EXHIBIT 10.2
AQUISITION AGREEMENT
THIS AQUISITION AGREEMENT (the "Agreement") is made and entered into as
of January 24th, 2008 (the "Effective Date") by and between
EMERGING MEDIA HOLDINGS Inc. (EMH) Company of USA, a Nevada corporation
(the "Company")
AND
MEDIA TOP PRIM Ltd. (MEDIA TOP PRIM), Rep. of Moldova Corporation
represented by ▇▇▇▇ ▇▇▇▇, acting on the base of Power of Attorney.
NOW THEREFORE, in consideration of the mutual promises and the
covenants and promises hereinafter contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1. EXCHANGE OF SHARES
1.1 Exchange. The acquisition will be made through share exchange. The
purchase price will be established in preferred stocks. The amount and
conditions for share exchange will be set forth in an Additional Agreement to
the present agreement after closing date of Audit.
1.2 Assets. As of the date of Closing, the assets of MEDIA TOP PRIM
shall consist of the Contracts, Intellectual Property, Tangible and Intangible
Assets and Records and Documents described in Section 1.2 (a) through (d) hereof
(collectively, the "Assets"), free and clear of all liens.
(a) Contracts. All rights and benefits of the Shareholder
under all agreements associated with the Assets, any and all other license and
other agreements (if any), including, without limitation. "Contracts" means all
contracts, agreements and other arrangements whether written or oral, to which
MEDIA TOP PRIM is a party as to which the breach, non-performance, failure to
renew, or cancellation could have a material adverse effect on the Assets.
(b) Intellectual Property. All rights, title and interest in
and to, all Republic of Moldova and licenses, copyrights (registered and
unregistered) and copyright applications, and other rights associated with the
foregoing, existing now or in the future with respect to the Assets, including,
without limitation the right to ▇▇▇ for past infringement thereof and all other
proprietary rights that MEDIA TOP PRIM owns, licenses, or possesses the right to
use with respect to the Assets (collectively, the "Intellectual Property").
(c) Tangible and Intangible Assets. All tangible and
intangible personal property rights of MEDIA TOP PRIM in and to the Assets (the
"Tangible and Intangible Assets").
(d) Records and Documents. All books, records, files, papers,
databases, and other data located at MEDIA TOP PRIM facilities or elsewhere in
MEDIA TOP PRIM's custody or control (directly or indirectly), or pertaining to
the Assets.
1.3 Closing Date. The closing ("Closing") shall occur after the closing
date of Audit (the "Closing Date"). The Closing will take place at the offices
of EMH, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or, at such other
date, time and place or manner, as may be agreed upon by the parties.
SECTION 2. PURCHASE PRICE
2.1 Purchase Price. The price will be established in preferred stocks
through an Additional Agreement to the present agreement after the closing date
of Audit.
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Shareholder's Representations and Warranties. The Shareholder
hereby represents and warrants to the Company, all of which representations and
warranties are true, complete, and correct in all respects as of the date hereof
and will be as of the Closing Date, as follows:
(a) Organization and Qualification. MEDIA TOP PRIM is a
commercial company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation. MEDIA TOP PRIM has all
requisite power and authority to own those properties and conduct those
businesses presently owned or conducted by it, and is duly qualified to do
business as it is now being conducted and is in good standing as a foreign
corporation in each other jurisdiction where the property owned, leased or used
by it or the conduct of its business makes such qualification necessary. The
copies of the articles of incorporation and bylaws of MEDIA TOP PRIM, which have
been (or will be, at least two days before the Closing Date) delivered to the
Company, are complete and correct and are in full force and effect at the date
hereof.
(b) Authorization; No Restrictions, Consents or Approvals. The
Shareholder has full power and authority to enter into and perform this
Agreement. This Agreement has been duly executed by the Shareholder and
constitutes the legal, valid, binding and enforceable obligation of the
Shareholder, enforceable against the Shareholder in accordance with its terms.
The execution and delivery of this Agreement, the exchange of Shares and the
consummation by MEDIA TOP PRIM of the transactions contemplated herein, do not
and will not on the Closing Date (i) conflict with or violate any of the terms
of the articles of incorporation and bylaws of MEDIA TOP PRIM or any applicable
law relating to the Shareholder or MEDIA TOP PRIM, (ii) conflict with, or result
in a breach of any of the terms of, or result in the acceleration of any
indebtedness or obligations under, any agreement, obligation or instrument by
which the Shareholder MEDIA TOP PRIM is bound or to which any property of the
Shareholder or MEDIA TOP PRIM is subject, or constitute a default thereunder,
(iii) result in the creation or imposition of any lien on any of the assets of
the Shareholder or MEDIA TOP PRIM, (iv) constitute an event permitting
termination of any agreement or instrument to which the Shareholder or MEDIA TOP
PRIM is a party or by which any property or asset of the Shareholder or MEDIA
TOP PRIM is bound or affected, pursuant to the terms of such agreement or
instrument, or (v) conflict with, or result in or constitute a default under or
breach or violation of or grounds for termination of, any license, permit or
other governmental authorization to which the Shareholder or MEDIA TOP PRIM is a
party or by which the Shareholder or MEDIA TOP PRIM may be bound, or result in
the violation by the Shareholder or MEDIA TOP PRIM of any laws to which the
Shareholder or MEDIA TOP PRIM may be subject, which would materially adversely
affect the transactions contemplated herein. No authorization, consent or
approval of, notice to, or filing with, any public body or governmental
authority or any other person is necessary or required in connection with the
execution and delivery by the Shareholder of this Agreement or the performance
by the Shareholder of his obligations hereunder.
(c) Capitalization. All shares of MEDIA TOP PRIM are issued
and outstanding and owned by the Shareholders.
(d) Subsidiaries. MEDIA TOP PRIM is sole shareholder of
EMH-GARANT-SISTEM Ltd. (TV channel TNT BRAVO). According to present agreement
EMH-GARANT-SISTEM Ltd. represents a subsidiary of MEDIA TOP PRIM and it's
subject to acquisition.
(e) Brokers' Fees. MEDIA TOP PRIM has no liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement for which the Company
could become liable or obligated.
(f) Assets. MEDIA TOP PRIM has good and marketable title to
the Assets, free and clear of any lien.
(g) Intellectual Property and Tangible and Intangible Assets.
MEDIA TOP PRIM owns or possesses all right, title and interest (or holds valid
licenses) to use, whether or not registered, all Intellectual Property and
Tangible and Intangible Assets. MEDIA TOP PRIM is exclusive right holder (on
contract base) in Moldova of Russian TV channel TNT, programs owned by Gazprom
Media, a wholly owned subsidiary of the Gazprom Corporation. The Audit will
include at the closing date a complete and accurate list of all such
Intellectual Property and Tangible and Intangible Assets (identifying those
owned and those licensed), including all agreements (including, without
limitation, agreements pursuant to which the MEDIA TOP PRIM has granted licenses
to third parties to use any Intellectual Property or Intangible Asset) relating
thereto. All actions reasonably necessary to maintain the registered
Intellectual Property and Tangible and Intangible Assets have been taken by
MEDIA TOP PRIM. The use by MEDIA TOP PRIM of any of the Intellectual Property or
Tangible and Intangible Assets does not violate the proprietary rights of any
other person and no claims have been asserted by any person with respect to the
use of the Assets by MEDIA TOP PRIM. No person is infringing upon the Assets.
MEDIA TOP PRIM has taken reasonable security measures to protect the secrecy,
confidentiality and value of the Intellectual Property. MEDIA TOP PRIM is not a
party to any confidentiality, secrecy or similar agreements with third parties.
(i) Disclosure. No statement, representation or warranty by
the Shareholder in this Agreement, contains any untrue statement of material
fact, or omits to state a material fact, necessary to make such statements,
representations and warranties not misleading.
3.2 Company's Representations and Warranties. The Company hereby
represents and warrants to the Shareholder, all of which representations and
warranties are true, complete, and correct in all respects as of the date hereof
and will be as of the Closing Date, as follows:
(a) Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation. The Company has all requisite power
and authority to own those properties and conduct those businesses presently
owned or conducted by it, and is duly qualified to do business as it is now
being conducted and is in good standing as a foreign corporation in each other
jurisdiction where the property owned, leased or used by it or the conduct of
its business makes such qualification necessary, except in any case where a
failure so to qualify would not have a material adverse effect on the Company.
The copies of the articles of incorporation and bylaws of the Company, which
have been delivered to the Shareholder, are complete and correct and are in full
force and effect at the date hereof.
(b) Authorization; No Restrictions, Consents or Approvals. The
Company has full power and authority to enter into and perform this Agreement
and all corporate action necessary to authorize the execution and delivery of
this Agreement and the performance its obligations hereunder has been duly
taken. This Agreement has been duly executed by the Company and constitutes the
legal, valid, binding and enforceable obligation of the Company, enforceable
against the Company in accordance with its terms.
(c) Disclosure. No statement, representation or warranty by
the Company in this Agreement, contains any untrue statement of a material fact,
or omits to state any material fact, necessary to make such statements, in the
light of the circumstances under which they were made, not misleading.
(d) No Broker. The Company has used no broker, and knows of no
broker, which may have a claim against Shareholder for brokerage of this
transaction.
SECTION 4. COVENANTS PRIOR TO CLOSING
The Shareholder covenants that, except as otherwise consented to in
writing by the Company, from and after the date hereof until the Closing or the
earlier termination of this Agreement the Shareholder (i) will use reasonable
efforts consistent with past practice to preserve the Assets, (ii) shall not
enter into any contract, lease, license, obligation, indebtedness, commitment,
purchase or sale relating to the Assets; and (iii) shall not enter into or
assume any mortgage, pledge, conditional sale or other title retention
agreement, or permit any Lien to be placed upon the Assets.
SECTION 5. CLOSING
5.1 Conditions to the Company's Obligations. The obligations of the
Company under this Agreement, (including, without limitation, the obligation to
consummate and effect the exchange of shares), shall be subject to satisfaction
of the following conditions, unless waived by the Company:
(a) The Shareholder shall have performed in all material
respects all agreements, and satisfied in all material respects all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date.
(b) All representations and warranties of the Shareholder
herein shall have been true and correct in all material respects when made (or
will have been made true and correct by the Closing Date), shall have continued
to have been true and correct in all material respects at all times subsequent
thereto, and shall be true and correct in all material respects on and as of the
Closing Date as though made on, as of and with reference to such Closing Date.
(c) There shall not have occurred any material adverse change
with respect to the Assets or MEDIA TOP PRIM.
(d) The Shareholder shall have executed and delivered to the
Company all documents necessary to transfer all issued and outstanding shares of
MEDIA TOP PRIM to the Company, as contemplated by this Agreement.
(e) The Shareholder shall have delivered to Company an
opinion, dated the Closing Date, substantially in a form reasonably satisfactory
to the Company which shall include the subject matter contained in Section 3.1
(a) (b), (c) and (g).
5.2 Conditions to the Shareholder's Obligations. The obligations of the
Shareholder under this Agreement, (including, without limitation, the obligation
to consummate and effect the share exchange) shall be subject to satisfaction of
the following conditions, unless waived by the Shareholder:
(a) The Company shall have performed in all material respects
all agreements, and satisfied in all material respects all conditions on its
part to be performed or satisfied hereunder, at or prior to the Closing Date.
(b) All of the representations and warranties of the Company
herein shall have been true and correct in all material respects when made,
shall have continued to have been true and correct in all material respects at
all times subsequent thereto, and shall be true and correct in all material
respects on and as of the Closing Date as though made on, as of, and with
reference to such Closing Date.
5.3 The Shareholder's Closing Documents. At the Closing, the
Shareholder shall deliver to the Company, in form and substance reasonably
satisfactory to the Company, all consents required under the Contracts, and
appropriate documents to effect or evidence the sale, conveyance, assignment and
transfer to the Company of the issued shares of MEDIA TOP PRIM as contemplated
hereby and necessary to place the Company, in full possession and enjoyment of
all issued shares of MEDIA TOP PRIM as contemplated hereby, including the
following:
(a) A certificate evidencing the issued shares of MEDIA TOP
PRIM registered in the name of the Company.
(b) Copies of MEDIA TOP PRIM's bylaws and resolutions adopted
by the board of directors of authorizing the execution and delivery of, and
performance of the Shareholder's obligations under, this Agreement.
(c) A certified copy of MEDIA TOP PRIM Bylaw, including
amendments, if any, together with a certificate of good standing for MEDIA TOP
PRIM issued by the Secretary of State of the jurisdiction of its incorporation
and dated not more than 1 business days prior to the Closing Date.
SECTION 6. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
6.1 Survival of Representations and Warranties and Covenants. The
representations, warranties, covenants, and obligations of the Company and the
Shareholder set forth in this Agreement and in any certificate, agreement, or
instrument delivered in connection with the transactions contemplated hereby,
shall survive the Closing for a period of three years.
6.2 Indemnification by the Shareholder. In addition to and not in
limitation of the Shareholder's indemnification obligations set forth elsewhere
in this Agreement, Shareholder shall, defend, indemnify, and hold harmless the
Company and its affiliates and its respective officers, directors, shareholders,
agents and employees (individually, a "Company Indemnitee" and collectively the
"Company Indemnitees"), from and against any and all claims, losses,
deficiencies, liabilities, obligations, damages, penalties, punitive damages,
costs, and expenses (including, without limitation, reasonable legal, accounting
and consulting fees), whether or not resulting from third party claims
(collectively, "Losses"), suffered by a Company Indemnitee, which arise out of
or result from:
(a) any inaccuracy or misrepresentation in or breach of any of
the representations, warranties, covenants or agreements made by the Shareholder
in this Agreement or in any document, certificate or affidavit delivered by the
Shareholder pursuant to the provisions of this Agreement;
(b) any obligation, liability, debt or commitment of MEDIA TOP
PRIM which is not disclosed herein, whether or not paid by the Company; and
(c) any other matter related to the use or ownership of the
Assets prior to the Closing (including, but not limited to, all acts, omissions
and conditions existing or occurring prior to the Closing for which any of the
Company Indemnitees is alleged to be liable pursuant to any successor or similar
theory of liability).
6.3 Indemnification by The Company. The Company shall defend, indemnify
and hold harmless, the Shareholder from and against any and all Losses, suffered
by the Shareholder, which arise out of or result from any inaccuracy or
misrepresentation in or breach of any of the representations, warranties,
covenants or agreements made by the Company in this Agreement or in any
document, certificate or affidavit delivered by the Company pursuant to the
provisions of this Agreement.
6.4 Indemnification Payments. All indemnity payments, whether by the
Company or the Shareholder, to be made under this Agreement, shall be made in
immediately available funds.
6.5 Procedure for Third Party Claims.
(a) Notice to the indemnifying party shall be given promptly
after receipt by the Shareholder or the Company Indemnitee of actual knowledge
of the commencement of any action or the assertion of any claim that will likely
result in a claim by it for indemnity pursuant to this Agreement. Such notice
shall set forth in reasonable detail the nature of such action or claim to the
extent known, and include copies of any written correspondence or pleadings from
the party asserting such claim or initiating such action. The indemnified party
shall be entitled, at its own expense, to assume or participate in the defense
of such action or claim. If the indemnifying party assumes the defense of such
action or claim, it shall be conducted by counsel chosen by such party and
approved by the party seeking indemnification, which approval shall not be
unreasonably withheld.
(b) For actions where the indemnifying party does not exercise
its right to assume the defense, the party seeking indemnification shall assume
and control the defense of and contest such action with counsel chosen by it and
approved by the indemnifying party, which approval shall not be unreasonably
withheld. The indemnifying party shall be entitled to participate in the defence
of such action, the cost of such participation to be at its own expense. The
indemnifying party shall pay the reasonable attorneys' fees and expenses of the
party seeking indemnification to the extent that such fees and expenses relate
to claims as to which indemnification is payable under Sections 6.2 or 6.3, as
such expenses are incurred.
(c) Both the indemnifying party and the indemnified party
shall cooperate fully with one another in connection with the defense,
compromise, or settlement of any such claim or action, including, without
limitation, by making available to the other all pertinent information and
witnesses within its control.
(d) No indemnified party shall have the right to settle any
action brought against it without the consent of the indemnifying party. The
indemnifying party shall have the right to settle any action brought against an
indemnified party as long as the indemnified party has been delivered a complete
release as a condition of the settlement.
6.6 Remedies Cumulative. The remedies provided for herein shall be
cumulative and shall not preclude assertion by any party of any other rights or
the seeking of any other remedies against any other party. Section 6.6 shall not
limit, impair or modify any provisions of this Agreement or otherwise impose any
additional liability or obligation on the Company for any liability or
obligation of the Shareholder, other than the Company's obligation to indemnify
the Shareholder hereunder.
6.7 Successors. The merger, consolidation, liquidation, dissolution or
winding up of, or any similar transaction with respect to the parties hereto,
shall not affect in any manner the obligations of the parties pursuant to
Section 6 or any other term or provision of this Agreement, and the parties
covenant and agree to make adequate provision for their liabilities and
obligations hereunder in the event of any such transaction.
SECTION 7. GENERAL PROVISIONS.
7.1 Documentary Taxes. Each party shall pay any documentary or other
taxes, arising from the issuance of any capital stock by such party.
7.2 No Third Party Beneficiaries. Nothing in this Agreement shall it be
construed, to confer any rights or benefits upon any person (including, but not
limited to, any employee or former employee of the Shareholder) other than the
parties hereto, and solely to the extent provided in Section 6, the Shareholder
and the Company Indemnitees, and no other person, shall have any rights or
remedies hereunder.
7.3 Specific Performance. Each of the parties acknowledges and agrees
that the other parties would be damaged irreparably if any of the provisions of
this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each party agrees that the other party
shall be entitled, without the necessity of pleading or proving irreparable harm
or lack of an adequate remedy at law or posting any bond or other security, to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof. Any such claim for specific performance shall be brought and
determined in the appropriate federal or state court, in the State of Florida
and in no other forum. The parties hereby irrevocably submit to the jurisdiction
of any such Florida state court or federal court in Florida, in connection with
such claim for a specific performance.
7.4 Severability. If any parts of this Agreement are found to be void,
the remaining provisions of this Agreement shall nevertheless be binding with
the same effect as though the void parts were deleted.
7.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
7.6 Benefit. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors, heirs
and permitted assigns.
7.7 Notices. Any notice, report, demand, waiver, consent or other
communication given by a party under this Agreement shall be in writing, may be
given by a party or its legal counsel, and shall deemed to be duly given upon
delivery by Federal Express or similar overnight courier service which provides
evidence of delivery, or when delivered by facsimile transmission if a copy
thereof is also delivered in person or by overnight courier. Notices of address
change shall be effective only upon receipt notwithstanding the provisions of
the foregoing sentence.
Notice to the Shareholder shall be sufficient if given to:
MEDIA TOP PRIM Ltd.
▇▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ of Moldova
Facsimile: + 373 22 23 79 79
Notice to the Company shall be sufficient if given to:
EMERGING MEDIA HOLDINGS, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
7.8 Oral Evidence. This Agreement constitutes the entire agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof.
7.9 Governing Law. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
7.10 Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in State of Florida (unless the parties
agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding the parties agree to provide all
discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof.
7.11 Tax Returns. The Shareholder agrees to file or cause to have filed
any federal, state, and local tax returns as required for the Company from the
time of its incorporation until the Closing Date. A copy of all such returns
will be provided to the Company as soon as practicable after their filing.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed under seal as of the date first above written.
SECTION 8. SIGNATURES
EMERGING MEDIA HOLDINGS, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇,CEO
MEDIA TOP PRIM Ltd.
By: /s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇, Attorney