TERMINATION AGREEMENT
This Termination Agreement (this "Termination Agreement"), dated as of September
15, 2004, is made and entered into by and between Eye Span Entertainment
Network, Inc., ("ESEN"), with offices located at 41 North Mojave Road, Las
Vegas, Nevada, USA 89101 and ValCom, Inc. ("VACM"), a Delaware Corporation whose
address is 28309 Avenue Crocker, Valencia, California 91355 (each a "Party" and
collectively the "Parties").
RECITAL:
WHEREAS ESEN entered into a Purchase Agreement with VACM as of the 21st of
February, 2004 ("Original Agreement") to purchase certain assets of VACM as set
forth;
WHEREAS as a condition of 8.2 of the purchase agreement, the Parties have agreed
to terminate the purchase agreement aforementioned;
NOW, THEREFORE, in consideration of the terms and conditions set forth in this
Termination Agreement and the receipt and sufficiency of which is hereby
acknowledged, ESEN and VACM hereby agree to terminate the Agreement and release
each other from their respective obligations in accordance with the following
terms and conditions:
1. TERMINATION. Upon signing of this Agreement, ESEN and ValCom hereby agree to
terminate the Agreement. The Parties acknowledge and agree that this Termination
Agreement shall become effective immediately after the Parties execution of this
Termination Agreement ("Termination Effective Date"). The Agreement is being
Termination per item 8.2 of the agreement as indicated below. (8.2. FINAL
DEADLINE FOR CLOSING. If the Closing Date has not occurred on or before the date
that is thirty (30) days after the date of this Agreement, then this Agreement
may be terminated by either Buyer or Seller by the giving of written notice to
the other party so long as the terminating party is not then in material breach
hereunder. Except as otherwise expressly permitted under this Agreement, this
Agreement shall not be terminated.)
2. SURVIVAL. This Termination Agreement shall be subject to survival of those
terms expressly identified for survival in the Original Agreement.
3. RELEASE. Effective upon the Termination Effective Date, each Party releases
and forever discharges the other Party and all of its stockholders, employees,
agents, successors, assignees, legal representatives, affiliates, directors and
officers from and against any and all actions, claims, suits, demands, payment
obligations or other obligations or liabilities of any nature whatsoever,
whether known or unknown, which such Party or any of its stockholders,
employees, agents, successors, assignees, legal representatives, affiliates,
directors or officers have had, now have or may in the future have arising out
of (or in connection with) the Original Agreement (collectively, "Claims").
Each of the parties hereto acknowledges that there is a possibility that
subsequent to the execution of this Termination Agreement, it will discover
facts or incur or suffer claims that were unknown or unsuspected at the time
this Termination Agreement was executed, and which if known by it at that time
may have materially affected its decision to execute this Termination Agreement.
Each of the Parties hereto acknowledges and agrees that by reason of this
Termination Agreement, and its release set forth above, it is assuming any risk
of such unknown facts and such unknown and unsuspected claims.
4. MUTUAL REPRESENTATIONS AND WARRANTIES.
Each of the parties represents and warrants as follows:
(a) It has read this Termination Agreement and understands the contents hereof
and that it has made such an investigation of the facts pertinent to this
Termination Agreement and of all the matters pertaining thereto as it deemed
necessary;
(b) No Claim has been assigned, granted or transferred in any manner to any
person.
5. GENERAL PROVISIONS.
5.1 Further Assurances. Each Party shall take such further action (including,
but not limited to, the execution, acknowledgment and delivery of documents or
other tangible items in such Party's possession) as may reasonably be requested
by the other Party in order to facilitate the implementation and performance of
this Termination Agreement.
5.2 Confidentiality. Neither Party shall disclose the existence of this
Termination Agreement nor the terms hereof without the prior approval of the
other party, nor publish or release any press release, promotional materials or
other public statement regarding or referencing the other party except: (i) as
may be required by law, regulation, or court order, or rules or regulations of
any securities exchange; (ii) in the case of confidential disclosures on a need
to know basis to employees, consultants, counsel, accountants, investors or
other professional advisers of the Party and its affiliates; or (iii) in
connection with required tax and accounting disclosures.
5.3 Entire Agreement. This Termination Agreement is the entire agreement between
the Parties regarding the subject matter contained herein. It supersedes, and
its terms govern, all prior proposals, agreements, or other communications
between the Parties, oral or written, regarding the subject matter contained
herein. This Termination Agreement shall not be modified or amended unless done
so in a writing signed by authorized representatives of both Parties.
5.4 Applicable Law. This Termination Agreement shall be interpreted, construed
and enforced in all respects in accordance with the laws of Nevada. Each Party
irrevocably consents to the jurisdiction of the courts of the Nevada, in
connection with any action to enforce the provisions of this Termination
Agreement or arising under or by reason of this Termination Agreement.
5.5 Assignment. Neither Party shall assign this Termination Agreement or any
right, interest or benefit under this Termination Agreement without the prior
written consent of the other Party; provided that, assignment by a Party to a
successor by way of merger, consolidation or sale of all or substantially all of
such Party's stock or assets shall not require the consent of the other Party.
Subject to the foregoing, this Termination Agreement shall be fully binding
upon, inure to the benefit of and be enforceable by the Parties hereto and their
respective successors and assigns.
5.6 Construction. In the event that any provision of this Termination Agreement
conflicts with the law under which this Termination Agreement is to be construed
or if any such provision is held invalid by a court with jurisdiction over the
Parties to this Termination Agreement, such provision shall be deemed to be
restated to reflect as nearly as possible the original intentions of the Parties
in accordance with applicable law, and the remainder of this Termination
Agreement shall remain in full force and effect.
5.7 Counterparts. This Termination Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same document.
5.8 Disclaimer of Liability. Nothing in this Termination Agreement or any
related document shall be construed as an express or implied admission or
acknowledgement by any Party of any liability to any other party or to any other
person, all such liability being expressly denied.
5.9 Forbearance of Suit. Subject to Section 3 above, each of the Parties hereto
agrees that it will forever refrain and forbear from commencing, instituting or
prosecuting any lawsuit, action or other proceeding of any kind whatsoever, by
way of action, defences, set-off, cross-complaint or counterclaim, against the
other party(s) hereto based on, arising out of, or in connection with any Claim,
which is released and discharged by reason of the execution and delivery of this
Termination Agreement, except for actions commenced to enforce any rights
conferred in this Termination Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Termination Agreement
as of the date first above written.
Eye Span Entertainment Network, Inc.
A Nevada Corporation
/s/ Ronald Foster
________________________
Ronald Foster, President
ValCom, Inc.
A Delaware Corporation
/s/ Vince Vellardita
________________________
Vince Vellardita, President