Attached files
EXHIBIT 10.3
AGREEMENT TO SERVE AS CORPORATE DIRECTOR
This agreement to serve as a corporate director (the "Agreement") is made
and entered into by and between Delta Entertainment Group Inc., a Florida
corporation ("DELTA"), and Marshall Freeman, a Florida resident ("Mr. Freeman").
PREAMBLE:
Whereas, Mr. Freeman was elected as a member of DELTA board of directors
by written consent in lieu of the annual meeting of stockholders, effective
October 2nd 2009 (the "Annual Meeting"); and
Whereas, DELTA has required, as a condition for service on its board of
directors, that all members enter into a form of agreement that delineates the
rights, duties and responsibilities of the members; and
Whereas, the Parties agree that this Agreement provides important
directives outlining the duties, obligations, responsibilities and rights that
are expected of members of DELTA Board of directors and Mr. Freeman desires to
be appointed as a member of DELTA board of directors and to serve thereon in
compliance with the requirements of this Agreement and DELTA Certificate of
Incorporation and By-Laws:
Now, Therefore, intending to be legally bound, the Parties agree that Mr.
Freeman be appointed to the DELTA board of directors for the current year and is
bound by the following obligations and shall have the following rights:
WITNESSETH:
Article I
TERM, RENEWALS, EARLIER TERMINATION
1.1 TERM.
(A) 1. Subject to the provisions set forth herein, the term of this Agreement
shall be deemed to commence immediately and shall continue until the latter of
January 1st 2010 or the election, qualification and assumption of office by Mr.
Freeman's successor as a member of DELTA board of directors, unless earlier
terminated as provided in DELTA certificate of incorporation or bylaws, or as
hereinafter set forth.
2. Notwithstanding anything in this agreement to the contrary, the term of
this Agreement will terminate if Mr. Freeman is not re-elected at the annual
meeting of stockholders next following the Annual Meeting.
(B) In the event that Mr. Freeman is re-elected or otherwise serves as a member
of DELTA board of directors after the annual meeting of stockholders next
following the Annual Meeting, then, unless a new agreement pertaining to his
role as a member of DELTA board of directors is entered into specifically
superseding the provisions of this Agreement, this Agreement shall be deemed to
remain in effect for so long as Mr. Freeman serves as a member of DELTA board of
directors.
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1.2 EARLIER TERMINATION.
(A) DELTA shall have the right to terminate this Agreement prior to the
expiration of its Term, subject to the provisions of Section 1.3, for the
following reasons:
(1) By vote of DELTA shareholders:
In accordance with Title XXXVI Chapter 607.0808 Removal of directors by
shareholders of Florida's Corporate Law (and except as provided therein) and
pursuant to Article II, Section 3(a) of the By-Laws of DELTA that at a meeting
of stockholders called expressly for this purpose, a director may be removed,
with or without cause, by the vote of the holders of 51% of the shares then
entitled to vote at an election of directors.
(2) Discontinuance of Business:
In the event that DELTA discontinues operating its business, this
Agreement shall terminate as of the last day of the month on which DELTA ceases
operation with the same force and effect as if such last day of the month were
originally set as the termination date hereof; provided, however, that a
reorganization of DELTA shall not be deemed a termination of its business.
(3) Death:
This Agreement shall terminate immediately on Mr. Freeman's death;
however, all accrued compensation at such time shall be promptly paid to Mr.
Freeman's estate.
1.3 FINAL SETTLEMENT.
Upon termination of this Agreement and payment to Mr. Freeman of all amounts
due his hereunder, Mr. Freeman or his representative shall execute and deliver
to DELTA on a form prepared by DELTA a receipt for such sums and a release of
all claims, except such claims as may have been submitted pursuant to the terms
of this Agreement and which remain unpaid, and shall forthwith tender to DELTA
all Entertainment, manuals and written procedures, as may be required by DELTA
for the continued conduct of its business.
Article II
PERFORMANCE OF DUTIES AS A DIRECTOR
2.1 PERFORMANCE OF DUTIES
(A) Mr. Freeman shall perform his duties as a director, including his duties as
a member of any committee of DELTA board of directors upon which she may serve,
pursuant to the requirements set forth in DELTA certificate of incorporation and
By-Laws (its "Constituent Documents"), in good faith, in a manner he reasonably
believes to be in the best interests of DELTA, and with such care as is legally
required for members of boards of directors under the laws of the State of
Florida and the United States Securities and Exchange Commission, (the
"Commission") unless a higher standard of care is specified in DELTA Constituent
Documents.
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(B) In performing his duties, Mr. Freeman shall be entitled to rely on
information, opinions, reports or statements, including financial statements and
or financial data, in each case prepared or presented by:
(1) One or more officers or employees of DELTA whom Mr. Freeman reasonably
believes to be reliable and competent in the matters presented;
(2) Legal counsel, public accountants or persons as to matters which Mr.
Freeman reasonably believes to be within such persons' professional or expert
competence; or
(3) A committee of DELTA board of directors upon which he does not serve,
duly designated in accordance with a provision of DELTA certificate of
incorporation or By-Laws, as to matters within its designated authority, which
committee Mr. Freeman reasonably believes to merit confidence.
(C) Mr. Freeman shall not be considered to be acting in good faith if she has
knowledge concerning the matter in question that would cause such reliance
described in Section 2.1(B) to be unwarranted.
(D) If Mr. Freeman is present at a meeting of DELTA board of directors at which
action on any corporate matter is taken, it shall be presumed that she assented
to the action taken unless he votes against such action or abstains from voting
in respect thereto because of an asserted conflict of interest.
(E) If Mr. Freeman is requested to provide comments on any corporate matters
through a written request delivered by hand, mail, fax or e-mail, then, unless
she affirmatively provides written comments thereto or specifies in a written
response that she is unable or unwilling to provide comments thereto, she shall
be presumed to have approved the matter as accurate, complete and not
misleading, and if she has indicated his inability or unwillingness to comment
on more than three occasions within any fiscal year, she shall be presumed to
have refused to perform his duties as a member of DELTA board of directors in a
manner justifying his removal therefrom under this Agreement
2.2 DIRECTOR CONFLICTS OF INTEREST
(A) Mr. Freeman nor any of his affiliates will enter into any contract or
transaction with DELTA unless the fact of such relationship or interest is
disclosed or known to DELTA board of directors or committee which authorizes,
approves or ratifies the contract or transaction and it is approved by a vote or
consent sufficient for the purpose without counting the vote or consent of Mr.
Freeman; and, if stockholder approval is required, the fact of such relationship
or interest is disclosed or known to the stockholders entitled to vote and they
authorize, approve or ratify such contract or transaction by vote or written
consent.
(B) Mr. Freeman may be counted in determining the presence of a quorum at a
meeting of DELTA board of directors or a committee thereof which authorizes,
approves or ratifies such contract or transaction.
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2.3 PERFORMANCE AND ATTENDANCE
(A) Mr. Freeman will serve on DELTA board of directors using his best efforts on
behalf of DELTA and its stockholders.
(B) Mr. Freeman shall use his best efforts to participate in a timely manner in
all meetings of DELTA board of directors or of committees thereof to which she
has been appointed or elected, and if unavailable in person, to make
arrangements to participate by teleconference or any legally available means.
(C) In the event that Mr. Freeman fails to participate in a meeting of DELTA
board of directors or of committees thereof to which he has been appointed or
elected, Mr. Freeman shall promptly acquaint himself with all matters transacted
at such meeting and if practical, shall provide the board of directors or
committee involved with supplemental input and advice on all such matters, and
if appropriate and possible, shall request reconsideration of any material
matters as to which his participation would have affected the result of actions
taken.
(D) In the event that Mr. Freeman misses three (3) of the regular monthly
meetings of DELTA board of directors, or three (3) consecutive special meetings
of the board of directors, or three (3) consecutive meetings of any committee to
which she has been appointed or elected, Mr. Freeman will be deemed to have
resigned from the board of directors prior to the expiration of the term of this
Agreement based on an inability to dedicate required time to the affairs of
DELTA, and this Agreement shall be presumptively be deemed the instrument of
such resignation.
(E) Mr. Freeman shall be responsible, together with the other members of the
board of directors, for review and approval prior to filing of all data that
DELTA is required to file with the Commission, with the United States Internal
Revenue Service (the "Service") and with comparable state and local agencies.
(F) If serving as a member of the regulatory affairs or audit committees, Mr.
Freeman shall be responsible for using reasonable efforts to assist its chairman
to assure that DELTA and all of its subsidiaries develop and implement
information gathering, retention and transmittal procedures that comply with all
applicable legal and auditing requirements, that DELTA and its subsidiaries
promptly transmit required data to DELTA auditors and legal counsel and that
DELTA auditors and legal counsel prepare and pass upon materials that DELTA is
required to file with the Commission or the Service, on a timely basis, adequate
for review, comment and correction by all appropriate personnel, including
management of DELTA and its subsidiaries, as well as the members of their boards
of directors, attorneys and advisors, at least three business days prior to the
legally mandated filing dates.
(G) If serving as a member of the audit committee, Mr. Freeman shall be
responsible, together with the other members of the audit committee, for
suggesting auditor candidates to DELTA board of directors and stockholders and
for rejecting any auditors that any member of the audit committee deems
unsatisfactory based on their qualifications, reputation, prices or geographic
location, provided that such member must specify in writing all reasons for such
rejection and the committee, voting as a whole, must pass upon such rejection by
majority vote, forwarding such result to the board of directors for appropriate
action.
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2.4 RESIGNATION
Unless he is the sole serving member of DELTA board of directors, Mr.
Freeman may resign at any time by providing DELTA board of directors with
written notice indicating Mr. Freeman's intention to resign and the effective
date thereof; provided, however, that resignation, whether voluntary or
presumptive (as provided above) shall result in a forfeiture of all rights to
compensation under this Agreement, other than as to compensation that has
accrued pursuant to the provisions of this Agreement.
Article III
COMPENSATION
3.1 MEMBER COMPENSATION
(A) Mr. Freeman shall be compensated for his services as a member of DELTA board
of directors and committees, as follows:
(1) (a) For basic service as a member of our Company's board of directors,
5000 shares per month
(b) For service, as chairman of any committee, 2500 shares per month
(c) For service, on any other committee an additional 1250 shares per
month
(B) The foregoing compensation will be subject to the condition precedent that
Mr. Freeman comply on a timely basis with all personal reporting obligations to
the Commission pertaining to his role with DELTA and that Mr. Freeman serve in
the designated positions providing all of the services required thereunder
prudently and in good faith.
In addition to the compensation described above and in Section 3.1 (unless
comparable compensation is provided for under the terms of a separate employment
or consulting agreement) or such compensation cannot be paid because of
conflicts with applicable laws:
(C) In the event that Mr. Freeman directly arranges or directly provides funding
for DELTA on terms more beneficial than those reflected in DELTA current
principal written financing agreements, Mr. Freeman shall be entitled at his
election, to either:
(1) A fee equal to 10% of such savings, on a continuing basis; or
(2) If equity funding is directly arranged for DELTA by Mr. Freeman and
DELTA is not obligated to pay any other source of compensation in conjunction
therewith, other than the normal commissions charged by broker dealers in
securities in compliance with the compensation guidelines of the FINRA, Mr.
Freeman shall be entitled to a bonus in a sum equal to 10% of the net proceeds
of such funding after paying normal commissions.
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(D) In the event that Mr. Freeman arranges for an acquisition by DELTA, then Mr.
Freeman will be entitled to compensation in an amount, in shares of DELTA common
stock, equal to 10% of the net consideration paid by DELTA for such acquisition,
provided that if such compensation is payable to more than one person, then they
shall share such compensation, pro rata, based on the nature of their
entitlement to such compensation.
3.2 EXEMPT NATURE OF SECURITIES TO BE ISSUED
The securities to be issued as compensation under this Agreement (the
"Securities") will be issued without registration under the provisions of
Section 5 of the Securities Act or the securities regulatory laws and
regulations of the State of Florida (the "Florida Act") pursuant to exemptions
provided under Section 4(6) of the Securities Act and comparable provisions of
the Florida Act;
(A) Mr. Freeman shall be responsible for preparing and filing any reports
concerning this transaction with the Commission and with Florida Division of
Securities, and payment of any required filing fees (none being expected);
(B) All of the Securities will bear legends restricting their transfer, sale,
conveyance or hypothecation unless such Securities are either registered under
the provisions of Section 5 of the Securities Act and under the Florida Act, or
an opinion of legal counsel, in form and substance satisfactory to legal counsel
to DELTA, is provided to DELTA General Counsel to the effect that such
registration is not required as a result of applicable exemptions thereto;
(C) DELTA transfer agent shall be instructed not to transfer any of the
Securities unless the General Counsel for DELTA advises it that such transfer is
in compliance with all applicable laws;
(D) Mr. Freeman is acquiring the Securities for his own account, for investment
purposes only, and not with a view to further sale or distribution; and
(E) Mr. Freeman or his advisors have examined information concerning DELTA
contained in the business plan, as well as DELTA books and Entertainment and
have questioned DELTA officers and directors as to such matters involving DELTA
as Mr. Freeman deemed appropriate.
3.3 INDEMNIFICATION.
DELTA will defend, indemnify and hold Mr. Freeman harmless from all
liabilities, suits, judgments, fines, penalties or disabilities, including
expenses associated directly therewith (e.g., legal fees, court costs,
investigative costs, witness fees, etc.) resulting from any reasonable actions
taken by his in good faith on behalf of DELTA, its affiliates or for other
persons or entities at the request of the board of directors of DELTA, to the
fullest extent legally permitted, and in conjunction therewith, shall assure
that all required expenditures are made in a manner making it unnecessary for
Mr. Freeman to incur any out of pocket expenses; provided, however, that Mr.
Freeman permits DELTA to select and supervise all personnel involved in such
defense and that Mr. Freeman waives any conflicts of interest that such
personnel may have as a result of also representing DELTA, its stockholders or
other personnel and agrees to hold DELTA harmless from any matters involving
such representation, except such as involve fraud or bad faith.
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Article Four
SPECIAL COVENANTS
4.1 CONFIDENTIALITY.
Mr. Freeman acknowledges that, in and as a result of his duties hereunder,
she will be developing for DELTA, making use of, acquiring and/or adding to,
confidential information of special and unique nature and value relating to such
matters as DELTA trade secrets, systems, procedures, manuals, confidential
reports, personnel resources, strategic and tactical plans, advisors, clients,
investors and funders; consequently, as material inducement to the entry into
this Agreement by DELTA, Mr. Freeman hereby covenants and agrees that she shall
not, at anytime during or following the terms of his service as a member of
DELTA board of directors, directly or indirectly, personally use, divulge or
disclose, for any purpose whatsoever, any of such confidential information which
has been obtained by or disclosed to his as a result of his association with
DELTA or its affiliates.
4.2 SPECIAL REMEDIES.
DELTA as a result of a breach by Mr. Freeman of the covenants or agreements
contained in this Article Four, and in view of the lack of an adequate remedy at
law to protect DELTA interests, Mr. Freeman hereby covenants and agrees that
DELTA shall have the following additional rights and remedies in the event of a
breach or threatened breach hereof:
(A) Mr. Freeman hereby consents to the issuance of a permanent injunction
enjoining his from any violations of the covenants set forth in this Article
Four; and
(B) Because it is impossible to ascertain or estimate the entire or exact cost,
damage or injury which DELTA may sustain prior to the effective enforcement of
such injunction, Mr. Freeman hereby covenants and agrees to pay over to DELTA,
in the event she violates the covenants and agreements contained in this Article
Four, the greater of:
(1) Any payment or compensation of any kind received by his because of such
violation before the issuance of such injunction, or
(2) The sum of One Thousand ($1,000.00) Dollars per violation, which sum
shall be liquidated damages, and not a penalty, for the injuries suffered by
DELTA as a result of such violation. The Parties agree that such liquidated
damages are not intended as the exclusive remedy available to DELTA for any
breach of the covenants and agreements contained in this Article Four prior to
the issuance of an injunction, and the Parties recognize that the only adequate
remedy to protect DELTA from the injury caused by such breach would be
injunctive relief.
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4.3 Cumulative Remedies.
Mr. Freeman hereby irrevocably agrees that the remedies described in Section
4.2 hereof shall be in addition to, and not in limitation of, any of the rights
or remedies to which DELTA is or may be entitled, whether at law or in equity,
under or pursuant to this Agreement.
4.4 ACKNOWLEDGMENT OF REASONABLENESS.
Mr. Freeman hereby represents, warrants and acknowledges that she has
carefully read and considered the provisions of this Article Four and, having
done so, agrees that the restrictions set forth herein are fair and reasonable
and are reasonably required for the protection of the interests of DELTA, its
officers, other directors and employees; consequently, in the event that any of
the above-described restrictions shall be held unenforceable by any court of
competent jurisdiction, Mr. Freeman hereby covenants, agrees and directs such
court to substitute a reasonable, judicially enforceable limitation in place of
any limitation deemed unenforceable, and Mr. Freeman hereby covenants and agrees
that if so modified, the covenants contained in this Article Four shall be as
fully enforceable as if they had been set forth herein directly by the Parties.
In determining the nature of this limitation, Mr. Freeman hereby acknowledges,
covenants and agrees that it is the intent of the Parties that a court
adjudicating a dispute arising hereunder recognize that the Parties desire that
this covenant not to compete be imposed and maintained to the greatest extent
possible.
4.5 UNAUTHORIZED ACTS.
Mr. Freeman hereby covenants and agrees that she will not do any act or
incur any obligation on behalf of DELTA of any kind whatsoever, except as
expressly authorized by its board of directors or by its stockholders pursuant
to duly adopted stockholder action.
4.6 COVENANT NOT TO DISPARAGE.
Mr. Freeman hereby irrevocably covenants and agrees that during the term of
this Agreement and after its termination, she will refrain from making any
remarks that could be construed by anyone, under any circumstances, as
disparaging, directly or indirectly, specifically, through innuendo or by
inference, whether or not true, about DELTA, its constituent members, or its
officers, directors, stockholders, employees, agent or affiliates, whether
related to the business of DELTA, to other business or financial matters or to
personal matters.
Article V
AGREEMENT TO COMPLY WITH LEGAL RESTRICTIONS.
5.1 DELTA SECURITIES.
(A) Mr. Freeman currently does not directly beneficially own any other DELTA
securities; and has full power and authority to make, enter into and carry out
the terms of this Agreement.
(B) Mr. Freeman agrees that any DELTA securities that she purchases or with
respect to which she otherwise acquires record or beneficial ownership after the
date of this Agreement ("New DELTA Securities") shall be subject to the terms
and conditions of this Agreement to the same extent as if they were owned prior
to the effective date of this Agreement.
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(C) Mr. Freeman has full power and authority to execute this Agreement, to make
the representations, warranties and covenants herein contained and to perform
all of the obligations hereunder.
(D) Mr. Freeman has no present plan or intention (a "Plan") to sell, transfer,
exchange, pledge or otherwise dispose of, including by means of a distribution
by a partnership to its partners, or a corporation to its stockholders, or any
other transaction which results in a reduction in the risk of ownership (any of
the foregoing being hereinafter referred to generically as a "Sale") of any of
the DELTA securities that Mr. Freeman currently owns or may acquire during the
term of this Agreement, or any securities that may be paid as a dividend or
otherwise distributed thereon with respect thereto or issued or delivered in
exchange or substitution therefore.
(E) If any of Mr. Freeman's representations in this Agreement cease to be true
at any time during the term of this Agreement, Mr. Freeman will deliver to DELTA
general counsel a written statement to that effect, specifying the nature of the
change signed by Mr. Freeman.
5.2 TRANSFER OR ENCUMBRANCE.
(A) Mr. Freeman agrees not to transfer, sell, exchange, pledge or otherwise
dispose of or encumber any DELTA Securities acquired or to make any offer or
agreement relating thereto during the time that Mr. Freeman serves on DELTA
board of directors and for an additional period of 90 days after the term of
this agreement, except:
(1) During such periods following the filing by DELTA of reports with the
Commission as may be determined by the regulatory compliance committee of DELTA
board of directors to provide current information required to avoid violation of
restrictions under the Securities Act and the Securities and Exchange Commission
Exchange Act of 1934, as amended (the "Exchange Act"), against trading on inside
information.
(2) In full compliance with the requirements of:
(a) Rule 144 promulgated by the Commission under authority granted by
the Securities Act;
(b) Sections 13D and 16(a) of the Exchange Act, including requirements
pertaining to timely filing of Commission Forms 3, 4 and 5 or Schedule 13-D; and
(3) In full compliance with the procedures established by DELTA (including
requirements imposed upon its transfer agent) to assure compliance with the
foregoing.
(B) No transactions permitted pursuant to Section 5.2(A) shall be effected
until:
(1) Legal counsel representing Mr. Freeman (which legal counsel is
reasonably satisfactory to DELTA) shall have advised DELTA in a written opinion
letter satisfactory to DELTA and DELTA legal counsel, and upon which DELTA and
its legal counsel may rely, that no registration under the Securities Act is
required in connection with the proposed sale, transfer or other disposition and
that all requirements under the Exchange Act, including Sections 13 and 16
thereof have been complied with; or
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(2) A registration statement under the Securities Act covering the DELTA
stock proposed to be sold, transferred or otherwise disposed of, describing the
manner and terms of the proposed sale, transfer or other disposition, and
containing a current prospectus, shall have been filed with the Commission and
made effective under the Securities Act; or
(3) An authorized representative of the Commission shall have rendered
written advice to Mr. Freeman (sought by Director-Nominee or Director-Nominee's
legal counsel, with a copy thereof and all other related communications
delivered to DELTA) to the effect that the Commission would take no action, or
that the staff of the Commission would not recommend that the Commission take
any action, with respect to the proposed disposition if consummated; or (4)
DELTA general counsel and president shall have specifically consented to the
transaction in writing pursuant to authority delegated in a specific resolution
of the regulatory affairs committee of DELTA board of directors.
(C) Mr. Freeman also understands and agrees that stop-transfer instructions will
be given to DELTA transfer agent with respect to certificates evidencing his
DELTA securities and that this will be placed on the certificates evidencing his
DELTA securities legends stating in substance: "The securities represented by
this certificate were issued without registration under the Securities Act of
1933, as amended, or comparable state laws in reliance on the provisions of
Section 4(1), 3(b) or 4(2) of such act, and comparable state law provisions or
they have been held by a person deemed a control person under Commission Rule
144 and subject to reporting obligations under Section 13D of the Exchange Act
and to reporting obligations and trading restrictions under Section 16(a) of the
Exchange Act. These securities may not be transferred, pledged or hypothecated
unless they are first registered under applicable federal, state or foreign
laws, or the transaction is demonstrated to be exempt from such requirements to
the Company's satisfaction, and, all required reports pertaining thereto,
including Commission Forms 3, 4, 5 and 144 and Commission Schedule 13D have been
filed with the Commission."
5.3 NO PROXY SOLICITATIONS.
Mr. Freeman will not, and will not permit any entity under his control to:
(A) Solicit proxies or become a "participant" in a "solicitation" (as such terms
are defined in Regulation 14A under the Exchange Act) with respect to any
meetings of DELTA stockholders;
(B) Initiate a stockholders' vote or action by consent of DELTA stockholders
with respect to any stockholders' action; or
(C) Become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of DELTA.
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5.4 NO LIMITATION ON DISCRETION AS DIRECTOR.
This Article Five is intended solely to apply to the exercise by Mr. Freeman
in his individual capacity of rights attaching to ownership of DELTA securities,
and nothing herein shall be deemed to apply to, or to limit in any manner the
discretion of Mr. Freeman with respect to, any action which may be taken or
omitted by his acting in his fiduciary capacity as a member of DELTA board of
directors or any committee thereof.
Article VI
MISCELLANEOUS
6.1 NOTICES.
(A) All notices, demands or other communications hereunder shall be in writing,
and unless otherwise provided, shall be deemed to have been given on the first
business day after mailing by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
To Mr. Freeman:
Marshall Freeman
1200 Stirling Road
Suite 11A & B
Dania, FL 33004
Telephone (305) 992-1475
To DELTA:
DELTA Entertainment Group, Inc
7359 Ballantrae Ct.
Boca Raton, FL 33496
Telephone (818) 539-6507
Fax (305)359-5116;
and, e-mail lenny@carringtoncapital.com
Attention: Leonard Tucker, President;
or such other address or to such other person as any Party shall designate
to the other for such purpose in the manner hereinafter set forth.
(B) The decision by any Party not to use the services of legal counsel in
conjunction with this transaction shall be solely at that Party's own risk, each
Party acknowledging that applicable rules of the Florida Bar prevent DELTA
general counsel, who has reviewed, approved and caused modifications on behalf
of DELTA, from representing anyone other than DELTA in this transaction.
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6.2 AMENDMENT.
(A) No modification, waiver, amendment, discharge or change of this Agreement
shall be valid unless the same is in writing and signed by the Party against
which the enforcement of said modification, waiver, amendment, discharge or
change is sought.
(B) This Agreement may not be modified without the consent of a majority in
interest of DELTA stockholders.
6.3 MERGER.
(A) This instrument contains all of the understandings and agreements of the
Parties with respect to the subject matter discussed herein.
(B) All prior agreements, whether written or oral, are merged herein and shall
be of no force or effect.
6.4 SURVIVAL.
The several representations, warranties and covenants of the Parties
contained herein shall survive the execution hereof and shall be effective
regardless of any investigation that may have been made or may be made by or on
behalf of any Party.
6.5 SEVERABILITY.
If any provision or any portion of any provision of this Agreement, or the
application of such provision or any portion thereof to any person or
circumstance shall be held invalid or unenforceable, the remaining portions of
such provision and the remaining provisions of this Agreement or the application
of such provision or portion of such provision as is held invalid or
unenforceable to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereunder.
6.6 GOVERNING LAW.
This Agreement shall be governed by and construed, interpreted and enforced
in accordance with the laws of the State of Florida, except for any choice of
law provisions that would result in the application of the law of another
jurisdiction, and except for laws involving the fiduciary obligations of DELTA
officers and Director-Nominees, which shall be governed under Florida law.
6.7 THIRD PARTY RELIANCE.
Legal counsel to and accountants for the Parties shall be entitled to rely
upon this Agreement.
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6.8 VENUE.
Any proceeding arising between the Parties in any matter pertaining or
related to this Agreement shall, to the extent permitted by law, be held in
Broward County, Florida.
6.9 LITIGATION.
(A) In any action between the Parties to enforce any of the terms of this
Agreement or any other matter arising from this Agreement, the prevailing Party
shall be entitled to recover its costs and expenses, including reasonable
attorneys' fees up to and including all negotiations, proceedings and appeals,
whether or not formal proceedings are initiated.
(B) In the event of any dispute arising under this Agreement, or the negotiation
thereof or inducements to enter into the Agreement, the dispute shall, at the
request of any Party, be exclusively resolved through the following procedures:
(1) (a) First, the issue shall be submitted to mediation before Mediation,
Inc., a mediation service in Broward County, Florida, to be selected by lot from
four alternatives to be provided, two by DELTA and two by Mr. Freeman.
(b) The mediation efforts shall be concluded within ten business days
after their initiation unless the Parties unanimously agree to an extended
mediation period;
(2) In the event that mediation does not lead to a resolution of the
dispute, then at the request of any Party, the Parties shall submit the dispute
to binding arbitration before an arbitration service located in Broward County,
Florida to be selected by lot, from four alternatives to be provided, two by
DELTA and two by Mr. Freeman.
(3) (a) Expenses of mediation shall be borne by DELTA, if successful
(b) Expenses of mediation if unsuccessful, and of arbitration shall be
borne by the Party whom the arbitration award is rendered.
(c) If the terms of the arbitral award do not establish a prevailing
party, then the expenses of unsuccessful mediation and of arbitration shall be
borne equally by the Parties.
6.10 BENEFIT OF AGREEMENT.
(A) This Agreement may not be assigned by Mr. Freeman without the express
written consent of DELTA.
(B) Subject to the restrictions on transferability and assignment contained
herein, the terms and provisions of this Agreement shall be binding upon and
inure to the benefit of the Parties, their successors, assigns, personal
representative, estate, heirs and legatees.
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6.11 INTERPRETATION.
(A) The words "include," "includes" and "including" when used herein shall be
deemed in each case to be followed by the words "without limitation."
(B) The headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
(C) The captions in this Agreement are for convenience and reference only and in
no way define, describe, extend or limit the scope of this Agreement or the
intent of any provisions hereof.
(D) All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the Party or
Parties, or their personal representatives, successors and assigns, or the
context may require.
(E) The Parties agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
6.12 FURTHER ASSURANCES.
The Parties hereby agree to do, execute, acknowledge and deliver, or cause
to be done, executed, acknowledged and delivered, and to perform all such acts
and deliver all such deeds, assignments, transfers, conveyances, powers of
attorney, assurances, receipts, Entertainment and other documents as may, from
time to time, be required herein to effect the intent and purposes of this
Agreement.
6.13 STATUS.
Nothing in this Agreement shall be construed or shall constitute an agency,
employment, partnership, or joint venture relationship.
6.14 COUNTERPARTS.
(A) This Agreement may be executed in any number of counterparts.
(B) Execution by exchange of facsimile transmission shall be deemed legally
sufficient to bind the signatory; however, the Parties shall, for aesthetic
purposes, prepare a fully executed original version of this Agreement, which
shall be the document filed with the Commission.
6.15 WAIVER.
No waiver by any party hereto of any condition or of any breach of any
provision of this Agreement shall be effective unless in writing and signed by
each party hereto.
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6.16 INDEMNIFICATION.
(A) Each Party hereby irrevocably agrees to indemnify and hold the other Party
harmless from any and all liabilities and damages (including legal or other
expenses incidental thereto), contingent, current, or inchoate to which that
Party may become subject as a direct, indirect or incidental consequence of any
action by the indemnifying Party or as a consequence of the failure of the
indemnifying Party to act, whether pursuant to requirements of this Agreement or
otherwise.
(B) In the event it becomes necessary to enforce this indemnity through an
attorney, with or without litigation, the successful Party shall be entitled to
recover from the indemnifying Party all costs incurred including reasonable
attorneys' fees throughout any negotiations, trials or appeals, whether or not
any suit is instituted.
6.17 CONSULTATION WITH COUNSEL.
Mr. Freeman has carefully read this Agreement and discussed its requirements
and other applicable limitations upon the sale, transfer or other disposition of
DELTA securities to the extent he felt necessary with his own legal counsel.
IN WITNESS WHEREOF, Mr. Freeman and DELTA have caused this Agreement to
be executed by themselves or their duly authorized respective officers,
effective as of the last date set forth below:
/s/ Marshall Freeman
--------------------
Marshall Freeman (Print)
--------------------
By: Marshall Freeman
/s/ Leonard Tucker
--------------------
Leonard Tucker (Print)
--------------------
By: Leonard Tucker, President
DELTA Entertainment Group, Inc.
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