EXHIBIT 2.2
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of the 16th day of March, 2000, by and among The XxxXxx.xxx, Inc., a Florida
corporation ("BigHub"), Xxxxxx X. Xxxxxxx and Xxxx Xxxx (the "Shareholders"),
and Next Generation Media Corporation, a Nevada corporation (the "Company").
Recitals
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BigHub, the Shareholders and Company are, among others, parties to that
certain Stock Purchase Agreement dated on or about March ___, 2000 (the "Primary
Stock Purchase Agreement"), whereby BigHub is purchasing from Shareholders, and
other shareholders of Company, shares of the Company's common stock, par value
$.01 per share ("Company Common Stock"), shares of the Company's Series A
Convertible Preferred Stock, par value $.001 per share ("Company Preferred
Stock"), warrants to purchase Company Common Stock with an exercise price of
$0.16, held by the holders of the Company Preferred Stock which were issued in
connection with the issuance of the Company Preferred Stock (the "Warrants"),
and Company Common Stock purchase options (the "Company Options").
The Shareholders desire to sell to BigHub and BigHub desires to purchase
from the Shareholders the number of shares of the Company Common Stock, equal to
that number of shares of Company Common Stock that would otherwise have been
acquired, directly or indirectly, from the holders of the Company Preferred
Stock pursuant to the terms of the Primary Stock Purchase Agreement had such
holders been party to the Primary Stock Purchase Agreement (the "Non-Signing
Holders") computed as follows: the lesser of (a) 168,436 shares of Company
Common Stock, or (b) the sum of the number of shares of Company Common Stock (i)
issuable upon conversion of the shares of the Company Preferred Stock held by
the Non-Signing Holders in accordance with Section 7(a) of the Primary Stock
Purchase Agreement, (ii) issuable upon exercise of Warrants held by the Non-
Signing Holders, and (iii) issued as a dividend on the Company Preferred Stock
held by the Non-Signing Holders as contemplated in the Primary Stock Purchase
Agreement (the "Make-Whole Shares").
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
Statement of Agreement
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3. Sale and Purchase.
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a. Securities to be Transferred. On the Closing Date, as defined in
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Section 9, Shareholders shall sell and transfer the Make-Whole Shares to
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BigHub and BigHub shall purchase the Make-Whole Shares from Shareholders.
b. Purchase Price for Company Common Stock. At the Closing, as
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defined in Section 9, BigHub shall deliver to the Shareholders, as the
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purchase price for each share of Company Common Stock purchased hereunder,
consideration of 0.34 shares of BigHub common stock, par value $0.001 per
share ("BigHub Common Stock").
c. Instruments of Conveyance and Transfer. At the Closing,
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Shareholders shall deliver to BigHub a certificate or certificates
representing the Make-Whole Shares (which may be included as part of, or in
addition to, the Escrow Shares delivered to BigHub on the date hereof
pursuant to Section 6 hereof) registered in either Shareholder's name,
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together with duly executed stock powers endorsed to BigHub with signatures
guaranteed by a national bank or trust company or such other assignments or
instruments of conveyance and transfer, in form and substance satisfactory
to BigHub and its counsel, as shall be effective to vest in BigHub all of
Shareholder's right, title and interest in and to all of the Make-Whole
Shares, free and clear of any agreements, restrictions, liens, adverse
claims or encumbrances whatsoever.
d. Allocation of Make-Whole Shares to be Delivered at Closing. The
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number of Make-Whole Shares delivered by each Shareholder for sale to
BigHub at Closing shall be allocated pro rata between the Shareholders
based on the number of shares of Company Common Stock delivered by each
Shareholder as Escrow Shares pursuant to Section 6 hereof, or by such other
method as agreed to between the Shareholders as circumstances permit.
4. Representations and Warranties by Shareholder. Each Shareholder, on
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his own behalf and as pertains only to such Shareholder and such Shareholder's
respective interests being transferred hereunder, represents and warrants to
BigHub that:
a. Shareholder is, and at the Closing will be, the sole record and
beneficial owner of the Make-Whole Shares; at the Closing, other than
BigHub, no person will have a right to acquire or direct the disposition,
or hold a proxy or other right to vote or direct the vote, of such Make-
Whole Shares; and Shareholder has, and at the Closing will have, good title
to such Make-Whole Shares free and clear of any agreements, restrictions,
liens, adverse claims or encumbrances whatsoever. Other than this Agreement
there are, and at the Closing there will be, no option, warrant, right,
call, proxy, agreement, commitment or understanding of any nature
whatsoever, fixed or contingent, that directly or indirectly (i) calls for
the sale, pledge or other transfer or disposition of any of such Make-Whole
Shares, any interest therein or any rights with respect thereto, or relates
to the voting, disposition, exercise, conversion or control of such Make-
Whole Shares, or (ii) obligates Shareholder to grant, offer or enter into
any of the foregoing.
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b. The sale by Shareholder of such Make-Whole Shares and the
delivery of the certificates representing such Make-Whole Shares to BigHub
against receipt of payment therefor pursuant hereto will transfer to BigHub
indefeasible title to such Make-Whole Shares, free and clear of all
agreements, trusts, liens, adverse claims and encumbrances whatsoever.
c. Shareholder has the full right, power, authority and legal
capacity to enter into this Agreement.
k. Shareholder does not require any consent, approval, authorization
or order of any court or governmental agency or body in order to consummate
the transaction contemplated herein
l. Neither the sale of the Make-Whole Shares being sold by the
Shareholder nor the fulfillment of the terms hereof by Shareholder will
conflict with, result in a breach or violation of, or constitute a default
under any law or agreement or instrument to which Shareholder is a party or
bound, or any judgment, order or decree applicable to Shareholder of any
court, regulatory body, administrative agency, governmental body or
arbitrator having the jurisdiction over the Shareholder.
m. No rights of first refusal exist with respect to any of the Make-
Whole Shares or the issue and sale thereof, other than those which have
been waived or satisfied.
n. This Agreement is a legal, valid and binding obligation of the
Shareholder enforceable against the Shareholder in accordance with its
terms
o. The Shareholder is familiar with the business and financial
condition, properties, operations and prospects of the Company, and, at a
reasonable time prior to the Closing, has been afforded the opportunity to
ask questions of and receive satisfactory answers from the Company's
officers and directors, or other persons acting on the Company's behalf,
concerning the business and financial condition, properties, operations and
prospects of the Company and has asked such questions as he desires to ask
and all such questions have been answered to the full satisfaction of the
Shareholder.
p. All documents, records and books pertaining to the business and
financial condition, properties, operations and prospects of the Company
which the Shareholder has requested have been made available to the
Shareholder.
q. The Shareholder understands that, unless the Shareholder notifies
BigHub in writing to the contrary before the Closing, all the
representations and warranties of the Shareholder contained in this
Agreement will be deemed to have been reaffirmed and confirmed as of the
Closing, taking into account all information received by the Shareholder.
3. Representations and Warranties by Company. Company represents and
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warrants to BigHub that:
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q. Organization, Qualification, Etc. The Company is a corporation
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duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the corporate power and authority to
own its properties and assets and to carry on its business as it is now
being conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the ownership of its properties or
the conduct of its business requires such qualification except that, only
as of the date hereof and not as of the Closing, the Company is not
presently qualified to do business in Virginia. The copies of the Company's
charter and by-laws which have been made available to BigHub are complete
and correct and in full force and effect on the date hereof. Each of the
Company's subsidiaries is a corporation, limited partnership or limited
liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization, has
the corporate, limited partnership or limited liability company power and
authority to own its properties and to carry on its business as it is now
being conducted, and is duly qualified to do business and is in good
standing in each jurisdiction in which the ownership of its property or the
conduct of its business requires such qualification. All the outstanding
shares of capital stock of, or other ownership interests in, the Company's
subsidiaries are validly issued, fully paid and non-assessable and are
owned by the Company, directly or indirectly, free and clear of all
mortgages, liens, loans and encumbrances other than the security interest
of Banc First, an Oklahoma banking corporation. There are no existing
options, rights of first refusal, preemptive rights, calls or commitments
of any character relating to the issued or unissued capital stock or other
securities of, or other ownership interests in, any subsidiary of the
Company other than the right of first refusal with respect to the capital
stock of the Company's subsidiary, Independent News, Inc., a Delaware
corporation ("INI"), granted to Unico, Inc., a Delaware corporation.
r. Capital Stock. The authorized capital stock of the Company
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consists of 50,000,000 shares of the Company Common Stock, par value $.01
per share; 1,000,000 shares of the Company's preferred stock, par value
$.001 per share, of which 500,000 shares have been designated as Series A
Convertible Preferred Stock and 500,000 shares have been designated Series
B Convertible Preferred Stock (the "Series B Convertible Preferred Stock").
As of the date hereof, 4,516,818 shares of the Company Common Stock,
250,000 shares of the Series A Convertible Preferred Stock, and 65,000
shares of Series B Convertible Preferred Stock were issued and outstanding.
All the outstanding shares of the Company Common Stock, the Series A
Convertible Preferred Stock and the Series B Convertible Preferred Stock
have been validly issued and are fully paid and non-assessable. As of the
date hereof, there were no outstanding subscriptions, options, warrants,
rights or other arrangements or commitments obligating the Company to issue
any shares of its stock other than options, warrants and other rights to
receive or acquire an aggregate of 1,995,167 shares of the Company Common
Stock pursuant to various option and warrant agreements.
s. Validity of Make-Whole Shares. The Make-Whole Shares are duly
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authorized and validly issued and are fully paid and non-assessable; no
preemptive rights or, to the Company's knowledge, rights of first refusal
of stockholders exist with respect
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to any of the Make-Whole Shares or the issue and sale thereof, other than
those which have been waived or satisfied.
t. Corporate Authority Relative to this Agreement; No Violation. The
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Company has the corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by the Board of Directors of the
Company and no other corporate proceedings on the part of the Company are
necessary to authorize this Agreement and the transactions contemplated
hereby. No authorization, consent or approval of, or filing with, any
governmental body or authority is necessary for the consummation by the
Company of the transactions contemplated by this Agreement. The Company is
not subject to or obligated under any charter, bylaw or contract provision
or any governmental license, franchise or permit, or subject to any order
or decree, which would be breached or violated by its executing or, subject
to the approval of its stockholders, carrying out this Agreement.
u. Reports and Financial Statements. The Company has delivered to
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BigHub its audited financial statements for the year ended December 31,
1998 and its unaudited financial statements for the year ended December 31,
1999 (collectively, the "Financial Statements"). The Financial Statements,
together with the notes thereto, are complete and correct in all material
respects, have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, and present fairly the
financial condition and position of the Company as of the dates and for the
periods indicated, subject to normal recurring year-end audit adjustments
(which are not expected to be material) and except that the unaudited
financial statements do not contain all footnotes required under generally
accepted accounting principles.
v. No Undisclosed Liabilities. As of the date hereof, neither the
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Company nor any of its subsidiaries has any liabilities or obligations of
any nature, whether or not accrued, contingent or otherwise, of a type
required by GAAP to be reflected on a consolidated balance sheet, except
liabilities or obligations reflected in any of the Financial Statements.
w. No Violation of Law. The businesses of the Company and its
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subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any governmental body or authority, except where such conduct
has no material adverse effect on the businesses of the Company and its
subsidiaries. Except as otherwise disclosed herein, the Company and its
subsidiaries have all permits, licenses and governmental authorizations
material to ownership or occupancy of their respective properties and
assets and the carrying on of their respective businesses.
x. Environmental Laws and Regulations. The Company and each of its
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subsidiaries is in material compliance with all applicable federal, state,
local and foreign laws and regulations relating to pollution or protection
of human health or the environment (including, without limitation, ambient
air, surface water, ground water,
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land surface or subsurface strata) (collectively, "Environmental Laws").
Neither the Company nor any of its subsidiaries has received written notice
of, or, to the knowledge of the Company, is the subject of, any actions,
causes of action, claims, investigations, demands or notices by any person
alleging liability under or non-compliance with any Environmental Law or
that the Company or any subsidiary is a potentially responsible party at
any Superfund site or state equivalent site ("Environmental Claims").
y. Change of Control Payments. The consummation of the transactions
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contemplated by this Agreement will not, solely as a result of such
consummation, (i) entitle any employees of the Company or any of the
subsidiaries to severance pay, (ii) accelerate the time of payment or
vesting or trigger any payment or funding (through a grantor trust or
otherwise) of compensation or benefits under, increase the amount payable
or trigger any other material obligation pursuant to, any of the benefit
plans or (iii) result in any breach or violation of, or a default under,
any of the benefit plans.
z. Absence of Certain Changes or Events. Other than as disclosed in
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the Financial Statements or previously disclosed in writing to BigHub,
since December 31, 1999 to the date hereof, the businesses of the Company
and its subsidiaries have been conducted in all material respects in the
ordinary course. Since December 31, 1999 to the date hereof, no dividends
or distributions have been declared or paid on or made with respect to the
shares of capital stock or other equity interests of the Company or its
subsidiaries nor have any such shares been repurchased or redeemed, other
than dividends or distributions paid to the Company or a wholly-owned
subsidiary and the dividends paid to the holders of the Company Preferred
Stock in the form of 95,588 shares of Company Common Stock.
aa. Litigation. There is no action, suit, proceeding or investigation
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pending or currently threatened against the Company that questions the
validity of this Agreement or the right of the Company to enter into this
Agreement, or to consummate the transactions contemplated hereby, or that
might result, either individually or in the aggregate, in any material
adverse effect in the assets, condition, affairs or prospects of the
Company, financially or otherwise, or any change in the current equity
ownership of the Company, nor is the Company aware that there is any basis
for any of the foregoing.
bb. Tax Matters. Except for federal and Virginia tax returns for the
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Company and federal and New Jersey tax returns for INI, each for the year
1998 and for each of which no tax liability exists and no penalty will be
assessed, the Company has filed all requisite federal, state, local and
foreign tax returns. All such returns are accurate in all material
respects. The Company has paid all taxes pursuant to such returns,
pursuant to any assessments received by it, or which it is obligated to
withhold from amounts owing to any employee, creditor or third party. The
income tax returns of the Company have never been audited by local, state
or federal authorities. The Company has not waived any statute of
limitations with respect to taxes or agreed to any extension of time with
respect to any tax assessment or deficiency. No deficiency assessment with
respect to or proposed adjustment of the Company's federal, state, county
or local taxes is pending or, to the Company's knowledge, threatened.
There is no tax lien, whether imposed by any
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federal, state, county or local taxing authority, outstanding against the
assets, properties or business of the Company, except for taxes not yet due
and payable.
cc. Insurance. The Company is insured by insurers of recognized
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financial responsibility against such losses and risks and in such amounts
as management of the Company believes to be prudent and customary in the
business in which the Company is engaged. The Company has not been refused
any insurance coverage sought or applied for and the Company has no reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the
Company.
dd. Title. Except as otherwise disclosed herein, the Company owns its
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property and assets free and clear of all mortgages, liens, loans and
encumbrances, except such encumbrances and liens that arise in the ordinary
course of business and do not materially impair the Company's ownership or
use of such property or assets. With respect to the property and assets it
leases, the Company is in compliance with such leases.
ee. Intellectual Property. The Company owns, is licensed or otherwise
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possesses legally enforceable rights to use, all patents, trademarks, trade
names, service marks, copyrights and mask works, all applications for and
registrations of such patents, trademarks, trade names, service marks,
copyrights and mask works, and all processes, formulae, methods,
schematics, technology, know-how, computer software programs or
applications, and tangible or intangible proprietary information or
material that are necessary to conduct the business of the Company as
currently conducted or planned to be conducted ("Intellectual Property").
The Company is not and will not be as a result of the execution and
delivery of this Agreement or the performance of its obligations hereunder
in breach of any license, sublicense or other agreement relating to the
Intellectual Property or any license, sublicense or other agreement
pursuant to which the Company is authorized to use any third party patents,
trademarks or copyrights. All patents, registered trademarks, service marks
and copyrights held by the Company are valid and enforceable. The Company
(i) has not been sued in any suit, action or proceeding which involves a
claim of infringement of any patent, trademark, service xxxx or copyright
or the violation of any trade secret or other proprietary right of any
third party; or (ii) has any knowledge that the manufacturing, importation,
marketing, licensing, sale, offer for sale, or use of any of its products
infringes any patent, trademark, service xxxx, copyright, trade secret or
other proprietary right of any third party.
ff. Internal Accounting Controls. The Company maintains a system of
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internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with
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management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
4. Representations and Warranties by BigHub. BigHub hereby represents
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and warrants to Shareholder that:
e. Investment Representations.
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v. BigHub is acquiring the Make-Whole Shares for investment
purposes only and not with a view to distribution or resale.
vi. BigHub has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks
of an investment in the Company.
vii. BigHub has the ability to bear the economic risks of
BigHub's prospective investment, and is able, without materially
impairing its financial condition, to hold the Make-Whole Shares for
an indefinite period of time and to suffer complete loss on its
investment.
viii. BigHub is an "accredited investor" as such term is defined
in Rule 501 under the Securities Act of 1933, as amended.
f. Organization, Qualification, Etc. BigHub is a corporation duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has the corporate power and authority to
own its properties and assets and to carry on its business as it is now
being conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the ownership of its properties or
the conduct of its business requires such qualification, except for
jurisdictions in which such failure to be so qualified or to be in good
standing would not in the aggregate have a material adverse effect on
BigHub. The copies of BigHub's Articles of Incorporation, as amended, and
By-laws which have been made available to the Shareholder are complete and
correct and in full force and effect on the date hereof.
g. Capital Stock. The authorized capital stock of BigHub consists of
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50,000,000 shares of BigHub Common Stock, and 25,000,000 shares of
preferred stock, par value $0.001 per share ("BigHub Preferred Stock"). The
shares of BigHub Common Stock to be issued pursuant to this Agreement will,
when issued, be validly issued fully paid and non-assessable. As of the
date hereof, 18,605,976 shares of BigHub Common Stock and no shares of
BigHub Preferred Stock were issued and outstanding. All the outstanding
shares of BigHub Common Stock have been validly issued and are fully paid
and non-assessable. As of the date hereof, there were no outstanding
subscriptions, options, warrants, rights or other arrangements or
commitments obligating BigHub to issue any shares of its capital stock
other than
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options and other rights to receive or acquire an aggregate of 1,252,500
shares of BigHub Common Stock.
h. Corporate Authority Relative to this Agreement. BigHub has the
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corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder. The execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of BigHub and no other
corporate or stockholder proceedings on the part of BigHub are necessary to
authorize this Agreement, the issuance of the BigHub Common Stock and the
other transactions contemplated hereby. No authorization, consent or
approval of, or filing with, any governmental body or authority is
necessary for the consummation by BigHub of the transactions contemplated
by this Agreement. This Agreement is a legal, valid and binding obligation
of BigHub, enforceable against BigHub in accordance with its terms.
20. Covenants by Shareholders. Each Shareholder hereby covenants and
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agrees that he will not enter into any transaction, take any action or by
inaction permit any event to occur that would result in any of his
representations or warranties herein contained not being true and correct at and
as of (i) the time immediately after the occurrence of such transaction, action
or event and (ii) the date of the Closing.
21. Delivery of Shares upon Execution. Xx. Xxxxxxx agrees to deliver
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certificates representing at least 93,478 shares of Company Common Stock and Mr.
Sens agrees to deliver certificates representing at least 74,958 shares of
Company Common Stock (together, the "Escrow Shares") to BigHub together with
duly executed stock powers endorsed to BigHub with signatures guaranteed by a
national bank or trust company or such other assignments or instruments of
conveyance and transfer, in form and substance satisfactory to BigHub and its
counsel, as shall be effective to vest in BigHub all of Shareholder's right,
title and interest in and to all such Escrow Shares, free and clear of any
agreements, restrictions, liens, adverse claims or encumbrances whatsoever.
Shareholders agree that BigHub shall hold the Escrow Shares in escrow pending
Closing or termination of this Agreement for any reason, including failure of
Closing to occur on or before April 15, 2000. BigHub shall return to the
Shareholders at Closing the excess of any Escrow Shares not purchased by BigHub
as Make-Whole Shares pursuant to the allocation of such Make-Whole Shares
between the Shareholders as specified in Section 1(d) hereof.
22. Indemnification of Buyer by Shareholder. Each Shareholder, on its own
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behalf and as pertains only to such Shareholder's representations and warranties
made hereunder and not jointly or severally with the other Shareholder, agrees
to indemnify, defend and hold harmless BigHub and its respective officers,
directors, employees, attorneys, stockholders, controlling persons and
affiliates (collectively, the "BigHub Indemnitees"), from, and will pay to the
BigHub Indemnitees the amount of any damages arising from the breach or
inaccuracy of any representation or warranty made by Shareholder in this
Agreement or any other certificate or document delivered by or on behalf of
Shareholder pursuant to this Agreement as a condition to Closing.
23. Indemnification of Buyer by Company. Company agrees to indemnify,
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defend and hold harmless the BigHub Indemnitees from, and will pay to the BigHub
Indemnitees the
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amount of damages arising from the breach or inaccuracy of any representation or
warranty made by Company in this Agreement or any other certificate or document
delivered by or on behalf of Company pursuant to this Agreement as a condition
to Closing; provided, however, that Company shall not be responsible for damages
indemnifiable under this Section 8 unless and until such damages in the
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aggregate exceed an amount equal to $100,000 (the "Basket Amount"). In the event
that the aggregate of such damages exceeds the Basket Amount, Company shall
indemnify the BigHub Indemnitees for all such damages, including the Basket
Amount.
24. Closing; Conditions to Closing. The closing of the sale to and
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purchase by BigHub of the Make-Whole Shares (the "Closing") shall occur at the
same place and time as the closing of the sale and purchase pursuant to the
Primary Stock Purchase Agreement (the "Closing Date"); provided, however, if the
Closing does not occur by April 15, 2000, this Agreement shall terminate without
penalty to BigHub or Shareholders unless such failure to close results from a
breach of this Agreement by BigHub or Shareholders. The obligation of BigHub to
purchase the Make-Whole Shares shall be subject to the following conditions:
h. Each of the representations and warranties made by Shareholders
in this Agreement being true and correct in all material respects at and as
of the time of Closing.
i. Each Shareholder having performed in all material respects each
and every covenant and agreement contained in this Agreement required to be
performed by him by the time of Closing;
j. Each Shareholder having furnished to BigHub an investment letter
in a form which is acceptable to BigHub in its sole discretion;
25. Restrictive Legend. Each certificate representing (i) the shares of
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BigHub Common Stock to be issued hereunder, or (ii) any other securities issued
in respect of such shares upon any stock split, stock dividend,
recapitalization, merger consolidation or similar event, shall be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE CORPORATION THAT
SUCH REGISTRATION IS NOT REQUIRED. COPIES OF THE
AGREEMENT COVERING THE PURCHASE OF THESE SHARES
MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE
BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE CORPORATION AT THE PRINCIPAL
EXECUTIVE OFFICES OF THE CORPORATION.
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Shareholders consent to BigHub making a notation on its records and giving
instructions to any transfer agent of the BigHub Common Stock in order to
implement the restrictions on transfer established in this Section 10.
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26. Severability. Any term or provision of this Agreement that is invalid
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
27. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS,
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INCLUDING VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF TEXAS
REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAWS THEREOF.
28. Expenses. Whether or not the transactions contemplated by this
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Agreement are consummated, each of the parties hereto shall pay its respective
fees and expenses incurred in connection herewith.
29. Entire Agreement. This Agreement constitutes the entire agreement and
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supersedes all other prior agreements and understandings, both written and oral,
between the parties hereto with respect to the subject matter hereof.
30. Amendments. This Agreement may not be amended or modified except by a
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written instrument signed on behalf of each of the parties hereto.
31. Binding Effect. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and assigns.
32. Notices. Any notice or other communication required or permitted
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hereunder shall be in writing and either delivered personally, by facsimile
transmission or by registered or certified mail (postage prepaid and return
receipt requested) and shall be deemed given when received (or, if mailed, five
business days after the date of mailing) at the following addresses or FACSIMILE
transmission numbers (or at such other address or facsimile transmission number
for a party as shall be specified by like notice):
b. If to BigHub: The XxxXxx.xxx, Inc.
Attn: Xxxxx Xxxxx
0000 Xxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
with a copy (which shall not constitute notice) to Akin, Gump, Strauss, Xxxxx &
Xxxx, L.L.P., 1500 Bank of America Plaza, 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, XX
00000, Attention: Xxxx Xxxxxxxxxx (facsimile transmission number: 210-224-2035).
44
b. If to Xx. Xxxxxxx: Xx. Xxxxxx X. Xxxxxxx
XX00 Xxx 000X
Xxxxxx Xxxxx, XX 00000
with a copy (which shall not constitute notice) to Xxxxxxxx & Worcester LLP,
0000 Xxxxxxxxxxx Xxx., X.X., Xxxxx 0000, Xxxxxxxxxx, XX, Attention: Xxxxx
Xxxxxxxx (facsimile transmission number: 202-293-2275).
c. If to Mr. Sens: Xx. Xxxx Xxxx
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
with a copy (which shall not constitute notice) to Xxxxxxxx & Worcester LLP,
0000 Xxxxxxxxxxx Xxx., X.X., Xxxxx 0000, Xxxxxxxxxx, XX, Attention: Xxxxx
Xxxxxxxx (facsimile transmission number: 202-293-2275).
d. If to the Company: Next Generation Media Corp.
Attn: President
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx
with a copy (which shall not constitute notice) to Xxxxxxxx & Xxxxxxxx LLP, 000
00xx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxxx Xxxxxx (facsimile
transmission number : 202-434-5094).
33. Counterparts. This Agreement may be executed in one or more and by the
------------
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
34. Termination. Upon the failure of Shareholders to obtain all releases
-----------
of liens on the Make-Whole Shares prior to the Closing, this Agreement shall
immediately become void and there shall be no further obligation hereunder on
the part of any party hereto.
[signature page follows]
45
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by themselves or their duly authorized representatives, on the date first
written above.
THE XXXXXX.xxx, INC.
By:_______________________________________
Xxxx Xxxxxx, Chief Financial Officer
NEXT GENERATION MEDIA CORPORATION
By:_______________________________________
Xxxxxx X. Xxxxxxx, President
SHAREHOLDERS:
__________________________________________
XXXXXX X. XXXXXXX
__________________________________________
XXXX XXXX
______________________________
By:
Title:
46
