PURCHASE AGREEMENT
Exhibit 10.1
This
Purchase Agreement (this “Agreement”)
is dated as of January 4, 2010, by and among aVinci Media Corporation, a
Delaware corporation (the “Company”),
Amerivon Investments LLC, a Nevada limited liability company (“Amerivon”),
and Xxxx X. Xxxxx, a Nevada resident (“Tyson”). Amerivon
and Tyson are sometimes referred to herein individually as a “Purchaser” and
collectively as the “Purchasers.”
WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act (as defined below) and Rule 506 promulgated
thereunder, the Company desires to issue (1) the Amerivon Note, (2) the Tyson
Note, (3) the Amerivon Warrant, and (4) the Tyson Warrant, and Amerivon and
Tyson desire to purchase from the Company the Amerivon Note and the Amerivon
Warrant, and the Tyson Note and the Tyson Warrant, respectively, as more fully
described in this Agreement.
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises and
covenants contained herein, and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the parties hereby
agree as follows:
1. Defined Terms Used in this
Agreement. In addition to the terms defined above, the following terms
used in this Agreement shall be construed to have the meanings set forth or
referenced below.
“Amerivon
Note” means that certain Secured Convertible Promissory Note of even date
herewith, in the form attached hereto as Exhibit A, made by
the Company to Amerivon in the amount of Two Hundred Fifty Thousand Dollars
($250,000).
“Amerivon Purchase
Price” means Two Hundred Fifty Thousand Dollars ($250,000).
“Amerivon
Securities” means the Amerivon Note and the Amerivon
Warrant.
“Amerivon
Warrant” means that certain Warrant to Purchase Common Stock of even date
herewith, in the form attached hereto as Exhibit B, issued by
the Company to Amerivon to purchase up to two million eighty-three thousand two
hundred fifty (2,083,250) shares of Common Stock at the Exercise
Price.
“Common
Stock” means the Company’s common stock, $0.01 par value.
“Exercise
Price” means an exercise price of Seven and One-Half Cents ($0.075) per
share of Common Stock.
“Indemnified
Party” has the meaning assigned in Section
5.5.
“Indemnifying
Party” has the meaning assigned in Section
5.5.
“Notes”
means the Amerivon Note and the Tyson Note.
“Preferred
Stock” has the same meaning as assigned in Section 7(a) of the
Notes.
“Registration
Rights Agreement” means that certain Registration Rights Agreement of
even date herewith, in the form attached hereto as Exhibit C, by and
among the Company, Amerivon, and Tyson.
“Securities”
means the Notes and the Warrants.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Security
Agreement” means that certain Security Agreement of even date herewith,
in the form attached hereto as Exhibit D, by and
among Amerivon, Tyson, the Company, and the Subsidiary.
“Subsidiary”
means aVinci Media, LC, a Utah limited liability company.
“Transaction
Agreements” means this Agreement, the Amerivon Note, the Tyson Note, the
Amerivon Warrant, the Tyson Warrant, the Security Agreement, the Registration
Rights Agreement, and all other documents or agreements executed in connection
with the transactions contemplated hereunder.
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“Tyson Note”
means that certain Secured Convertible Promissory Note of even date herewith, in
the form attached hereto as Exhibit E, made by
the Company to Tyson in the amount of One Hundred Thousand Dollars
($100,000).
“Tyson Purchase
Price” means One Hundred Thousand Dollars ($100,000).
“Tyson
Securities” means the Tyson Note and the Tyson Warrant.
“Tyson
Warrant” means that certain warrant of even date herewith, in the form
attached hereto as Exhibit F, issued by
the Company to Tyson to purchase up to eight hundred thirty-three thousand three
hundred (833,300) shares of Common Stock at the Exercise Price.
“Warrants”
means the Amerivon Warrant and the Tyson Warrant.
2. Purchase and Sale of the
Securities.
2.1 The Amerivon
Securities. Subject to the terms and conditions of this
Agreement, and subject to compliance with all applicable federal and state
securities laws, the Company hereby sells and issues the Amerivon Securities to
Amerivon and Amerivon hereby purchases from the Company the Amerivon Securities
for the Amerivon Purchase Price.
2.2 The Tyson
Securities. Subject to the terms and conditions of this
Agreement, and subject to compliance with all applicable federal and state
securities laws, the Company hereby sells and issues the Tyson Securities to
Tyson and Tyson hereby purchases from the Company the Tyson Securities for the
Tyson Purchase Price.
3. Representations and
Warranties of the Company. The Company hereby represents and warrants to
Amerivon and Tyson that the following representations are true and complete as
of the date hereof:
3.1 The
Securities have been duly authorized and validly issued by the appropriate
corporate action of the Company and are free and clear of all liens,
encumbrances, equities, or claims.
3.2 When
issued, the shares of Preferred Stock to be issued on conversion of the Notes,
and the shares of Common Stock to be issued on conversion of the shares of
Preferred Stock or on exercise of the Warrants will be duly authorized, validly
issued, fully paid (on receipt of full payment pursuant to the terms of the
Warrants), and non-assessable, free and clear of all liens, encumbrances,
equities, or claims. The Company has duly and validly reserved
sufficient shares of Preferred Stock for issuance on conversion of the Notes,
and has duly and validly reserved sufficient shares of Common Stock for issuance
on conversion of the Preferred Stock and on exercise of the
Warrants.
3.3 The
Company is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, with the corporate power to own its
properties and carry on its businesses as they are now being
conducted. The Company is qualified to conduct business in every
state in which it is required to be qualified to conduct
business. The Company’s organizational number issued by the Delaware
Secretary of State is 2142972. The Subsidiary is a limited liability
company duly organized, validly existing, and in good standing under the laws of
the State of Utah, with the power to own its properties and carry on its
businesses as they are now being conducted. The Subsidiary is
qualified to conduct business in every state in which it is required to be
qualified to conduct business. The Company’s organizational number
issued by the Utah Secretary of State is 5292102.
3.4 The
Company and the Subsidiary have full power and authority to execute and deliver
the Transaction Agreements to which they are a party, and to consummate the
transactions contemplated hereby and thereby. The execution,
delivery, and performance by the Company and the Subsidiary of the Transaction
Agreements to which they are a party have been duly authorized by all necessary
action on behalf of the Company and the Subsidiary. The Transaction
Agreements to which they are a party have been duly executed and delivered by
the Company and the Subsidiary, and (assuming the due authorization, execution,
and delivery by the other parties hereto and thereto) the Transaction Agreements
to which they are a party constitute the legal, valid, and binding
obligations of the Company and the Subsidiary, enforceable against the Company
and the Subsidiary in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith, and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
3.5 Neither
of the execution and delivery of the Transaction Agreements by the Company or
the Subsidiary nor the compliance by the Company or the Subsidiary with any of
the provisions hereof or thereof will (i) conflict with, or result in the breach
of, any provision of the certificate of incorporation or by-laws of the Company
or the articles of organization or the operating agreement of the Subsidiary,
(ii) conflict with, violate, result in the breach of, or constitute a default
under any note, bond, mortgage, indenture, license, agreement, or other
obligation to which the Company or the Subsidiary is a party or by which the
Company, the Subsidiary, or their respective properties or assets are bound, or
(iii) violate any statute, rule, regulation, order, or decree of any
governmental body or authority by which the Company or the Subsidiary is bound,
except, in the case of clauses (ii) and (iii), for such violations, breaches, or
defaults as would not, individually or in the aggregate, have a material adverse
effect on the business, properties, results of operations, prospects, or
conditions (financial or otherwise) of the Company and the Subsidiary, taken as
a whole.
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3.6 No
consent, waiver, approval, order, permit, or authorization of, or
declaration or filing with, or notification to, any person or governmental
body is required on the part of the Company or the Subsidiary in connection with
the execution, delivery, and performance of the Transaction Agreements to which
they are a party, other than notice filings under the Securities Act and
applicable state securities laws.
3.7 The
Company has made available to the Purchasers all the information reasonably
available to the Company that the Purchasers have requested for deciding whether
to acquire the Securities.
3.8 The
Company has timely made all filings with the Securities and Exchange
Commission that it is required to make under the Securities Exchange Act of
1934. Each such filing, as of its date, was accurate and complete,
did not contain any untrue statement of a material fact, and did not omit to
state a material fact necessary in order to make the statements made, in the
light of the circumstances under which they were made, not
misleading. The total of all such filings made by the Company
contains all relevant and material information about the Company, does not
contain any untrue statement of a material fact, and does not omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading.
3.9 The
Company’s authorized capital stock consists of two hundred fifty million
(250,000,000) shares of Common Stock, of which fifty-one million four hundred
sixty-two thousand two hundred twenty-seven (51,462,227) shares are issued and
outstanding, and fifty million (50,000,000) shares of preferred stock, of which
one million five hundred thousand (1,500,000) have been designated as the Series
A Preferred Stock and one million two hundred two thousand six hundred
twenty-seven (1,202,627) are issued and outstanding. All of the
issued and outstanding shares have been duly authorized and validly issued, and
are fully paid and nonassessable. The Company has issued options,
warrants, and convertible securities (including the outstanding preferred
stock)exercisable to purchase or convertible into fourteen million seven hundred
thirty-seven thousand two hundred eighty-two (14,737,282) shares of Common
Stock, and there are no other outstanding options, employee options, warrants,
convertible securities, agreements, contracts, calls, or commitments of any
character that would require the Company to issue any shares. The
authorized capital of the Subsidiary consists of one hundred ten million
(110,000,000) units, of which one hundred thousand (100,000) units are issued
and outstanding, all of which are owned beneficially and of record by the
Company. There are no outstanding options, employee options,
warrants, convertible securities, agreements, contracts, calls, or commitments
of any character that would require the Company to issue any equity
securities.
4. Representations and
Warranties of the Purchasers. For the purposes of this Section 4, the term
“Securities” when used with Amerivon shall mean the Amerivon Securities and when
used with Tyson shall mean the Tyson Securities. Each Purchaser
hereby represents and warrants to the Company, as to such Purchaser alone and
not as to the other Purchaser, that the following representations are true and
complete as of the date hereof:
4.1 Each
Purchaser is an “accredited investor” as such term is defined in Rule 501 of
Regulation D (“Regulation
D”) promulgated under the Securities Act, and that the Purchaser is
able to bear the economic risk of an investment in the Securities.
4.2 Each
Purchaser has knowledge and experience in business and financial matters
and prior investment experience, including investment in securities that are
non-listed, unregistered, and/or not traded on a national securities
exchange.
4.3 Each
Purchaser has been furnished with information regarding the Company, the terms
and conditions of the Securities, and any additional information that the
Purchaser has requested or desired to know, and has been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning the
Company.
4.4 In making
the decision to invest in the Securities, each Purchaser has relied solely upon
the information provided by the Company, including but not limited to filings
made by the Company with the Securities and Exchange Commission. To
the extent necessary, each Purchaser has retained and relied upon appropriate
professional advice regarding the investment, tax, and legal merits and
consequences of this Agreement and the purchase of the Securities
hereunder.
4.5 Each
Purchaser was contacted regarding the sale of the Securities by the Company (or
an authorized agent or representative thereof) with whom the Purchaser had a
prior substantial pre-existing relationship, and no Securities were offered or
sold to such Purchaser by means of any form of general solicitation or general
advertising, and in connection therewith, the Purchaser did not (i) receive or
review any advertisement, article, notice, or other communication published in a
newspaper, magazine, or similar media or broadcast over television or
radio, whether closed circuit or generally available; or (ii) attend any
seminar, meeting, or industry investor conference whose attendees were invited
by any general solicitation or general advertising.
4.6 Each
Purchaser, either by reason of the Purchaser’s business or financial experience,
has the capacity to protect the Purchaser’s own interests in connection with the
transaction contemplated hereby.
4.7 Each
Purchaser hereby acknowledges that the Securities have not been reviewed by the
U.S. Securities and Exchange Commission or any state regulatory authority since
the Securities are intended to be exempt from the registration requirements of
Section 5 of the Securities Act pursuant to Regulation D promulgated
thereunder. The Purchaser understands that the Securities have not
been registered under the Securities Act or under any state securities or “blue
sky” laws and agrees not to sell, pledge, assign, or otherwise transfer or
dispose of the Securities unless they are registered under the Securities Act
and under any applicable state securities or “blue sky” laws or unless an
exemption from such registration is available.
4.8 Each
Purchaser understands that the Securities have not been registered under the
Securities Act by reason of a claimed exemption under the provisions of the
Securities Act that depends, in part, upon the Purchaser’s investment
intention. In this connection, the Purchaser is purchasing the
Securities for the Purchaser’s own account for investment and not with a view
toward the resale or distribution to others in violation of the Securities Act
or applicable state securities laws. The Purchaser, if an
entity, was not formed for the specific purpose of purchasing the
Securities.
4.9 Each
Purchaser understands that there is no public market for the Securities and that
no market may develop for any of such Securities. Each Purchaser
understands that even if a public market develops for such Securities, Rule 144
promulgated under the Securities Act requires for non-affiliates, among other
conditions, a six (6)-month holding period prior to the resale (in limited
amounts) of securities acquired in a non-public offering without having to
satisfy the registration requirements under the Securities Act.
4.10 Each
Purchaser consents to the placement of a restrictive transfer legend on any
certificate or other document evidencing the Securities that such Securities
have not been registered under the Securities Act or any state securities or
“blue sky” laws. The Purchaser is aware that the Company will make a
notation in its appropriate records with respect to the restrictions on the
transferability of such Securities.
4.11 The
address furnished by each Purchaser in Section 10.4 is the
Purchaser’s principal residence if Purchaser is an individual or its principal
business address if it is a corporation or other entity.
4.12 Each
Purchaser has full power and authority to execute and deliver this Agreement and
to purchase the Securities. This Agreement constitutes the legal,
valid, and binding obligation of each Purchaser, enforceable against the
Purchaser in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith, and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
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4.13 If the
Purchaser is a corporation, partnership, limited liability company, trust,
employee benefit plan, individual retirement account, or other tax-exempt
entity, it is authorized and qualified to invest in the Company and the person
signing this Agreement on behalf of such entity has been duly authorized by such
entity to do so.
4.14 Each
Purchaser acknowledges and agrees that the Company makes no other
representations or warranties with respect to the Securities or the Company
other than as set forth in the Transaction Agreements.
5. Indemnification.
5.1 Survival of Representations
and Warranties. Notwithstanding any right of Amerivon or Tyson
to fully investigate the Company’s operations, assets, and financial condition,
and notwithstanding any knowledge of facts determined or determinable by
Amerivon or Tyson pursuant to such investigation or right of investigation,
Amerivon and Tyson have the right to rely fully upon the representations,
warranties, covenants, and agreements of Company contained in this Agreement and
any other Transaction Agreements, or any document or instrument delivered
in connection with this Agreement and any other Transaction Agreement or the
transactions contemplated herein or therein. All such representations
and warranties shall survive the execution and delivery of this
Agreement.
5.2 Indemnification by the
Company. The Company shall indemnify, save, defend, and hold
Amerivon and Tyson and their respective managers, officers, members, employees,
agents, successors, and assigns as amended, harmless from and against any and
all damages, liabilities, losses, claims, diminution in value, obligations,
liens, assessments, judgments, taxes, fines, penalties, interest, and costs
and expenses (including court costs, accountants’ fees, and attorneys’ fees), as
the same are incurred, of any kind or nature whatsoever (whether or not arising
out of third party claims and including all amounts paid in investigation,
defense, or settlement of the foregoing and indirect and consequential damages)
arising out of or in connection with (i) any breach of or inaccuracy, or any
breach or inaccuracy alleged by a third party, in any representation or warranty
made by the Company in this Agreement, the Transaction Agreements, or any
agreement, document, or instrument executed and delivered in connection herewith
or therewith (which representations and warranties, for purposes of determining
whether a breach has occurred under this Section 5.2, shall be
construed without giving effect to any qualification or exception contained
therein for materiality, material adverse effect, or any words or phrases to
similar effect), or (ii) any breach of covenant or agreement made or to be
performed by the Company or the Subsidiary under this Agreement or any of the
Transaction Agreements.
5.3 Indemnification by
Amerivon. Amerivon shall indemnify, save, defend, and hold the
Company harmless from and against any and all damages, liabilities, losses,
claims, obligations, liens, assessments, judgments, taxes, fines, penalties,
interest, and costs and expenses (including court costs, accountants’ fees, and
attorneys’ fees), as the same are incurred, of any kind or nature whatsoever
(whether or not arising out of third party claims and including all amounts paid
in investigation, defense, or settlement of the foregoing) arising out of or in
connection with any breach of any representation or warranty made by
Amerivon in Section
4.
5.4 Indemnification by
Tyson. Tyson shall indemnify, save, defend, and hold the
Company harmless from and against any and all damages, liabilities, losses,
claims, obligations, liens, assessments, judgments, taxes, fines,
penalties, interest, and costs and expenses (including court costs, accountants’
fees, and attorneys’ fees), as the same are incurred, of any kind or nature
whatsoever (whether or not arising out of third party claims and including all
amounts paid in investigation, defense, or settlement of the foregoing) arising
out of or in connection with any breach of any representation or warranty made
by Tyson in Section
4.
5.5 Notice. Within
a reasonable time after the receipt by the party claiming the right to
indemnification pursuant to this Section 5 (the “Indemnified
Party”) of any notice of a claim or the commencement of any action, suit,
or proceeding, the Indemnified Party shall give the other party (the “Indemnifying
Party”) written notice of such claim or the commencement of such action,
suit, or proceeding. The written notice shall include the nature,
amount, and cause of any claim for indemnification in reasonable
detail. The failure to give such notice shall not affect the
Indemnified Party’s right to seek indemnification from the Indemnifying Party,
except to the extent that the Indemnifying Party can demonstrate actual
prejudice as a result of such failure.
5.6 Claim Not Involving a Third
Party. Upon receipt of a notice of a claim from an Indemnified
Party not involving a third party, the Indemnifying Party shall promptly pay the
amount of the claim to the Indemnified Party.
5.7 Claim Involving a Third
Party. Upon receipt of a notice of a claim or the
commencement of any action, suit, or proceeding involving a third party,
the Indemnifying Party shall promptly reimburse the Indemnified Party for the
losses and defense costs suffered or incurred by the Indemnified Party, whether
by judgment, order, award, settlement, compromise, or otherwise, including but
not limited to all expenses. Amerivon and Tyson shall have the
exclusive election to settle, compromise, or defend by its or his own counsel
any claim at its or his expense if it or he is the Indemnifying Party or at the
Company’s expense if it or he is an Indemnified Party; provided that Amerivon
and Tyson may not settle or compromise any claim without the Company’s prior
written consent, which consent may not be unreasonably withheld or delayed;
provided further that Amerivon and Tyson may settle or compromise any claim
without the Company’s prior written consent if the Company is the Indemnifying
Party and it fails or refuses to provide or pay for a defense, or if the Company
is the Indemnified Party and the settlement or compromise does not require the
Company to pay any amount. The Indemnified Party may elect to be
represented by its own legal counsel at its own expense. Each party
shall use its best efforts to assist the other party in the defense of the claim
and shall make available all information and assistance that the defending
party may reasonably request in connection with such defense.
6. Conditions to the
Purchasers’ Obligations. The obligations of each Purchaser to
purchase Securities (as applicable to each Purchaser) are subject to the
fulfillment of each of the following conditions, unless otherwise
waived:
4
6.1 Representations and
Warranties. The representations and warranties of the Company
contained in Section
3 shall be true and correct in all respects.
6.2 Performance. The
Company shall have performed and complied with all covenants, agreements,
obligations, and conditions contained in this Agreement that are required to be
performed or complied with by the Company on or before the closing.
6.3 Transaction
Agreements. The Company shall have delivered to the Purchasers
(i) Transaction Agreements duly executed by the Company and the Subsidiary, (ii)
the certificate or certificates evidencing ownership of all outstanding equity
interests in the Subsidiary, and (iii) three (3) undated assignments for the
equity interests in the Subsidiary duly executed by the Company.
6.4 Good Standing
Certificate. The Company shall deliver to the Purchasers a
Good Standing Certificate issued by the Delaware Secretary of State as to the
legal existence and good standing of the Company, and a certificate issued by
the Utah Secretary of State as to the legal existence and good standing of the
Subsidiary.
6.5 Secretary’s
Certificates. The Company shall deliver a certificate, dated
as of the closing, executed by the Secretary of the Company certifying (i) true
and correct copies of resolutions or consent actions taken by the Board of
Directors of the Company authorizing the execution and delivery of the
Transaction Agreements, and (ii) the names of the officers of the Company
authorized to sign the Transaction Agreements executed by the Company, together
with the true signatures of such officers. The Subsidiary shall
deliver a certificate, dated as of the closing, executed by the Secretary of the
Subsidiary certifying (a) true and correct copies of resolutions or consent
actions taken by the managers of the Subsidiary authorizing the execution and
delivery of the Transaction Agreements, and (b) the names of the officers of the
Subsidiary authorized to sign the Transaction Agreements executed by the
Subsidiary, together with the true signatures of such officers.
7. Conditions of the Company’s
Obligations. The obligations of the Company to sell the Securities to the
Purchasers are subject to the fulfillment of each of the following conditions,
unless otherwise waived:
7.1 Representations and
Warranties. The representations and warranties of each
Purchaser contained in Section 4 shall
be true and correct in all respects.
7.2 Performance. Each
Purchaser shall have performed and complied with all covenants, agreements,
obligations, and conditions contained in this Agreement that are required to be
performed or complied with by such Purchaser on or before the
closing.
7.3 Consideration. Subject
to Section 9
below, Amerivon shall have delivered the Amerivon Purchase Price to the Company
and Tyson shall have delivered the Tyson Purchase Price to the Company, each
payable by wire transfer.
7.4 Transaction
Agreements. The Transaction Agreements shall have been
executed and delivered to the Company by the Purchasers.
8. Purchasers’
Rights.
8.1 Reports. The
Company shall provide the Purchasers with monthly cash reports on or before the
tenth (10th) day of each month, each such report to be certified by the
Company’s Principal Financial and Accounting Officer to be true and correct to
the best of such officer’s knowledge.
8.2 Budget. The
Company shall obtain the written approval of the holders of a majority of the
then outstanding principal amount of the Notes prior to (i) adopting an annual
budget for the Company and the Subsidiary, (ii) adopting any changes to such
annual budget, or (iii) exceeding the amount of any line item of such annual
budget by more than Ten Thousand Dollars ($10,000) or exceeding the total amount
of such annual budget by more than Fifty Thousand Dollars
($50,000).
9. Expenses. The
Company and the Purchasers will each bear their own legal and other expenses
with respect to the transactions contemplated by this Agreement.
10. Miscellaneous.
10.1 Successors and
Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
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10.2 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Utah, regardless of the laws that
might otherwise govern under applicable principles of conflicts of
law.
10.3 Counterparts. This
Agreement may be executed and delivered by facsimile signature or e-mail of a
scanned signature page, and in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
10.4 Notices. All
notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be delivered personally or sent by
overnight courier or by certified mail, return receipt
requested. Notices delivered personally or sent by overnight courier
shall be effective on the date received, while notices sent by certified mail,
return receipt requested, shall be deemed to have been received and to be
effective three (3) business days after deposit into the
mails. Notices shall be given to the parties at the following
respective addresses, or to such other addresses as any party shall designate in
writing:
If
to Amerivon:
|
Xx.
Xxxx X. Xxxxx
Chief
Executive Officer
Amerivon
Investments LLC
0000
Xxxx Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000-0000
|
With a courtesy copy to: |
Xxxxxxx
X. XxXxx, Esq.
Nevers,
Palazzo, Xxxxxx & Packard, plc
00000
Xxx Xxxxx Xxxxx.
Xxxxx
000
Xxxxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000-0000
|
If to Tyson: |
Xx.
Xxxx X. Xxxxx
P.
O. Xxx 000
Xxxxxxx
Xxx,
Xxxxxx 00000-0000
|
If to the Company: |
Xx.
Xxxxx X. Xxxxxxx
Chief
Executive Officer
00000
Xxxxx Xxxx Xxxx Xxxxxxx
Xxxxx
000
Xxxxxx,
Xxxx 00000-0000
|
With a courtesy copy to: |
Xxxxx
XxXxxxxx, Esq.
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx, Xxx
Xxxx 00000-0000
|
10.5 No Finder’s
Fees. Each party represents that it neither is nor will be
obligated for any finder’s fee or commission in connection with this
transaction. Each Purchaser agrees to indemnify and to hold harmless the Company
from any liability for any commission or compensation in the nature of a
finder’s or broker’s fee arising out of this transaction (and the costs and
expenses of defending against such liability or asserted liability) for which
each Purchaser or any of its officers, employees, or representatives is
responsible. The Company agrees to indemnify and hold harmless each Purchaser
from any liability for any commission or compensation in the nature of a
finder’s or broker’s fee arising out of this transaction (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, employees or representatives is
responsible.
10.6 Attorneys’
Fees. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of any of the
Transaction Agreements, the prevailing party shall be entitled to reasonable
attorneys’ fees, costs, and necessary disbursements in addition to any other
relief to which such party may be entitled.
10.7 Severability. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provision.
10.8 Entire
Agreement. This Agreement (including the Exhibits hereto) and
the other Transaction Agreements constitute the full and entire understanding
and agreement between the parties with respect to the subject matter hereof, and
any other written or oral agreement relating to the subject matter hereof
existing between the parties are expressly canceled.
[signatures
on the next page]
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IN
WITNESS WHEREOF, the parties have executed this Purchase Agreement as of the
date first written above.
COMPANY | PURCHASERS | |||
aVinci Media Corporation | Amerivon Investments LLC | |||
By:
|
By:
|
|||
Xxxxx
X. Xxxxxxx
|
Xxxx
X. Xxxxx
|
|||
Chief
Executive Officer
|
Chief
Executive Officer
|
|||
By: | By: | |||
Xxxxxx X. Xxxxxxx | Xxxx X. Xxxxx | |||
Secretary |
7