EXHIBIT B
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ASSET PURCHASE AGREEMENT
between
▇▇▇▇▇▇▇▇▇ Wireless, Inc.
a Nevada corporation;
and
Venture Media, Inc.
a Nevada corporation.
Dated as of _______________
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is entered into and to be effective as of
September __, 2003 (the "Effective Date") between ▇▇▇▇▇▇▇▇▇ WIRELESS, INC., a
Nevada corporation ("KWI"), and VENTURE MEDIA, INC. a Nevada corporation
("VMCI").
RECITALS
WHEREAS, KWI owns certain assets relating to its business and KWI wishes to sell
one of its assets, specifically the asset known as LAIN International, a wholly
owned subsidiary of KWI (the "Asset"),
WHEREAS, Pursuant to the terms and conditions of this Agreement, KWI wishes sell
to VMCI the Asset, and VMCI desires to purchase from KWI the Asset,
NOW THEREFORE, in consideration of the premises and the mutual representations,
warranties and covenants set forth herein, VMCI and KWI agree that:
AGREEMENT
▇.▇▇▇▇ OF ASSET; RELATED TRANSACTIONS.
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1.1 PURCHASE AND SALE. Subject to the terms and conditions contained herein,
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VMCI agrees to buy and KWI agrees to sell to VMCI the Asset described herein as
LAIN International, a wholly owned subsidiary of KWI (collectively, "LAIN")
including LAIN contracts, rights, and properties, more specifically described in
Exhibit A to this Agreement.
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1.2 ASSIGNMENT OF CONTRACTS. To the best of each parties' knowledge, there are
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no contracts directly related to the Asset (collectively, the "Contracts").
However, KWI agrees to assign all of its rights in LAIN Contracts, if any, to
VMCI.
KWI shall give all such assistance to VMCI as VMCI reasonably requests to enable
it to enjoy the benefit of such Contracts. If consents to the transfer or
assignment of such Contracts from third parties are required and such consents
have not already been obtained, KWI will use its best efforts to obtain such
consents prior to the Closing Date.
1.3 COMPLETE TRANSFER. KWI expressly agrees that the sale of the Asset under
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this Agreement constitutes a complete transfer of all of its rights, title and
interest with respect to the Asset and that KWI reserves no rights in and/or to
the Asset.
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1.3.1 LIABILITIES NOT ASSUMED. VMCI shall not, and shall not be required to,
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assume or be obligated to pay, discharge or perform, any debts, liabilities,
adverse claims or obligations of any kind or nature whatsoever of KWI or LAIN,
whether in connection with the Asset or otherwise and whether arising before or
after the consummation of the transactions contemplated herein, or bear any cost
or charge with respect thereto, except as described herein.
2. PAYMENT.
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2.1 PURCHASE PRICE. VMCI shall deliver to KWI Forty Million (40,000,000) shares
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of VMCI restricted common stock, so that upon the Closing of the transactions
contemplated herein, VMCI shall retain Ten Percent (10%) of its outstanding
common stock and KWI shall receive Ninety Percent (90%) of VMCI outstanding
common stock.
2.2 TAXES. KWI shall be responsible for any and all sales or other transaction
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taxes, duties and other similar charges payable in connection with the sale of
the Asset or the transactions and payments contemplated hereby.
3. CLOSING.
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(a) VMCI shall deliver to KWI a stock certificate representing Forty Million
(40,000,000) shares registered in the name of ▇▇▇▇▇▇▇▇▇ Wireless, Inc., and
(b) KWI shall deliver the following to VMCI: (i) a ▇▇▇▇ of sale relating to the
Asset in a form reasonably acceptable to VMCI; and (ii) if applicable, a duly
executed assignment of the Contracts in a form reasonably acceptable to VMCI.
4. REPRESENTATIONS AND WARRANTIES OF KWI.
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KWI represents and warrants to VMCI as set forth in this Section 4.
4.1 ORGANIZATION AND STANDING. KWI is a corporation organized, validly existing
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and in good standing under the laws of the State of Nevada.
4.2 POWER AND AUTHORIZATION. KWI has all requisite legal power and authority to
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enter into and perform this Agreement in accordance with its terms. The
execution and delivery of this Agreement and the transactions contemplated
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hereby have been validly and duly authorized by all necessary corporate action
on the part of KWI and no further authorization or approval, whether from
directors or shareholders of KWI, or governmental bodies or otherwise, is
necessary to enable KWI to enter into and perform the same; and this Agreement,
when executed and delivered, shall constitute the legal and binding obligation
of KWI, enforceable against KWI in accordance with its terms.
4.3 TITLE TO ASSET.
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4.3.1 GOOD TITLE. KWI has good and marketable title in and to all of the Asset
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and such are not subject to any mortgage, pledge, lien, lease, claim,
encumbrance, charge, security interest, royalty obligations or other interest or
claim of any kind or nature whatsoever. There are no material agreements or
arrangements between KWI and any third party which are reasonably likely to have
a material effect upon VMCI's title to and other rights respecting the Asset.
4.3.2 PROTECTION OF OWNERSHIP INTEREST. KWI has taken and will take all
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reasonable security measures to protect the secrecy, confidentiality and value
of the Asset transferred in accordance with this Agreement. KWI has not taken
any action or, to its knowledge, failed to take an action that directly or
indirectly caused the proprietary value of the Asset to enter the public domain
or in any way affected its value or VMCI's absolute and unconditional ownership
thereof.
4.3.3 NO LIMITATIONS ON ASSET. With respect to the transfer of rights in and to
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the Asset under this Agreement, except as to the Contracts assigned to VMCI
under Section 1.2, VMCI shall be subject to no limitations, obligations or
restrictions with regard to the sale, license, distribution or other transfer or
exploitation of the Asset, whether in the form transferred to VMCI or after
modification.
4.3.5 NO VIOLATION OF THIRD PARTY RIGHTS. The use of the Asset and any
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associated intellectual property rights in the Asset in the conduct of KWI's
business have not and do not infringe or conflict with the rights of others
under any intellectual property rights in any jurisdiction in the world.
4.3.6 NO INDEMNITY OBLIGATIONS. KWI has not agreed to indemnify any third party
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for or against any infringement of any intellectual property rights.
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4.4 CONFLICTING AGREEMENTS. Neither the execution nor delivery by KWI of this
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Agreement nor compliance by KWI with the terms and provisions hereof will (a)
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under, or result in any violation of, the bylaws or
articles of incorporation of KWI, any award of any arbitrator or any other
agreement, any regulation, law, judgment, order or the like to which KWI is
subject or any Contract, or (b) result in the creation of any lien upon all or
any of the Asset. KWI is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness, any agreement relating
thereto or any other contract or agreement which restricts or otherwise limits
the transfer of the Asset.
4.5 CAPITALIZATION. As of August 15, 2003, KWI is the sole shareholder of LAIN
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shares. LAIN is authorized to 1,000 shares of common stock. There are currently
1,000 shares of common stock outstanding.
4.6 LITIGATION. No action, suit, proceeding or investigation is pending or
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threatened against KWI: (a) which questions the validity of this Agreement or
the Assignment of Convertible Debenture or the right of KWI to enter into this
Agreement or the Assignment of Convertible Debenture or seeks to prevent any of
the transactions contemplated under this Agreement or the Assignment of
Convertible Debenture, (b) which is reasonably likely to have a material adverse
effect on the Asset, (c) which challenges the ownership or use, in any respect,
of the Asset, or (d) which challenges the rights of KWI under or the validity of
any of the Intellectual Property Rights. There is no judgment, decree,
injunction, rule or order of any court, governmental department, commission
agency, instrumentality or arbitrator or other similar ruling outstanding
against KWI relating to the Asset or this transaction. No action, suit,
proceeding or investigation is pending or threatened by KWI against any third
party relating to the Asset.
4.7 GOVERNMENTAL AUTHORIZATIONS AND REGULATIONS. KWI is not in
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violation of any laws, material governmental orders, rules or regulations,
whether federal, state or local, to which KWI or the Asset are subject except
for any such violations which are not reasonably likely to have a material
adverse effect on VMCI.
4.8 TAXES. There are no tax liens against the Asset and there is no basis for
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any such lien.
4.9 BROKERAGE. There are no claims for brokerage commissions, finders' fees or
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similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of KWI.
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4.10 FULL DISCLOSURE. This Agreement, and the Exhibits hereto, the Assignment of
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Convertible Debenture, and all other documents delivered by KWI to VMCI or their
attorneys or agents in connection herewith or therewith or with the transactions
contemplated hereby or thereby, when taken as a whole, do not contain any untrue
statement of a material fact nor, to KWI's knowledge, omit to state a material
fact necessary in order to make the statements contained herein or therein not
misleading.
5. REPRESENTATIONS AND WARRANTIES OF VMCI.
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VMCI represents and warrants to KWI as follows:
5.1 ORGANIZATION AND STANDING. VMCI is a corporation duly organized, validly
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existing and in good standing under the law of Nevada.
5.2 POWER; AUTHORIZATION. VMCI has all requisite legal power and authority to
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enter into and perform this Agreement in accordance with its terms. The
execution and delivery of this Agreement and the transactions contemplated
hereby have been validly and duly authorized by all necessary corporate action
on the part of VMCI and no further authorization or approval, whether from
directors or shareholders of VMCI or governmental bodies or otherwise, is
necessary to enable VMCI to enter into and perform the same; and this Agreement,
when executed and delivered, shall constitute the legal and binding obligation
of VMCI, enforceable against VMCI in accordance with its terms.
5.3 CAPITALIZATION. As of August 15, 2003, VMCI authorized capital stock
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consists of (a) 500,000,000 shares of Common Stock, without par value, of which
[NO. OF SHARES] shares are issued and outstanding and (b) [NO. OF SHARES] shares
of Preferred Stock, without par value.
5.4 SHARES VALIDLY ISSUED. When issued in compliance with the provisions of this
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Agreement, the Shares will be validly issued, fully paid and nonassessable, and
will be free of any liens or encumbrances; provided, however, that the Shares
may be subject to restrictions on transfer under state and/or federal securities
laws as set forth herein or as otherwise required by such laws at the time a
transfer is proposed.
5.5 CONFLICTING AGREEMENTS. Neither the execution nor delivery by VMCI of this
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Agreement nor compliance by VMCI with the terms and provisions hereof will
conflict with, or result in a breach of (a) the terms, conditions or provisions
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of, or constitute a default under, or result in any violation of, the bylaws or
articles of incorporation of VMCI or any agreement to which VMCI is a party,
which would prevent any of the transactions contemplated under this Agreement or
the Assignment of Convertible Debenture, or (b) any regulation, law, judgment,
order or the like to which VMCI is subject, the default or violation of which
would prevent any of the transactions contemplated under this Agreement or the
Assignment of Convertible Debenture.
5.6 LITIGATION. No action, suit, proceeding or investigation is pending or
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threatened against VMCI which questions the validity of this Agreement or the
Assignment of Convertible Debenture or the right of VMCI to enter into this
Agreement or the Assignment of Convertible Debenture or seeks to prevent any of
the transactions contemplated under this Agreement or the Assignment of
Convertible Debenture.
5.7 BROKERAGE. There are no claims for brokerage commissions, finders' fees or
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similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of VMCI.
5.8 FULL DISCLOSURE. This Agreement, and the Exhibits hereto, the Assignment of
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Convertible Debenture, and all other documents delivered by KWI to VMCI or their
attorneys or agents in connection herewith or therewith or with the transactions
contemplated hereby or thereby, when taken as a whole, do not contain any untrue
statement of a material fact nor, to KWI's knowledge, omit to state a material
fact necessary in order to make the statements contained herein or therein not
misleading.
6. CLOSING CONDITIONS.
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The parties hereto agree that neither party shall be liable to the other for any
amount for a failure of the Closing to occur as a result of a closing condition.
6.1 KWI's CLOSING CONDITIONS. KWI's obligations to sell the Asset to VMCI are
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subject to the fulfillment on or prior to the Closing Date of all of the
following conditions by VMCI.
6.1.1 MATERIAL ADVERSE CHANGE. KWI shall be satisfied in its sole discretion
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that the representations and warranties made by VMCI in Section 5 above are true
and correct as of the Closing Date.
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6.1.2 CONSENTS, APPROVALS AND WAIVERS. VMCI shall have obtained any and all
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approvals, consents and waivers and made all filings necessary or appropriate to
effect the contemplated transactions under this Agreement.
6.1.3 COVENANTS. All covenants, agreements and conditions contained in this
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Agreement to be performed by VMCI on or prior to the Closing Date shall have
been performed or complied with in all respects.
6.1.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
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connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to KWI and its counsel, and KWI and its counsel shall have received all
such counterpart originals or certified or other copies of such documents and
instruments as they may reasonably request.
6.1.5 ASSIGNMENT OF CONVERTIBLE DEBENTURE. The Assignment of Convertible
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Debenture shall have been executed and delivered by the parties thereto.
6.2 CLOSING CONDITIONS OF VMCI. VMCI's obligations to purchase the Asset are
---------------------------------
subject to the fulfillment on or prior to the Closing Date of all of the
conditions set forth below:
6.2.1 MATERIAL ADVERSE CHANGE. VMCI shall be satisfied in its sole discretion
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(a) that the representations and warranties made by KWI in Section 4 above are
true and correct as of the Closing Date.
6.2.2 CONSENTS, APPROVALS AND WAIVERS. KWI shall have obtained, in a manner
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satisfactory to VMCI and its counsel, any and all approvals, consents, permits
and waivers and made all filings necessary or appropriate for the sale and
transfer of the Asset under this Agreement.
6.2.3 COVENANTS. All covenants, agreements and conditions contained in this
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Agreement to be performed by KWI on or prior to the Closing Date shall have been
performed or complied with in all respects.
6.2.4 PROCEEDINGS AND DOCUMENTS. All corporate and other proceedings in
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connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be satisfactory in substance and
form to VMCI and its counsel, and VMCI and its counsel shall have received all
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such counterpart originals or certified or other copies of such documents and
instruments as they may reasonably request.
6.2.5 ASSIGNMENT OF CONVERTIBLE DEBENTURE. The Assignment of Convertible
---------------------------------------------
Debenture shall have been executed and delivered by the parties thereto.
7. INDEMNIFICATION.
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7.1 KWI INDEMNITY. KWI and its successors (collectively, the "Sellers") agree to
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indemnify VMCI, its affiliates, its subsidiaries, or its successors
(collectively the "Purchasers") and hold them harmless from and against any and
all liabilities, losses, damages, costs or expenses (including without
limitation reasonable legal and expert witnesses' fees and expenses) incurred by
the Purchasers, directly or indirectly, to the extent that such liabilities,
losses, damages, costs or expenses ("Damages") are occasioned by, caused by or
arise out of:
7.1.1 Any breach of any of the representations or warranties or failure to
perform any of the covenants made by the Sellers in this Agreement, or any
certificate, exhibit, instrument or other document delivered pursuant to this
Agreement; or
7.1.2 Any debts, claims, liabilities, or obligations of the Sellers not
expressly assumed by Purchaser pursuant to this Agreement; or
7.1.3 Any breach of any of the representations or warranties or failure to
perform any of the covenants made by the Sellers in the Assignment of
Convertible Debenture, or any certificate, exhibit, instrument or other document
delivered pursuant to the Assignment of Convertible Debenture.
7.2 VMCI INDEMNITY. Purchasers agrees to indemnify Sellers and hold them
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harmless from and against any and all liabilities, losses, damages, costs or
expenses (including without limitation reasonable legal and expert witnesses'
fees and expenses) incurred by the Sellers to the extent that such Damages are
occasioned by, caused by or arise out of:
7.2.1 any breach of any of the representations or warranties or failure to
perform any of the covenants made by Purchasers in this Agreement, or any
certificate, exhibit, instrument or other document delivered pursuant to this
Agreement; or
7.2.2 Any breach of any of the representations or warranties or failure to
perform any of the covenants made by the Purchasers in the Assignment of
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Convertible Debenture, or any certificate, exhibit, instrument or other document
delivered pursuant to the Assignment of Convertible Debenture.
7.3 INDEMNIFICATION CLAIMS. If either party hereto (the "Claimant") wishes to
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assert an indemnification claim against the other party hereto, the Claimant
shall deliver to the other party a written notice setting forth:
a) the specific representation and warranty alleged to have been breached by
such other party;
b) a detailed description of the facts and circumstances giving rise to the
alleged breach of such representation and warranty; and
c) a detailed description of, and a reasonable estimate of the total amount
of, the Damages actually incurred or expected to be incurred by the
Claimant as a direct result of such alleged breach.
7.4 DEFENSE OF THIRD PARTY ACTIONS. If either party hereto (the "Indemnified
--------------------------------------
Party") receives notice or otherwise obtains knowledge of the commencement or
threat of any claim, demand, dispute, action, suit, examination, audit,
proceeding, investigation, inquiry or other similar matter that may give rise to
an indemnification claim against the other party hereto (the "Indemnifying
Party"), then the Indemnitee shall promptly deliver to the Indemnified Party a
written notice describing such complaint or the commencement of such action or
proceeding; provided, however, that the failure to so notify the Indemnifying
Party shall relieve the Indemnifying Party from liability under this Agreement
with respect to such claim only if, and only to the extent that, such failure to
notify the Indemnifying Party results in the forfeiture by the Indemnifying
Party of rights and defenses otherwise available to the Indemnifying Party with
respect to such claim or the opportunity to defend or participate in the defense
of said claim. The Indemnifying Party shall have the right, upon written notice
delivered to the Indemnified Party within 20 days thereafter to assume the
defense of such action or proceeding, including the employment of counsel
reasonably satisfactory to the Indemnified Party and the payment of the fees and
disbursements of such counsel. In the event, however, that the Indemnifying
Party declines or fails to assume the defense of the action or proceeding or to
employ counsel reasonably satisfactory to the Indemnified Party, in either case
within such 20 day period, then such Indemnified Party may employ counsel,
reasonably acceptable to the Indemnifying Party, to represent or defend it in
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any such action or proceeding and the Indemnifying Party shall pay the
reasonable fees and disbursements of such counsel as incurred; provided,
however, that the Indemnifying Party shall not be required to pay the fees and
disbursements of more than one counsel for all Indemnified Parties in any
jurisdiction in any single action or proceeding. In any action or proceeding
with respect to which indemnification is being sought hereunder, the Indemnified
Party or the Indemnifying Party, whichever is not assuming the defense of such
action, shall have the right to participate in such litigation and to retain its
own counsel at such party's own expense. The Indemnifying Party or the
Indemnified Party, as the case may be, shall at all times use all commercially
reasonable efforts to keep the Indemnifying Party or the Indemnified Party, as
the case may be, reasonably apprised of the status of the defense of any action,
the defense of which they are maintaining, and to cooperate in good faith with
each other with respect to the defense of any such action. No Indemnified Party
may settle or compromise any claim or consent to the entry of any judgment with
respect to which indemnification is being sought hereunder without the prior
written consent of the Indemnifying Party, which shall not be unreasonably
withheld. The Indemnifying Party shall not settle any claim or assertion, unless
the Indemnified Party consents in writing to such settlement, which consent
shall not be unreasonably withheld.
7.5 EXPIRATION OF REPRESENTATIONS AND WARRANTIES. All of the representations and
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warranties set forth in this Agreement shall terminate and expire, and shall
cease to be of any force or effect on the first anniversary of the Closing Date,
and all liability of KWI and VMCI with respect to such representations and
warranties shall thereupon be extinguished; provided, however, that if, prior to
such first anniversary, Claimant delivers a written notice to the other party
hereto, then the specific indemnification claim set forth in such notice shall
survive such first anniversary (and shall not be extinguished thereby) until the
settlement of such specific claim.
7.6 THRESHOLD. Neither the Sellers nor the Purchasers shall be required to make
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any indemnification payment pursuant to Section 7.1 or 7.2, respectively, until
such time as the total amount of all Damages that have been directly or
indirectly suffered or incurred by an Indemnified Party, or to which an
Indemnified Party has or otherwise becomes subject to, exceeds $50,000 in the
aggregate. At such time as the total amount of such Damages exceeds $50,000 in
the aggregate, the Indemnified Party shall be entitled to be indemnified against
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the full amount of such Damages (and not merely the portion of such Damages
exceeding $50,000).
8. POST-CLOSING COVENANTS.
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8.1 VMCI AUDIT. VMCI will cause an audit of its 2000, 2001 and 2002 to be
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completed at KWI's expense within 60 days of the Closing Date.
8.2 BOARD SEATS. Within five (5) days of the Closing Date, the board of
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directors of VMCI shall resign and KWI shall identify those persons who shall
serve upon the VMCI board of directors.
8.3 NO REVERSE STOCK SPLITS. VMCI herein agrees that for a period of
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twenty-four (24) months after the Closing Date, it shall not effect a reverse
stock split of its common stock.
8.4 504 OFFERING. VMCI shall use its best efforts to undertake a 504 Offering
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and attempt to raise up to $1,000,000. The proceeds from the offering shall be
used for general corporate purposes of VMCI.
8.5 VMCI TO BECOME FULLY REPORTING. VMCI shall use its best efforts to satisfy
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the requirement of the Securities Exchange Commission enabling it to become
fully reporting within One Hundred and Eighty (180) days after the Closing Date.
8.6 NAME CHANGE. VMCI agrees to change its corporate name from Venture Media
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Inc. to "Latin America Independent Network Holding Corporation" and shall apply
for a ticker symbol more closely related to the new name.
8.9 CONSULTING AGREEMENT. VMCI shall retain the services of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
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enter into a consulting agreement with ▇▇. ▇▇▇▇▇▇▇▇▇ within thirty (30) days
following the Closing Date.
8.10 VMCI TO RETAIN COUNSEL. VMCI shall retain the law offices of ▇▇▇▇ ▇. Tow
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and Associates to advise and provide counsel in all corporate and securities
matters.
9. TERMINATION.
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9.1 GROUNDS FOR TERMINATION. This Agreement may be terminated at any time before
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the Closing Date:
a) By mutual written consent of KWI and VMCI;
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b) By KWI or VMCI if the Closing shall not have been consummated on or before
the Closing Date; provided, however, that the right to terminate this
Agreement shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur on or before the Closing Date;
c) By KWI or VMCI if a court of competent jurisdiction or govern mental,
regulatory or administrative agency or commission shall have issued a Court
Order (which Court Order the parties shall use commercially reasonable
efforts to lift) that permanently restrains, enjoins or otherwise prohibits
the Transactions, and such Court Order shall have become final and
nonappealable;
d) By KWI, if VMCI shall have breached, or failed to comply with, any of its
obligations under this Agreement or any representation or warranty made by
VMCI shall have been incorrect when made, and such breach, failure or
misrepresentation is not cured within 20 days after notice thereof; and,
e) By VMCI, if KWI shall have breached, or failed to comply with any of its
obligations under this Agreement or any representation or warranty made by
it shall have been incorrect when made, and such breach, failure or
misrepresentation is not cured within 20 days after notice thereof, and in
either case, any such breaches, failures or misrepresentations,
individually or in the aggregate, results or would reasonably be expected
to affect materially and adversely the benefits to be received by the VMCI
hereunder.
9.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to Section
--------------------------
9.1, the agreements contained herein shall survive the termination hereof and
any party may pursue any legal or equitable remedies that may be available if
such termination is based on a breach of another party.
10. MISCELLANEOUS.
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10.1 GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the substantive laws of the State of Nevada applicable to
contracts between Nevada residents entered into and to be performed entirely
within the State of Nevada. Any action or proceeding brought by either party
against the other arising out of or related to this Agreement shall be brought
exclusively in a state or federal court in Nevada.
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10.2 WAIVERS; CUMULATIVE REMEDIES. Any waiver, consent or the like must be in
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writing. Any waiver by either party of any breach of this Agreement by the other
party shall not constitute a waiver of any other or subsequent breach of this
Agreement. All remedies, either under this Agreement or by law or otherwise,
afforded to the parties hereunder shall be cumulative and not alternative.
10.3 NOTICES. All notices and other communications required or permitted
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hereunder shall be in writing and shall be effective upon receipt by facsimile
with a confirming copy sent by first-class mail, postage prepaid, or five (5)
days after deposit in the U.S. postal system by certified or registered mail,
return receipt requested, postage prepaid to the addresses first set forth below
such other address as a party may designate for itself by providing notice
hereunder:
10.4 ARBITRATION. Any dispute, claim or controversy arising out of or relating
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to this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of
this Agreement to arbitrate, shall be determined by arbitration in Nevada,
before a sole arbitrator, in accordance with the laws of the State of Nevada for
agreements made in and to be performed in this State. The arbitration shall be
administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures. Judgment on the Award may be entered in any court having
jurisdiction.
10.4.1 Allocation of Fees and Costs. The arbitrator shall, in the Award,
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allocate all of the costs of the arbitration (and the mediation, if applicable),
including the fees of the arbitrator and the reasonable attorneys' fees of the
prevailing party, against the party who did not prevail.
10.5 EXPENSES. Each party shall bear its own expenses and legal fees incurred on
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its behalf with respect to this Agreement and the transaction contemplated
hereby.
10.6 SEVERABILITY. In case any provision of this Agreement is held to be invalid
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or unenforceable, such provision shall be deemed amended to the extent required
to make it valid and enforceable and such amended provision and the remaining
provisions of this Agreement will remain in full force and effect.
10.7 TITLE AND HEADINGS. The titles and headings contained in this Agreement are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
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10.8 SUCCESSOR AND ASSIGNS. The provisions hereof shall inure to the benefit of,
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and be binding upon, the successors and assigns of the parties hereto.
10.9 RIGHTS OF THIRD PARTIES. Nothing contained in this Agreement, express or
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implied, shall be deemed to confer any rights or remedies upon, or obligate any
of the parties hereto, to any person or entity.
10.10 PUBLICITY. The terms of this Agreement shall be considered confidential
----------------
information of KWI and VMCI. Both parties agree that the specific provisions
hereof shall not be revealed or disclosed by it without the prior written
consent of the other except to the extent such disclosure is required by
applicable law or regulation.
10.11 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Exhibits hereto and the
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other documents delivered pursuant hereto constitute the full, exclusive,
complete and entire understanding and agreement between the parties with regard
to the subject matter hereof and thereof and supersedes and revokes all other
previous discussions, understanding and agreements, whether oral or written,
between the parties with regard to the subject matter hereof. Any term of this
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the affected party.
The parties to this Agreement have caused this Agreement to be executed and
delivered as of [DATE].
▇▇▇▇▇▇▇▇▇ Wireless, Inc. Venture Media, Inc.
-------------------------- ---------------------
By: By:
--------------------------------- ---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------- ---------------------------------
Title: Chief Executive Officer Title: President
and President
25
Exhibit A
----------
Schedules and Exhibits to the Asset Purchase Agreement have not been filed
because the Company believes they do not contain information material to an
investment decision that is not otherwise disclosed in the Asset Purchase
Agreement. The Company hereby agrees to furnish a copy of any omitted Schedule
or Exhibit to the Securities and Exchange Commission upon its request.
26