EXHIBIT 99.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT
AGREEMENT made as of April 25, 2001 by and between MDI ENTERTAINMENT,
INC., a Delaware corporation with its principal office located in Hartford,
Connecticut (hereafter referred to as "MDI") and OXFORD INTERNATIONAL, INC., a
Maryland corporation with its principal office located in Easton, Maryland
(hereafter referred to as "Investor").
WHEREAS, MDI is a growing company engaged in the field of marketing
promotions and is desirous of securing additional working capital in order to
promote, develop and expand its business, and
WHEREAS, Investor is prepared to provide means of financing the
operations of MDI by purchasing the Series C Convertible Preferred Stock of MDI
hereinafter mentioned upon the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereby agree as follows:
SECTION 1. Purchase and Sale of Series C Convertible Preferred Stock.
MDI agrees to sell to the Investor, and the Investor agrees to
purchase from MDI, at the Closing (as hereafter defined) and subject to and in
accordance with the terms, conditions and provisions of this Agreement, Two
Thousand One Hundred (2,100) shares of Series C Convertible Preferred Stock (the
"Series C Preferred Stock") for an aggregate purchase price of Three Million Two
Hundred Thousand Dollars ($3,200,000). Investor shall, by the terms of the
Series C Preferred Stock, have the option exercisable at any time, but subject
to the mandatory conversion provisions hereinafter set forth, to exchange each
share of Series C Preferred Stock for One Thousand (1,000) shares of MDI common
stock, par value $.001 per share (the "Common Stock"). MDI has authorized and
reserved and covenants to continue to reserve a sufficient number of its
previously authorized but unreserved shares of Common Stock to satisfy the
rights of conversion of the holders of Series C Preferred Stock. The voting
powers, preferences and relative, participating, optional and other special
rights of the shares of such Series C Preferred Stock shall be fixed as set
forth in the Certificate of Designations, Preferences and Rights of Series C
Preferred Stock of MDI (the "Certificate of Designations") attached hereto as
Exhibit "A".
SECTION 2. Preferred Dividends and Interest.
2.1 Preferred Dividentds. To the extent permitted by the General
Corporation Law of the State of Delaware, MDI shall pay Preferred Dividends to
the holders of the Series C Preferred Stock (until the conversion of all of the
Series C Preferred Stock) at the rate of eight percent (8%) per annum on the
$1,523.81 per share purchase price of the unconverted Series C Preferred Stock
shares, payable quarterly, at the option of MDI, in either cash or Common Stock
of MDI (the number of shares of Common Stock to be issued in-kind to be
determined by dividing the dividend payable by a thirty-day average of the
public share closing price prior to the date when such quarterly payments shall
be due).
2.2 Interest. Accrued but unpaid Preferred Dividends shall bear
interest at a rate of five percent (5%) of any quarterly Preferred Dividend
payment due and payable in the event any such amounts remain unpaid for ten (10)
days after such date.
SECTION 3. Conversion Provisions. Each share of Series C Preferred
Stock to be issued to the Investor pursuant to this Agreement shall be
convertible into 1,000 shares of Common Stock at any time at the option of
Investor or holder, subject to the following mandatory conversion provisions (on
a pro rata basis if more than one holder): a) twenty-five percent (25%) of the
Series C Preferred Stock to be issued to Investor (said 25% being equivalent to
five hundred twenty five (525) shares of Series C Preferred Stock) shall be
automatically converted no later than one hundred twenty (120) days from
Closing, and b) after a registration statement covering the full amount of the
shares of Common Stock underlying the Series C Preferred Stock has been filed by
MDI with the Securities and Exchange Commission (the "SEC"), an aggregate of
five hundred twenty five (525) shares of Series C Preferred Stock to Common
Stock shall be automatically convertd every ninety (90) days. MDI shall file a
registration statement covering the full amount of the shares of Common Stock
underlying the Series C Preferred Stock within one hundred eighty (180) days of
Closing.
SECTION 4. Nomination of Member of MDI's Board of Directors. So long as
the sum of (i) the aggregate number of shares of Common Stock issuable upon
conversion of the Series C Preferred Stock and (ii) aggregate number of shares
of Common Stock owned by the Investor and its subsidiaries is equal to or
greater than 2,100,000 and the Investor and its subsidiaries beneficially own
greater than ten percent (10%) of the number of shares of Common Stock
outstanding of MDI, the Investor shall have the option of nominating one member
of MDI's Board of Directors reasonably acceptable to MDI.
SECTION 5. MDI's Representations and Warranties.
To induce the Investor to purchase the Series C Preferred Stock, MDI
hereby makes the following representations and warranties to the Investor:
5.1 Good Standing. MDI (a) is a corporation duly organized, existing,
and in good standing under the laws of the State of Delaware and (b) has the
power to own its property and to carry on its business and is qualified to do
business and is in good standing in each jurisdiction in which the character of
properties owned by it or the transaction of its business makes such
qualification necessary and in which the failure to so qualify or to be in good
standing would have a materially adverse effect on MDI's operations or financial
condition.
5.2 Authority. MDI has full power and authority to enter into this
Agreement and carry out the transactions contemplated hereby, all of which have
been duly authorized by all proper and necessary action of MDI. No consent or
approval of the shareholders of MDI or of any governmental authority is required
as a condition to the validity of this Agreement.
5.3 Binding Agreement. This Agreement constitutes the valid and legally
binding obligations of MDI enforceable in accordance with its terms, subject as
to enforceability to general principles of equity and to bankruptcy, insolvency,
moratorium and other similar laws effecting the enforcement of creditors' rights
generally.
5.4 Litigation. There are no proceedings pending or, so far as any
person signing below as or on behalf of MDI knows, threatened before any court
or administrative agency a) against or affecting MDI; or b) which will
materially adversely affect the financial condition or operations of MDI, other
than as set forth in MDI's filings with the SEC (the "SEC Documents").
5.5 No Conflicting Agreements. There are no provisions of MDI's
Articles of Incorporation or Bylaws or provisions of any existing mortgage, deed
of trust, indenture, contract, lease, or agreement binding on MDI or affecting
its property which would conflict with or in any way prevent the execution,
delivery, or carrying out of the terms of this Agreement or the transactions
contemplated thereby.
5.6 Financial Condition. MDI's financial statements, copies of which
have been furnished to the Investor or made available through the SEC's
Electronic Gathering Analysis and Retrieval System ("EDGAR"), were prepared in
accordance with generally accepted accounting principles consistently applied
and are complete and correct and fairly and accurately present the financial
condition of MDI as of their date and the results of its operations for the
period then ended. Other than as disclosed in the SEC Documents, there has been
no material adverse change in the financial condition of MDI or the results of
it operations since the date of such financial statements.
5.7 Information. To the best of MDI's knowledge, all information
contained in any financial statement, application, schedule, report,
certificate, opinion, or any other document given by MDI is in all respects true
and accurate as of the date thereof, and MDI has not omitted to state any
material fact or any fact necessary to make such information not misleading.
5.8 Assets and Properties. MDI has good and merchantable title to all
of its assets and properties, and there are no liens outstanding against any of
these assets and properties, other than as previously disclosed in writing to
Investor or as set forth in the SEC Documents.
5.9 Taxes. All taxes imposed upon MDI and its properties, operations,
and income have been paid and discharged prior to the date when any interest or
penalty would accrue for the nonpayment thereof except for those taxes being
contested in good faith and by appropriate proceedings by MDI.
5.10 Names of MDI. MDI has never done business under any other name
other than the name of MDI set forth in this Agreement, except under the name
PUFF PROCESS INC.
5.11 Violation of Laws, etc. Neither the consummation of the
transactions contemplated by this Agreement nor the use, directly or indirectly,
of all or any portion of the proceeds from the sale of the Series C Preferred
Stock will violate or result in a violation of any provision of any applicable
statute, regulation, or order of, or any restriction imposed by, the State of
Delaware, the State of Maryland, any other relevant state or the United States
of America or by any authorized official, board, department, instrumentality, or
agency thereof.
5.12 Capitalization. The entire authorized capital stock of MDI
consists of:
a) 25,000,000 shares of MDI Common Stock, of which (i)
11,172,306 shares have been duly and validly issued and are
outstanding, fully paid and nonassessable, (ii) 444,444 shares have
been reserved for issuance upon conversion of the Series B Preferred
Stock, (iii) 2,100,000 shares have been reserved for issuance upon
conversion of the Series C Preferred Stock, (iv) 2,383,656 shares have
been reserved for issuance upon exercise of outstanding warrants and
(v) 640,832 shares have been reserved for issuance under MDI's option
plans.
b) 5,000,000 shares of Preferred Stock, of which (i) 2,027
shares were designated Series A Preferred Stock, none of which remain
outstanding, (ii) 444 shares of Series B Preferred Stock, of which 444
shares have been duly and validly issued and are outstanding, fully
paid and nonassessable and (iii) 2,100 shares of Series C Preferred
Stock, of which (a) prior to the Closing, no shares were issued and
outstanding and (b) 2,100 shares will be held by the Investor after the
Closing and will, upon issuance in accordance with this Agreement, have
been duly and validly issued and be outstanding, fully paid and
non-assissable.
SECTION 6. MDI's Covenants. So long as shares of Series C Preferred
Stock remain outstanding:
6.1 Use of Proceeds. MDI will use the proceeds from the sale
of the Series C Preferred Stock only for working and operating capital.
6.2 Annual Financial. MDI will furnish to the Investor or make
available through EDGAR, as soon as available, but in no event more than ninety
(90) days after the end of each fiscal year of MDI, consolidated financial
statements of MDI prepared in accordance with generally accepted accounting
principles, including balance sheet, statement of income, statement of members
equity and statement of changes in financial position, fully certified by
independent certified public accountants satisfactory to the Investor.
6.3 Interim Financial. MDI will furnish to the Investor or make
available through EDGAR, as soon as available, but in no event more than
forty-five (45) days after the end of each fiscal quarter of MDI (except the
last), consolidated financial statements of MDI in the form of those required
under the immediately preceding section of this Agreement prepared and certified
by the chief financial officer of MDI.
6.4 Other Information. MDI will furnish to the Investor, promptly from
time to time, such information concerning the operations, business affairs, and
financial condition of MDI as the Investor may reasonably request; provided that
the Investor enter into a confidentiality agreement prior to the receipt of such
information.
6.5 Books, Records and Inspections. MDI will at all times (a) maintain
complete and accurate books and records and (b) permit any person designated by
the Investor to enter, examine, audit and inspect all properties, books,
operations and records of MDI at any reasonable time and from time to time
wherever such properties, books and records are located.
6.6 Litigation. MDI will promptly notify the Investor of any litigation
or claim dispute instituted or threatened against MDI or the Property, and of
the entry of any judgment or Lien against any of MDI's assets or properties
where the claims against MDI exceed $50,000.
6.7 Preservation of Properties. MDI will at all times (a) maintain its
properties, whether owned or leased, in good operating condition and from time
to time will make all proper repairs, renewals, replacements, additions and
improvements thereto needed to maintain such properties in good operating
condition, (b) comply with the provisions of all material leases to which it is
a party or under which it occupies property so as to prevent any loss or
forfeiture thereof or thereunder, and (c) comply with all laws, rules,
regulations and orders applicable to the properties or any thereof; provided,
however, that nothing contained in this section shall require the making of any
repair, renewal, replacement, addition, or improvement of or to a particular
property or the continued maintenance of any property which would not be
required in the exercise of sound business judgment.
6.8 Insurance. MDI will (a) at all times maintain with well-rated and
responsible insurance companies such insurance as is required by applicable laws
and such other insurance in such amounts, of such types, and against such risks,
hazards, liabilities, casualties and contingencies as is customarily maintained
by companies similarly situated, and (b) provide to the Investor upon request a
detailed list of the insurance then in effect and stating the names of the
insurance companies, the types, the amounts, and rates of the insurance, dates
of the expiration thereof and the properties and risks covered thereby, and, at
the sole discretion and election of MDI, obtain such additional insurance as the
Investor may reasonably request.
6.9 Taxes. Except to the extent that the validity or amount thereof is
being contested in good faith and by appropriate proceedings, MDI will use its
best efforts to pay and discharge all taxes prior to the date when any interest
or penalty would accrue for the nonpayment thereof.
6.10 Maintain Existence. MDI will at all times maintain in full force
and effect its existence, rights, privileges and franchises and qualify and
remain qualified in all jurisdictions where qualification is required and in
which the failure to so qualify or to be in good standing would have a
materially adverse effect on MDI's operations or financial condition..
6.11 Compliance with Laws. MDI will at all times comply with all
applicable federal, state and local laws, rules and regulations, and orders of
any court or other governmental authority having jurisdiction, including all
environmental laws and regulations.
6.12 Guaranties, Loans or Advances. Subject to prior obligations as of
the Closing, without the prior written consent of the Investor, MDI will not
become or be a guarantor or surety of, or otherwise become or be responsible in
any manner (whether by agreement to purchase any obligations, stock, assets,
goods, or services, or to supply or advance any funds, assets, goods, or
services, or otherwise) with respect to, any undertaking of any other person or
make or permit to exist any loans or advances to any other person or entity.
6.13 MDI will not issue any stock subsequent to the date hereof and
prior to April 25, 2002, other than that contracted for hereunder or otherwise
heretofore reserved for issuance, optioned, or committed, including with respect
to outstanding options, warrants and the Series B Preferred Stock, except:
a) For securities granted or to be granted under MDI's 1997
Stock Option and Award Plan, as amended by the Board of
Directors (with such amendment to be submitted to stockholders
for approved at the 2001 Annual Meeting of Stockholders), or
b) For securities issued in the ordinary course, including,
without limitation, in connection with licensing
arrangements, or
c) For securities issued in connection with joint ventures
and strategic alliances, or
d) For securities issued to MDI's consultants and advisors, or
e) For securities issued in connection with financings where
the price per share of Common Stock (on an as-converted basis
with respect to convertible securities) is greater than $2.50
per share.
f) For securities issued in connection with any
stock split, stock dividend or recapitalization, or
g) With the consent of Investor which shall not be
unreasonably withheld, or
h) Other than pursuant to Section 6.13(e), if additional
financing is required by MDI, Investor will assist MDI in
obtaining it. Should such financing involve the issuance of
stock or convertible debentures, Investor shall have the first
right to provide such financing on the same terms as those
that MDI can obtain from others. In the event that Investor
does not provide such additional financing within fifteen (15)
days after receiving written notice from MDI setting forth the
terms on which MDI can secure such additional financing, MDI
shall then have the unrestricted right to enter into such
financing with any third party or parties and to consummate
the same, provided the terms thereof are no less favorable to
MDI than those offered to and refused by Investor.
6.14 MDI will not enter into any merger or consolidation with a third
party or any reorganization prior to April 25, 2002, except by and with the
consent of Investor.
SECTION 7. Negative Covenants. So long as shares of Series C
Preferred Stock remain outstanding, MDI covenants and
agrees with Investor as follows:
7.1 MDI will not permit or allow a substantial change in the management
of MDI without the prior written approval of Investor, which approval shall not
be unreasonably withheld.
7.2 MDI shall not permit a substantial change in the nature of the
business of MDI.
SECTION 8. Conditions to Closing by Investor. The obligation of
Investor to purchase and pay for the Series C Preferred Stock being purchased by
Investor is subject to satisfaction of the following conditions precedent at or
before Closing:
8.1 Documents. MDI shall have delivered to the Investor the
following:
8.1.1 MDI's Resolutions. A copy of all resolutions of the Board of
Directors of MDI authorizing the execution and performance of this Agreement and
the issuance of the Series C Preferred Stock, and a certificate of the Secretary
of MDI, dated as of the Closing, certifying that such resolutions were duly
adopted and continue in full force and effect without amendment or modification.
8.1.2 MDI's Articles of Incorporation and Bylaws. A copy, certified by
MDI's secretary, of MDI's Articles of Incorporation and Bylaws, and all
amendments thereto.
8.1.3 Incumbency Certificate. A certificate of MDI's secretary
as to the incumbency and signatures of the officers of MDI signing this
Agreement, and any other documents to be delivered pursuant hereto.
8.1.4 Other Certificate. A certificate (i) confirming compliance in all
material respects with all covenants under the Agreement and (ii) that as of the
latest SEC Document, no material adverse change in business or financial affairs
of MDI have occurred.
8.1.5 Good Standing Certificates. A certificate as of a recent date
from the Secretary of State or other appropriate official of the state of
incorporation certifying to the due incorporation and continuing good standing
of MDI and a similar certificate for each of the subsidiaries of MDI that are
actively engaged in business.
8.2 Other Closing Conditions.
8.2.1 Investor's Counsel. All legal matters incident to this Agreement
shall be satisfactory to counsel for the Investor and MDI shall have reimbursed
the Investor for the fees and expenses of Investor's counsel in connection with
the preparation of this Agreement and all matters incident thereto.
8.2.2 Opinion of Counsel of MDI. An opinion of Mintz Levin Cohn Ferris
Glovsky and Popeo, PC, counsel for MDI, in the form attached hereto as Exhibit
B.
SECTION 9. Events of Default.
The occurrence of any one or more of the following events (the "Events
of Default") shall constitute an event of default hereunder:
9.1 Failure to Pay Interest. If MDI shall fail to pay preferred
dividends in accordance with the provisions of Section 2.1 of this Agreement
when and as due and payable, and such failure shall remain uncured for a period
of twenty (20) days after the date of written notice from the Investor to MDI;
or
9.2 Failure to Convert Stock. If MDI shall fail to convert the Series C
Convertible Preferred Stock in accordance with the terms and provisions of this
Agreement and such Stock, and such failure shall remain uncured for a period of
twenty (20) days after the date of written notice from the Investor to MDI; or
9.3 Terms, Conditions and Covenants of this Agreement. If MDI shall
fail to duly perform, comply with, or observe any of the other terms,
conditions, or covenants contained in this Agreement, and such failure shall
remain uncured for a period of twenty (20) days after the date of written notice
from the Investor to MDI; or
9.4 Representations and Warranties. If any representation and warranty
or any statement or representation made in writing on behalf of MDI herein shall
prove to be false or uncured in any material respect on the date as of which
made and the same shall remain uncured for a period of twenty (20) days after
the date of written notice from the Investor to MDI; or
9.5 Bankruptcy, Insolvency, etc. If MDI becomes insolvent or generally
does not pay its debts as they become due, or if a petition for relief in a
bankruptcy court is filed by MDI, or if MDI applies for, consents to, or
acquiesces in the appointment of a trustee, custodian, or receiver for MDI or
any of its assets and property, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent, or acquiescence, a
trustee, custodian, or receiver is appointed for MDI or for a substantial part
of the assets and property of MDI and is not discharged within thirty (30) days;
or any bankruptcy, reorganization, debt arrangement, or other proceeding or case
under any bankruptcy or insolvency law or any dissolution or liquidation
proceeding is instituted against MDI and is consented to or acquiesced in by MDI
or remains for sixty (60) days undismissed; or MDI takes any action to authorize
any of the actions described in this subsection.
SECTION 10. Rights and Remedies.
If any one or more Events of Default shall occur and be continuing,
then in each and every such case, the Investor at its option may at any time
thereafter exercise and/or enforce any or all of the following rights and
remedies:
10.1 Exercise of Rights and Remedies. Investor may proceed to protect
and enforce the rights of a holder of such Series C Preferred Stock by an action
at law, suit in equity, or other appropriate proceeding, whether for the
specific performance of any agreement contained herein or pursuant to such
Series C Preferred Stock, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law. If any holder of any Series C Preferred Stock shall give
any notice or take any other action in respect of a claimed default, MDI shall
forthwith give written notice thereof to all other holders of the Series C
Preferred Stock at the time outstanding, describing the notice or action and the
nature of the claimed default.
10.2 Collection Costs. MDI shall reimburse and pay to the Investor upon
demand all costs and expenses (the "Collection Costs"), including, without
limitation, attorneys' fees and expenses, advanced, incurred by, or on behalf of
the Investor in collecting any preferred dividends required to be paid, but not
paid, by MDI and enforcing its rights and pursuing its remedies in the event of
any Event of Default as set forth in Section 9 of this Agreement.
10.3 Remedies, etc., Cumulative. Each right, power, and remedy of the
Investor as provided for in this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise, and the exercise or beginning of the
exercise by the Investor of any one or more of such rights, powers, or remedies
shall not preclude the simultaneous or later exercise by the Investor of any or
all such other rights, powers, or remedies.
10.4 No Waiver, etc. No failure or delay by the Investor to insist upon
the strict performance of any term, condition, covenant, or agreement of this
Agreement, or to exercise any right, power, or remedy consequent upon a breach
thereof, shall constitute a waiver of any such term, condition, covenant, or
agreement or of any such breach, or preclude the Investor from exercising any
such right, power, or remedy at any later time or times. By accepting payment
after the due date of any preferred dividend or any other amount payable under
this Agreement, the Investor shall not be deemed to waive the right either to
require prompt payment when due of all of preferred dividends or any other
amounts payable under this Agreement, or to declare an Event of Default for
failure to effect such prompt payment of any such other amount.
SECTION 11. Representations and Agreements of Investor. Investor makes
the following representations and agreements all of which shall survive the
Closing:
11.1 Investor may assign the right to receive portions of the
securities being purchased hereunder to not more than ten corporations
affiliated with it or individuals employed by it or by such affiliated
corporations. Investor represents that the securities being purchased by it are
being purchased for investment and with no present intention of making any
disposition or sale thereof. Investor warrants that any portions of such
securities received by such affiliated corporations or persons will be similarly
held for investment by such corporations or persons.
11.2 The Investor understands that the shares of Series C Preferred
Stock and the shares underlying the Series C Preferred Stock have not been
registered under the Securities Act of 1933 or any state securities law, by
reason of their issuance in a transaction exempt from the registration
requirments of the Securities Act and such laws, and that such shares must be
held indefinitely unless they are subsequently registered under the Securities
Act of 1933 and such laws or a subsequent disposition thereof is exempt from
registration. The certificates for the Shares shall bear a legend to such
effect.
11.3 The Investor understands that the exemption from registration
afforded by Rule 144 promulgated by the SEC under the Securities Act of 1933
depends upon the satisfaction of various conditions and that, if applicable,
Rule 144 affords the basis for sales only in limited amounts.
11.4 The Investor (i) has sufficient knowledge and experience in
busines and financial matters and with respect to investment in securities of
companies comparable to MDI so as to enable it to analyze and evaluate the
merits and risks of such investment contemplated hereby and (ii) is able to bear
the economic risk of such investment. The Investor is an "accredited investor"
within the meaning of Regulation D under the Securities Act of 1933.
11.5 This Agreement has been duly and validly authorized, executed and
delivered on behalf of Investor and is a valid and binding agreement of the
Investor enforceable in accordance with its terms, subject as to enforceability
to general principles of equity and to bankruptcy, insolvency, moratorium and
other similar laws effecting the enforcement of creditors' rights generally.
SECTION 12. Conditions to Closing by MDI. The obligation of MDI to sell
the Series C Preferred Stock to the Investor is subject to satisfaction of the
following conditions precedent at or before Closing:
12.1 Investor, at the Closing, shall deliver to MDI the following
documents:
12.1.1 A certificate as of a recent date from the Secretary of State or
other appropriate official certifying to the due incorporation and continuing
good standing of Investor.
12.1.2 A copy of all resolutions of the Board of Directors of Investor
authorizing the execution and performance of this Agreement, and a certificate
of the Secretary of Investor, dated as of the Closing, certifying that such
resolutions were duly adopted and continue in full force and effect without
amendment or modification.
12.1.3 An opinion of John H. Harman, Esquire, counsel for Investor,
that Investor is a duly organized and validly existing corporation in good
standing; that Investor has taken all corporate action under all applicable
provisions of the law, its Certificate of Incorporation, and its Bylaws to
authorize the execution and carrying out of this Agreement; and that this
Agreement constitutes the legally binding obligation of Investor in accordance
with its terms.
12.1.4 A statement by each corporation or person, if any, to whom
Investor assigns the right to receive a portion of the securities being
purchased hereunder, stating that such securities are being purchased by such
corporation or person for investment and with no present intention of making any
disposition or sale thereof.
12.2 MDI's Counsel. All legal matters incident to this Agreement
shall be satisfactory to counsel for MDI.
SECTION 13. Closing. The Closing provided for by this Agreement shall
take place at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 666 Third
Avenue, New York, New York 10017, on or about April 25, 2001.
SECTION 14. Benefit. This Agreement shall be binding and inure to the
benefit of and be enforceable by the respective successors and assigns of MDI
and Investor. All representations, covenants, and agreements in this Agreement
or any statement, certificate, or other document delivered in connection with
this Agreement or pursuant hereto shall survive the Closing. The terms of this
Agreement cannot be varied or modified orally but only by an agreement in
writing signed by MDI and Investor. This contract may not be assigned by either
party without the written consent of the other party hereto.
SECTION 15. Notices. Any notices or demands required by this Agreement
shall be in writing and delivered personally or mailed by registered mail to the
party entitled to such notice or demand at the address set forth below opposite
the name of such party may notify the other in writing:
If to MDI, to:
MDI Entertainment, Inc.
Attn: Steve Saferin
201 Ann Street
Hartford, CT 06103
with a copy to:
Mintz, Levin, Cohn, Ferris and Glovsky, P.C.
Attn: Kenneth R. Koch, Esq.
666 Third Avenue
New York, NY 10017
If to Investor, to:
Oxford International, Inc.
Attn: Gregory C. Dutcher
125 N. West Street
Easton, MD 21601
SECTION 16. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, each of which shall be deemed and original, but
which together shall constitute one and the same instrument.
SECTION 17. Miscellaneous.
17.1 Survival. All covenants, agreements, representations, and
warranties made herein and in any other instruments or documents delivered
pursuant hereto shall continue in full force and effect so long as any of the
Liabilities are outstanding and unpaid.
17.2 Change, etc. Neither this Agreement nor any term, condition,
representation, warranty, covenant, or agreement hereof may be changed, waived,
discharged, or terminated orally but only by an instrument in writing by the
party against whom such change, waiver, discharge, or termination is sought.
17.3 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
17.4 Terms Binding. All of the terms, conditions, stipulations,
warranties, representations, and covenants of this Agreement shall apply to and
be binding upon, and shall inure to the benefit of, MDI and the Investor and
each of their respective heirs, personal representatives, successors, and
assigns.
17.5 Arbitration: The parties acknowledge and agree that any claim or
controversy arising out of or relating to this Agreement or the breach thereof
shall be submitted to arbitration in the State of Delaware using the services
and rules and regulations of the American Arbitration Association, which
decision shall be binding upon both parties. The parties agree that any judgment
upon such award may be entered in any Court in the State of Delaware having
jurisdiction.
17.6 WAIVER OF TRIAL BY JURY: MDI hereby unconditionally and
irrevocably waives any and all right by a jury under any local, state, federal
or foreign law, in any action, proceeding, suit, counterclaim or cross claim to
which MDI and Investor may be parties, arising in conjunction with, out of, or
in any way pertaining to this Agreement, any investment documents or commitment
to be provided pursuant to this Agreement, or any other transaction related to
this Agreement. It is agreed and understood that this waiver constitutes a
waiver of trial by jury of all claims against parties who are not parties to
this Agreement. This waiver is knowingly, willing and voluntarily made by MDI
and MDI hereby represents that no representations of fact or opinion have been
made by any individual to induce this waiver of trail by jury or to in any way
modify or nullify its effect. MDI further represents that it has been
represented or has had the opportunity to be represented in the signing of this
Agreement and in making this waiver by independent legal counsel selected of its
own free will and that it has had the opportunity to discuss this waiver with
counsel.
17.7 Gender, etc. Wherever used herein, the singular number shall
include the plural, the plural the singular, and the use of the masculine,
feminine, or neuter general shall include all genders.
17.8 Headings. The section and subsection headings in the
Agreement are for convenience only and shall not limit or otherwise affect any
of the terms hereof.
17.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument.
17.10 Consent to Jurisdiction; Service of Process. MDI hereby agrees
and consents that any action or proceeding arising out of or brought to enforce
the provisions of this Agreement and/or any transactions contemplated by the
Agrement may be brought in any appropriate court in the State of Delaware, and
by the execution of this Agreement, MDI irrevocably consents to the jurisdiction
of such court. MDI hereby irrevocably appoints the Delaware Secretary of State
as its agent to accept service of process for it and on its behalf in any
proceeding brought pursuant to the provisions of this subsection.
17.11 Further Assurances and Corrective Instruments. The parties hereto
agree that they will, from time to time, execute and deliver, or cause to be
executed and delivered, such supplements hereto and such further instruments as
may reasonably be required for carrying out the intention of the parties to, or
facilitating the performance of, this Agreement.
17.12 Illegality. If fulfillment of any provision hereof or any
transaction related hereto, at the time performance of such provisions shall be
due, shall involve transcending the limit of validity prescribed by law, then
ipso facto, the obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provision herein contained operates or would
prospectively operate to invalidate this Agreement in whole or in part, then
such clause or provision only shall be void, as though not herein contained, and
the reminder of the Agreement shall remain operative and in full force and
effect.
In witness whereof the parties have caused this Agreement to be executed
by their duly authorized officers and their corporate seals to be hereunto
affixed as of the day and year first above written.
(SEAL) MDI ENTERTAINMENT, INC.
Attest:
/s/ Kenneth M. Przysiecki By: /s/ Steven M. Saferin
- --------------------------------------- --------------------------------------------
Secretary Steven M. Saferin, President and Chief
Executive Officer
(SEAL) OXFORD INTERNATIONAL, INC.
Attest:
/s/ By: /s/ Gregory C. Dutcher
- ------------------------------------------------------ --------------------------------------------
Secretary Gregory C. Dutcher, President