Exhibit 10.06
MEDIA TRANSFER AND STOCK PURCHASE AGREEMENT
THIS MEDIA TRANSFER AND STOCK PURCHASE AGREEMENT (the "Agreement"), is
dated as of February 14, 2003, by and among Essential Innovations Technology
Corporation, a Nevada corporation (the "Company"), Digital Alliance Group, LLC,
a North Carolina limited liability company (the "Media Provider") and Millennium
Capital Quest Corp., a Nevada corporation (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company wishes to issue to the Agent the Company's Series
A Convertible Preferred Stock in consideration for the conveyance of the Media
Credits by the Media Provider and the payments and other provisions set forth in
this Agreement; and
WHEREAS, the Agent wishes to acquire the Series A Convertible Preferred
Stock on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement, the following terms will have the
following meanings:
"Agent" means Millennium Capital Quest Corp., a Nevada corporation.
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"Agreement" means this Media Transfer and Stock Purchase Agreement, as
it may be amended from time to time.
"Appraiser" means Satterfield & Perry, Inc., a professional independent
media appraisal firm or any other appraisal firm experienced in the valuation of
Media Credits, which is reasonably acceptable to the Company and the Media
Provider.
"Board of Directors" means the board of directors of the Company.
"Closing Date," means the date on which the Company issues the
Preferred Stock to the Agent and the Media Credits are conveyed to the Company
by the Media Provider.
"Company" means Essential Innovations Technology Corporation, a Nevada
corporation.
"Common Stock" means the common stock of the Company.
"Conversion Date" has the meaning set forth in Section 2.3 hereof.
"Conversion Notice" has the meaning set forth in Section 2.3 hereof.
"Conversion Price" has the meaning set forth in Section 2.3 hereof.
"Guarantor" means an insurance company rated "A" or better by Standard
& Poors or A.M. Best which is reasonably acceptable to the Company and the Media
Provider.
"IPO" has the meaning set forth in Section 2.3 hereof.
"Liquidation Preference" has the meaning set forth in Section 2.3
hereof.
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"Media Credits" means the right to purchase media, including, without
limitation, media consisting of advertising by television, print, radio,
Internet, magazine, facsimile, direct mail and telephone.
"Media Credits Use Fee" means the payment of the Company to the Agent
for the use of the Media Credits as provided in this Agreement.
"Media Company" means the company, which provides the media represented
by the Media Credits.
"Media Provider" means Digital Alliance Group, LLC, a North Carolina
limited liability company.
"Media Servicer" has the meaning set forth in Section 4.5 hereof.
"Preferred Stock" means the Series A Convertible Preferred Stock of the
Company to be issued to the Agent pursuant to the terms of this Agreement.
"Principal Market" has the meaning set forth in Section 2.3 hereof.
"Retail Rate Card" means the customary retail cost to purchase
advertising from a Media Company by for-profit entities without any discount or
other concessions.
"Service Fee" means the payment of the Company to the Agent for
payments that are past due.
"Trading Day" has the meaning set forth in Section 2.3 hereof.
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ARTICLE 2
THE PREFERRED STOCK
Section 2.1 Issuance, Sale and Purchase of the Preferred Stock. In
reliance upon the representations, warranties and covenants made herein and
subject to the satisfaction or waiver of the conditions set forth herein, the
Company agrees to issue and sell to the Agent the Preferred Stock, and the Agent
agrees to acquire the Preferred Stock from the Company, and the Media Provider
agrees to convey, transfer and assign the Media Credits to the Company as
provided in this Agreement. The Preferred Stock will have the terms set forth in
this Article 2.
Section 2.2 Issuance of Preferred Stock. The Preferred Stock will be
issued to the Agent at the Closing Date as provided in this Agreement. The
Preferred Stock will be issued in the aggregate amount of One million five
hundred thousand ($1,500,000) represented by stock certificates in denominations
of fifty thousand dollars ($50,000). The Agent agrees that the Preferred Stock
will not be transferred to any other person prior to the use or sale by the
Company of the Media Credits conveyed under this Agreement. Thereafter, the
Agent further agrees that any such transfer will be made only in transactions
exempt from registration under federal and state securities laws and to not more
than ten (10) persons or entities. Prior to any transfer of the Preferred Stock
by the Agent, the Company may require, at the expense of the Agent, the delivery
of appropriate legal opinions and certificates of the Agent and transferees
regarding such exemptions.
Section 2.3 Conversion. Upon the later of (i) eighteen (18) months
following the Closing Date or (ii) one hundred and eighty (180) days after (the
"Conversion Date") the initial public offering ("IPO") of the Company's Common
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Stock that results in net proceeds to the Company of at least ten million
dollars ($10,000,000), the Preferred Stock shares will automatically convert
into such equal number of fully paid, validly issued and nonassessable shares of
common stock of the Company (the "Common Stock"), free and clear of any liens,
claims or encumbrances, as is determined by dividing (i) the Liquidation
Preference per share times the number of Preferred Stock shares being converted,
by (ii) the applicable Conversion Price determined as hereinafter provided in
effect on the Conversion Date. Immediately following such conversion, the rights
of the holders of converted Preferred Stock will cease and the persons entitled
to receive the Common Stock upon the conversion of Preferred Stock will be
treated for all purposes as having become the owners of such shares of Common
Stock without further action by such holders.
(a) Mechanics of Conversion. To convert Preferred Stock into
Common Stock, the Company will give notice (the "Conversion Notice") of
the Conversion Date to the holders of the Preferred Stock. As soon as
possible after delivery of the Conversion Notice, such holder will
surrender the certificate or certificates representing the Preferred
Stock being converted, duly endorsed, at the principal corporate
offices of the Company or, if identified in writing to all the holders
by the Company, at the offices of any transfer agent for such shares.
The Company will, within three (3) Trading Days of receipt of such
Preferred Share certificates, issue and deliver to or upon the order of
such holder, against delivery of the certificates representing the
Preferred Stock which have been converted, a certificate or
certificates for the number of Common Stock to which such holder will
be entitled (with the number of and denomination of such certificates
reasonably designated by such holder). The conversion pursuant to this
Section will be deemed to have been made immediately prior to the close
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of business on the Conversion Date. The person or persons entitled to
receive the Common Stock issuable upon such conversion will be treated
for all purposes as the record holder or holders of such Common Stock
at the close of business on the Conversion Date.
(b) Determination of Conversion Price and Certain Conversion
Restrictions.
(i) Definitions.
"Conversion Price" will mean the price at
which Preferred Stock are converted hereunder as of a
certain date.
"Liquidation Preference" will mean the
stated liquidation preference per share of the
Preferred Stock. The aggregate Liquidation Preference
of all Preferred Stock issued in accordance with the
terms of this Agreement will be one million five
hundred thousand dollars ($1,500,000).
"Principal Market" will mean the New York
Stock Exchange, American Stock Exchange, NASDAQ
National Market System or SmallCap Market,
Over-The-Counter Electronic Bulletin Board, BBX or
such other market or exchange on which the Common
Stock is then principally traded.
"Trading Day" will mean a day on which there
is trading on the Principal Market.
(ii) Determination of Conversion Price. The
Conversion Price applicable with respect to the Preferred
Stock will be as follows:
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the Conversion Price will be equal to seventy-five
percent (75%) of the price paid for shares of Common
Stock by public investors in connection with the IPO
of the Company.
(c) Issue Taxes. The Company will pay any and all issue,
documentary, stamp and other taxes, excluding any income, franchise or
similar taxes, that may be payable in respect of any issue or delivery
of Common Stock on conversion of Preferred Stock pursuant hereto.
However, the holder of any Preferred Stock will pay any tax that is due
because the Common Stock issuable upon conversion thereof are issued in
a name other than such holder's name.
(d) Reservation of Stock Issuable upon Conversion. The Company
will at all times reserve and keep available out of its authorized but
unissued Common Stock, solely for the purposes of effecting the
conversion of the Preferred Stock, one thousand (1,000) shares of
Common Stock. The Company promptly will take such corporate action as
may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares
as will be sufficient for such purpose, including without limitation
engaging its best efforts to obtain any requisite stockholder approval.
(e) Fractional Shares. No fractional shares will be issued
upon the conversion of any Preferred Stock. All Common Stock (including
fractions thereof) issuable upon conversion of the Preferred Stock will
be aggregated for purposes of determining whether the conversion and
would result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion would result in the issuance
of a fraction of a share of Common Stock, the Company will, in lieu of
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issuing any fractional share, either round up the number of shares to
the next highest whole number or, at the Company's option, pay the
holder otherwise entitled to such fraction a sum in cash equal to the
fair market value of such fraction on the Conversion Date (as
determined in good faith by the Board of Directors of the Company).
(f) Reorganization or Merger. In case of any reorganization or
any reclassification of the capital stock of the Company or any
consolidation or merger of the Company with or into any other
corporation or corporations or a sale or transfer of all or
substantially all of the assets of the Company to any other person,
then, as part of such reorganization, consolidation, merger, or
transfer if the holders of shares of Common Stock receive any publicly
traded securities as part or all of the consideration for such
reorganization, consolidation, merger or sale, then it will be a
condition precedent of any such event or transaction that provision
will be made such that each Preferred Share will thereafter be
converted into such new securities at a conversion price and pricing
formula which places the holders of Preferred Stock in an economically
equivalent position as such holders would have been if not for such
event. In addition to the foregoing, if the holders of shares of Common
Stock receive any non-publicly traded securities or other property or
cash as part or all of the consideration for such reorganization,
consolidation, merger or sale, then the Preferred Stock will be deemed
to have converted immediately prior to the record date for such
distribution and will be entitled to receive such distribution as if
such Preferred Stock had been converted prior to the record date.
Section 2.4 Redemption. The Preferred Stock will be redeemable by the
Company for one cent ($.01) per share if any of the following events occur:
(a) The media represented by the Media Credits conveyed by the
Media Provider to the Company are not honored by the applicable Media
Company,
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(b) A Media Company fails to provide the media after an order
for such media has been placed, or
(c) Any Media Credits remain unused after the expiration of
the term of the Media Credits conveyed by the Media Provider to the
Company, as extended.
The amount in Liquidation Preference of Preferred Stock to be
redeemed under this Section 2.4 will equal six percent (6%) of the Retail Rate
Card value of Media Credits that are not used or honored as provided in this
Section 2.4.
Section 2.5 Voting Rights. Except as otherwise provided by law or by
the Company's Certificate of Incorporation, the Common Stock has exclusive
voting rights on all matters requiring a vote of stockholders, including the
election of directors, and the Preferred Stock has no voting rights; provided,
however, that no amendment may be made to the Company's Certificate of
Incorporation that adversely affects the Liquidation Preference or conversion
rights of the Preferred Stock without the approval of a majority in Liquidation
Preference of the Preferred Stock, except as otherwise provided in this
Agreement.
Section 2.6 Liquidation Preference. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of the Preferred Stock will be entitled to receive, out of the assets of
the Company available for distribution to stockholders, prior and in preference
to any distribution of any assets of the Company to the holders of any class of
common stock, the Liquidation Preference per share of Preferred Stock. After the
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payment of the foregoing amounts in the event of any liquidation, dissolution or
winding up, the Preferred Stock will not be entitled to any further payments or
distributions from the Company.
Section 2.7 Dividends. The Preferred Stock will not be entitled to
receive any dividends.
Section 2.8 IPO. Subject to market conditions, the Company agrees to
use its best efforts to complete an IPO as soon as practicable. By the execution
of this Agreement, the Company, the Media Provider and the Agent acknowledged
that March 15, 2003 is the earliest possible initial filing date of a
registration statement with the United States Securities and Exchange Commission
for the IPO.
ARTICLE 3
CLOSING
Section 3.1 Closing. The closing of the transaction will take place at
the offices of the Company located at Vancouver, BC, Canada after the
satisfaction or waiver of the conditions set forth in Article 6 hereof, or at
such other location, date and time as may be mutually agreed upon among the
Company, the Media Provider and the Agent (such date and time being called the
"Closing Date"). At the closing, the Media Provider will convey, transfer and
assign the Media Credits to the Company and the Company will issue the Preferred
Stock to the Agent. The certificate representing the Preferred Stock will bear
the following legend in addition to any other legend that may be required from
time to time under applicable law or pursuant to any other contractual
obligation:
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THE SHARES OF SERIES A CONVERTIBLE PREFERRED STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR ANY STATE SECURITIES LAW AND NO TRANSFER OF THESE
SECURITIES MAY BE MADE EXCEPT (a) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW; OR (b) PURSUANT
TO AN EXEMPTION THEREFROM WITH RESPECT TO WHICH THE COMPANY MAY, UPON REQUEST,
REQUIRE A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER IS
EXEMPT FROM THE REQUIREMENTS OF THE ACT AND ANY APPLICABLE STATE SECURITIES LAW.
THE STOCK REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER, A SUMMARY OF WHICH IS AVAILABLE FROM THE COMPANY.
Section 3.2 Selection of Closing Date. The Closing Date will be
determined by the Company by the delivery of a notice setting forth the Closing
Date to both the Media Provider and the Agent at least two (2) business days
prior to such proposed Closing Date. By their execution of this Agreement, the
Media Provider and the Agent agree and acknowledge that the Company intends to,
but is under no obligation to, sell the Media Credits to third parties in an
amount sufficient to pay off the Company's existing obligations and provide for
current working capital for the Company.
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Section 3.3 Further Action. During the period from the date hereof to
the Closing Date, each of the Company, the Media Provider and the Agent will use
their best efforts to take all action necessary or appropriate to satisfy the
closing conditions set forth in Article 6 hereof and the agent will assist the
Company in its efforts to sell the Media Credits.
ARTICLE 4
MEDIA CREDITS, MEDIA CREDIT USE FEE, MEDIA SERVICER AND SERVICE FEE
Section 4.1 Media Credits. At the Closing Date, the Media Provider will
convey, assign and transfer all right, title and interest without encumbrance of
any kind Media Credits representing Twenty Five million dollars ($25,000,000) in
Retail Rate Card Media Credits to the Company. The specific media represented by
the Media Credits so conveyed will be approved by the Company in its reasonable
discretion. The conveyance documents for the Media Credits and the Media Credits
will permit the holder of the Media Credits to purchase media from various Media
Companies at a cost not to exceed forty percent (40%) of the Retail Rate Card
price. The conveyance of the Media Credits will be completed by trade bill or
other documents reasonably acceptable to the Company and without restriction on
the Company's ability to use or sell such Media Credits. The term of the Media
Credits will provide for use by the holder thereof for a period of at least
eighteen (18) months following the date the specific media represented by the
Media Credits are approved and accepted by the Company, and additionally,
provided that in the event any of the Media is not utilized within the term, the
Media shall be automatically rolled over and extended for a like period, up to a
total of ten (10) years from the initial date of issuance.
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Section 4.2 Payment for Media Credits. The Company or its assigns
agrees to pay the Agent an amount equal to forty percent (40%) of the Retail
Rate Card price, but in no event an amount greater than ten million dollars
($10,000,000). Prior to the date of this Agreement, the Company paid the Agent
one thousand dollars ($1,000) for transfer fees payable by the Agent with
respect to the Media Credits. Except as provided in Section 4.5 hereof, this
amount will be due and paid at the time determined by the customary billing
practices and terms of the Media Company providing the specific media, but only
upon the execution and placement of the media with the Media Company. Media
Provider will use its best efforts to negotiate, on behalf of the Company,
extended payment terms beyond the normal billing cycle of the Media Company for
Media Credits used or sold by the Company.
Section 4.3 Media Credit Use Fee. The Company will also pay the Agent a
Media Credit Use Fee at the same time the payment set forth under Section 4.2 is
made. The Media Credit Use Fee will be calculated by the product of the Retail
Rate Card price of the media used and four percent (4%), but in no event an
amount greater than one million ($1,000,000).
Section 4.4 Service Fee. In the event the Company does not arrange for
the sale or use of the media represented by the Media Credits conveyed to the
Company within six months of the Closing Date, the Company will pay the Agent a
monthly service fee calculated by the product of one-twelfth of one percent
(0.000833) and an amount represented by the Retail Rate Card of the media not so
used or not otherwise sold. No such service fee will be due and payable if the
media represented by the Media Certificates cannot be used or sold for media
from the Media Company. Any amounts due for this service fee will be paid to the
Company by the Agent within ten (10) business days following the end of each
calendar month.
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Section 4.5 Alternative Payment Procedure. At the Company's election,
the Company may make any payments to the Agent pursuant to the provisions of
this Section 4.5. The Company may enter into an agreement with a company
experienced in the business of media buying (the "Media Servicer") and not
affiliated with the Company, the Media Provider or the Agent. The Media Servicer
will be approved by the Agent in its reasonable discretion. The agreement with
the Media Servicer will require that payments for the use of media represented
by the Media Credits be paid directly to the Media Servicer upon confirmation by
the Media Servicer that the media had, in fact, been delivered. The agreement
with the Media Servicer will require that payments to the Agent be made within
ten (10) days after receipt of funds with respect to delivered media.
Section 4.6 Late Payments. If the Company fails to make any payments
which are required to be made under this Agreement, the Company will make an
additional payment as a late payment fee. The late payment fee will be
calculated by the product of the amount of the payment and an annual rate of ten
percent (10%), adjust on a daily basis.
Section 4.7 Security. The Company agrees to execute such security
agreements as reasonably requested by the Agent if the Company itself uses any
of the Media Credits conveyed under this Agreement.
Section 4.8 Guarantor. In the event of a default by the Company in
connection with the payment of the Media Credit Use Fee, the Agent and the Media
Provider agree they will not exercise any remedy at law or in equity against the
Company if a Guarantor satisfies the Company's obligations.
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Section 4.9 Agent's Approval of the Sale of Media Credits. Prior to the
sale by the Company of the Media Credits to any third party, the Company will
obtain the prior approval of the Agent, whose approval will not be unreasonably
held. The purpose of such approval is to review the creditworthiness of any
potential purchaser of Media Credits.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Section 5.1 Representations and Warranties of the Company. The Company
will represent and warrant to the Media Provider and the Agent in a certificate
signed by an authorized officer of the Company that as of the Closing Date:
(a) The Company has been duly organized and validly exists as
a corporation in good standing under the laws of the State of Nevada
with full power and authority to conduct its business.
(b) The Company has full corporate power and authority to
enter into and perform its obligations under this Agreement and to
issue, sell and deliver the Preferred Stock and, upon issuance, the
Preferred Stock will be duly authorized, executed and delivered by the
Company and, when so executed, will constitute a valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereinafter in effect relating
to creditors' rights generally; and (ii) general principles of equity
(regardless of whether a proceeding is considered at law or in equity).
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(c) Neither the issuance and sale of the Preferred Stock nor
the consummation of any of the other transactions contemplated by this
Agreement nor the fulfillment of the terms hereof and thereof will
conflict with, result in a breach or violation of or constitute a
default under any law or the charter or bylaws of the Company or the
terms of any indenture or other agreement or instrument to which the
Company is a party or is bound or any judgment, order or decree
applicable to the Company of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company.
(d) The Company has not retained, directly or indirectly, any
broker or finder or incurred any liability or obligation for any
brokerage fees or finder's fees with respect to this Agreement or the
transactions contemplated hereby to sell Media Credits on behalf of the
Company. Neither the Media Provider nor the Agent will have any
responsibility for any fees paid to such company and persons, should
they be retained.
Section 5.2 Representations and Warranties of the Media Provider. The
Media Provider will represent and warrant to the Company in a certificate signed
by an authorized officer of the Media Provider that as of the Closing Date:
(a) The Media Provider has been duly organized, validly
existing and in good standing under the laws of the State of North
Carolina, with full power and authority to conduct its business and has
all requisite power and authority under such laws to carry on its
business as now conducted.
(b) The Media Provider has full power and authority to enter
into and perform its obligations under this Agreement and to deliver
this Agreement, this Agreement has been duly authorized, executed and
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delivered by the Media Provider and constitutes a valid and binding
obligation of the Media Provider, enforceable against the Media
Provider in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect relating to creditors' rights generally; and (ii) general
principles of equity (regardless of whether a proceeding is considered
at law or in equity).
(c) The consummation of any of the transactions contemplated
by this Agreement or the fulfillment of the terms hereof will not
conflict with, result in a breach or violation of or constitute a
default under any law or the organizational documents of the Media
Provider or the terms of any indenture or other agreement or instrument
to which the Media Provider is a party or is bound or any judgment,
order or decree applicable to the Media Provider of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Media Provider.
(d) The Preferred Stock will be acquired for investment for
the Agent's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and the Agent has no
present intention of selling, granting any participation in, or
otherwise distributing the same. The Media Provider further represents
that it does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any of the
Preferred Stock. The Media Provider (i) has such knowledge and
experience in financial and business matters, including investments of
the type represented by the Preferred Stock, as to be capable of
evaluating the merits of investment in the Company; (ii) has not been
furnished with or relied upon any oral representation, warranty or
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information in connection with the offering of the Preferred Stock; and
(iii) is an "Accredited Investor" as such term is defined in Rule 501
of the rules and regulations promulgated under the Securities Act of
1933, as amended. The Media Provider and its agents, attorneys and
advisors have been provided full and complete access to all of the
books, records, financial statements, accounts, places of business, and
any other information reasonably related to the conduct of the business
of Media Provider, and has been afforded the opportunity to conduct an
independent investigation of all of those matters and has satisfied
itself as to all of the risks of the business of the Media Provider,
and has satisfied itself that it has obtained, or been offered access
to all of the information and descriptions of reasonable risks
associated with the transaction contemplated hereby that a reasonably
prudent investor would wish to obtain.
(e) The Media Provider will not have any liability or
obligation for any brokerage fees or finder's fees with respect to this
Agreement or the transactions contemplated hereby as a result of any
action taken by the Media Provider in connection herewith and
therewith. The Company will have no responsibility for any fees or
expenses of the Media Provider in connection with the transactions
contemplated by this Agreement.
(f) The Media Credits conveyed, assigned and transferred to
the Company at the Closing Date represents all right, title and
interest in the Media Credits and the Media Credits are not encumbered
or restricted in any way.
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Section 5.3 Representations and Warranties of the Agent. The Agent will
represent and warrant to the Company in a certificate signed by an authorized
officer of the Agent that as of the Closing Date:
(a) The Agent has been duly organized, validly existing and in
good standing under the laws of the State of Nevada, with full power
and authority to conduct its business and has all requisite power and
authority under such laws to carry on its business as now conducted.
(b) The Agent has full corporate power and authority to enter
into and perform its obligations under this Agreement and the Agreement
has been be duly authorized, executed and delivered by the Agent and
constitutes a valid and binding obligation of the Agent, enforceable
against the Agent in accordance with its terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereinafter in
effect relating to creditors' rights generally; and (ii) general
principles of equity (regardless of whether a proceeding is considered
at law or in equity).
(c) The consummation of any of the transactions contemplated
by this Agreement or the fulfillment of the terms hereof and thereof
will not conflict with, result in a breach or violation of or
constitute a default under any law or the charter or bylaws of the
Agent or the terms of any indenture or other agreement or instrument to
which the Agent is a party or is bound or any judgment, order or decree
applicable to the Agent of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Agent.
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(d) The Preferred Stock will be acquired for investment for
the Agent's own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and the Agent has no
present intention of selling, granting any participation in, or
otherwise distributing the same. The Agent further represents that it
does not presently have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any of the
Preferred Stock. The Agent (i) has such knowledge and experience in
financial and business matters, including investments of the type
represented by the Preferred Stock, as to be capable of evaluating the
merits of investment in the Company; (ii) has not been furnished with
or relied upon any oral representation, warranty or information in
connection with the offering of the Preferred Stock; and (iii) is an
"Accredited Investor" as such term is defined in Rule 501 of the rules
and regulations promulgated under the Securities Act of 1933, as
amended. The Agent and its agents, attorneys and advisors have been
provided full and complete access to all of the books, records,
financial statements, accounts, places of business, and any other
information reasonably related to the conduct of the business of the
Agent, and has been afforded the opportunity to conduct an independent
investigation of all of those matters and has satisfied itself as to
all of the risks of the business of the Agent, and has satisfied itself
that it has obtained, or been offered access to all of the information
and descriptions of reasonable risks associated with the transaction
contemplated hereby that a reasonably prudent investor would wish to
obtain.
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(e) The Agent will not have any liability or obligation for
any brokerage fees or finder's fees with respect to this Agreement or
the transactions contemplated hereby as a result of any action taken by
the Agent in connection herewith and therewith.
(f) The Media Credits conveyed, assigned and transferred to
the Company at the Closing Date represents all right, title and
interest in the Media Credits and the Media Credits are not encumbered
or restricted in any way.
(g) The Company will have no responsibility for any fees or
expenses of the Agent in connection with the transactions contemplated
by this Agreement.
ARTICLE 6
CLOSING CONDITIONS
Section 6.1 Closing Conditions. The obligations of the Company to issue
the Preferred Stock to the Agent and the Media Provider to convey, assign and
transfer twenty five million dollars ($25,000,000) of Retail Rate Card Media
Credits to the Company is subject to satisfaction or waiver by all parties of
the following conditions on or before the Closing Date:
(a) The Company has delivered the notice of the Closing Date
as provided in Section 3.2 of this Agreement.
(b) The Board of Directors of the Company has approved the
transactions contemplated by this Agreement.
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(c) The Media Provider has conveyed, transferred and assigned
to the Company twenty five million dollars ($25,000,000) in Retail Rate
Card Media Credits as provided in this Agreement.
(d) The Company has issued to the Agent one million five
hundred thousand dollars ($1,500,000) in Preferred Stock as provided in
this Agreement in the form of 400,000 shares of Series A Preferred
Stock of the Company as per terms of Section 2.3 Conversion subsection
(b)(ii).
(e) The issuance, if required by the Company of a guaranty,
insurance policy or similar agreement of a Guarantor with respect to
outstanding amounts payable from the Company to the Agent under this
Agreement.
(f) An appraisal has been delivered, if required by the
Company, by an Appraiser certifying to the effect that the Media
Credits being conveyed to the Company have a fair market value of at
least twenty five million dollars ($25,000,000).
(g) The certificate of the Company required by Section 5.1
hereof.
(h) The certificate of the Media Provider required by Section
5.2 hereof.
(i) The Certificate of the Agent required by Section 5.2
hereof.
(j) The receipt by the Media Provider and the Agent of an
opinion dated as of the Closing Date, from Kruse, Landa & Maycock
L.L.C., that the Preferred Stock has been duly and validly authorized
and issued by the Company.
22
ARTICLE 7
MISCELLANEOUS
Section 7.1 Reports. The Company will deliver to the Agent all
quarterly, annual and periodic financial and other reports, which are delivered
to the Board of Directors of the Company or common shareholders of the Company.
In addition, the Company will provide reports regarding its use or sale of the
Media Credits in such form as reasonably requested by the Agent and at least on
a quarterly basis.
Section 7.2 Indemnification. Media Provider and the Agent hereby agree
that they will indemnify and hold the Company and each person controlling,
controlled by or under common control with the Company harmless from and against
any and all loss, claim, damage, liability, cost or expense whatsoever to which
the Company may become subject as a result of the inability of any person to use
the Media Credits for specified media at any Media Company caused by the failure
of the Media Provider to transfer all right, title and interest of the Media
Credits without any encumbrance or other restriction.
Section 7.3 Expenses. Each party hereto will pay its own expenses
(including, without limitation, counsel fees) in connection with the
transactions contemplated hereby, whether or not such transactions will be
consummated.
Section 7.4 Execution. Except as otherwise provided herein, the
covenants, agreements, representations and warranties made in this Agreement, or
any certificate or instrument delivered pursuant to or in connection therewith
will survive the execution and delivery of this Agreement.
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Section 7.5 Successors and Assignors. All representations, covenants
and agreements contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not.
Section 7.6 Notices. All notices, requests, consents and other
communications hereunder will be in writing and will be delivered in person,
sent by facsimile or mailed by certified or registered mail; return receipt
requested, addressed as follows:
If to the Company, to: Essential Innovations Technology Corp.
114 West Magnolia Street, Suite 400-142,
Bellingham, WA 98225
Telephone: 360-392-3902,
Telecopy: 360-733-3941
Attention: President
With a copy to: Attention: James Kruse, Esq.
If to the Media Provider, to: Digital Alliance Group, LLC
________________________
________________________
Facsimile: (___) __________
Attention: President
If to the Agent, to: Millennium Capital Quest Corp.
________________________
________________________
Facsimile: (___)___________
Attention: President
24
Or, in any such case, at such other address or addresses as will have been
furnished in writing by such party to the others. All notices, requests,
consents and other communications hereunder will be deemed to have been duly
given or served on the date on which personally delivered or on the date
actually received, with receipt acknowledged.
Section 7.7 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Nevada, without regard to
the conflict of laws provisions thereof.
Section 7.8 Sole and Entire Agreement. This Agreement constitutes the
sole and entire agreement of the parties with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous agreements,
discussions, representations, warranties or other communications.
Section 7.9 Counterparts. This Agreement may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
Section 7.10 Amendments. This Agreement may not be amended or modified
without the written consent of all parties, nor will any waiver be effective
against any party unless in a writing executed on behalf of such party.
Section 7.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision will be
excluded from this Agreement and the balance of the Agreement will be
25
interpreted as if such provision were so excluded and will be enforceable in
accordance with its terms to the fullest extent permitted by law.
Section 7.12 Titles. The titles and subtitles used in this Agreement
are for convenience only and are not to be considered in construing or
interpreting any term or provisions of this Agreement.
IN WITNESS WHEREOF, the Company, the Media Provider and the Agent have
caused this Agreement to be executed and delivered by the undersigned duly
authorized officers as of the day and year first above written.
ESSENTIAL INNOVATIONS TECHNOLOGY CORPORATION
By: /s/ Jason McDiarmid
Name: Jason McDiarmid
Title: President/CEO
DIGITAL ACCEPTANCE GROUP, LLC
By: /s/ C.J. Margelot
Name: C.J. Margelot
Title: Member/Manager
MILLENNIUM CAPITAL QUEST CORP.
By: /s/ Gregg R. Nolan
Name: Gregg R. Nolan
Title: CFO
26