Exhibit 10.2
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is dated as of this ____
day of September, 2003 between General Media Communications, Inc., a New York
corporation ("GMCI"), GMCI Internet Operations, Inc., a New York corporation
("Internet Operations"), and General Media Entertainment, Inc. ("Entertainment,"
and, together with GMCI and Internet Operations, "General Media") and Penthouse
Financial, LLC, ("Financial").
1. On or about January 6, 0000 Xxxxxxxxxxxx Xxxxxx, Hardware and Building
Supplies, Inc., a New York corporation ("MLH") disbursed the proceeds
of a $1,000,000 loan (the "Loan") made to General Media International,
Inc., a New York corporation ("GMII") to General Media, Inc. a New York
corporation ("GMI").
2. GMII owns a majority of the outstanding common stock of Penthouse
International, Inc. a Florida corporation ("PII"), PII owns a majority
of the outstanding common stock of GMI and GMI directly or indirectly
owns 100% of each of GMCI, Internet Operations and Entertainment.
3. On or about January 10, 2003, Vector Partners, LLC, a Nevada limited
liability company and affiliate of Financial ("Vector"), repaid MLH and
became entitled to collect the Loan from GMII.
4. On or about May 21, 2003, Financial executed and delivered a Trademark
Licensing and Website Management Agreement reciting an effective date
of March 31, 2003 (the "Website Agreement") to General Media.
5. Part of the Website Agreement recited that Financial was the assignee
of the Loan (misidentifying General Media as the Borrower) and that
Financial would pay a non-refundable licensing fee of $1,000,000 to
General Media by forgiving the Loan.
6. A promissory note was also prepared payable to Vector, further
misidentifying the obligor as PII.
7. General Media has taken the position that forgiveness of the Loan would
not represent lawful consideration for the licensing fee acceptable to
General Media or PII.
8. Under the Website Agreement, no part of the $1,000,000 would be
refundable to Financial if the Website Agreement was terminated.
9. General Media, Financial, and their respective affiliates have stated
that they have expended substantial sums in an effort to modify the
Website Agreement and preparing and attempting to perform.
10. The parties, subject to the conditions set forth below, want to
terminate the Website Agreement and return to the status quo prior to
the delivery of the Website Agreement in order to avoid the expense and
delay of possible litigation.
NOW, THEREFORE, for good and valuable consideration, the Parties,
intending to be legally bound, agree as follows:
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1. Termination.
Subject to the due execution and delivery of the promissory
note by GMII in the form annexed hereto as Exhibit A (the "Note") and
the release of PII by Financial in the form annexed hereto as Exhibit B
("PII Release") the parties agree to terminate the Website Agreement as
of the date of this Agreement.
2. Reserved.
3. Representations of Financial. Financial represents, warrants and
agrees as follows:
Authority to Execute and Perform Agreement. This Agreement has
been duly executed and delivered by Financial and, assuming due
execution and delivery by, and enforceability against, General Media,
constitutes the valid and binding obligation of Financial enforceable
in accordance with its terms, subject to the qualifications that
enforcement of the rights and remedies created hereby is subject to (i)
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors, and
(ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). No
approval or consent of, or filing with, any governmental or regulatory
body, and no approval or consent of, or filing with, any other person
is required to be obtained by Financial or in connection with the
execution and delivery by Financial of this Agreement and consummation
and performance by it of the transactions contemplated hereby.
4. Representations of GMCI, Internet Operations and Entertainment.
GMCI, Internet Operations and Entertainment represent, warrant and agree as
follows:
Authorization. Each have full power, legal capacity and
authority to enter into this Agreement, to execute all attendant
documents and instruments necessary to consummate the transaction
herein contemplated, and to perform all of its obligations hereunder.
This Agreement and all other agreements, documents and instruments to
be executed in connection herewith have been effectively authorized by
all necessary action, corporate or otherwise, on the part of GMCI,
Internet Operations and Entertainment, which authorizations remain in
full force and effect, have been duly executed and delivered by GMCI,
Internet Operations and Entertainment, and no other corporate
proceedings on the part of GMCI, Internet Operations and Entertainment
are required to authorize this Agreement and the transactions
contemplated hereby, except as specifically set forth herein. This
Agreement constitutes the legal, valid and binding obligation of GMCI,
Internet Operations and Entertainment and is enforceable with respect
to GMCI, Internet Operations and Entertainment in accordance with its
terms, except as enforcement hereof may be limited by bankruptcy,
insolvency, reorganization, priority or other laws of court decisions
relating to or affecting generally the enforcements of creditors'
rights or affecting generally the availability of equitable remedies.
No authorization, consent or approval of any public body of authority
or any third party is necessary for the consummation by GMCI, Internet
Operations and Entertainment of the transactions contemplated by this
Agreement.
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5. No Admission. The parties agree that the execution of this Agreement
is not an admission by any of them of liability with respect to damages, and is
also not an admission of the truth or accuracy of any recital herein.
6. Termination of Rights.
6.1 Cessation of Licensed Activities. Financial shall
immediately cease to engage in any Licensed Activities defined in the
Website Agreement and shall not directly or indirectly, represent to
the public or hold itself out as a present or former licensee of
General Media or any of General Media's affiliates.
6.2 Cessation of Use of Intellectual Property and Licensed
Materials. Financial shall immediately and permanently cease to use, in
any manner whatsoever the Marks, the Penthouse(C) Content (each as
defined in the Website Agreement) and any confidential methods,
procedures and/or techniques associated with the Penthouse(C) Websites
(as defined in the Website Agreement) and distinctive forms, slogans,
signs, symbols and devices associated with the Penthouse(C) Websites.
6.3 Cancellation of Assumed Names. Financial shall not adopt
and shall take such action as may be necessary, including but not
limited to amendment of its charter, to change its corporate name to
eliminate the word "PENTHOUSE" or any other Marks and to cancel any
assumed name or similar registration of Financial which contains the
word "PENTHOUSE" or any other Marks, and shall furnish evidence
satisfactory to General Media of compliance with this obligation within
five (5) days after the execution of this Agreement.
6.4 Avoidance of Confusingly Similar Marks. Financial agrees,
in the event it continues to operate or subsequently begins to operate
any business, not to use any reproduction, counterfeit, copy, or
colorable imitation of the Marks, in connection with such other
business or the promotion thereof, that is likely to cause confusion,
mistake, or deception, or that is likely to dilute General Media or its
affiliates rights in and to the Marks and further agrees not to use any
designation, of origin or description or representation that falsely
suggests or represents and association or connection with General
Media.
6.5 Return of Licensed Materials. Financial shall promptly
return to General Media any Penthouse(C) Content (as defined in the
Website Agreement) or other confidential or proprietary materials in
its possession.
7. Miscellaneous Provisions.
7.1 Severability. In the event that any provision of this
Agreement is found to be illegal or unenforceable by any court or
tribunal of competent jurisdiction, then to the extent that such
provision may be made enforceable by amendment to or modification
thereof, the Parties agree to make such amendment or modification so
that the same shall be made valid and enforceable to the fullest extent
permissible under existing law and public policies in the jurisdiction
where enforcement is sought, and in the event that the Parties cannot
so agree, such provision shall be modified by such court or tribunal to
conform, to the fullest extent permissible under applicable law, to the
intent of the Parties in a valid and enforceable manner, if possible
and if not possible, then be stricken entirely from the Agreement by
such court or tribunal and the remainder of this Agreement shall remain
binding on the parties hereto.
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7.2 Amendment. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and
signed by the party or parties to be bound thereby.
7.3 Governing Law. This Agreement shall be interpreted,
construed, governed and enforced according to the internal laws of the
State of New York without regard to conflict or choice of law
principles of New York or any other jurisdiction. This Agreement shall
be executed in New York and is intended to be performed in New York. In
the event of litigation arising out of this Agreement, the parties
hereto consent to the personal jurisdiction of the State of New York,
and agree to exclusively litigate said actions.
7.4 No Waiver. If any party to this Agreement fails to, or
elects not to enforce any right or remedy to which it may be entitled
hereunder or by law, such right or remedy shall not be waived, nor
shall such nonaction be construed to confer a waiver as to any
continued or future acts, nor shall any other right or remedy be waived
as a result thereof. No right under this Agreement shall be waived
except as evidenced by a written document signed by the party waiving
such right, and any such waiver shall apply only to the act or acts
expressly waived in said document.
7.5 Counterparts. This Agreement may be executed in any number
of counterparts, and each such counterpart will, for all purposes, be
deemed an original instrument, but all such counterparts together will
constitute but one and the same Agreement.
7.6 Binding Agreement. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and upon their
respective heirs, successors, assigns and legal representatives.
7.7 Counsel. Each of the parties hereto represents that it,
she or he has consulted legal counsel in connection with this
Agreement, or has been given full opportunity to review this Agreement
with counsel of his, her or its choice prior to execution thereof and
has elected not to seek such counsel. The parties hereto waive all
claims that they were not adequately represented in connection with the
negotiation, drafting and execution of this Agreement. Each party
further agrees to bear its own costs and expenses, including attorneys'
fees, in connection with the Action and this Agreement. If any Party
initiates any legal action arising out of or in connection with
enforcement of this Agreement, the prevailing Party in such legal
action shall be entitled to recover from the other Party all reasonable
attorneys' fees, expert witness fees and expenses incurred by the
prevailing Party in connection therewith.
7.8 Notices. All notices or other communications which either
of the parties is required or may desire to serve upon the other party,
or advise the other party of, arising out of or in connection with or
relating to this Agreement shall, unless specifically provided herein
to the contrary, be in writing and shall be deemed to have been duly
given on the date of service if delivered (a) in person and
corroborated by a third party or by fax transmission, and, if by fax
transmission, such fax transmission shall be sent no later than 5:00
p.m. of a Business Day of the party to whom such notice is sent,
provided that personally delivered or faxed notices are also mailed on
the same date by overnight Federal Express, UPS next day air, certified
or registered mail, with return receipt requested, postage prepaid; or
(b) seventy-two (72) hours after mailing by United States mail,
certified or registered mail, return receipt requested, postage prepaid
and property addressed to the respective parties as follows:
[BALANCE OF PAGE INTENTIONALLY BLANK]
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To Financial: Penthouse Financial, LLC
0000 X. Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Copy to: Corporate Legal Services, LLP
0000 Xxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
To General Media: General Media Communications, Inc.
00 Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Copy to: Pachulski, Stang, Ziehl, Young, Jones,
Weintraub, P.C.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx, Esq.
The foregoing names and addresses shall be deemed correct
until either party is notified to the contrary.
6.9 Entire Agreement. This Agreement and the Exhibits hereto
set forth the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein, and supersedes all
prior agreements, promises, understandings, letters of intent,
covenants, arrangements, communications, representations or warranties,
whether oral or written, by any party hereto or by any related or
unrelated third party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be
delivered pursuant to the terms hereof are hereby expressly made a part
of this Agreement, and all references herein to the terms "this
Agreement", "hereunder", "herein", "hereby" or "hereto" shall be deemed
to refer to this Agreement and to all such writings.
6.10 Successors and Assigns. As used herein the term "the
Parties" shall include their respective successors in interest,
licensees or assigns.
6.11 Documents. At the conclusion of the Action, each Party
shall return to the other all documents and papers produced by the
other in connection with the Action.
6.12 Execution. Each person who signs this Agreement on behalf
of a corporate entity represents and warrants that he has full and
complete authority to execute this Agreement on behalf of such entity.
Each party shall bear the fees and expenses of its counsel and its own
out-of-pocket costs in connection with this Agreement.
6.13 Captions. The captions appearing in this Agreement are
for convenience only, and shall have no effect on the construction or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
GENERAL MEDIA:
General Media Communications, Inc.,
a New York corporation
GMCI Internet Operations, Inc.,
a New York corporation
General Media Entertainment, Inc.,
a New York corporation
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
Their: Executive Vice President
FINANCIAL:
Penthouse Financial, LLC
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
Exhibit A - Promissory Note
Exhibit B - PII Release
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EXHIBIT A
PROMISSORY NOTE
PROMISSORY NOTE
New York, New York
September ___, 2003
FOR VALUE RECEIVED, General Media International, Inc. (the "Borrower")
hereby promises to pay to the order of Vector Partners, LLC, a Nevada limited
liability company (the "Lender"), at such place as the Lender may from time to
time designate (the "Payment Office"), the sum of One Million Dollars
($1,000,000) (the "Loan"), on January 6, 2004 (the "Maturity Date"), in lawful
money of the United States, and to pay interest in like money at such office or
place from January 6, 2003 to the date of payment in full of such Loan (whether
upon acceleration or otherwise) on the unpaid principal balance of such Loan at
a rate per annum of the lesser of twelve percent (12%) or the highest rate
permitted by applicable law. Accrued but unpaid interest shall be payable on the
Maturity Date and shall be calculated on the basis of actual days elapsed over a
360-day year. This Note is given by Borrower to recognize a loan of $1,000,000
made on January 6, 2003 by wire transfer on Lender's behalf to General Media,
Inc. requested by Borrower.
The Borrower shall have the right to prepay the Loan from time to time
in part or at any time in whole, so long as concurrently with the making of any
such prepayment the Borrower pays to the Lender all accrued interest on the
amount being prepaid.
If any one or more of the following events (herein called "Events of
Default") shall occur for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(i) if default shall be made in the due and punctual payment
of the principal of or interest on any of the Loan when and as the same
shall become due and payable (whether upon the Maturity Date, by
acceleration or otherwise);
(ii) if the Borrower shall be unable to pay its debts
generally as they become due; file a petition to take advantage of any
bankruptcy or other insolvency act; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statue of the
United States of America or any state thereof or Canada, or any
province thereof, or any foreign country; or
(iii) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or of the whole or any
substantial part of its properties, or approve a petition filed against
the Borrower seeking liquidation, reorganization or other or other
arrangement or similar relief under the bankruptcy laws or any other
applicable law or statue of the United States of America or any state
thereof or Canada, or any province thereof, or any foreign country; or
if, under the provisions of any other law for the relief or aid of
debtors, a court of competent jurisdiction shall assume custody or
control of the Borrower or of the whole or any substantial part of its
properties; or if there is commenced against the Borrower any
proceeding for any of the foregoing relief and such proceeding or
petition remains undismissed for a period of thirty days; or if the
Borrower by any act indicates its consent to or approval of any such
proceeding or petition;
then, in any such event and at any time thereafter, if such or any other Event
of Default shall then be continuing, the Lender may declare the unpaid principal
amount of the Loan to be due and payable, and the same, all interest accrued
thereon and all other obligations of the Borrower to the Lender hereunder shall
immediately become due and payable without presentment, demand, protest or
notice of nay kind, all of which are hereby expressly waived, anything contained
herein to the contrary notwithstanding.
The Borrower hereby waives diligence, demand, presentment, protest and
notice of any kind, and assents to extensions of the time of payment, release,
surrender or forbearance or other indulgence, without notice. The Borrower
agrees to pay all amounts of principal, and interest under this Note without
offset, deduction, claim, counterclaim, defense or recoupment, all of which are
hereby waived by the Borrower.
This Note may not be changed, modified or terminated orally, but only
by an agreement in writing signed by the Borrower or any successor or assign of
the Borrower, and the lender or any holder hereof.
In the event the Lender or any holder hereof shall retain or engage an
attorney to collect, enforce or protect its interests with respect to this Note,
the Borrower shall pay all of the reasonable costs and expenses of such
collection, enforcement or protection, including reasonable attorneys' fees,
whether or not suit is instituted.
This Note shall be governed by and construed in accordance with the
laws of the State of New York, and shall be binding upon the successors and
assigns of the Borrower and inure to the benefit of the Lender and its
successors, endorsees and assigns. If any term or provision of this Note shall
be held invalid, illegal or unenforceable, the validity of all other terms and
provisions hereof shall in no way be affected thereby.
GENERAL MEDIA
INTERNATIONAL, INC.
By:
--------------------------
Name:
Title:
EXHIBIT B
PII RELEASE
MUTUAL GENERAL RELEASE
The undersigned, Financial Partners, LLC, a Nevada limited liability
company ("FINANCIAL"), and Penthouse International, Inc. ("PENTHOUSE"), a
Florida corporation, for and in consideration of the sum of $10.00, received
from or on behalf of Penthouse International, Inc, and received from or on
behalf of Financial and assigns of individuals, and the successors and assigns
of corporations, wherever the context so admits or requires.
Each party and his, her or its agents, heirs, beneficiaries, legal
representatives, successors and assigns hereby remises, releases, acquits,
satisfies, and forever discharges the s the other party of and from all, and all
manner of, action and actions, cause and causes of action, suits, debts, dues,
sums of money, accounts, reckonings, notes, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, claims, and demands whatsoever, in
law or inequity, that said Releasor ever had, now has, or that any personal
representative, successor, heir, or assign or Releasor hereafter can, shall, or
may have, against releasee, for, upon, or by reason of any matter, cause, or
thing whatsoever, up to an including the date of this Release.
The undersigned Releasor intends that this Release shall apply to
Penthouse International, Inc, but not subsidiary corporations, to all of its and
their past, present, and future officers, directors, agents, and employees, and
their respective heirs and legal representatives, in their capacity with
Penthouse International.
The undersigned hereby waives any claim or right to assert any claim
whatsoever, known or unknown, that has been, through oversight or error,
intentionally or unintentionally, omitted from this Release.
This Release shall be binding on all individual parties, their heirs,
executors, administrators, and assigns, and all corporate parties, their
predecessors, successors, subsidiaries, parents, and assigns.
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable. this Agreement and all transactions
contemplated hereby shall be governed by, construed and enforced in accordance
with the laws of the State of New York. THE PARTIES HEREBY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
ANY OF THE CONTEMPLATED TRANSACTIONS, WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY
OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF
THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY
TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING
TO THIS AGREEMENT OR ANY OF THE CONTEMPLATED TRANSACTIONS SHALL INSTEAD BE TRIED
IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
This Release expressly includes all persons and legal entities who are
or may be liable to the undersigned Releasor as joint debtors of the releasee.
Dated this 16th day of September, 2003.
Signed and delivered in the presence of:
FINANCIAL
Penthouse Financial, LLC
By:
-----------------------------------
Manager
PENTHOUSE
Penthouse International, Inc.
By:
-----------------------------------
Xxxxxxx Xxxxx
Executive Vice President
