AGREEMENT
Exhibit
10.1
This
AGREEMENT (“Agreement”) is made and entered into as of April 27, 2009, by and
among Island Broadcasting Company, a New York general partnership (“Island”),
Echo Broadcasting Group, Inc., a New York corporation (“Echo”) and Mega Media
Group, Inc., a Nevada corporation (“Mega,” and together with Island and Echo,
the “Parties,” an each, a “Party”).
Recitals
A. Island
and Echo are parties to that certain Time Brokerage Agreement, dated November 1,
2005, as amended November 9, 2007, and further amended January 9, 2009 (the
“TBA”), relating to the programming provided by Echo to Island’s low power
television station’s ancillary audio service operating on 87.74 mHz at New York,
New York; and
B. For
purposes of further amending and clarifying the terms of the TBA, primarily with
respect to Echo’s payment of fees to Island pursuant thereto, Island and Echo
have agreed to execute an Amended and Restated Time Brokerage Agreement of even
date herewith (the “Amended and Restated TBA”); and
C. Island’s
willingness to execute the Amended and Restated TBA is conditioned upon the
satisfaction of unpaid fees owed by Echo to Island under the TBA;
and
D. Mega,
the parent company of Echo, is willing to satisfy Echo’s payment obligations to
Island under the TBA by issuing to Island that number of shares of Mega common
voting stock which, when combined with Island’s currently held shares of Mega
common voting stock, will equal a 9.9% common voting stock interest in Mega, in
accordance with the terms and conditions set forth below, and Island is willing
to acquire such shares of Mega common voting stock in satisfaction of Echo’s
payment obligations under the TBA in accordance with the terms and conditions
set forth below.
Now,
therefore, for and in consideration of the mutual covenants herein contained,
the Parties, intending to be legally bound, agree as follows:
1. Acknowledgement of Payment Obligation
Under the TBA. Echo and Mega hereby acknowledge that as of the
date hereof, Echo owes to Island the sum of $1,090,000.00 (One Million Ninety
Thousand Dollars) in unpaid fees under the TBA (the “Obligation”).
2. Satisfaction of
Obligation. The Obligation shall be satisfied in accordance
with the following terms and conditions:
a. Issuance of Mega Common
Voting Stockto Island. The Parties acknowledge that Island
currently holds 4,000,000 shares of Mega common voting stock. Within
three business days of the execution of this Agreement, Mega shall issue to
Island that number of additional shares of Mega common voting stock that will
immediately increase Island’s holdings in Mega to 9.9%
of the issued and outstanding Mega common voting stock, and Mega shall
immediately thereafter deliver to Island stock certificates evidencing the
issuance of such additional shares of Mega common voting stock to
Island.
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b. Satisfaction of
Obligation. Island acknowledges and agrees that the issuance
of Mega common voting stock to Island as provided in Paragraph 2(a) above, and
the non-dilution of Island’s interest in Mega common voting stock, as set forth
in Paragraph 2(b) above, shall satisfy the Obligation, and Mega and Echo
acknowledge and agree that Island shall have no obligation to provide any other
consideration for any shares of Mega common voting stock issued to Island
pursuant to this Agreement.
3. Representations and Warranties of
Mega. Mega hereby represents and warrants to Island as
follows:
a. Due Authorization.
Mega has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and this Agreement has been duly
authorized and validly executed and delivered by Mega and constitutes a legal,
valid and binding agreement of Mega enforceable against Mega in accordance with
its terms, except as rights to indemnity and contribution may be limited by
state or federal securities laws or the public policy underlying such laws,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity.
b. Non-Contravention.
The execution and delivery of this Agreement, the issuance of shares of Mega
common voting stock to Island under this Agreement, the fulfillment
of the terms of this Agreement and the consummation of the transactions
contemplated hereby will not (A) conflict with or constitute a violation of, or
default (with or without the giving of notice or the passage of time or both)
under, (i) any material bond, debenture, note or other evidence of indebtedness,
or under any material lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which Mega is a
party or by which it or its properties or assets are bound, (ii) the charter,
by-laws or other organizational documents of Mega, or (iii) any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to Mega or its properties or
assets, or (B) result in the creation or imposition of any lien, encumbrance,
claim, security interest or restriction whatsoever upon any of the material
properties or assets of Mega or an acceleration of indebtedness pursuant to any
obligation, agreement or condition contained in any material bond, debenture,
note or any other evidence of indebtedness or any material indenture, mortgage,
deed of trust or any other agreement or instrument to which Mega is a party or
by which any of it or its properties or assets are bound or to which any of the
property or assets of Mega is subject. No consent, approval, authorization or
other order of, or registration, qualification or filing with, any regulatory
body, administrative agency, or other governmental body in the United States is
required for the execution and delivery of this Agreement and the valid issuance
of shares of Mega common voting stock to Island pursuant to this Agreement,
other than such as have been made or obtained, and except for any securities
filings required to be made under federal or state securities laws.
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c. Capitalization. As of
the date hereof, the authorized capital stock of Mega consists of 500,000,000
shares of common stock, par value $0.001 per share, As of the date
hereof , there are 270,474,063 shares of common stock issued and outstanding,
and no shares of preferred stock issued and outstanding. The number
of shares of Mega common voting stock to be immediately issued to Island
pursuant to this Agreement shall be 25,279,614 which, along with the 4,000,000
shares of Mega common voting stock currently held by Island, amounts to 9.9% of
the issued and outstanding shares of Mega common voting stock . The
shares of Mega common voting stock to be issued pursuant to this
Agreement have been duly authorized, and when issued in accordance with the
terms of this Agreement will be duly and validly issued, fully paid and
non-assessable. No preemptive right, co-sale right, right of first
refusal or other similar right exists with respect to the shares of Mega common
voting stock to be issued to Island.
d. No
Violations. Mega is not (i) in violation of its charter,
bylaws, or other organizational document, or in violation of any law,
administrative regulation, ordinance or order of any court or governmental
agency, arbitration panel or authority applicable to Mega, which violation,
individually or in the aggregate, would have a material adverse effect on the
business or financial condition of Mega or (ii) in default (and there exists no
condition which, with or without the passage of time or giving of notice or
both, would constitute a default) in any material respect in the performance of
any bond, debenture, note or any other evidence of indebtedness in any
indenture, mortgage, deed of trust or any other material agreement or instrument
to which Mega is a party or by which Mega is bound or by which the properties or
assets of Mega are bound, which would be reasonably likely to have a material
adverse effect upon the business or financial condition of the
Company.
4. Representations and Warranties of
Island. Island hereby represents and warrants to Mega and Echo
as follows:
Power and Authority.
(i) Island has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement and (ii) this Agreement constitutes a valid and binding
obligation of Island enforceable against Island in accordance with its terms,
except as rights to indemnity and contribution may be limited by state or
federal securities laws or the public policy underlying such laws, and except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity.
5. Covenant of Mega. In recognition of the
fact that each stock certificate issued to Island pursuant to this Agreement
shall be issued with a restrictive legend because all shares of Mega common
voting stock issued to Island hereunder are restricted securities within the
meaning of applicable rules and regulations of the Securities and Exchange
Commission (“SEC”), after such shares become freely tradable in accordance with
applicable SEC rules and regulations and upon the request of Island, Mega shall
take all necessary steps to obtain the removal of the restrictive legends on
such stock certificates and shall take any other steps reasonable necessary to
permit Island to offer such shares for sale.
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6. Miscellaneous.
(a) Entire
Agreement. This Agreement embodies the entire agreement and
understanding of the Parties and supersedes any and all prior agreements,
arrangements and understandings relating to matters provided for
herein. No amendment, waiver of compliance with any provision or
condition hereof, or consent pursuant to this Agreement will be effective unless
evidenced by an instrument in writing signed by the Parties.
(b) Headings. The headings to the
paragraphs of this Agreement are for convenience only and will not control or
affect the meaning or construction of any of the provisions of this
Agreement.
(c) Governing
Law. The construction and performance of the Agreement will be
governed by the laws of the State of New York, without regard to the application
of conflicts of law principles.
(d) Notices. Any
notice, demand or request required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly delivered and received
on the date of personal delivery; on the third day after deposit in the U.S.
mail if mailed by registered or certified mail, postage prepaid and return
receipt requested; and on the day after delivery to a nationally recognized
overnight courier service if sent by an overnight delivery service for next
morning delivery, and shall be addressed to the Parties at the following
addresses:
To
Island: Island
Broadcasting Company
c/o Xxxxxxx Xxxxxx
0 Xxxxxxx Xxxx
Xxxxxx, Xxx
Xxxx 00000
With a copy
to: Xxxxxxx
Xxxxxxxx, Esquire
Xxxxxxxxx Xxxxxxx LLP
0000 Xxx Xxxxxx, XX
Xxxxxxxxxx,
X.X. 00000-0000
To
Echo: Echo
Broadcasting Group, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, XXX
000
Xxxxxxxx, XX 00000
Attention: Xxxx
Xxxxxxx
With copy
to: Xxxxxxx
X. Xxxxxxx, Esquire
Mound Cotton Xxxxxx
Greengrass
One Battery Park Plaza
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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To
Mega: Mega
Media Group, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, XXX
000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
The
Parties may change their addresses for the purpose of notice by giving notice of
such change in accordance with the provisions of this paragraph.
(e) Severability. If
any provision of this Agreement or the application thereof to any person or
circumstances shall be determined in any judicial or administrative proceeding
to be invalid or unenforceable to any extent, the remainder of this Agreement
and the application of such provision to other persons or circumstances shall
not be affected thereby and shall be enforced to the greatest extent permitted
by law.
(f) Beneficiaries. Nothing
in this Agreement, express or implied, is intended to confer on any person other
than Island, Echo and Mega and their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement.
(g) Further
Assurances. The Parties agree to perform (or procure the
performance of) all further acts and things, and execute and deliver (or procure
the execution and delivery of) such further documents, as may be required by law
or as any Party hereto may reasonably require, to implement and/or give effect
to this Agreement and the transactions contemplated by it and for the purpose of
vesting in Island the shares of Mega common voting stock to be issued to it
pursuant to this Agreement.
(h) Resolution of
Disputes. The Parties agree to mediate any dispute or claims
arising between them out of this Agreement before resorting to
arbitration. The Parties agree to submit any dispute to mediation
before the American Arbitration Association (“AAA”). Mediation
fees, if any, shall be divided equally between the Parties. If any Party commences
an arbitration or court action based on a dispute or claim under this Agreement
without first attempting to resolve the matter through mediation, then in the
discretion of the arbitrators or judge, that Party shall not be entitled to
recover attorneys’ fees even if such fees would otherwise be available to that
Party in any such arbitration. The Parties further agree that any
dispute or claim in law or equity arising between them out of this Agreement
which is not settled through mediation, shall be decided by neutral, binding
arbitration and not by court action. The dispute shall be submitted
to binding arbitration in accordance with the rules of AAA, however, the Parties
may agree in writing to use different rules and/or
arbitrators. Judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
(i) Counterpart
Signatures. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, [and shall become effective
when one or more counterparts have been signed by each Party and delivered to
the other parties]. Each Party shall be bound by its facsimile or PDF
signature.
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IN WITNESS WHEREOF, the Parties hereto
have executed this Agreement effective as of the day and year first above
written.
ISLAND BROADCASTING
COMPANY
By:__________________________
Xxxxxxx X. Xxxxxx,
Partner
ECHO BROADCASTING GROUP,
INC.
By:__________________________
Name:
Title:
President
MEGA MEDIA GROUP, INC.
By:____________________________
Name:
Title
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