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EXHIBIT 2.1
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 BigHub.com, Inc., a Florida
corporation ("BIGHUB"), Gerard R. Bernier and Joel Sens (the "SHAREHOLDERS"),
and Next Generation Media Corporation, a Nevada corporation (the "COMPANY").
RECITALS
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
3. Sale and Purchase.
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a. Securities to be Transferred. On the Closing Date, as
defined in Section 9, Shareholders shall sell and transfer the Make-Whole
Shares to BigHub and BigHub shall purchase the Make-Whole Shares from
Shareholders.
b. Purchase Price for Company Common Stock. At the Closing, as
defined in Section 9, BigHub shall deliver to the Shareholders, as the
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,
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,
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 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 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
warrants to BigHub that:
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q. Organization, Qualification, Etc. The Company is a corporati
on 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
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 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 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 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 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
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 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 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 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 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 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
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 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 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 mark 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 mark, copyright, trade secret or other proprietary
right of any third party.
ff. Internal Accounting Controls. The Company maintains a system
of 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 and warrants to Shareholder that:
e. Investment Representations.
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 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 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 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
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. Mr. Bernier agrees to deliver
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 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,
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
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
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 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.
26. Severability. Any term or provision of this Agreement that is
invalid 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,
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
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 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 written instrument signed on behalf of each of the parties hereto.
31. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
32. Notices. Any notice or other communication required or permitted
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 BigHub.com, Inc.
Attn: Frank Denny
2939 Mossrock, Suite 100
San Antonio, TX 78230
with a copy (which shall not constitute notice) to Akin, Gump, Strauss, Hauer &
Feld, L.L.P., 1500 Bank of America Plaza, 300 Convent Street, San Antonio, TX
78205, Attention: Alan Schoenbaum (facsimile transmission number: 210-224-2035).
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b. If to Mr. Bernier: Mr. Gerard R. Bernier
HC73 Box 831B
Locust Grove, VA 22508
with a copy (which shall not constitute notice) to Sullivan & Worcester LLP,
1025 Connecticut Ave., N.W., Suite 1000, Washington, DC, Attention: David
Mahaffey (facsimile transmission number: 202-293-2275).
c. If to Mr. Sens: Mr. Joel Sens
900 North Stafford, Suite 2003
Arlington, VA 22203
with a copy (which shall not constitute notice) to Sullivan & Worcester LLP,
1025 Connecticut Ave., N.W., Suite 1000, Washington, DC, Attention: David
Mahaffey (facsimile transmission number: 202-293-2275).
d. If to the Company: Next Generation Media Corp.
Attn: President
8380 Alban Road
Springfield, Virginia
with a copy (which shall not constitute notice) to Williams & Connolly LLP, 725
12th Street, N.W. Washington, D.C. 20005, Attention: Jonathan Graham (facsimile
transmission number : 202-434-5094).
33. Counterparts. This Agreement may be executed in one or more
counterparts, 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]
13
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 BIGHUB.COM, INC.
By:
----------------------------------------
Chet Howard, Chief Financial Officer
NEXT GENERATION MEDIA CORPORATION
By:
----------------------------------------
Gerard R. Bernier, President
SHAREHOLDERS:
-------------------------------------------
GERARD R. BERNIER
-------------------------------------------
JOEL SENS
----------------------------
BY:
TITLE: