consent to entry of any judgment in respect thereof
which imposes any future obligation on the indemnified party or which does not
include, as an unconditional term thereof, the giving by the claimant or the
plaintiff to the Indemnified Party of a release from all liability in respect of
such claim. The indemnification required by this Article VI shall be made by
periodic payments of the amount thereof during the course of investigation or
defense, as and when bills are received or expense, loss, damage or liability is
incurred, so long as the Indemnified Party irrevocably agrees to refund such
moneys if it is ultimately determined by a court of competent jurisdiction that
such party was not entitled to indemnification. The indemnity agreements
contained herein shall be in addition to (a) any cause of action or similar
rights of the Indemnified Party against the Indemnifying Party or others, and
(b) any liabilities the Indemnifying Party may be subject to pursuant to the
law.
ARTICLE V
Miscellaneous
Section 5.1 Fees and Expenses. Except as otherwise set forth in this
Agreement, as of the date of Closing, each Party shall pay the fees and expenses
of its advisors, counsel, accountants and other experts, if any, and all other
expenses, incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement.
Section 5.2 Specific Enforcement, Consent to Jurisdiction.
(a) The Seller and the Purchaser acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Parties shall be entitled to an
injunction or injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof or
thereof, this being in addition to any other remedy to which any of them may be
entitled by law or equity.
(b) Each of the Seller and the Purchaser (i) hereby irrevocably submits
to the jurisdiction of the United States District Court sitting in the Southern
District of Florida and the courts of the State of Florida located in Miami-Dade
county for the purposes of any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby or thereby
and (ii) hereby waives, and agrees not to assert in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is improper. Each of
the Seller and the Purchaser consents to process being served in any such suit,
action or proceeding by mailing a copy thereof to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing in
this Section 6.2 shall affect or limit any right to serve process in any other
manner permitted by law.
Section 5.3 Entire Agreement; Amendment. This Agreement contains the
entire understanding and agreement of the Parties with respect to the matters
covered hereby and, except as specifically set forth herein, neither the Seller
nor any of the Purchasers makes any representations, warranty, covenant or
undertaking with respect to such matters and they supersede all prior
understandings and agreements with respect to said subject matter, all of which
are merged herein. No provision of this Agreement may be waived or amended other
than by a written instrument signed by the Seller and the Purchaser, and no
provision hereof may be waived other than by an a written instrument signed by
the party against whom enforcement of any such amendment or waiver is sought.
Section 5.4 Notices. Any notice, demand, request, waiver or other
communication required or permitted to be given hereunder shall be in writing
and shall be effective (a) upon hand delivery by telex (with correct answer back
received), telecopy, e-mail or facsimile at the address or number designated
above (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if
delivered other than on a business day during normal business hours where such
notice is to be received) or (b) on the second business day following the date
of mailing by express courier service, fully prepaid, addressed to such address,
or upon actual receipt of such mailing, whichever shall first occur.
Any party hereto may from time to time change its address for notices
by giving at least ten (10) days written notice of such changed address to the
other party hereto.
Section 5.5 Waivers. No waiver by either Party of any default with
respect to any provision, condition or requirement of this Agreement shall be
deemed to be a continuing waiver in the future or a waiver of any other
provisions, condition or requirement hereof, nor shall any delay or omission of
any party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
Section 5.6 Headings. The article, section and subsection headings in
this Agreement are for convenience only and shall not constitute a part of this
Agreement for any other purpose and shall not be deemed to limit or affect any
of the provisions hereof
Section 5.7 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their successors and assigns.
Section 5.8 No Third Party Beneficiaries. This Agreement is intended
for the benefit of the Parties hereto 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.
Section 5.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Nevada, without
giving effect to any of the conflicts of law principles which would result in
the application of the substantive law of another jurisdiction. This Agreement
shall not be interpreted or construed with any presumption against the party
causing this Agreement to be drafted.
Section 5.10 Survival of Representations and Warranties. The
representations and warranties of the Seller and the Purchaser shall survive the
execution and delivery hereof and the Closing until the second anniversary of
the Closing Date.
Section 5.11 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement and shall become effective when counterparts have been signed by each
Party and delivered to the other Party hereto, it being understood that all
Parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
Section 5.12 Publicity. The Parties shall agree to announce the
execution of this Agreement and the consummation of the transactions
contemplated hereby in a mutually satisfactory manner within a reasonable time
of execution.
Section 5.13 Severability. The provisions of this Agreement are
severable and, in the event that any court of competent jurisdiction shall
determine that any one or more of the provisions or part of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement and such provision shall be reformed and construed as if such
invalid or illegal or unenforceable provision, or part of such provision, had
never been contained herein, so that such provisions would be valid, legal and
enforceable to the maximum extent possible.
Section 5.14 Further Assurances. From and after the date of this
Agreement, upon the request of the Purchaser or the Seller, each of the Seller
and the Purchaser shall execute and deliver such instrument, documents and other
writings as may be reasonably necessary or desirable to confirm and carry out
and to effectuate fully the intent and purposes of this Agreement and the
Company Shares.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officer as of the date first above
written.
By:
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Xxxxxxx X'Xxxx, XX
Shareholder of Dolphin Digital Media, Inc.
By:
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Xxxx X. Xxxxxxxxxxx
CEO of Logica Holdings, Inc.
