SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
March 9, 1998
(Date of Earliest Event Reported)
ADVANCED OXYGEN TECHNOLOGIES,
INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 000-09951 91-1143622
(State of Incorporation) (Commission File No.) (I.R.S. Employer
Identification No.)
C/O Crossfield Incorporated
230 Park Avenue, Suite 1000
New York, NY 10169
(Address of Principal Executive Offices)
Registrant's Telephone Number: (212) 808-3061
C/O Edelson Technology Partners
300 Trice Boulevard
Woodcliff Lake, NJ 07675
(Former Address)
ITEM 2: ACQUISITION OR DISPOSITION OF ASSETS.
On March 9, 1998, pursuant to an Agreement for Purchase and Sale
of Specified Business Assets, a Promissory Note, and a Security Agreement
all dated March 9, 1998, Advanced Oxygen Technologies, Inc.(the
"Company") purchased certain tangible and intangible assets including
goodwill and rights under certain contracts, from Integrated Marketing
Agency, Inc., a California Corporation ("IMA").
The assets purchased from IMA consisted primarily of furniture,
fixtures, equipment, computers, servers, software and databases previously
used by IMA in its full service telemarketing business. The Company
intends to employ the assets purchased from IMA for the purposes of
Database Management Services.
The purchase price consisted of delivery at closing by the Company
of a [$10,000] down payment, a Promissory Note in the amount of
[$550,000] payable to IMA periodically with final payment due on April
10, 2000 and accruing compounded interest at a rate of nine percent (9%)
per annum, and [1,670,000] shares of convertible, preferred stock, par value
$.01 per share, of the Company (the "Preferred Stock") . The Preferred
Stock is automatically convertible into shares of the Company's common
stock, par value $.01 per shares (the "Common Stock"), on March 2, 2000,
at a conversion rate which will depend on the average closing price of the
Common Stock for a specified period prior thereto. The purchase price was
determined based on the fair market value of the purchased assets.
The down payment portion of the purchase price was drawn from
cash reserves of the Company, and the cash required for payments due under
the Promissory Note will be generated by future revenues from the
Company's business.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA
FINANCIAL INFORMATION & EXHIBITS.
(c) Exhibits
Exhibit 1 Agreement for Purchase & Sale of Specified Business
Assets
Schedule 1 List of Purchased Assets
Schedule 2 Allocation of Sales Price
Schedule 3 Delivered Documents
Exhibit A Bill of Sales
Exhibit B Covenant of Non-Competition
Exhibit C Promissory Note
Exhibit D Security Agreement
Exhibit E Seller's Legal Opinion
Exhibit F Employment Contract
Exhibit G UCC-1
SIGNATURES
Pursuant to the requirements of the Securities and Exchange
Act of 1934, as amended, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
Dated: March 9, 1998. ADVANCED OXYGEN
TECHNOLOGIES, INC.
BY: Robert E. Wolfe
President
EXHIBIT 1
AGREEMENT
FOR PURCHASE & SALE OF SPECIFIED
BUSINESS ASSETS
THIS AGREEMENT (this "Agreement") for Purchase & Sale
of Specified Business Assets, is dated as of the 9th day of March,
1998 (the "Closing Date"), in the County of Los Angeles, State of
California, by and between the following parties:
FIRST PARTY:
INTEGRATED MARKETING AGENCY, INC., a
corporation organized and existing under the laws of the State of
California (hereinafter referred to as "Seller").
SECOND PARTY
ADVANCED OXYGEN TECHNOLOGIES, INC., a
corporation organized and existing under the laws of the State of
Delaware (hereinafter referred to as "Buyer").
1. RECITALS.
1.1. The rights, duties and obligations arising under this
Agreement are premised upon the following facts which are recited
hereat to have the force of conclusive presumptions pursuant to the
provisions of California Evidence Code Section 622:
1.1.1. Seller has its principal place of business in Los
Angeles County, California, and Seller's primary
enterprise has been a full-service marketing agency
business operating nationally.
1.1.2. Buyer has its principal place of business in the
State of New York.
1.1.3. Seller and its shareholders have determined that
it is in their best interests to divest certain of Seller's
business assets consisting of certain tangible and
intangible assets, including goodwill and rights under
certain contracts, all as more fully listed on Schedule
"1" (referred to in this Agreement as the "Purchased
Assets").
1.1.4. Buyer desires to acquire the Purchased Assets
on the terms and conditions hereinafter enumerated.
1.2. In consideration of the duties created herein and the
benefits conferred hereby, the adequacy of which is hereby
acknowledged, each of the parties voluntarily enters into this
Agreement.
2. CONSTRUCTION & INTERPRETATION.
2.1. All documents referred to in this Agreement as
"Schedules" and "Exhibits" are hereby incorporated by such reference
as a part of this Agreement as though set forth in full at the point of
such reference.
2.2. Whenever in this Agreement there appears the locative
adverbs "herein", "hereunder", "herein below", "herein above", "under
this Agreement", or any substantially similar adverb or phrase, the
same shall be deemed to refer to this Agreement in its entirety and not
to any specific article, section, subsection, subpart, paragraph or
subparagraph.
2.3. As used herein, the terms "in this Agreement," "under this
Agreement" or substantially similar terms, encompass not only the
four corners of this Agreement, but also mean, refer to and include all
exhibits attached hereto.
3. DEFINITIONS.
3.1. In addition to any other terms or phrases which may be
defined herein, the following definitions shall apply to and govern this
Agreement:
3.1.1. "Purchased Assets" means and refers to each,
every and all of the assets listed on Schedule "1".
3.1.2. "Allocation of Sales Price" means and refers to
the values assigned to the Purchased Assets,
respectively, as listed on Schedule "2."
3.1.3. "Delivered Documents" means and refers to the
documents and materials listed on Schedule "3".
3.1.4. "Bill of Sale" means and refers to the transfer
instrument that shall comprise a part of the transaction
contemplated by this Agreement in a form substantially
identical to Exhibit "A."
3.1.5. "Covenant of Non Competition" means and
refers to the contract restricting competitive activities
by Seller and John Teuber which shall comprise a part
of the transaction contemplated by this Agreement in
a form substantially identical to Exhibit "B."
3.1.6. "Promissory Note" means and refers to the debt
instrument that shall comprise a part of the transaction
contemplated by this Agreement in a form substantially
identical to Exhibit "C."
3.1.7. "Security Agreement" means and refers to the
security instrument that shall comprise a part of the
transaction contemplated by this Agreement in a form
substantially identical to Exhibit "D."
3.1.8. "Seller's Legal Opinion" means and refers to the
legal opinion of Seller's counsel that shall comprise a
part of the transaction contemplated by this
Agreement in a form substantially identical to Exhibit
"E."
3.1.9. "Teuber Employment Contract" means and
refers to the employment contract between Buyer and
John Teuber which shall comprise a part of the
transaction contemplated by this Agreement in a form
substantially identical to Exhibit "F."
3.1.10. "UCC-1 Form" means and refers to the
Uniform Commercial Code Financing Statement that
shall comprise a part of the transaction contemplated
by this Agreement in a form substantially Identical to
Exhibit "G".
4. PURCHASE AND SALE OF SELECTED ASSETS; NO ASSUMPTION OF
LIABILITIES.
4.1. ASSETS TO BE SOLD BY SELLER. Seller hereby sells, transfers,
assigns and sets over to Buyer, and Buyer hereby purchases and
acquires from Seller, all of Seller's right, title and interest in and to the
Purchased Assets, including goodwill, free and clear of all mortgages,
security interests, conditional sales agreements, liens, charges,
pledges, claims, other security interests or encumbrances of any kind
(except for Seller's security interest as herein provided), all for the
consideration and on the terms, conditions and covenants specified
herein.
4.2. ACCEPTANCE OF PURCHASED ASSETS "AS IS." Except as
otherwise provided in this Agreement, Seller makes no warranty
regarding the condition of the Purchased Assets and Buyer agrees that
all items comprising the Purchased Assets are accepted by Buyer in
"as is" condition.
4.3. NO ASSUMPTION OF LIABILITIES BY BUYER.
Notwithstanding any other provision in this Agreement, Buyer neither
assumes nor shall be obligated to pay, perform or discharge any
obligations or liabilities of Seller, whether known or unknown, fixed,
contingent or otherwise, including without limitation, any liability or
obligation of Seller for taxes of any kind with respect to the Purchased
Assets for periods prior to the Closing Date.
5. PURCHASE PRICE.
5.1. The consideration for the transfer of the Purchased
Assets (the "Purchase Price" herein) is as follows:
5.1.1. A down payment at the Closing in the total sum
of Ten Thousand U.S. Dollars ($10,000.00)(the
"Down Payment");
5.1.2. A promissory note made payable to Seller in the
total amount of Five Hundred Fifty Thousand U.S.
Dollars ($550,000.00)(the "Promissory Note"); and
5.1.3. One Million Six Hundred Seventy Thousand
(1,670,000) shares of convertible, preferred stock, par
value $.01 per share, of Buyer (collectively, the
"Preferred Shares"), having an aggregate value of One
Million Four Hundred and Forty Thousand U.S.
Dollars ($1,440,000.00), and having the following
rights attached thereto:
5.1.3.1. Fixed annual dividends of $0.001 per
share payable on January 1 of each year;
5.1.3.2. Automatic conversion on March 2,
2000 (the "Conversion Date") of each share of
Preferred Stock into either:
(a) one (1) share of Buyer's common
stock, par value $.01 per share ("Common
Stock"), if the average closing price of the
Common Stock during the ten trading days
immediately prior to March 1, 2000 is equal to
or greater than sixty-six cents ($0.66) per
share; or
(b) one and one-half (11/2) shares of
Common Stock if the average closing price of
the Common Stock during the ten trading days
immediately prior to March 1, 2000 is less
than sixty-six cents ($0.66) per share.
5.1.3.3. If on the Conversion Date the
aggregate value of the Common Stock into
which the Preferred Shares are converted
pursuant to Section 5.1.3.2 above (the
"Converted Shares") is less than Five Hundred
Thousand Dollars ($500,000), then Seller shall
have the option, at Seller's sole discretion, to
cause Buyer to redeem the Converted Shares
for the aggregate sum of Five Hundred
Thousand U.S. Dollars ($500,000.00) by
delivering written notice of Seller's intention
to redeem the Converted Shares to Buyer
within ten (10) business days after the
Conversion Date (the "Redemption Notice").
Buyer shall pay Seller the sum of $500,000 not
later than thirty (30) days following the date
on which Buyer receives the Redemption
Notice against receipt by Buyer of all
certificates representing the Preferred Shares
and/or Converted Shares.
6. CLOSING MATTERS.
6.1. SELLER'S DELIVERIES. On the date hereof, Seller shall deliver
to Buyer:
6.1.1. The Bill of Sale, executed on behalf of Seller by
its duly-authorized officer;
6.1.2. Possession of each, every and all of the
Purchased Assets;
6.1.3. Seller's Legal Opinion, executed by Seller's legal
counsel, along with both the results of a search of U.C.C. filings and
a report issued by Dun & Bradstreet regarding Seller;
6.1.4. The Covenant of Non Competition, executed on
behalf of Seller by its duly authorized officer and John Teuber;
6.1.5. The Teuber Employment Contract, executed by
John Teuber;
6.1.6. Assignments of the Contract Rights (as such
term is defined in Section 7.2.7); and
6.1.7. All documentation which, in the reasonable
opinion of Buyer's counsel, satisfies the transfer to Buyer of the
Purchased Assets.
6.2. BUYER'S DELIVERIES. On the date hereof, Buyer shall
deliver to Seller:
6.2.1. The Down Payment;
6.2.2. The Promissory Note, executed on behalf of
Buyer by its duly authorized officer;
6.2.3. The Security Agreement, executed on behalf of
Buyer by its duly authorized officer;
6.2.4. Certificates representing the Preferred Shares,
issued in the name of Seller; and
6.2.5. All documentation which, in the reasonable
opinion of Seller's counsel, satisfies the transfer to Buyer of the
Purchased Assets.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Buyer represents, warrants, covenants and agrees as
follows:
7.1.1. CORPORATE; AUTHORITY.. Buyer's execution,
delivery and performance of this Agreement have been duly
authorized by all necessary corporate action of Buyer and this
Agreement constitutes the valid and binding obligation of Buyer,
enforceable against it in accordance with its terms, except as may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to general
principles of equity.
7.1.2. CORPORATE FORM. Neither the shareholders nor
the Board of Directors of Buyer have considered any action which
would result in a change in Buyer's corporate form (including merger
and dissolution) nor are there any facts or circumstances presently in
existence on which basis a reasonable person would have reason to
believe that such action would be, likely to be taken during the time
that Buyer is indebted to Seller under this Agreement or any related
agreement
7.1.3. BULK SALE PROVISIONS. Buyer acknowledges its
awareness that the transactions contemplated by this Agreement
constitute a transfer of a substantial portion of Seller's assets and,
therefore, may constitute a "bulk transfer" within the meaning
specified in California Commercial Code section6101, et seq. and, upon the
closing of the transactions, Buyer shall be deemed to have knowingly,
voluntarily and with the benefit of legal counsel, waived the necessity
of compliance with the notice requirements of said statutes.
7.1.4. RECEIPT OF DELIVERED DOCUMENTS. Buyer
acknowledges its receipt from Seller, on or prior to the date hereof,
of the Delivered Documents listed on Schedule 3 attached hereto.
7.2 Seller represents, warrants, covenants and agrees as
follows:
7.2.1. CORPORATE. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of California and has the full corporate power and authority to
enter into and to perform this Agreement and all other agreements and
instruments to be executed and delivered in connection herewith (the
"Ancillary Documents").
7.2.2. AUTHORIZATION. The execution, delivery and
performance of this Agreement and the Ancillary Documents by Seller
and John Teuber, as the case may be, have been duly authorized by all
necessary corporate action of Seller and this Agreement and the
Ancillary Documents constitute the valid and binding obligations of
Seller and John Teuber, as the case may be, enforceable against them
in accordance with their terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and subject to general principles of
equity.
7.2.3. NO CONFLICT. The execution, delivery and
performance of this Agreement and the Ancillary Documents by Seller
shall not: (i) conflict with the certificate of incorporation or bylaws of
Seller and shall not conflict with, or result in the breach or termination
of, or constitute a default under, any agreement, commitment or other
instrument, or any order, judgment or decree, to which Seller is a
party or by which it is bound or (ii) constitute a violation by Seller of
any law or regulation applicable to Seller.
7.2.4. CONSENT. No consent, approval or authorization
of, or designation, declaration or filing with, any governmental
authority or consent of any other party is required in connection with
the execution, delivery and performance of this Agreement and the
Ancillary Documents on the part of Seller.
7.2.5. TITLE. Seller has good and marketable title to all
of the Purchased Assets, free and clear of all mortgages, security
interests, conditional sales agreements, liens, charges, pledges, claims,
other security interests or encumbrances of any kind. The Purchased
Assets are and shall remain free and clear of any liens or
encumbrances resulting from any taxes arising in any period up to the
Closing Date.
7.2.6. LITIGATION. There are no actions, claims,
creditors' proceedings, arbitrations or government investigations or
other administrative or judicial proceedings pending or, to the best of
Seller's knowledge, threatened, against or affecting the Purchased
Assets before any court, administrative agency or arbitration panel,
and there are no orders, decrees or judgments pending or entered
against Seller affecting the Purchased Assets.
7.2.7. CONTRACT RIGHTS. The Purchased Assets include,
among other tangible and intangible assets, certain rights to accounts
receivable under certain contracts entered into between Seller and its
customers and third parties (collectively, the "Contract Rights").
Seller assumes all obligations and liabilities with respect to such
contracts which have arisen prior to the Closing Date. After the
Closing Date, Buyer shall assume, on a going-forward basis, all
obligations and liabilities with respect to such contracts which may
arise after the Closing Date, and shall be entitled to receive the
benefits of all Contract Rights. All of the aforesaid Contract Rights
are assignable by Seller in its sole discretion and are being assigned to
Buyer in writing without amendment (unless any amendment is
approved by Buyer). Seller is not in default in any respect under the
terms of any such contracts nor is any other party to any such
contracts in default thereunder.
7.3. SURVIVAL. All representations and warranties contained
herein shall survive the Closing Date for a period of two (2) years,
except that the representations and warranties made in Section 7.2.1,
7.2.2, 7.2.3 and 7.2.4 shall survive the Closing Date for a period of
five (5) years, and the representation and warranty made in Section
7.2.5 shall survive indefinitely.
8. INDEMNIFICATION.
8.1. INDEMNITY BY BUYER. Buyer shall indemnify, defend and
hold harmless Seller from and against and in respect to any and all
claims, expenses, liabilities and damages, including reasonable
attorneys fees, that Seller shall incur or suffer or which arise from or
relate to any claim or cause of action by any party with respect to any
obligation, liability or alleged obligation or liability relating to or
arising out of any breach by Buyer of the representations and
warranties set forth in Section 7.1 above, or Buyer's failure to fulfill
any covenant or agreement contained in this Agreement.
8.2. INDEMNITY BY SELLER. Seller shall indemnify, defend and
hold harmless Buyer from and against and in respect to any and all
claims, expenses, liabilities and damages, including reasonable
attorneys' fees, that Buyer shall incur or suffer or which arise from or
relate to any claim or cause of action by any party with respect to any
obligation, liability or alleged obligation or liability relating to or
arising out of (i) any breach by Seller of the representations and
warranties set forth in Section 7.2 above, or Seller's failure to fulfill
any covenant or agreement contained in this Agreement, or (ii)
liabilities or obligations not assumed by Buyer under Section 4.3, (iii)
any Excluded Assets.
8.3. NOTICE TO INDEMNIFYING PARTY. Either party claiming a
right to indemnification hereunder shall promptly notify in writing the
other party hereto (the "Indemnifying Party") of the existence of any
claim, demand or other matter to which its indemnification obligations
hereunder would apply, and shall give it twenty (20) days to elect to
defend the same at its own expense and with counsel of its own
selection. Should the Indemnifying Party elect to defend the same at
its own expense, the Indemnifying Party shall have the absolute right
to compromise or settle such claim, demand or other matter in its sole
discretion. If the Indemnifying Party fails within twenty (20) days after
receipt of such notice to defend the same, the other party hereto shall,
in addition to any other rights it may have, at law or in equity, have
the right to undertake the defense of and compromise or settle the
claim, demand or other matter.
9. SALES TAXES.
9.1. Seller hereby expressly assumes responsibility for the
payment of, and shall timely pay any and all sales and use taxes and
assessments imposed by any governmental authority as well as any
transfer fees, assumption fees and the like that may income due as a
consequence of the transactions under this Agreement; provided,
however, that Buyer shall reimburse Seller for fifty percent (50%) of
such fees within 30 days after Seller's written request for .contribution
therefrom. Any such contribution request from Seller shall be
accompanied by written evidence of Seller's payment of such fees.
9.2. The values set forth beside the various items comprising
the Purchased Assets, respectively, as appear on the Allocation of
Sales Price (Schedule "2") constitutes the parties' good faith allocation
of the monetary consideration.
10. COSTS AND EXPENSES.
10.1. Except as specifically stated herein, each party shall bear
its own expenses, including expenses of counsel, with respect to this
Agreement and the transactions contemplated hereby.
10.2. Seller shall be responsible for and shall pay any and all
filing and public records fees and costs incurred or incidental to the
perfection of its security interest in the Purchased Assets.
11. NO BROKERS, FINDERS OR COMMISSIONS.
11.1. Each of the parties to this Agreement represents and
warrants to the other that all negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on by
them individually, by their counsel, consultants or by officers of
counsel or consultants for the other party and they have not dealt with
or employed any broker or finder in connection with or on account of
this Agreement or any transaction herein contemplated and insofar as
they have knowledge, except for fees of their respective counsel,
consultants and financial advisors for which each party is responsible,
no broker, consultant or finder is entitled to any commission or
broker's or finder's fee in connection with or as a consequence of any
of the transactions contemplated by this Agreement.
12. CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS.
12.1. Each party hereto agrees that it will not, without the
prior written consent of the other party, disclose to any third party,
directly or indirectly, any trade secrets or confidential data relating to
such other party, or the business of such other party, as a result of the
transactions contemplated by this Agreement. No public
announcement or press release concerning the transactions
contemplated herein shall be made at any time by the Buyer or Seller,
unless by mutual written consent or otherwise required by law.
13. MISCELLANEOUS PROVISIONS.
13.1. FURTHER ASSURANCES. The parties hereto each agree that
they shall execute and, if appropriate, acknowledge, without any
additional consideration, any and all additional and other documents,
instruments and writings which may be necessary to, or which would
reasonably facilitate, the vesting in Buyer of good and marketable title
to the Purchased Assets as provided herein and to carry out the
purposes of this Agreement, including specifically the Covenant of
Non-Competition.
13.2. ATTORNEY'S FEES & COSTS. In the event that any action
or other formal proceeding is instituted to enforce or interpret any
part of this Agreement, the party prevailing in such action or
proceeding shall be entitled to recover, in addition to the prevailing
party's costs of suit, such attorneys' fees as the presiding tribunal
deems to have been reasonably incurred by the prevailing party.
13.3. BINDING AGREEMENT. All terms, conditions and
covenants to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective agents, servants, heirs,
executors, administrators, affiliates, subsidiaries, associates,
employees, successors and assigns.
13.4. CAPTIONS. All captions (paragraph headings) set forth in
this Agreement are inserted only as a matter of convenience and for
reference, and shall not be construed to define, limit, interpret,
prescribe or describe the scope or intent of this Agreement, meaning,
and shall not be considered for such purposes, or any part hereof, nor
affect it.
13.5. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but
all of which, when taken together, shall constitute one and the same
document.
13.6. ENTIRE AGREEMENT. This Agreement is an integrated
document containing and expressing all terms, covenants, conditions,
warranties and agreements of the parties relating to the subject matter
hereof. No other or prior agreements or understandings pertaining to
the same shall be valid or of any force or elect.
13.7. AMENDMENT ONLY BY WRITING. This Agreement cannot
be amended, altered or modified, except in writing signed by the
parties hereto.
13.8. DEFINITION OF WRITING. All references in this Agreement
to "written" consents, notices or other documentation required to be
given, received or obtained, shall mean a writing (printed, typewritten
or handwritten) actually signed by the party giving such consent,
notice or otherwise, with the intent to give such consent, notice or
otherwise, free from duress, undue influence, fraud and coercion.
13.9. GENDER; PLURAL AND SINGULAR. Whenever required by
the context hereof, the singular shall be deemed to include the plural,
the plural shall be deemed to include the singular, the masculine the
feminine, and the neuter gender shall be deemed to include the others.
13.10. GOVERNING LAW. This Agreement shall be interpreted,
construed and governed by, in accordance with and consistent with
the laws of the State of California. which shall apply in all respects,
including statutes of limitations, to any disputes or controversies
arising out of or pertaining to this Agreement.
13.11. NEITHER PARTY TO BE DEEMED DRAFTER. This contract
is to be deemed to have been prepared jointly by the parties hereto and
any uncertainty or ambiguity existing herein shall not be interpreted
against either party on the basis that such party was the drafter hereof,
but instead shall be interpreted according to the application of rules
for the interpretation of contracts, if such an uncertainty or ambiguity
exists.
13.12. NOTICES. Any notice required or permitted to be given
hereunder shall be so given by registered or certified (return receipt
requested) United States Postal Service mail, postage prepaid, unless
a notice transmitted in said manner is returned to the sender as
unclaimed, refused or undeliverable, or unless the party giving notice
has a good faith reason to believe that a notice transmitted in said
manner will be so returned, in which case such notice may be given.
at the sender's option, by personal service or by first class mail
provided that such alternative method is effectuated by a disinterested
party who attests thereto by a written declaration under penalty of
perjury in a form consistent with the provisions of California Code of
Civil Procedure section1013a authorizing service by mail. Any such notice
shall be addressed to or delivered to the recipient as follows:
In the case of: Addressed to:
SELLER: INTEGRATED MARKETING AGENCY, INC. ATTN.:
JOHN TEUBER, PRESIDENT
20457 Kelsey Drive
Canyon Country, California 91351
BUYER : ADVANCED OXYGEN TECHNOLOGIES, INC.
ATTN: ROBERT E.WOLFE, PRESIDENT
c/o Crossfield Incorporated
230 Park Avenue, Suite 1000
New York, New York 10169
In the event that notice is transmitted by U.S. Mail, such
notice shall be deemed to have been received by the addressee and
service thereof shall be effective, five (5) days following deposit
thereof with the United States Postal Service, or upon actual receipt,
whichever first occurs, unless the address for delivery is not within
one of the United States or its territories or possessions, in which case
service shall be elective seven (7) days following deposit, or upon
actual receipt whichever first occurs. A party may change the above
specified address by giving the other party notice of the new address
in the manner above-prescribed for all notices.
13.13. RELATIONSHIP OF PARTIES. Neither party to this
Agreement shall be deemed, in any way, nor construed to be, the
partner, joint venturer, agent, employee or servant of the other, their
entire relationship being that of seller and buyer only, as independent
contracting parties.
13.14. SEVERABILITY. In the event that any term, provision,
clause, article, condition or other portion of this Agreement is
determined to be invalid, void or unenforceable by a forum of
competent jurisdiction, the same shall not affect any other term,
provision, clause, article, condition or other portion hereof and the
remainder of this Agreement shall remain in full force and effect, as if
such invalid, void or unenforceable term, provision, clause, article,
condition or other portion of this Agreement did not appear herein.
IN WITNESS WHEREOF, the parties have subscribed their
names to this Agreement or, in the case of corporate parties, have
caused their duly-authorized officers to execute this Agreement,
effective on the date first written above.
SELLER:
INTEGRATED MARKETING AGENCY, INC.
By: ____________________________
Name:
Its:
BUYER:
ADVANCED OXYGEN TECHNOLOGIES, INC.
By: ____________________________
Name: Robert E. Wolfe
Its: President
SALE OF CERTAIN ASSETS OF INTEGRATED
MARKETING AGENCY, INC.
LIST OF SCHEDULES AND EXHIBITS PURSUANT TO
AGREEMENT FOR PURCHASE & SALE OF SPECIFIED ASSETS
DATED AS OF MARCH 9, 1998
SCHEDULE "1" List of Purchased Assets
SCHEDULE "2" Allocation of Sales Price
SCHEDULE "3" Delivered Documents
EXHIBIT "A" Bill of Sale
EXHIBIT "B" Covenant of Non-Competition
EXHIBIT "C" Promissory Note
EXHIBIT "D" Security Agreement
EXHIBIT "E" Seller's Legal Opinion
EXHIBIT "F" Teuber Employment Contract
EXHIBIT "G" UCC-1 Form
<TABLE>
<S> <C> <C> <C> <C>
FIXED ASSETS
DELIVERY PHYSICA
METHOD: L
LOCATION ITEM QUANTITYUNIT PRICE VALUED
PRICE
101
101 Bookshelves (2) 6x2.42 29.00 58.00
101 Chairs (3)3 12.00 36.00
101 Computer1
101 Corkboard 2x1.51 11.00 11.00
101 Corkboard 4x31 13.00 13.00
101 Desk w/return1 69.00 69.00
101 End Table1 21.00 21.00
101 Filing Cabinet 4x1.31 42.00 42.00
101 Framed 1 6.00 6.00
Photograph 2x3
101 Painting 2.8x2.21 8.90 8.90
101 Telephone1
102 Computer Table1 25.00 25.00
102 Fax Machine1 69.00 69.00
102 Laser Jet 4 Printer1 239.00 239.00
102 Paintings (2) 3x22 8.90 17.80
102 Portable Storage 1 29.00 29.00
Shelf 3x2.6
102
103 Artificial Tree1 8.00 8.00
103 Calculator1 16.95 16.95
103 Chairs (3)3 12.00 36.00
103 Computer1
103 Computer Arm1 25.00 25.00
103 Credenza1 91.00 91.00
103 Desk 1 49.00 49.00
103 End Table1 21.00 21.00
103 Filing Cabinet 2.2x1.31 42.00 42.00
103 Halogen Lamp (6ft)1 2.45 2.45
103 Painting 3x1.61 8.90 8.90
103 Painting 4x31 8.90 8.90
103 Painting 5x21 8.90 8.90
103 Rolodex1 4.00 4.00
103 Telephone2
104 Bookshelf 6x31 29.00 29.00
104 Cassette Subscriber3 82.00 246.00
104 Chairs (3)1 12.00 12.00
104 Computer1
104 Desk w/return1 69.00 69.00
104 Filing Cabinet 5.6x2.61 42.00 42.00
104 Filing Cabinet 5x3.61 42.00 42.00
104 Mirror1 8.00 8.00
104 Painting 2x1.61 8.90 8.90
104 Paintings (2) 3x22 8.90 17.80
104 Paintings (2_) 2.6x22 8.90 17.80
104 Telephone1
104 Wall Clock1 8.00 8.00
104
105 Bookshelf 3x2.61 29.00 29.00
105 Bookshelf 6x31 29.00 29.00
105 Chairs (2)2 12.00 24.00
105 Computer1
105 Corkboard 4x31 13.00 13.00
105 Desk 1 49.00 49.00
105 GBC Binding Machine1 19.99 19.99
105 Paintings (2) 3x2.62 8.90 17.80
105 Paintings 3.6x31 8.90 8.90
105 Scanner1 79.00 79.00
105 Telephone1
105 Work Bench 3x2.61 89.00 89.00
105
106 Antique End Table 88.00
106 Artificial Plant (3)3 8.00 24.00
106 Chairs (9)9 12.00 108.00
106 China Cabinet1 79.00 79.00
106 Clock1 8.00 8.00
106 Coffee Table1 83.00 83.00
106 Credenza1 91.00 91.00
106 Credenza w/bookshelf1 91.00 91.00
106 Desk (executive)1 122.00 122.00
106 Filing Cabinet 4.6x1.61 42.00 42.00
106 Painting 2.4x2 8.90
106 paintings (2) 4x3 8.90
106 Paintings (3) 3x2.6 8.90
106 Small Conference Table 7x3.61 60.00 60.00
106 Small Horse Statue 7.99
106 Telephone 1
106
107 Artificial plant (3)3 8.00 24.00
107 Artificial Tree1 8.00 8.00
107 Chairs (5)5 12.00 60.00
107 Conference Table1 60.00 60.00
107 Dresser/Cabinet1 88.00 88.00
107 Dry Erase Board/Cabinet1 21.00 21.00
107 End Table1 21.00 21.00
107 Paintings (3) 5x33 8.90 26.70
107 Telephone1
107
220 Bookshelves (2) 2x1.62 29.00 58.00
220 Call Accounting1
220 Computers (2)2
220 Desk w/return1 69.00 69.00
220 Fax Boards (2)2
220 Fax Servers (2)2
220 File Server1
220 Filing Cabinet 2.6x1.61 42.00 42.00
220 Filing cabinet 3x2.61 42.00 42.00
220 Filing Cabinet 4.6x1.61 42.00 42.00
220 Keyboards (6)6
220 Painting 3.6x2.61 8.90 8.90
220 Painting s (2) 2x1.62 8.90 17.80
220 Pentium 4
Computers (14)
220 Table1 39.95 39.95
220 Telephones (2)2
220
301 Artificial 2 8.00 16.00
Plants (2)
301 Bookshelf 3x2.61 29.00 29.00
301 Bookshelf 6.6x31 29.00 29.00
301 Bookshelves (5) 7x35 29.00 145.00
301 Computer1
301 Corkboards (2)3x22 13.00 26.00
301 Credenza1 91.00 91.00
301 Desk w/return1 69.00 69.00
301 Dolley3 38.00 114.00
301 Friden 9130 Postage Machine1
301 Smith Corona Typewriter1 29.90 29.90
301 Painting 3x2.61 8.90 8.90
301 Painting 4x21 8.90 8.90
301 Painting 4x3.61 8.90 8.90
301 Scales (2)2 8.00 16.00
301 Storage bins 3x2.61 10.90 10.90
301
302 Area Rug 8x51 79.99 79.99
302 Bookshelf 6x2.61 29.00 29.00
302 Chairs (2)1 12.00 12.00
302 Computer1
302 Computer Arm1 25 25.00
302 Desk w/return1 69.00 69.00
302 End Table1 21.00 21.00
302 Filing Cabinet 4x1.61 42.00 42.00
302 Painting 3x21 8.90 8.90
302 Paintings (2) 3x2.62 8.90 17.80
302 Sharp Calculator1 36.95 36.95
302 telephones2
303 Artificial 5 8.00 40.00
Plants (5)
303 Bookshelves 6x42 29.00 58.00
303 Boston Paper Cutter1 9.00 9.00
303 Chairs (2)1 12.00 12.00
303 Credenza1 91.00 91.00
303 Filing cabinet 5.6x2.65 42.00 210.00
303 GBC Precision Cutter1 19.99 19.99
303 Glass top credenza1 50.00 50.00
303 Metal Cabinet 3.6x2.61 88.00 88.00
303 Painting 2.6x21 8.90 8.90
303 Painting 3x21 8.90 8.90
303 Painting 3x31 8.90 8.90
303 Painting 4.6x3.61 8.90 8.90
303 Painting 4x31 8.90 8.90
303 Paintings (2) 1.6x12 8.90 17.80
303 Work Table 8x31 89.00 89.00
303
304 Area Rug 12x2.61 14.45 14.45
304 Bookshelf 3x51 29.00 29.00
304 Computer1
304 Computer Arm1 25.00 25.00
304 Corkboard 3x21 11.00 11.00
304 Cubicle Walls 5.6x53 29.00 87.00
304 Desk w/return1 69.00 69.00
304 Painting 4.6x3.61 8.90 8.90
304 Telephone1
306 Answering Machine1 12.99 12.99
306 Bookshelf 3x2.61 29.00 29.00
306 Calculator1 16.95 16.95
306 Chairs (2)2 12.00 24.00
306 Computer1
306 Desk w/return1 69.00 69.00
306 Filing cabinet 4x1.61 42.00 42.00
306 Paintings (2) 3x22 8.90 17.80
306 Telephone1
306
307 Answering Machine1 12.99 12.99
307 Calculator1 16.95 16.95
307 Chairs (2)2 12.00 24.00
307 Computer1
307 Desk w/return1 69.00 69.00
307 Filing cabinet 2.6x1.61 42.00 42.00
307 Filing cabinet 4.6x1.61 42.00 42.00
307 Filing Cabinet 4.6x31 42.00 42.00
307 Painting 2x1.61 8.90 8.90
307 Painting 3.6x31 8.90 8.90
307 Painting 4x2.61 8.90 8.90
307 Storage cabinet 2x21 10.90 10.90
307 Telephone1
307
401 Bookshelf 3x21 29.00 29.00
401 Chairs (3)3 12.00 36.00
401 Computer1
401 Corkboard 3x21 11.00 11.00
401 Desk w/return1 69.00 69.00
401 Fan1 6.00 6.00
401 Fax Machine1 69.00 69.00
401 Filing Cabinet 4x1.61 42.00 42.00
401 Laser Jet 4 Printer1 239.00 239.00
401 Painting 2x1.61 8.90 8.90
401 Painting 2x1.61 8.90 8.90
401 Painting 3.6x1.61 8.90 8.90
401 Typing Table 2x21 39.95 39.95
401 White Board1 21.00 21.00
401
201-219 Main3-Hole Punch 1 4.00 4.00
Telesales Area
201-219 MainArea Rugs (2) 8x32 14.45 28.90
Telesales Area
201-219 MainArea Rugs (3) 8x53 14.45 43.35
Telesales Area
201-219 MainArtificial Plant (16)16 8.00 128.00
Telesales Area
201-219 MainBookshelves (14) 7x314 29.00 406.00
Telesales Area
201-219 MainChairs (19) 19 12.00 228.00
Telesales Area
201-219 MainComputers (19) 19
Telesales Area
201-219 MainCorkboard 3x2 1 11.00 11.00
Telesales Area
201-219 MainCorkboards (18) 4x318 13.00 234.00
Telesales Area
201-219 MainCredenza 1 91.00 91.00
Telesales Area
201-219 MainCubicle Walls 15 39.00 585.00
Telesales Area(15) 5x5
201-219 MainCubicle Walls 28 29.00 812.00
Telesales Area(28) 5.6x5
201-219 MainCubicle Walls 40 27.00
Telesales Area(40) 5x2 1,080.00
201-219 MainDesks (19) 19 49.00 931.00
Telesales Area
201-219 MainLaser Jet 4 Printer1 239.00 239.00
Telesales Area
201-219 MainLaser Jet 5l Printer1 419.00 419.00
Telesales Area
201-219 MainMirrors (18) 1x118 8.00 144.00
Telesales Area
201-219 MainPainting 3x2.6 1 8.90 8.90
Telesales Area
201-219 Mainpainting 4x2.6 1 8.90 8.90
Telesales Area
201-219 MainPainting 4x3 1 8.90 8.90
Telesales Area
201-219 MainPaintings (4) 9x3.64 8.90 35.60
Telesales Area
201-219 MainPaintings (7) 3.6x37 8.90 62.30
Telesales Area
201-219 Main 32 6.00 192.00
Telesales AreaPhotographs/Paintings (32)2.6x1.6
201-219 MainPortable Storage 2 119.00 238.00
Telesales AreaShelves (2)
3x2.6
201-219 MainSales Tracking 1 21.00 21.00
Telesales AreaBoard 6x4
201-219 MainTelephones (20) 20
Telesales Area
201-219 Main
Telesales Area
221 BathroomArea Rug 6x4 1 14.45 14.45
221 BathroomArtificial 2 8.00 16.00
Plants (3)
221 BathroomCredenza 1 91.00 91.00
221 BathroomCuligan Water FiltrationSystem1
221 BathroomDoor mat 1 2.00 2.00
221 BathroomPainting 3x2.6 1 8.90 8.90
221 BathroomSupply Cabinet 6x31 88.00 88.00
221 Bathroom
222 BathroomArea Rug 5x3.6 1 14.45 14.45
222 BathroomCredenza 1 91.00 91.00
222 BathroomMirrors 2x1.6 1 8.00 8.00
222 BathroomPainting 3.6x1.61 8.90 8.90
222 BathroomPaintings (3) 2.6x23 8.90 26.70
222 BathroomSupply Cabinet 6x31 88.00 88.00
222 Bathroom
305 BathroomArea Rug 5x3.6 1 14.45 14.45
305 BathroomCabinet 2x2 1 88.00 88.00
305 BathroomFloor mats (2) 2 2.00 4.00
305 BathroomMirror 1x1 1 8.00 8.00
305 BathroomPainting 3x2 1 8.90 8.90
305 BathroomPainting 3x2 1 8.90 8.90
305 BathroomPaintings(2) 2x1.62 8.90 17.80
305 Bathroom
308-312 ADMINArtificial 3 8.00 24.00
Plants (3)
308-312 ADMINBookshelf 4x3 1 29.00 29.00
308-312 ADMINCalculators (2)2 16.95 33.90
308-312 ADMINChairs (4) 4 12.00 48.00
308-312 ADMINClock 1 8.00 8.00
308-312 ADMINComputers (2) 2
308-312 ADMINCorkboard 3x2 1 11.00 11.00
308-312 ADMINCubicle Walls 4 29.00 116.00
(4) 5.6x5
308-312 ADMINDesk (3) w/returns3 69.00 207.00
308-312 ADMINFax Machines (4)3 69.00 207.00
308-312 ADMINFiling cabinet 3x3.61 42.00 42.00
308-312 ADMINFiling cabinet s 2 42.00 84.00
(2) 4x1.6
308-312 ADMINLaser Jet 4 Printer1 239.00 239.00
308-312 ADMINPainting 3x3 1 8.90 8.90
308-312 ADMINPaintings (3) 2.6x23 8.90 26.70
308-312 ADMINSharp-8300 Copy Machine1 800.00 800.00
308-312 ADMINSmall Refrigerator1 49.00 49.00
308-312 ADMINSwitchboards 1
308-312 ADMINTelephones (3) 3
308-312 ADMINTyping Table 1 39.95 39.95
308-312 ADMINWork Table 5x2.61 89.00 89.00
308-312 ADMINMicrowave 1 19.99 19.99
402-412 Antique Bench 1 62.00 62.00
Telesales Area
402-412 Artificial 3 8.00 24.00
Plants (3)
Telesales Area
402-412 Bookshelves (5) 5x35 29.00 145.00
Telesales Area
402-412 Bookshelves (7) 6x37 29.00 203.00
Telesales Area
402-412 Chairs (14) 14 12.00 168.00
Telesales Area
402-412 Clock 1 8.00 8.00
Telesales Area
402-412 Computers (7) 7
Telesales Area
402-412 Copystar CS-1435 CopyMachine --on loanloan
Telesales Area
402-412 Corkboards (9) 4x39 13.00 117.00
Telesales Area
402-412 Couch 1 49.00 49.00
Telesales Area
402-412 Cubicle Walls 28 29.00 812.00
(28) 6.8x4
Telesales Area
402-412 Desks (9) 9 49.00 441.00
Telesales Area
402-412 Dry Erase Board 1 21.00 21.00
Telesales Area
402-412 End Table 1 21.00 21.00
Telesales Area
402-412 Painting 3.6x3 1 8.90 8.90
Telesales Area
402-412 Paintings (2) 3x3 2 8.90 17.80
Telesales Area
402-412 Paintings (2) 4x3 2 8.90 17.80
Telesales Area
402-412 1 6.00 6.00
Photographs/Paintings 2.6x2
Telesales Area
402-412 Small Desk 1 49.00 49.00
Telesales Area
402-412 Table 1 38.99 38.99
Telesales Area
402-412 Telephones (12) 12
Telesales Area
402-412
Telesales Area
413 ConferenceRoomAntique credenza1 91.00 91.00
413 ConferenceRoomArtificial Tree1 8.00 8.00
413 ConferenceRoomBookshelf 3x21 29.00 29.00
413 ConferenceRoomChairs (9)9 12.00 108.00
413 ConferenceRoomConference Table 8x41 60.00 60.00
413 ConferenceRoomCorkboards (5) 4x35 13.00 65.00
413 ConferenceRoomDry Erase Board 6x41 21.00 21.00
413 ConferenceRoomMaps (3) 2.6x1.63 3.90 11.70
413 ConferenceRoomPaintings (3) 3x2.63 8.90 26.70
413 ConferenceRoomRCA Cassette player1 24.00 24.00
413 ConferenceRoomSamsung TV1 39.90 39.90
413 ConferenceRoomSanya Cassette player1 24.00 24.00
413 ConferenceRoomSony VCR 1 69.00 69.00
413 ConferenceRoomTelephones (12)2
413 ConferenceRoomWorld Map 4.6x3.61 3.90 3.90
413 ConferenceRoom
414 BathroomArea Rug 6x2 1 14.45 14.45
414 BathroomCabinet 3.6x3 1 88.00 88.00
414 BathroomFloor mats (2) 1 2.00 2.00
414 BathroomFolding Chairs (25)25 49.95
1,248.75
414 BathroomPAINTING 3x2.6 1 8.90 8.90
414 BathroomPhotographs (2) 1.6x1.62 6.00 12.00
414 Bathroom
501-511 Area Rugs (2) 12x22 14.45 28.90
Telesales Area
501-511 Artificial 10 8.00 80.00
Plants (10)
Telesales Area
501-511 Bookshelf 7x4 1 29.00 29.00
Telesales Area
501-511 Bookshelves (11)4x311 29.00 319.00
Telesales Area
501-511 Chairs (16) 16 12.00 192.00
Telesales Area
501-511 Computers (12) 12
Telesales Area
501-511 Corkboards (14) 3x214 13.00 182.00
Telesales Area
501-511 Credenza 1 91.00 91.00
Telesales Area
501-511 Cubicle Walls 24 27.00 648.00
(24) 5x2
Telesales Area
501-511 Cubicle Walls 40 27.00
(40) 5x3 1,080.00
Telesales Area
501-511 Desks (12) 12 49.00 588.00
Telesales Area
501-511 Dry Erase Boards (2)2 21.00 42.00
Telesales Area
501-511 Filing Cabinet s 10 42.00 420.00
(10) 2x1.6
Telesales Area
501-511 Painting 3x2.6 1 8.90 8.90
Telesales Area
501-511 Painting 4x3 1 8.90 8.90
Telesales Area
501-511 Paintings (10) 2.6x210 8.90 89.00
Telesales Area
501-511 Photographs (8) 2.6x28 6.00 48.00
Telesales Area
501-511 Telephones (13) 13
Telesales Area
501-511 Floor Lamp/ Ant 1 91.00 91.00
Table and
Telesales AreaChair
512 Area Rugs (3) 5x3 3 14.45 43.35
Lunch Room
512 Artificial 1 8.00 8.00
Lunch Roomplants
512 Artificial Trees (4)4 8.00 32.00
Lunch Room
512 Chairs (13) 8 12.00 96.00
Lunch Room
512 Clock 1 8.00 8.00
Lunch Room
512 Coffee Maker 1 21.00 21.00
Lunch Room
512 Credenzas (2) 2 91.00 182.00
Lunch Room
512 Iris mini chest 1 12.99 12.99
Lunch Room
512 Kenmore Refrigerator1 49.00 49.00
Lunch Room
512 Lunch tables (3) 2 38.99 77.98
Lunch Room
512 Painting 3.6x2.6 1 8.90 8.90
Lunch Room
512 Painting 3x2 1 8.90 8.90
Lunch Room
512 Painting 4.6x3.6 1 8.90 8.90
Lunch Room
512 Painting 5.6x2.6 1 8.90 8.90
Lunch Room
512 Painting 5x3 1 8.90 8.90
Lunch Room
512 Painting 6.6x3 1 8.90 8.90
Lunch Room
512 Paintings (2) 2x1.62 8.90 17.80
Lunch Room
512 Photograph 2x1.6 1 6.00 6.00
Lunch Room
512 Toaster 1 15.99 15.99
Lunch Room
512 Toshiba Microwave 1 19.99 19.99
Lunch Room
512
Lunch Room
513 BathroomArea Rug 5x3.6 1 14.45 14.45
513 BathroomBookshelf 6x4 1 29.00 29.00
513 BathroomBrooms (3) 3 2.50 7.50
513 BathroomCredenza 1 91.00 91.00
513 BathroomFan 1 6.00 6.00
513 BathroomLading 6ft Standing1 125.00 125.00
513 BathroomPainting 2.6x2 1 8.90 8.90
513 BathroomPainting 2x1.6 1 8.90 8.90
513 BathroomPlastic Storage Box1 35.00 35.00
513 BathroomToastmaster 1 125.00 125.00
floor heater
513 BathroomTool Box 1 25.00 25.00
513 BathroomVacuum Cleaner 1 39.00 39.00
Hallway #1Area Rug 8x3 1 14.45 14.45
Hallway #1Hot Files (2) 2 9.99 19.98
Hallway #1Paintings (2) 2x1.62 8.90 17.80
Hallway #1Paintings (2) 3x1 2 8.90 17.80
Hallway #1Wall Clock 1 8.00 8.00
Hallway #1
Hallway #2Area Rug 8x3 1 14.45 14.45
Hallway #2Painting 4x3 1 8.90 8.90
Hallway #2Painting x3 1 8.90 8.90
Hallway #2Paintings (2) 2x1.62 8.90 17.80
Hallway #2
Library Credenza 1 91.00 91.00
Library Library Books 416 10.00
4,160.00
Library Libray Shelves 4 29.00 116.00
Library Video Tapes 15 5.00 75.00
Library
Library
Area Rug 5.6x3.6 1 14.45 14.45
Reception Area
Area Rug 8x5 1 14.45 14.45
Reception Area
Artificial 1 8.00 8.00
Reception AreaPlants (3)
Artificial Tree 1 8.00 8.00
Reception Area
Ceramic Tea Pots (2)2 35.00 70.00
Reception Area
Chairs (2) 2 12.00 24.00
Reception Area
Coffee Maker 1 21.00 21.00
Reception Area
Coffee table 1 83.00 83.00
Reception Area
Credenza 1 91.00 91.00
Reception Area
Painting 3x2.6 1 8.90 8.90
Reception Area
Painting 4x3 1 8.90 8.90
Reception Area
Stained Glass door1 64.00 64.00
Reception Area
Storage Antique Dresser 2 88.00 176.00
Storage Antique Dresser 1 88.00 88.00
Storage Artificial 1 8.00 8.00
plants
Storage Book Shelves 24 29.00 696.00
Storage Canon Copier 1 2,500.00
2,500.00
Storage Chairs 26 12.00 312.00
Storage Coffee Table 1 83.00 83.00
Storage Computer Table 1 25.00 25.00
Storage Conference Table 8x41 60.00 60.00
Storage Cork boards 22 11.00 242.00
Storage Desks 2 49.00 98.00
Storage Dry Erase Boards 3 21.00 63.00
Storage Fan 1 6.00 6.00
Storage File Cabinets 2 42.00 84.00
Storage File Cabinets 2 42.00 84.00
Storage Pictures 34 6.00 204.00
Storage Richoh Copier 1 3,500.00
3,500.00
Storage Rocking Chair 1 12.00 12.00
Storage Sharp 7350 Copier 1 2,500.00
2,500.00
Storage Standing Fans 2 6.00 12.00
Storage TA210C Copier 1 3,500.00
3,500.00
Storage Tables 1 39.95 39.95
Storage Typing Table 2x2 1 39.95 39.95
Storage Walls 24 39.00 936.00
Storage Work Tables 3 89.00 267.00
Storage
Storage
Trash Trash Cans 31 2.00 62.00
TOTAL
44,669.21
</TABLE>
<TABLE>
<S> <C> <C> <C>
REPLACEMENT QUANTITY COST TOTAL
COSTS
Sales Computers23 $300
$6,900
Admin Computers $600
Peripherals 4 $55 $220
HP LaserJet4+3 $400
$1,200
HP LaserJet5L1 $500 $500
HP LaserJet4si1
$1,600 $1,600
32
$3,455 $10,420
ALL TOTAL
</TABLE>
<TABLE>
<S> <C> <C> <C>
(24)
BrooktroutAnalogPorts5244.75
P133 446.25
64M
RAM
1.6G HD
BrooktroutT-1 523.25
Interface
(24)
BrooktroutAnalogPorts5244.75
(5) 262.5
KingstonKNE-
8TP/WG8ch
workgrouphubs
(2) 210
KingstonKNE-
16TP/WG16ch
workgrouphubs
(1) 3-COMLinkSwitch1000700
EquipmentRack 175
Call 175
AccountingBuffer
$18,684.48
</TABLE>
<TABLE>
<S> <C> <C> <C>
# OF LICENSES SOFTWARE REPLACEMENT COSTTotal
3 Nt Server 4.0 w/5 CAL each$2,685
9397.5
50 Additional CAL for NT 4.0$2,500 8750
12 Win95
55 MS DOS
?? Win3.11
1 Cheyanne ARCserve 6.0$1,295
4532.5
1 RightFax NT$3,000
10500
22 Channel License for RF$17,490
61215
1 PS Driver For RF$600 2100
55 Goldmine$4,995
17482.5
2 R&R Report Writer (WIN)$400 1400
1 R&R Report Writer (dos)$200 700
15 MS Office 97$7,425
25987.5
?** Ms Office 4.2$495
1732.5
5 Adobe FrameMaker 5.1$5,000
17500
2 Corel Draw$600 2100
1 Norton Utilities$150 525
1 Norton Antivirus$75
262.5
1 Microsoft Visual Fox $495
Pro 3.0 1732.5
1 McAfee Virus Scan Deluxe$75
262.5
1 Install Shield Express 4.0$75
262.5
1 PC Anywhere$199
696.5
1 GMOE$20,000
70000
1 Call Accounting$2,000 7000
TOTAL $69,754
244139
</TABLE>
<TABLE>
<S> <C> <C> <C>
ITEM QUANTITY COSTEXTENSIO N
Telephone 61 $12 $732
Instruments (digital)
Telephone 125 $16
Instruments (analog) $2,000
Central Processor 1
$1,500 $1,500
Channel Bank 1 $350 $350
Battery Backup 1 $500 $500
TOTAL 189
$2,378 $5,082
</TABLE>
<TABLE>
<S> <C><C> <C><C> <C><C> <C><C>
Price per Name 1.30 1.
30
Total # of Names
742,349.00
D
A
T
A
B
A
S
E
FI L
E
C
O
U
N
T
DATABASE NAME RECORDS W/ RECORDS W/ FAXTOTAL NON TOTALS
PHONE # DELETED
RECORDS
ALLIANCE 3,790 1,775 3,813 $4,948.03
CARDINAL 8,622 6,939 9,332
$12,109.90
CMPIW500 72,116 29,460 74,067
$96,114.85
CMPNET 34,228 27,756 34,403
$44,643.89
CMPVAR 67,884 59,456 69,708
$90,458.29
COMDEX 15,414 14,211 15,824
$20,534.40
COMDEXPR 30,090 23,313 32,520
$42,200.37
DMDNY 4,554 2,652 4,620 $5,995.26
DQCONF 41,674 28,980 43,083
$55,907.71
MM ESEM 150,792 146,689 150,792
$195,678.92
EXPERNET 8,473 5,826 8,766
$11,375.41
EXPOCON2 28,164 25,583 30,264
$39,272.82
FORRESTR 7,437 3,067 7,510 $9,745.53
FORTUNE 6,144 5,463 6,145 $7,974.21
FROSTSUL 25,069 15,864 26,950
$34,972.33
GARTNER 27,622 24,712 29,257
$37,966.06
GGDGELNK 5,131 1,902 5,211 $6,762.18
GGIA 2,778 167 2,853 $3,702.27
HDI 25,274 17,309 26,389
$34,244.33
HOOVER96 23,939 23,730 23,940
$31,066.33
HPWORLD 2,103 1,742 2,414 $3,132.59
IE 31,543 15,127 32,412
$42,060.22
IQPC 5,589 4,526 5,752 $7,464.22
ITSMA 4,327 3,911 4,481 $5,814.88
MERRIN 7,616 7,320 7,677 $9,962.25
MGMTRND 4,031 3,245 4,331 $5,620.23
NMS 4,499 1,468 4,510 $5,852.51
SKILTECH 3,606 81 3,608 $4,682.01
SKIP 4,010 3,657 4,050 $5,255.58
SPECCHEC 13,454 8,475 14,636
$18,992.76
USR 5,301 1,319 5,313 $6,894.54
WALLST 17,091 11,326 17,185
$22,300.53
RLDCONG 24,691 14,863 26,499
$34,387.07
ZONA 3,216 2,623 4,034 $5,234.82
TOTALS 720,272 544,537 742,349
$963,327.31
</TABLE>
<TABLE>
<S> <C><C> <C><C> <C><C>
TRANSCRIPTS QUANTIT Y VALUE TOTAL $
SEMICONDUCTOR
Transcript 38 $165.00
$6,270.00
Esr 38 $90.00
$3,420.00
CD-Rom $58.00
PREDICTS
Transcript 18 $165.00
$2,970.00
Esr 18 $90.00
$1,620.00
CD-Rom $58.00
SERVICE
TREND
Transcript 5 $165.00 $825.00
Esr 55 $90.00
$4,950.00
CD-Rom $58.00
DOCUMENT
MANAGEMENT
Transcript 12 $165.00
$1,980.00
Esr 7 $90.00 $630.00
CD-Rom $58.00
STORAGE
TRACK
Transcript 36 $165.00
$5,940.00
Esr 36 $90.00
$3,240.00
CD-Rom $58.00
SEMICONDUCTOR
Transcript 19 $165.00
$3,135.00
Esr 19 $90.00
$1,710.00
CD-Rom $58.00
PREDICTS
Transcript 3 $165.00 $495.00
Esr 5 $90.00 $450.00
CD-Rom $58.00
MOBILE
COMMUNICATIONS
Transcript 12 $165.00
$1,980.00
Esr 12 $90.00
$1,080.00
CD-Rom $58.00
SERVICE
TRENDS
Transcript 57 $165.00
$9,405.00
Esr 57 $90.00
$5,130.00
CD-Rom $58.00
DOCUMENT
MANAGEMENT
Transcript 24 $165.00
$3,960.00
Esr 24 $90.00
$2,160.00
CD-Rom $58.00
STORAGE
TRACK
Transcript 36 $165.00
$5,940.00
Esr 36 $90.00
$3,240.00
CD-Rom $58.00
FROST &
SULLIVAN
MULTIVENDOR
Transcript 9 $165.00
$1,485.00
Esr 9 $90.00 $810.00
CD-Rom $58.00
FROST &
SULLIVAN ITOUTSOURCE
Transcript 9 $165.00
$1,485.00
Esr 9 $90.00 $810.00
CD-Rom $58.00
DQ LATIN
AMERICA
Transcript 14 $165.00
$2,310.00
Esr 14 $90.00
$1,260.00
CD-Rom $58.00
DMDNY-TRACK1
Transcripts 6 $165.00 $990.00
DMDNY-TRACK2
Transcripts 4 $165.00 $660.00
DMDNY-TRACK5
Transcripts 7 $165.00
$1,155.00
DMDNY-TRACK6
Transcripts 5 $165.00 $825.00
DMDNY-TRACK7
Transcripts 2 $165.00 $330.00
FROST &
SULLIVAN -CATLOG
REPORT
Transcript 79 $165.00
$13,035.00
FROST &
SULLIVAN -AUTO REPORT
Transcript 13 $165.00
$2,145.00
Esr 13 $90.00
$1,170.00
FROST &
SULLIVAN -MULTIMEDIA
Transcript 8 $165.00
$1,320.00
Esr 8 $90.00 $720.00
FROST &
SULLIVAN -CABLE
Transcript 23 $165.00
$3,795.00
Esr 23 $90.00
$2,070.00
FORRESTER
Transcript 4 $165.00 $660.00
Esr 4 $90.00 $360.00
MOBILE PC
Transcript 13 $165.00
$2,145.00
Esr 13 $90.00
$1,170.00
ITSMA
Transcript 18 $165.00
$2,970.00
Esr 18 $90.00
$1,620.00
COMDEX
TRANSCRIPTS
Keynote 70 $90.00
Speeches $6,300.00
Industry Insights9 $90.00 $810.00
Super 20 $90.00
Seesions/PowerPanels $1,800.00
ManagementStrategies17 $90.00
$1,530.00
Multimedia 50 $90.00
$4,500.00
DistributedComputing16 $90.00
$1,440.00
The ChangingDesktop17 $90.00
$1,530.00
Network 20 $90.00
Infrastructure $1,800.00
The TechnicalProfessional28 $90.00
$2,520.00
CMP IW 500
Transcript 12 $165.00
$1,980.00
Esr 18 $90.00
$1,620.00
CD-Rom 60 $58.00
$3,480.00
WIRELESS
Transcript 11 $165.00
$1,815.00
Esr 11 $90.00 $990.00
PREDICTS
Transcript 2 $165.00 $330.00
Esr 2 $90.00 $180.00
SERVICE
TRENDS
Transcript 8 $165.00
$1,320.00
Esr 8 $90.00 $720.00
MOBILE PC
Transcript 27 $165.00
$4,455.00
Esr 17 $90.00
$1,530.00
CHANNEL
TRENDS
Transcript 13 $165.00
$2,145.00
Esr 13 $90.00
$1,170.00
DOCUMENT
MANAGEMENT
Transcript 19 $165.00
$3,135.00
Esr 19 $90.00
$1,710.00
STORAGE
TRACK
Transcript 12 $165.00
$1,980.00
Esr 17 $90.00
$1,530.00
DQ-MINING THEINTERNET
BOSTON
Transcript 6 $165.00 $990.00
Esr 18 $90.00
$1,620.00
DQ-MINING THEINTERNET
DALLAS
Transcript 8 $165.00
$1,320.00
Esr 8 $90.00 $720.00
DQ-CHURN
Transcript 9 $165.00
$1,485.00
Esr 9 $90.00 $810.00
IEC
Transcript 11 $165.00
$1,815.00
Esr 21 $90.00
$1,890.00
IMAGING
Transcript 10 $165.00
$1,650.00
Esr 18 $90.00
$1,620.00
SEMICONDUCTOR
Transcript 8 $165.00
$1,320.00
Esr 8 $90.00 $720.00
PREDICTS
Transcript 4 $165.00 $660.00
Esr 1 $90.00 $90.00
HELP DESK
INSTITUTE
EAST
Transcript $165.00
Esr 11 $90.00 $990.00
CMP
NETWORKED
ECONOMY
Transcript 23 $165.00
$3,795.00
Esr 23 $90.00
$2,070.00
CD-Rom 14 $58.00 $812.00
SERVICE
TRENDS
Transcript 23 $165.00
$3,795.00
Esr 23 $90.00
$2,070.00
CD-Rom 92 $58.00
$5,336.00
CMP NETGAIN
Transcript 5 $165.00 $825.00
Esr 5 $90.00 $450.00
CD-Rom 131 $58.00
$7,598.00
PC CHANNELSTREND
Transcript 89 $165.00
$14,685.00
Esr 89 $90.00
$8,010.00
CD-Rom 64 $58.00
$3,712.00
CMP IW 500
Transcript 41 $165.00
$6,765.00
Esr 41 $90.00
$3,690.00
CD-Rom 64 $58.00
$3,712.00
STORAGE
TRACK
Transcript 2 $165.00 $330.00
Esr 2 $90.00 $180.00
CD-Rom 43 $58.00
$2,494.00
DQ-HIGH SPEED
Transcript 21 $165.00
$3,465.00
Esr 21 $90.00
$1,890.00
CD-Rom 97 $58.00
$5,626.00
ITSMA
Transcript 21 $165.00
$3,465.00
Esr 21 $90.00
$1,890.00
CD-Rom 19 $58.00
$1,102.00
SEMICONDUCTOR
Transcript 31 $165.00
$5,115.00
Esr 31 $90.00
$2,790.00
CD-Rom 34 $58.00
$1,972.00
COMDEX
Full sets 19 $165.00
$3,135.00
Keynote 38 $90.00
Speeches $3,420.00
CD-Rom's 488 $58.00
$28,304.00
3173
$14,980.00 $318,353.00
</TABLE>
ACTIVE CONTRACTS
COMDEX
CORBETT & ASSOCIATES
DMDNY
ELOQUENT "HP WORLD"
FORTUNE CONFERENCE DIVISION
INFOEDGE
ITSMA
M3 LEARNING
MECKLERMEDIA
NMS MANAGEMENT INC.
WALL STREET JOURNAL
WORLD CONGRESS
EXHIBIT B
COVENANT OF NON-COMPETITION
THIS COVENANT OF NON-COMPETITION IS EXECUTED
AND MADE EFFECTIVE ON THE 9TH DAY OF MARCH, 1998, BY
INTEGRATED MARKETING AGENCY, INC., A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA
(SOMETIMES REFERRED TO HEREIN AS "IMA" OR COLLECTIVELY AS
"COVENANTORS") AND JOHN TEUBER, A NATURAL PERSON
(SOMETIMES REFERRED TO HEREIN AS "TEUBER" OR COLLECTIVELY AS
"COVENANTORS" WITHOUT REGARD TO NUMBER OR GENDER) IN THE
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA.
1. RECITALS.
1.1 THE COVENANTS, OBLIGATIONS AND RIGHTS CREATED BY AND
ARISING HEREUNDER ARE PREMISED UPON THE FOLLOWING FACTS WHICH
ARE RECITED HEREAT TO HAVE THE FORCE OF CONCLUSIVE PRESUMPTIONS
PURSUANT TO THE PROVISIONS OF CALIFORNIA EVIDENCE CODE SECTION
622:
1.1.1 COVENANTORS HAVE, CONTEMPORANEOUSLY WITH
THEIR EXECUTION HEREOF, CLOSED A TRANSACTION WHEREBY THEY
HAVE SOLD TO ADVANCED OXYGEN TECHNOLOGIES,
INC., A CORPORATION ORGANIZED AND EXISTING UNDER HE LAWS
OF THE STATE OF DELAWARE ("COVENANTEE" HEREIN) CERTAIN
ASSETS, INCLUDING GOODWILL, OF THEIR BUSINESS WHICH HAS
HERETOFORE ENGAGED IN BUSINESS AS A FULL-SERVICE
TELEMARKETING COMPANY UNDER THE NAME "MARKET
MAKERS," WHICH SUCH BUSINESS CONSISTS OF, WITHOUT
LIMITATION, TELE-SALES, DIRECT MARKETING, CONFERENCE
REGISTRATION, ADMINISTRATION AND SALES, DATABASE
MANAGEMENT, AND DOCUMENT AND COMPACT DISC PRODUCTION
(THE "BUSINESS").
1.1.2 TEUBER IS A SHAREHOLDER AND KEY OFFICER OF
IMA, SUCH THAT HE HAS A PERSONAL AND BENEFICIAL INTEREST
IN THE SAID PURCHASE-AND-SALE TRANSACTION.
1.1.3.IN CONNECTION WITH THE PURCHASE AND SALE
TRANSACTION, TEUBER HAS AGREED TO ENTER INTO AN
EMPLOYMENT AGREEMENT WITH COVENANTEE FOR A PERIOD OF
TIME PRESCRIBED THEREIN (THE "EMPLOYMENT AGREEMENT").
1.1.4 A MATERIAL, BARGAINED-FOR BENEFIT TO THE
COVENANTEE IN SAID PURCHASE-AND-SALE TRANSACTION IS THE
AGREEMENT OF THE COVENANTORS THAT THEY WILL CEASE AND
DESIST FROM ENGAGING IN THE BUSINESS WHICH, IF NOT
PROSCRIBED BY OPERATION OF THIS COVENANT, WOULD
SUBSTANTIALLY DEVALUE THE BUSINESS ADVANTAGES ACQUIRED BY
COVENANTEE PURSUANT TO THE SAID PURCHASE-AND-SALE
TRANSACTION, EXCEPT AS PROVIDED WITH RESPECT TO TEUBER
IN THE EMPLOYMENT AGREEMENT.
1.2 IN CONSIDERATION OF THE BENEFITS CONFERRED UPON
COVENANTORS UNDER THE SAID PURCHASE-AND-SALE TRANSACTION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED,
COVENANTORS HEREBY IRREVOCABLY BIND AND PLEDGE THEMSELVES TO
THE TERMS SET FORTH HEREINBELOW, BY CREATING THIS COVENANT OF NON-
COMPETITION AS AUTHORIZED BY SECTION16601 OF THE CALIFORNIA BUSINESS
AND PROFESSIONAL CODE.
2. COVENANT OF NON-COMPETITION.
2.1 COVENANTORS HEREBY COVENANT TO COVENANTEE, AND
COVENANTEE'S PARENT COMPANIES, SUBSIDIARIES, PARTNERS, AFFILIATES,
SUCCESSORS AND ASSIGNS, THAT WITH THE SOLE EXCEPTION OF THE
ACTIVITIES PERMITTED IN SECTION 2.2 HEREINBELOW, DURING THE TERM
OF THE EMPLOYMENT AGREEMENT AND FOR A PERIOD OF THREE (3) YEARS
BEYOND THE PERIOD SPECIFIED IN THE EMPLOYMENT AGREEMENT,
COVENANTORS SHALL NOT, DIRECTLY OR INDIRECTLY, WHETHER AS AN
OWNER, SOLE PROPRIETOR, PARTNER, SHAREHOLDER, DIRECTOR, AGENT,
EMPLOYEE, ADVISOR, INDEPENDENT CONTRACTOR OR IN ANY OTHER
CAPACITY WHATSOEVER, OR THROUGH ANY PERSON OR ENTITY UNDER THE
DIRECTION OR CONTROL OF COVENANTORS, CARRY ON OR ENGAGE IN THE
BUSINESS WITHIN THE GEOGRAPHICAL AREA SPECIFIED IN EXHIBIT A
HERETO (INCLUDING NON-CONTIGUOUS STATES, TERRITORIES, POSSESSIONS
AND PROTECTORATES).
2.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY APPEARING
HEREIN, COVENANTORS SHALL NOT BE DEEMED TO BE IN BREACH HEREOF
IF ANY ONE OR MORE OF THEM ENGAGE IN THE PROSCRIBED ACTIVITIES IN
THE CAPACITY OF EMPLOYEE OF THE COVENANTEE OR AS AN AGENT ACTING
ON BEHALF OF COVENANTEE PURSUANT TO THE EMPLOYMENT AGREEMENT
OR AS MAY OTHERWISE BE AGREED TO IN WRITING BY THE COVENANTEE.
3. COVENANT ABSOLUTE; GOOD FAITH OBSERVANCE; BINDING
COVENANT.
3.1 NO CAUSE, CLAIM, EVENT OR CIRCUMSTANCE OF ANY TYPE OR
NATURE, WHETHER OR NOT FORESEEABLE (INCLUDING BUT NOT LIMITED TO
ANY CAUSE, CLAIM, EVENT OR CIRCUMSTANCE WHICH MAY RELATE TO OR
AFFECT THE COVENANTEE AT ANY TIME IN THE FUTURE) SHALL BE DEEMED
TO EXTINGUISH, RELEASE OR EXCUSE THE FAITHFUL PERFORMANCE OF THE
FOREGOING COVENANT OF NON-COMPETITION, THE GOOD FAITH OBSERVANCE
OF WHICH SHALL BE AN ABSOLUTE DUTY WHICH SHALL BE PERFORMED
WITHOUT OFFSET OR COUNTERCLAIM OF ANY TYPE OR NATURE WHATSOEVER.
3.2 COVENANTORS HEREBY EXPRESSLY ACKNOWLEDGE THAT THE
ACTS OF PROHIBITED COMPETITION ENUMERATED ABOVE ARE NOT ONLY
PROSCRIBED AS TO THEIR OWN DIRECT OR INDIRECT CONDUCT; BUT ALSO IT
SHALL BE IMPERMISSIBLE, AND SHALL CONSTITUTE A BREACH OF THE
COVENANT OF NON-COMPETITION HEREUNDER, TO CARRY OUT ANY ACT OF
THE PROHIBITED COMPETITION OR TO ATTEMPT TO DO SO THROUGH THE
AUSPICES OF ANY OTHER PARTY OR ENTITY SO AS ENTITY OR TO ENLIST THE
AID OF, ENGAGE THE SERVICES OF OR TO CONSPIRE WITH ANY OTHER PARTY
OR ENTITY SO AS TO CIRCUMVENT THE SPIRIT AND INTENT OF THIS COVENANT
BY USING OTHER PARTIES OR ENTITIES TO STAND IN THE PLACE OF, OR AS
ALTER EGO OF, COVENANTORS ARE THEMSELVES PROHIBITED FROM DOING
(INCLUDING BY WAY OF EXAMPLE, BUT NOT AS A LIMITATION, THE USE OF
A SO-CALLED "FRONT MAN", "STRAW MAN", "SHAM COMPANY", "FAMILY
MEMBER", RELATIVE, FRIEND OR OTHER PARTY TO CREATE THE FALSE
APPEARANCE THAT ACTS OF PROHIBITED COMPETITION ARE INSTEAD THE
ACT AND DEED OF A PARTY OTHER THAN COVENANTORS).
4. MISCELLANEOUS PROVISIONS.
4.1 ATTORNEY'S FEES & COSTS. IN THE EVENT THAT NAY ACTION
OR OTHER FORMAL PROCEEDING IS INSTITUTED TO ENFORCE OR INTERPRET
ANY PART OF THIS AGREEMENT, THE PARTY PREVAILING IN SUCH ACTION OR
PROCEEDING SHALL BE ENTITLED TO RECOVER, IN ADDITION TO THE
PREVAILING PARTY'S COSTS OF SUIT, SUCH ATTORNEY'S FEES AS THE
PRESIDING TRIBUNAL DEEMS TO HAVE BEEN REASONABLY INCURRED BY THE
PREVAILING PARTY.
4.2 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL BUT ALL OF WHICH, WHEN TAKEN TOGETHER, SHALL CONSTITUTE
ONE AND THE SAME DOCUMENT.
4.3 DEFINITION OF WRITING. ALL REFERENCES IN THIS AGREEMENT
TO "WRITTEN" CONSENTS, NOTICES OR OTHER DOCUMENTATION REQUIRED
TO BE GIVEN, RECEIVED OR OBTAINED, SHALL MEAN A WRITING (PRINTED,
TYPEWRITTEN OR HAND WRITTEN) ACTUALLY SIGNED BY THE PARTY GIVING
SUCH CONSENT, NOTICE OR OTHERWISE, WITH THE INTENT TO GIVE SUCH
CONSENT, NOTICE OR OTHERWISE, FREE FROM DURESS, UNDUE INFLUENCE,
FRAUD AND COERCION.
4.4 GENDER; PLURAL AND SINGULAR. WHENEVER REQUIRED BY
THE CONTEXT HEREOF, THE SINGULAR SHALL BE DEEMED TO INCLUDE THE
PLURAL, THE PLURAL SHALL BE DEEMED TO INCLUDE THE SINGULAR, THE
MASCULINE THE FEMININE, AND THE NEUTER GENDER SHALL BE DEEMED TO
INCLUDE THE OTHERS.
4.5 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY, IN ACCORDANCE WITH AND CONSISTENT
WITH THE LAWS OF THE STATE OF CALIFORNIA, WHICH SHALL APPLY IN ALL
RESPECTS, INCLUDING STATUTES OF LIMITATIONS, TO ANY DISPUTES OR
CONTROVERSIES ARISING OUT OF OR PERTAINING TO THIS AGREEMENT.
4.6 SEVERABILITY. IN THE EVENT THAT ANY TERM, PROVISION,
CLAUSE, ARTICLE, CONDITION OR OTHER PORTION OF THIS AGREEMENT IS
DETERMINED TO BE INVALID, VOID OR UNENFORCEABLE BY A FORUM OF
COMPETENT JURISDICTION, THE SAME SHALL NOT AFFECT ANY OTHER TERM,
PROVISION, CLAUSE, ARTICLE, CONDITION OR OTHER PORTION HEREOF, AND
THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE EFFECT,
AS IF SUCH INVALID, VOID OR UNENFORCEABLE TERM, PROVISION, CLAUSE,
ARTICLE, CONDITION OR OTHER PORTION OF THIS AGREEMENT DID NOT
APPEAR HEREIN.
5. VOLUNTARY EXECUTION.
5.1 EACH OF THE COVENANTORS AND EACH OFFICER EXECUTING
THIS COVENANT ON BEHALF OF A CORPORATE-COVENANTORS DOES HEREBY
EXPRESSLY ACKNOWLEDGE THAT HE/SHE HAS CAREFULLY READ THIS
AGREEMENT, THAT HE/SHE IS COMPLETELY FAMILIAR WITH AND
UNDERSTANDS EACH AND EVERY PROVISION HEREOF, WHEREBY THE PARTIES
DO ENTER INTO, EXECUTE AND ACCEPT IT OF THEIR OWN INDIVIDUAL FREE
AND VOLUNTARY WILL, WITHOUT RELIANCE UPON ANY STATEMENTS,
REPRESENTATIONS, PROMISES, COVENANTS OR INDUCEMENTS MADE BY
ANY PARTY, OR ANY OF THE REPRESENTATIVES, ATTORNEYS OR AGENTS OF
ANY OTHER PARTY, EXCEPT AS ARE INCORPORATED INTO AND FORM A PART
OF THIS AGREEMENT.
IN WITNESS WHEREOF THE PARTIES HAVE SUBSCRIBED THEIR
NAMES OR CAUSED AN AUTHORIZED OFFICER TO SUBSCRIBE THIS
AGREEMENT, EFFECTIVE ON THE DATE FIRST WRITTEN ABOVE.
INTEGRATED MARKETING AGENCY, INC.
A CALIFORNIA CORPORATION
BY....................................................................
ITS:..................................................................
BY....................................................................
JOHN TEUBER
EXHIBIT A
TERRITORY
1. THE FOLLOWING COUNTIES IN THE STATE OF CALIFORNIA:
ALAMEDA
ALPINE
AMADOR
BUTTE
CALAVERAS
COLUSA
CONTRA COSTA
DEL NORTE
EL DORADO
FRESNO
GLENN
HUMBOLDT
IMPERIAL
INYO
KERN
KINGS
LAKE
LASSEN
LOS ANGELES
MADERA
MARIN
MARIPOSA
MENDOCINO
MERCED
MODOC
MONO
MONTEREY
NAPA
NEVADA
ORANGE
PLACER
PLUMAS
RIVERSIDE
SACRAMENTO
SAN BENITO
SAN BERNARDINO
SAN DIEGO
SAN FRANCISCO
SAN LUIS OBISPO
SAN MATEO
SANTA BARBARA
SANTA CLARA
SANTA CRUZ
SHASTA
SIERRA
SISKIYOU
SOLANO
SONOMA
STANISLAUS
SUTTER
TEHAMA
TRINITY
TULARE
TUOLUMNE
VENTURA
YOLO
YUBA
2. THE REMAINDER OF THE UNITED STATES OF AMERICA.
3. EUROPE.
4. SOUTH AMERICA.
5. CANADA.
6. MEXICO.
Exhibit C
PROMISSORY NOTE
PRINCIPAL: $550,000.00 SANTA CLARITA CALIFORNIA
INTEREST: 9% PER ANNUM MARCH 9, 1998
FOR VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, ADVANCED
OXYGEN TECHNOLOGIES, INC., A CORPORATION ORGANIZED
UNDER THE LAWS OF THE STATE OF DELAWARE, (REFERRED TO HEREINBELOW
AS "MAKER") PROMISES TO PAY TO INTEGRATED MARKETING
AGENCY, INC., OR TO ITS ASSIGNS, SUCCESSORS OR ORDER (ALL OF
WHOM ARE REFERRED TO COLLECTIVELY HEREIN AS THE "HOLDER"), AT
SANTA CLARITA, CALIFORNIA OR AT SUCH OTHER PLACE AS THE HOLDER
HEREOF MAY DESIGNATE, THE SUM OF FIVE HUNDRED FIFTY THOUSAND
& NO/100 DOLLARS ($550,000.00), BY LAWFUL MONEY OF THE UNITED
STATES, TOGETHER WITH INTEREST THEREON, IN THE MANNER PRESCRIBED
HEREINBELOW.
THIS NOTE IS ISSUED AND DELIVERED BY MAKER TO HOLDER
PURSUANT TO THAT CERTAIN AGREEMENT FOR PURCHASE AND SALE OF
SPECIFIED BUSINESS ASSETS DATED THE DATE HEREOF BETWEEN MAKER,
AS PURCHASER, AND HOLDER, AS SELLER, RELATING TO THE SALE OF CERTAIN
ASSETS OF HOLDER (THE "PURCHASE AGREEMENT"). ALL OF THE TERMS
AND CONDITIONS OF THIS NOTE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF THE PURCHASE AGREEMENT.
1. INTEREST (TIME-PRICE DIFFERENTIAL).
1.1. MAKER HEREBY ACKNOWLEDGES THAT THE OBLIGATION
EVIDENCED BY THIS INSTRUMENT IS THE BALANCE OF A PURCHASE PRICE ON
A BONAFIDE SALE (NOT A LOAN OF MONEY) AND THAT THE PRICE ON WHICH
THE SALE IS MADE OVER TIME IS MORE THAN THE PRICE UPON ORIGINATION
OF THE OBLIGATION. ACCORDINGLY, THE UNPAID BALANCE OF THIS
INSTRUMENT SHALL ACCRUE INTEREST AT THE RATE OF NINE PERCENT (9%)
PER ANNUM, COMPUTED FOR THE PERIOD COMMENCING ON THE DATE OF
THIS INSTRUMENT AND CONTINUING THEREAFTER UNTIL ALL OBLIGATIONS
HEREUNDER ARE SATISFIED IN FULL. IN THE EVENT THAT ANY OTHER SUM
BECOMING DUE HEREUNDER IS NOT PAID WITHIN THE TIME PRESCRIBED
BY THE TERMS OF THIS INSTRUMENT (INCLUDING PAST DUE INTEREST),
INTEREST SHALL ACCRUE ON SAID SUM AT THE SAME RATE.
2. INSTALLMENT PAYMENTS.
2.1. THE OBLIGATION EVIDENCED BY THIS INSTRUMENT SHALL BE
PAID IN INSTALLMENTS, AS FOLLOWS:
2.1.1. COMMENCING ON THE 10TH DAY OF APRIL, 1998
AND ON THE SAME DAY OF EACH SUCCEEDING MONTH THEREAFTER,
THROUGH AND INCLUDING THE 10TH DAY OF APRIL, 2000, THE SUM OF
NINE THOUSAND NINE HUNDRED TWELVE & 22/100 U.S. DOLLARS
($9,912.22);
2.1.2. ON THE 10TH DAY OF APRIL, 2000, THE SUM OF
THREE HUNDRED NINETY-EIGHT THOUSAND THREE HUNDRED EIGHTY-
TWO & 01/100 U.S. DOLLARS ($398,382.01).
3. "BALLOON PAYMENT" STATUTE INAPPLICABLE.
3.1. NO PAYMENT OR PAYMENTS REQUIRED BY THE TERMS OF THIS
INSTRUMENT CONSTITUTE A SO-CALLED "BALLOON PAYMENT" AS DEFINED
IN CALIFORNIA CIVIL CODE SECTION2956, ET SEQ. NO NOTICE OF ANY BALLOON
PAYMENT BECOMING DUE SHALL BE REQUIRED TO BE GIVEN BY THE
HOLDER AND MAKER HEREBY EXPRESSLY WAIVES THE NECESSITY OF NOTICE
OF ANY SUCH PAYMENT BENEFIT OF ANY AND ALL LAWS AND STATUTES
UNDER ANY JURISDICTION REQUIRING SUCH NOTICE.
INITIALS:
4. APPLICATION OF PAYMENTS.
4.1. ALL PAYMENTS MADE BY MAKER HEREUNDER SHALL BE
APPLIED FIRST TO THE UNPAID BALANCE OF PRINCIPAL, AND THE
REMAINDER THEREOF SHALL BE APPLIED TO THE UNPAID BALANCE OF
INTEREST.
5. PROMISE TO PAY UNCONDITIONAL.
5.1. SUBJECT ONLY TO SECTION 13 HEREIN, MAKER'S PROMISE TO
PAY THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT IS ABSOLUTE
AND UNCONDITIONAL. THE ENTIRE SUM OF PRINCIPAL AND ACCRUED
INTEREST THEREON, AS WELL AS ANY OTHER SUM BECOMING DUE AND
PAYABLE BY MAKER UNDER THE TERMS OF THIS INSTRUMENT SHALL
BECOME DUE AND PAYABLE AS SPECIFIED HEREIN WITHOUT OFFSET,
REDUCTION, CONTEST OR COUNTERCLAIM OF ANY TYPE OR NATURE
WHATSOEVER AND WITHOUT NOTICE, EXCEPT SUCH NOTICE AS MAY BE
EXPRESSLY REQUIRED BY STATUTE.
6. MAKER'S RIGHT TO PREPAY RESERVED.
6.1. AS A MATERIAL PART OF THE CONSIDERATION FOR THE
OBLIGATIONS CREATED BY THIS INSTRUMENT, MAKER HEREBY EXECUTES
SAME WITH THE EXPRESS UNDERSTANDING THAT MAKER MAY, AT MAKER'S
SOLE OPTION, PAY WITHOUT PENALTY OR OTHER CHARGE, ANY AMOUNT OF
THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT AT ANY TIME IN
ADVANCE OF THE DUE DATE THEREOF; PROVIDED, HOWEVER THAT ANY SUCH
PREPAYMENT WHICH IS LESS THAN THE AMOUNT THEN NECESSARY TO
SATISFY THE ENTIRE UNPAID BALANCE DUE UNDER THIS INSTRUMENT, SHALL
NOT OPERATE TO REDUCE THE AMOUNTS PRESCRIBED ABOVE TO BE PAID IN
INSTALLMENTS.
7. DEFINITION OF LATE PAYMENT.
7.1. ANY INSTALLMENT PAYMENT OR PAYMENT OF ANY OTHER
AMOUNT BECOMING DUE HEREUNDER WHICH IS NOT RECEIVED BY THE
HOLDER BY THE TENTH (L0TH) DAY FOLLOWING THE DUE DATE THEREOF SHALL
BE DEEMED TO BE A LATE PAYMENT.
8. SERVICE CHARGE ON LATE PAYMENT.
8.1. MAKER HEREBY ACKNOWLEDGES THAT THE HOLDER'S
DAMAGES IN THE EVENT OF A LATE PAYMENT WILL BE DIFFICULT OR
IMPOSSIBLE TO PRECISELY ASCERTAIN AND THEREFOR AGREES TO PAY THE
HOLDER, IN ADDITION TO EACH AND EVERY LATE PAYMENT, A SERVICE
CHARGE IN A SUM WHICH IS SIX PERCENT (6%) OF THE AMOUNT NOT
TIMELY PAID. THIS PROVISION FOR PAYMENT OF A SERVICE CHARGE IS
INCLUDED BY MAKER FOR THE EXPRESS PURPOSE OF MITIGATING THE
HOLDER'S DAMAGES IN THE EVENT OF A LATE PAYMENT, AND NOT AS A
PENALTY, WHICH MAKER HEREBY ACKNOWLEDGES TO BE REASONABLE
UNDER THE CIRCUMSTANCES PREVAILING ON THE DATE OF THIS
INSTRUMENT. HOLDER'S ACCEPTANCE OF A LATE PAYMENT AND/OR SERVICE
CHARGE SHALL NOT BE DEEMED TO CONSTITUTE A WAIVER OF HOLDER'S RIGHT
TO RECEIVE TIMELY PAYMENTS THEREAFTER, NOR A WAIVER OF HOLDER'S
RIGHTS AS A SECURED CREDITOR, NOR A CURE OF ANY OTHER DEFAULT.
9. ALL OBLIGATIONS SECURED.
9.1. THE ENTIRE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT
AND ALL OBLIGATIONS OF MAKER HEREUNDER ARE SECURED BY EACH, EVERY
AND ALL OF THE PURCHASED ASSETS PURSUANT TO THE PURCHASE
AGREEMENT AND A SECURITY AGREEMENT, ENTERED INTO BY MAKER
CONTEMPORANEOUSLY WITH THIS INSTRUMENT, WHICH CONTRACTS ARE
INCORPORATED BY THIS REFERENCE AS A PART HEREOF AS THOUGH SET FORTH
IN FULL HEREAT.
10. DEFINITION OF DEFAULT.
10.1. MAKER SHALL BE DEEMED TO BE IN DEFAULT OF ITS
OBLIGATIONS UNDER THIS INSTRUMENT IN THE EVENT OF ANY ONE OR MORE
OF THE FOLLOWING:
(A) A LATE PAYMENT (AS DEFINED ABOVE) WHICH IS NOT
RECEIVED BY THE HOLDER, TOGETHER WITH THE LATE PAYMENT SERVICE
CHARGE PRESCRIBED ABOVE, BY THE FIFTEENTH (L5TH) DAY FOLLOWING THE
DUE DATE OF SUCH PAYMENT;
(B) ANY ACT, EVENT, FAILURE, OMISSION, MISREPRESENTATION OR
OTHER CIRCUMSTANCE CONSTITUTING A DEFAULT AS SAME IS DEFINED IN
THE AFORESAID AGREEMENT FOR PURCHASE AND SALE OF SPECIFIED
BUSINESS ASSETS AND A SECURITY AGREEMENT.
11. HOLDER'S OPTION TO ACCELERATE IN EVENT OF DEFAULT, ETC.
11.1. NOTWITHSTANDING AND IRRESPECTIVE OF THE MATURITY
DATE OF THIS INSTRUMENT, IN THE EVENT OF ANY DEFAULT, THE HOLDER
SHALL HAVE THE RIGHT, AT THE HOLDER'S OPTION, AFTER THIRTY (30) DAYS'
NOTICE TO MAKER, DURING WHICH SUCH PERIOD MAKER SHALL HAVE THE
RIGHT TO CURE THE DEFAULT OR DEFAULTS SPECIFIED IN SUCH NOTICE, TO
DECLARE THE ENTIRE BALANCE OF THE UNPAID PRINCIPAL WITH ACCRUED
INTEREST AND ANY OTHER SUMS BECOMING PAYABLE UNDER THE TERMS
OF THIS INSTRUMENT FORTHWITH DUE AND PAYABLE.
12. HOLDER'S REMEDIES CUMULATIVE.
12.1. ALL REMEDIES ACCORDED TO THE HOLDER UNDER THE TERMS
OF THIS INSTRUMENT AND UNDER THE AFORESAID PURCHASE AGREEMENT
AND A SECURITY AGREEMENT SHALL BE CUMULATIVE AND ADDITIONAL
EACH TO THE OTHER AND TO ANY OTHER RIGHTS OR REMEDIES ASSOCIATED
WITH SECURITY INTERESTS IN REAL PROPERTY, UNDER APPLICABLE LAW AND
EQUITY. THE EXERCISE BY THE HOLDER OF ANY ONE RIGHT OR REMEDY
SHALL NOT CONSTITUTE AN EXCLUSIVE ELECTION OR WAIVER OF ANY OTHER
RIGHT OR REMEDY.
13. SET-OFF.
13.1. NOTWITHSTANDING ANY OTHER PROVISION IN THIS NOTE,
MAKER SHALL HAVE THE RIGHT TO SET OFF, IN DIRECT ORDER OF MATURITY,
AGAINST ANY PAYMENTS DUE UNDER THIS NOTE ANY AND ALL AMOUNTS
OWED TO MAKER PURSUANT TO THE PURCHASE AGREEMENT, BY REASON
OF HOLDER'S BREACH OF A REPRESENTATION OR WARRANTY THEREUNDER,
AND NOT PAID, PROVIDED THAT MAKER SHALL PROVIDE HOLDER WITH
WRITTEN NOTICE OF THE AMOUNT TO BE SET OFF AND THE REASONS THEREFOR
(A "SET-OFF NOTICE") AT ANY TIME PRIOR TO THE DATE OR DATES ON
WHICH MAKER INTENDS TO APPLY A SET-OFF FROM THE AMOUNT DUE
UNDER THIS NOTE. IF, AFTER ITS RECEIPT OF A SET-OFF NOTICE AND
PAYMENT BY MAKER OF ANY AMOUNT DUE UNDER THIS NOTE LESS THE
AMOUNT SET-OFF BY MAKER, HOLDER DISAGREES WITH THE AMOUNT OF OR
REASON FOR THE SET-OFF SPECIFIED IN A SET-OFF NOTICE, HOLDER SHALL BE
PROHIBITED FROM DECLARING THE OBLIGATIONS UNDER THIS NOTE, BY
REASON OF THE SET-OFF, TO BE IN DEFAULT AND, UPON HOLDER'S NOTICE
THEREOF TO MAKER, THE PARTIES SHALL ATTEMPT TO RESOLVE THE MATTER
IN GOOD FAITH. FAILING SUCH RESOLUTION, HOLDER MAY SEEK AN
EQUITABLE RESOLUTION IN A COURT OF LAW, AND DURING SUCH TIME AS THE
MATTER IS PENDING AND UNTIL THE MATTER IS FINALLY AND JUDICIALLY
RESOLVED, HOLDER SHALL BE PROHIBITED FROM DECLARING THE
OBLIGATIONS UNDER THIS NOTE, BY REASON OF THE SET-OFF, TO BE IN
DEFAULT.
13.2. IF MAKER EXERCISES ITS RIGHT OF SET-OFF IN GOOD FAITH
AND IT IS SUBSEQUENTLY DETERMINED THAT SUCH EXERCISE WAS
UNWARRANTED, MAKER SHALL PROMPTLY PAY ALL AMOUNTS IMPROPERLY
SET OFF, PLUS INTEREST FROM THE DATE OF THE SET-OFF UNTIL THE DATE OF
THE PAYMENT AT THE RATE OF 9% PER ANNUM, AND UPON SUCH
PAYMENT MAKER SHALL BE DEEMED TO BE IN FULL COMPLIANCE WITH ITS
OBLIGATIONS UNDER THIS NOTE.
14. PROVISIONS COMMON TO ENTIRE INSTRUMENT.
14.1. THE FOLLOWING TERMS SHALL APPLY TO THE OBLIGATIONS
ARISING UNDER THIS INSTRUMENT IN ITS ENTIRETY:
14.1.1. ATTORNEY FEES & COSTS. MAKER EXPRESSLY
AGREES THAT, IN THE EVENT OF COMMENCEMENT OF A SUIT, COLLECTION
ACTION, FORECLOSURE OR OTHER ACTION TO ENFORCE OR INTERPRET ANY
PROVISION OF THIS INSTRUMENT, THE HOLDER HEREOF SHALL BE ENTITLED TO
ALSO RECOVER, IN ADDITION TO ALL UNPAID PRINCIPAL AND INTEREST, ALL
COSTS OF SUCH SUIT, COLLECTION, FORECLOSURE OR OTHER ENFORCEMENT
ACTION AS WELL AS ALL REASONABLE ATTORNEYS' FEES INCURRED BY THE
HOLDER IN CONNECTION THEREWITH.
14.1.2. GENDER PLURAL AND SINGULAR. WHENEVER
REQUIRED BY THE CONTEXT HEREOF, THE SINGULAR SHALL BE DEEMED TO
INCLUDE THE PLURAL, THE PLURAL SHALL BE DEEMED TO INCLUDE THE
SINGULAR, THE MASCULINE THE FEMININE, AND THE NEUTER GENDER SHALL
BE DEEMED TO INCLUDE THE OTHERS.
14.1.3. GOVERNING LAW. THIS INSTRUMENT SHALL BE
INTERPRETED. CONSTRUED AND GOVERNED BY, IN ACCORDANCE WITH AND
CONSISTENT WITH THE LAWS OF THE STATE OF CALIFORNIA, WHICH SHALL
APPLY IN ALL RESPECTS, INCLUDING STATUTES OF LIMITATIONS, TO ANY
DISPUTES OR CONTROVERSIES ARISING OUT OF OR PERTAINING TO THIS
AGREEMENT.
14.1.4. METHOD OF GIVING NOTICES. ANY NOTICE
REQUIRED OR PERMITTED TO BE GIVEN HEREUNDER SHALL BE SO GIVEN BY
REGISTERED OR CERTIFIED (RETURN RECEIPT) UNITED STATES POSTAL
SERVICE MAIL, POSTAGE PRE-PAID, UNLESS A NOTICE TRANSMITTED IN SAID
MANNER IS RETURNED TO THE SENDER AS UN- CLAIMED, REFUSED OR
UNDELIVERABLE, OR UNLESS THE PARTY GIVING NOTICE HAS A GOOD FAITH
REASON TO BELIEVE THAT A NOTICE TRANSMITTED IN SAID MANNER WILL BE
SO RETURNED, IN WHICH CASE SUCH NOTICE MAY BE GIVEN, AT THE
SENDER'S OPTION, BY PERSONAL SERVICE OR BY FIRST CLASS MAIL PROVIDED
THAT SUCH ALTERNATIVE METHOD IS EFFECTUATED BY A DISINTERESTED
PARTY WHO ATTESTS THERETO BY A WRITTEN DECLARATION UNDER PENALTY
OF PERJURY IN A FORM CONSISTENT WITH THE PROVISIONS OF CALIFORNIA
CODE OF CIVIL PROCEDURE SECTION1013A AUTHORIZING SERVICE BY MAIL. ANY
SUCH NOTICE SHALL BE ADDRESSED TO OR DELIVERED TO THE RECIPIENT AS
FOLLOWS:
IN THE CASE OF : ADDRESSED TO:
MAKER: ADVANCED OXYGEN
TECHNOLOGIES, INC.
ATTN: ROBERT E. WOLFE,
PRESIDENT
C/O CROSSFIELD INCORPORATED
230 PARK AVENUE, SUITE 1000
NEW YORK, NEW YORK 10169
HOLDER: INTEGRATED MARKETING
AGENCY, INC.
ATTN.: JOHN TEUBER, PRESIDENT
20457 KELSEY DRIVE
CANYON COUNTRY, CALIFORNIA 91351
IN THE EVENT THAT NOTICE IS TRANSMITTED BY U.S. MAIL, SUCH NOTICE
SHALL BE DEEMED TO HAVE BEEN RECEIVED BY THE ADDRESSEE AND
SERVICE THEREOF SHALL BE EFFECTIVE FIVE (5) DAYS FOLLOWING DEPOSIT
THEREOF WITH THE UNITED STATES POSTAL SERVICE, OR UPON ACTUAL
RECEIPT, WHICHEVER FIRST OCCURS, UNLESS THE ADDRESS FOR DELIVERY IS
NOT WITHIN THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS, IN
WHICH CASE SERVICE SHALL BE EFFECTIVE SEVEN (7) DAYS FOLLOWING
DEPOSIT THEREOF, OR UPON ACTUAL RECEIPT, WHICHEVER FIRST OCCURS. A
PARTY MAY CHANGE THE ABOVE-SPECIFIED ADDRESS BY GIVING THE OTHER
PARTY NOTICE OF THE NEW ADDRESS IN THE MANNER ABOVE-PRESCRIBED
FOR ALL NOTICES.
14.1.5. SEVERABILITY. IN THE EVENT THAT ANY TERM
PROVISION, CLAUSE, ARTICLE, CONDITION OR OTHER PORTION OF THIS
INSTRUMENT IS DETERMINED TO BE INVALID, VOID OR UNENFORCEABLE BY
A FORUM OF COMPETENT JURISDICTION, THE SAME SHALL NOT AFFECT ANY
OTHER TERM, PROVISION, CLAUSE, ARTICLE, CONDITION OR OTHER PORTION
HEREOF, AND THE REMAINDER OF THIS INSTRUMENT SHALL CONTINUE IN FULL
FORCE AND EFFECT, AS IF SUCH INVALID, VOID OR UNENFORCEABLE TERM,
PROVISION, CLAUSE, ARTICLE, CONDITION OR OTHER PORTION OF THIS
INSTRUMENT DID NOT APPEAR HEREIN.
14.1.6. TERMS BINDING ON SUCCESSORS, ETC. ALL TERMS
AND CONDITIONS SET FORTH IN THIS INSTRUMENT SHALL BE BINDING UPON
AND BE OBSERVED BY THE SUCCESSORS, ASSIGNS, REPRESENTATIVES,
TRUSTEES, AND RECEIVERS OF MAKER AND THE SUCCESSORS, ASSIGNS,
REPRESENTATIVES, TRUSTEES, AND RECEIVERS OF THE HOLDER.
IN WITNESS WHEREOF, MAKER HAS CAUSED ITS
DULY-AUTHORIZED OFFICERS TO EXECUTE THIS INSTRUMENT AND AFFIX
MAKER'S CORPORATE SEAL ON THE DATE AND IN THE PLACE FIRST WRITTEN
ABOVE.
MAKER:
ADVANCED OXYGEN TECHNOLOGIES, INC.
BY: _____________________________________
NAME: ROBERT E. WOLFE
ITS: PRESIDENT
ATTEST:
__________________________
EXHIBIT D
SECURITY AGREEMENT
THIS SECURITY AGREEMENT IS DATED FOR IDENTIFICATION AND
MADE EFFECTIVE ON THE 9TH DAY OF MARCH, 1998, IN THE COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, BY, BETWEEN AND AMONG THE
FOLLOWING PARTIES:
FIRST PARTY:
INTEGRATED MARKETING AGENCY, INC., A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF CALIFORNIA (HEREINAFTER REFERRED TO AS "SECURED
PARTY").
SECOND PARTY
ADVANCED OXYGEN TECHNOLOGIES, INC., A
CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE
STATE OF DELAWARE (HEREINAFTER REFERRED TO AS "DEBTOR").
1. RECITALS.
1.1. THE RIGHTS, DUTIES AND OBLIGATIONS ARISING UNDER
THIS AGREEMENT ARE PREMISED UPON THE FOLLOWING FACTS WHICH ARE
RECITED HEREAT TO HAVE THE FORCE OF CONCLUSIVE PRESUMPTIONS
PURSUANT TO THE PROVISIONS OF CALIFORNIA EVIDENCE CODE SECTION
622:
1.1.1. DEBTOR AND SECURED PARTY HAVE,
CONTEMPORANEOUSLY WITH THIS AGREEMENT ENTERED INTO AN
AGREEMENT FOR THE PURCHASE AND
SALE OF SPECIFIED BUSINESS ASSETS DATED AS OF THE DATE
HEREOF (THE "PURCHASE AGREEMENT") PURSUANT TO WHICH
DEBTOR HAS BECOME INDEBTED TO SECURED PARTY PURSUANT TO
A PROMISSORY NOTE DATED AS OF THE DATE HEREOF (THE
"PROMISSORY NOTE") IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FIFTY THOUSAND U.S. DOLLARS ($550,000.00).
1.1.2. AS A MATERIAL TERM OF THE SAID PURCHASE
AGREEMENT, SECURED PARTY IS TO BE SECURED FOR DEBTOR'S
FAITHFUL AND TIMELY PAYMENT OF THE PROMISSORY NOTE.
1.1.3. IN FURTHERANCE OF THE SAID PURCHASE
AGREEMENT, THE PARTIES INTEND BY THIS AGREEMENT TO CREATE
A PERFECTED SECURITY INTEREST IN FAVOR OF SECURED PARTY BY
WHICH CERTAIN BUSINESS ASSETS ACQUIRED BY DEBTOR UNDER
THE PURCHASE AGREEMENT SHALL BE ENCUMBERED UNTIL FULL
AND COMPLETE PAYMENT OF THE INDEBTEDNESS EVIDENCED BY
THE PROMISSORY NOTE BY DEBTOR TO SECURED PARTY.
1.2. IN CONSIDERATION OF THE DUTIES CREATED HEREIN AND
THE BENEFITS CONFERRED HEREBY, THE ADEQUACY OF WHICH IS HEREBY
ACKNOWLEDGED, EACH OF THE PARTIES VOLUNTARILY ENTERS INTO THIS
AGREEMENT.
2. CONSTRUCTION & INTERPRETATION.
2.1. ALL DOCUMENTS REFERRED TO IN THIS AGREEMENT AS
"SCHEDULES" AND "EXHIBITS" ARE HEREBY INCORPORATED BY SUCH
REFERENCE AS A PART OF THIS AGREEMENT AS THOUGH SET FORTH IN FULL AT
THE POINT OF SUCH REFERENCE.
2.2. WHENEVER IN THIS AGREEMENT THERE APPEARS THE
LOCATIVE ADVERBS "HEREIN", "HEREUNDER", "HEREINBELOW",
"HEREINABOVE", "UNDER THIS AGREEMENT", OR ANY SUBSTANTIALLY
SIMILAR ADVERB OR PHRASE, THE SAME SHALL BE DEEMED TO REFER TO
THIS AGREEMENT IN ITS ENTIRETY AND NOT TO ANY SPECIFIC ARTICLE,
SECTION, SUBSECTION, SUBPART, PARAGRAPH OR SUBPARAGRAPH.
2.3. AS USED HEREIN, THE TERMS "IN THIS AGREEMENT",
"UNDER THIS AGREEMENT" OR SUBSTANTIALLY SIMILAR TERMS, ENCOMPASS
NOT ONLY THE FOUR CORNERS OF THIS AGREEMENT, BUT ALSO MEAN, REFER
TO AND INCLUDE ALL EXHIBITS ATTACHED HERETO.
3. DEFINITIONS.
3.1. IN ADDITION TO ANY OTHER TERMS OR PHRASES WHICH
MAY BE DEFINED HEREIN, THE FOLLOWING DEFINITIONS SHALL APPLY TO
AND GOVERN THIS AGREEMENT:
3.1.1. "COMMERCIAL CODE" MEANS AND REFERS TO THE
UNIFORM COMMERCIAL CODE IN THE FORM ADOPTED BY THE
STATE OF CALIFORNIA.
3.1.2. THE "COLLATERAL" MEANS AND REFERS TO THE
ACQUIRED ASSETS, AS SUCH TERM IS DEFINED IN THE PURCHASE
AGREEMENT, AND CONSISTING OF THE ASSETS LISTED ON SCHEDULE
"1" HERETO. FOR PURPOSES OF THIS AGREEMENT, THE
"COLLATERAL" ALSO EXPRESSLY MEANS AND INCLUDES ALL
ADDITIONS, SUBSTITUTIONS, IMPROVEMENTS, INCREASES IN VALUE
OF AND REPLACEMENTS OF THE COLLATERAL LISTED ON SCHEDULE
"1", WITHOUT LIMITATION.
3.1.3. "SECURED OBLIGATIONS" MEANS AND REFERS,
COLLECTIVELY, TO EACH, EVERY AND ALL OF THE FOLLOWING:
(A) ALL INDEBTEDNESS EVIDENCED BY AND OWING BY
DEBTOR UNDER THE TERMS OF THE PROMISSORY NOTE;
(B) ALL OBLIGATIONS, TERMS, CONDITIONS AND
COVENANTS REQUIRED TO BE PERFORMED, PAID OR OBSERVED BY
DEBTOR UNDER THE TERMS OF THIS AGREEMENT; AND
(C) THE REPAYMENT BY DEBTOR TO SECURED PARTY
OF ANY AND ALL OTHER SUMS AND AMOUNTS THAT MAY BE
HEREAFTER ADVANCED OR EXPENDED BY SECURED PARTY OR
LOANED TO DEBTOR BY SECURED PARTY (IF ANY SUCH ADVANCES,
EXPENDITURES OR LOANS OCCUR) FOR THE MAINTENANCE OR
PRESERVATION OF THE COLLATERAL OR ON ACCOUNT OF ANY
OBLIGATION REQUIRED BY THE TERMS OF THIS AGREEMENT TO HAVE
BEEN PAID, SATISFIED OR PERFORMED BY DEBTOR WITH RESPECT
TO WHICH DEBTOR BECOMES UNABLE TO PAY, SATISFY OR
PERFORM OR BECOMES IN BREACH OR DEFAULT, WITHOUT
LIMITATION, INCLUDING BY WAY OF EXAMPLE ONLY, EXPENDITURES
FOR TAXES, ASSESSMENTS, LIENS, INSURANCE PREMIUMS AND THE
LIKE (ALL OF WHICH SECURED PARTY IS PERMITTED BUT NOT
REQUIRED TO ADVANCE OR EXPEND UNDER THE TERMS OF THIS
AGREEMENT).
3.1.4. "UCC-1 FORM" MEANS AND REFERS TO THE
UNIFORM COMMERCIAL CODE FINANCING STATEMENT THAT SHALL
COMPRISE A PART OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT IN A FORM SUBSTANTIALLY IDENTICAL TO EXHIBIT
"A."
4. GRANT OF SECURITY INTEREST; PERFECTION.
4.1. DEBTOR HEREBY GRANTS AND CONVEYS TO SECURED PARTY
A SECURITY INTEREST IN THE COLLATERAL AND ALL PARTS THEREOF.
4.2. THE COLLATERAL SHALL SECURE THE FAITHFUL AND TIMELY
PAYMENT AND PERFORMANCE OF EACH, EVERY AND ALL OF THE SECURED
OBLIGATIONS.
4.3. THE SECURITY INTEREST GRANTED UNDER THIS AGREEMENT
SHALL BE PERFECTED BY THE EXECUTION AND FILING AND/OR RECORDATION
(IN THE MANNER PRESCRIBED BY LAW AND CUSTOM FROM TIME TO TIME)
OF THE UCC-1 IN EVERY JURISDICTION IN WHICH THE COLLATERAL OR ANY
PART THEREOF IS LOCATED.
5. TERM OF SECURITY INTEREST: CONTINUATION: TERMINATION:
RELEASE
5.1. THE SECURITY INTEREST GRANTED HEREUNDER SHALL
ATTACH CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT AND
SHALL CONTINUE THEREAFTER SO LONG AS THE SECURED OBLIGATIONS OR
ANY OF THEM OR ANY PART OF THEM ARE UNPAID, UNSATISFIED OR
UNPERFORMED.
5.2. IF, UNDER ANY PROVISION OF THE COMMERCIAL CODE OR
OTHER APPLICABLE LAW, THE UCC-1 COMES TO EXPIRATION PRIOR TO FULL
PAYMENT, SATISFACTION AND PERFORMANCE BY DEBTOR OF ALL OF THE
SECURED OBLIGATIONS, DEBTOR SHALL, UPON A WRITTEN REQUEST OF
SECURED PARTY, PROMPTLY EXECUTE ONE OR MORE UCC FINANCING
CONTINUATION STATEMENT(S), IN A FORM SUITABLE UNDER PREVAILING LAW
AND CUSTOM FOR FILING AND/OR RECORDATION IN EVERY JURISDICTION IN
WHICH THE COLLATERAL OR ANY PART THEREOF IS LOCATED, THEREBY
EXTENDING THE SECURITY INTEREST UNTIL ALL OF THE SECURED OBLIGATIONS
HAVE BEEN FULLY PAID, SATISFIED AND PERFORMED.
5.3. WHEN THE SECURED OBLIGATIONS HAVE BEEN FULLY
PAID, SATISFIED AND PERFORMED, THE SECURITY INTEREST SHALL
TERMINATE.
5.4. PROMPTLY UPON TERMINATION OF THE SECURITY INTEREST
GRANTED HEREUNDER, SECURED PARTY SHALL EXECUTE AND CAUSE TO BE
FILED AND/OR RECORDED, AS APPLICABLE, A TERMINATION STATEMENT (IN
THE FORM THEN PRESCRIBED BY LAW AND CUSTOM) IN ALL JURISDICTIONS
WHERE THE UCC-1 WAS FILED AND/OR RECORDED DURING THE TERM OF
THE SECURITY INTEREST, THEREIN SPECIFYING THAT THE SECURITY INTEREST
HAS THEN BECOME FULLY RELEASED.
6. SPECIFIC COVENANTS OF DEBTOR
6.1. IN ADDITION TO, AND NOT AS A LIMITATION UPON ANY
OTHER OBLIGATIONS OF DEBTOR ARISING HEREUNDER, DEBTOR SPECIFICALLY
COVENANTS THAT, DURING THE TERM OF THE SECURITY INTEREST CREATED
HEREUNDER:
6.1.1. DEBTOR SHALL PROMPTLY ADVISE SECURED PARTY,
IN REASONABLE DETAIL, (I) OF ANY LIEN, SECURITY INTEREST,
ENCUMBRANCE, OR CLAIM MADE OR ASSERTED AGAINST ANY OF
THE COLLATERAL, (II) OF ANY MATERIAL CHANGE, SUBSTANTIAL LOSS
OR DEPRECIATION IN THE COMPOSITION OF THE COLLATERAL, AND
(III) OF THE OCCURRENCE OF ANY OTHER MATERIAL ADVERSE EFFECT
ON THE AGGREGATE VALUE, ENFORCEABILITY OR COLLECTIBILITY OF
THE COLLATERAL OR ON THE SECURITY INTERESTS CREATED
HEREUNDER.
6.1.2. DEBTOR SHALL PROMPTLY NOTIFY AND PROVIDE
SECURED PARTY WITH A COMPLETE DESCRIPTION OF THE OPENING OF
ANY NEW PLACES OF BUSINESS, THE CLOSING OF ANY EXISTING PLACES
OF BUSINESS, THE CONDUCT OF BUSINESS UNDER ANY NAMES OR
THROUGH ANY ENTITIES OTHER THAN THOSE SET FORTH HEREIN, THE
RELOCATION OF ANY OF THE COLLATERAL TO ANY NEW PLACE OF
BUSINESS OR ANY OTHER ACT WHICH WOULD AFFECT THE FINANCING
STATEMENTS FILED BY SECURED PARTY.
6.1.3. DEBTOR SHALL, TO THE EXTENT REASONABLY
POSSIBLE, KEEP ALL PARTS OF THE COLLATERAL TOGETHER AS A
FUNCTIONING WHOLE AND SHALL NOT PERMIT THE PARTS OF THE
COLLATERAL TO BE DISPERSED OR SEGREGATED EXCEPT IN THE
ORDINARY COURSE OF BUSINESS.
6.1.4. DEBTOR SHALL, UPON THE REQUEST OF SECURED
PARTY, APPRISE SECURED PARTY OF THE LOCATION OF THE
COLLATERAL AND ALL PARTS THEREOF, AS SAME MAY BE SITUATED
FROM TIME TO TIME.
6.1.5. DEBTOR SHALL CONTINUOUSLY TAKE ALL STEPS THAT
ARE NECESSARY OR PRUDENT TO PROTECT THE SECURITY INTERESTS OF
SECURED PARTY IN THE COLLATERAL.
6.1.6. DEBTOR SHALL PERMIT SECURED PARTY AT ALL
REASONABLE TIMES TO ENTER ANY PREMISES WHERE THE
COLLATERAL OR ANY PART THEREOF IS SITUATED AND TO INSPECT
SOME IN PERSON OR BY AGENT.
6.1.7. DEBTOR SHALL DEFEND THE COLLATERAL AGAINST THE
CLAIMS AND DEMANDS OF ALL PERSONS.
6.1.8. DEBTOR SHALL PAY ALL TAXES, ASSESSMENTS,
LICENSE FEES, REGISTRATION FEES AND GOVERNMENTAL CHARGES OF
EVERY TYPE AND NATURE LEVIED OR ASSESSED UPON THE
COLLATERAL, AND UPON ANY PART THEREOF AND UPON THE
INCOME OR PROFITS THEREOF, BEFORE SUCH LEVY BECOMES
DELINQUENT.
6.1.9. DEBTOR SHALL TIMELY PAY AND DISCHARGE ALL
LAWFUL CLAIMS OR DEMANDS FOR LABOR, MATERIALS OR SUPPLIES
OR OTHER OBLIGATIONS WHICH MIGHT BECOME A LIEN OR CHARGE
UPON ANY OF THE COLLATERAL OR PROCEEDS THEREOF.
6.1.10. DEBTOR SHALL COMPLY WITH THE TERMS AND
CONDITIONS OF ANY AND ALL ORDERS, ORDINANCES, LAWS AND
STATUTES OF EVERY GOVERNMENTAL AUTHORITY HAVING
JURISDICTION WITH RESPECT TO THE COLLATERAL OR THE USE
THEREOF.
6.1.11. DEBTOR SHALL INDEMNIFY SECURED PARTY FOR,
HEREBY ASSUMES, AND SHALL BEAR THE ENTIRE RISK OF LOSS AND
DAMAGE TO THE COLLATERAL AND ALL PARTS THEREOF FROM ANY
AND EVERY CAUSE WHATSOEVER. NO LOSS OR DAMAGE TO THE
COLLATERAL OR ANY PART THEREOF SHALL ABATE THE PAYMENT
AND/OR PERFORMANCE OF ANY OF THE SECURED OBLIGATIONS,
WHICH SHALL CONTINUE IN FULL FORCE AND EFFECT,
NOTWITHSTANDING ANY SUCH LOSS OR DAMAGE.
6.1.12. DEBTOR SHALL MAINTAIN A POLICY OR POLICIES OF
INSURANCE IN FULL FORCE AND EFFECT, AND SHALL PAY ALL
PREMIUMS THERETO IMMEDIATELY WHEN DUE, COVERING THE
COLLATERAL AND EVERY INSURABLE PART THEREOF, IN SUCH
AMOUNTS AND WITH SUCH COVERAGE AS IS CUSTOMARY IN
DEBTOR'S TYPE OF BUSINESS. SECURED PARTY SHALL BE NAMED
AS AN ADDITIONAL INSURED ON SUCH POLICY(IES), AND SUCH
POLICY(IES) SHALL CONTAIN AN ENDORSEMENT THAT THE ISSUE
THEREOF SHALL GIVE SECURED PARTY NOTICE OF ANY CANCELLATION
OR AMENDMENT TO SUCH POLICY NOT LESS THAN THIRTY (30) DAYS
PRIOR TO THE EFFECTIVE DATE OF SUCH CANCELLATION OR
AMENDMENT. CONCURRENTLY WITH THE ISSUANCE THEREOF,
DEBTOR SHALL DELIVER TO SECURED PARTY COPIES OF ALL EXISTING
AND FUTURE POLICIES, ENDORSEMENTS, PREMIUM NOTICES,
CANCELLATION NOTICES AND OTHER DOCUMENTATION OF ANY SORT
ISSUED BY THE INSURANCE CARRIER RELATING TO ALL OF SUCH
POLICIES. DEBTOR SHALL DELIVER TO SECURED PARTY, PROMPTLY
AS RENDERED, A COPY OF ALL REPORTS MADE TO INSURANCE
COMPANIES WITH REGARD TO ANY LOSS AND/OR DAMAGE
SUSTAINED BY OR TO THE COLLATERAL. DEBTOR HEREBY GRANTS TO
SECURED PARTY A SECURITY INTEREST IN ALL SUCH POLICIES, NOW
OR HEREAFTER ISSUED, AS WELL AS IN THE PROCEEDS THEREOF. THE
PROCEEDS OF ANY INSURANCE, WHETHER PAID BY REASON OF LOSS
OR DAMAGE, ARE HEREBY ASSIGNED TO SECURED PARTY.
INSURANCE PROCEEDS NOT IMMEDIATELY APPLIED TOWARD
REPLACEMENT OR REPAIR OF THE COLLATERAL SHALL BE PAID TO
SECURED PARTY AND THEREUPON APPLIED TO THE INDEBTEDNESS
OF DEBTOR, BEING CREDITED ON ACCOUNT OF THE REMAINING
PAYMENTS BECOMING DUE TO SECURED PARTY ON THE SECURED
OBLIGATIONS. IMMEDIATELY UPON THE REQUEST OF SECURED
PARTY, DEBTOR SHALL DELIVER TO SECURED PARTY PROOF OF
PAYMENT OF PREMIUMS OF ALL INSURANCE REQUIRED BY THIS
AGREEMENT TO BE CARRIED BY DEBTOR.
6.1.13. DEBTOR SHALL KEEP AND MAINTAIN THE
COLLATERAL AND ALL PARTS THEREOF IN GOOD REPAIR, WORKING
ORDER AND CONDITION, AND SHALL MAKE ALL REASONABLE AND
PROPER REPAIRS, RENEWALS, REPLACEMENTS, ADDITIONS AND
IMPROVEMENTS THERETO, CONSISTENT WITH GOOD AND PRUDENT
CARE. IN THE EVENT OF LOSS OR DAMAGE TO ANY TANGIBLE ITEMS
COMPRISING THE COLLATERAL OR ANY PART THEREOF, DEBTOR SHALL
FORTHWITH REPLACE THE LOST OR DAMAGED ITEMS WORTH LIKE
ITEMS IN GOOD REPAIR, CONDITION AND WORKING ORDER. DEBTOR
SHALL, AT ALL TIMES, COMPLY WITH THE PROVISIONS OF ALL LEASES
FOR PREMISES UPON WHICH THE COLLATERAL IS OR MAY HEREAFTER
BE SITUATED, AND SHALL PREVENT ANY LOSS OR FORFEITURE OF SUCH
LEASE(S).
6.1.14. PROMPTLY UPON THE REQUEST OF THE SECURED
PARTY, DEBTOR SHALL EXECUTE, ACKNOWLEDGE AND DELIVER ALL
ADDITIONAL INSTRUMENTS AND DOCUMENTS, WHICH MAY BE
DEEMED NECESSARY OR APPROPRIATE, IN THE SOLE
DETERMINATION OF SECURED PARTY, FOR THE PURPOSE OF
CARRYING INTO EFFECT THE TERMS, CONDITIONS, COVENANTS AND
INTENTIONS OF THIS AGREEMENT. DEBTOR HEREBY IRREVOCABLY
AUTHORIZES AND APPOINTS SECURED PARTY AS DEBTOR'S AGENT
AND ATTORNEY-IN-FACT, TO EXECUTE ANY AND ALL SUCH
INSTRUMENTS AND DOCUMENTS IN DEBTOR'S NAME AND ON
DEBTOR'S BEHALF, IN THE EVENT THAT DEBTOR FAILS OR REFUSES,
AFTER REASONABLY REQUEST BY SECURED PARTY, TO EXECUTE,
ACKNOWLEDGE OR DELIVER SAME.
7. SECURED PARTY'S OPTION TO TAKE PROTECTIVE ACTIONS.
7.1. IF DEBTOR FAILS TO PAY, WHEN DUE, ANY TAX, CHARGE,
LIEN, ASSESSMENT, INSURANCE PREMIUM OR OTHER AMOUNT REQUIRED TO
BE PAID WITH RESPECT TO, OR FOR THE PROTECTION OR PRESERVATION OF
THE COLLATERAL, SECURED PARTY MAY, AT SECURED PARTY'S OPTION,
MAKE SUCH PAYMENT AND/OR TAKE SUCH ACTIONS AS SECURED PARTY
MAY DEEM TO BE REASONABLY REQUIRED TO ACCOMPLISH THE SAID
PURPOSES FOR AND ON BEHALF OF DEBTOR. IF SECURED PARTY MAKES ANY
SUCH PAYMENTS OR TAKES ANY SUCH ACTIONS, DEBTOR SHALL
IMMEDIATELY, UPON RECEIPT OF NOTICE THEREOF FROM SECURED PARTY,
PAY AND REIMBURSE SECURED PARTY FOR THE ACTUAL AMOUNT SO
EXPENDED AND/OR COSTS INCURRED BY SECURED PARTY, TOGETHER WITH
INTEREST THEREON ACCRUING AT THE RATE OF TEN PERCENT (10%) PER
ANNUM, COMPUTED DAILY UNTIL PAID. SECURED PARTY MAY, AT
SECURED PARTY'S OPTION, TAKE THE ACTIONS PROVIDED FOR IN THIS
PARAGRAPH, HOWEVER, NO DUTY SHALL BE IMPOSED ON SECURED PARTY
TO DO SO.
8. EVENTS CONSTITUTING A DEFAULT.
8.1. IF ANY ONE OR MORE OF THE FOLLOWING ACTS,
CIRCUMSTANCES OR EVENTS OR ANY COMBINATION THEREOF OCCUR DURING
THE TERM OF THE SECURITY INTEREST CREATED HEREUNDER, SAME SHALL BE
DEEMED FOR PURPOSES OF THIS AGREEMENT TO CONSTITUTE A DEFAULT (AN
"EVENT OF DEFAULT") BY DEBTOR:
8.1.1. AN EVENT OF DEFAULT UNDER THE PROMISSORY
NOTE.
8.1.2. A FAILURE OR REFUSAL BY DEBTOR TO TIMELY AND
FAITHFULLY OBSERVE, ABIDE BY, PERFORM, DISCHARGE OR SATISFY
ANY OF THE COVENANTS OR OBLIGATIONS OF DEBTOR SET FORTH IN
THIS AGREEMENT (WHETHER OR NOT SPECIFICALLY ENUMERATED
BELOW AS AN EVENT CONSTITUTING A DEFAULT).
8.1.3. DEBTOR SHALL BE IN DEFAULT UNDER ANY
OBLIGATION UNDERTAKEN BY DEBTOR WHICH DEFAULT HAS A
MATERIAL ADVERSE EFFECT ON THE VALUE OF THE COLLATERAL.
8.1.4. UNINSURED LOSS, THEFT, DAMAGE, OR DESTRUCTION
OF ANY SUBSTANTIAL PORTION OF ANY OF THE COLLATERAL.
8.1.5. DEBTOR IS OR BECOMES INSOLVENT OR IS INVOLVED
IN ANY FINANCIAL DIFFICULTY AS EVIDENCED BY (I) AN ASSIGNMENT,
COMPOSITION, OR SIMILAR DEVICE FOR THE BENEFIT OF CREDITORS, (II)
GENERAL FAILURE TO PAY DEBTS WHEN DUE, (III) ATTACHMENT OR
RECEIVERSHIP OF ASSETS NOT DISSOLVED WITHIN THIRTY (30) DAYS,
(IV) THE APPOINTMENT OF A CUSTODIAN, TRUSTEE, OR RECEIVER FOR
A SUBSTANTIAL PORTION OF DEBTOR'S PROPERTIES, (V) THE
LIQUIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL OF DEBTOR'S
PROPERTIES, (VI) THE FILING BY DEBTOR OF A PETITION UNDER ANY
CHAPTER OF THE UNITED STATES BANKRUPTCY CODE OR THE
INSTITUTION OF ANY OTHER PROCEEDING UNDER ANY LAW RELATING TO
BANKRUPTCY, BANKRUPTCY REORGANIZATION, INSOLVENCY OR RELIEF
OF DEBTORS, OR (VII) THE FILING AGAINST DEBTOR OF AN INVOLUNTARY
PETITION UNDER ANY CHAPTER OF THE UNITED STATES BANKRUPTCY
CODE OR THE INSTITUTION OF ANY OTHER PROCEEDING UNDER ANY
LAW RELATING TO BANKRUPTCY, BANKRUPTCY REORGANIZATION,
INSOLVENCY OR RELIEF OF DEBTORS WHERE SUCH PROCEEDING IS NOT
DISMISSED WITHIN SIXTY (60) DAYS FROM THE DATE ON WHICH IT IS
FILED OR INSTITUTED.
9. REMEDIES OF SECURED PARTY.
9.1. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, SECURED PARTY
SHALL HAVE, BY WAY OF EXAMPLE AND NOT OF LIMITATION, THE FOLLOWING
RIGHTS AND REMEDIES:
9.1.1. DECLARE ALL OF THE SECURED OBLIGATIONS THEN
UNPAID AND/OR UNPERFORMED, AS APPLICABLE, IMMEDIATELY
DUE AND PAYABLE.
9.1.2. PURSUE AND ENFORCE ALL OF THE RIGHTS AND
REMEDIES PROVIDED IN THIS AGREEMENT AND ACCORDED TO A
SECURED PARTY BY DIVISION 9 OF THE COMMERCIAL CODE, AS
WELL AS ALL OTHER APPLICABLE LAWS.
9.1.3. WITHOUT DEMAND, AND WITHOUT LEGAL PROCESS,
TAKE POSSESSION OF THE COLLATERAL.
9.1.4. FILE SUIT AND OBTAIN JUDGMENT, AND IN
CONJUNCTION WITH SUCH SUIT, SECURED PARTY MAY AVAIL ITSELF
OF ANY AND ALL ANCILLARY REMEDIES PROVIDED BY LAW AND/OR
EQUITY INCLUDING BUT NOT LIMITED TO LEVY OF ATTACHMENT AND
GARNISHMENT, AS WELL AS THE APPOINTMENT OF A RECEIVER.
9.2. IN THE EVENT THAT SECURED PARTY CHOOSES TO TAKE
POSSESSION OF THE COLLATERAL, DEBTOR EXPRESSLY ACKNOWLEDGES,
AUTHORIZES AND AGREES THAT:
9.2.1.
SECURED PARTY SHALL HAVE THE RIGHT TO ENTER AND/OR REMAIN
UPON THE PREMISES OF DEBTOR, OR ANY OTHER PLACE OR PLACES
WHERE ANY OF THE COLLATERAL IS LOCATED AND KEPT, WITHOUT ANY
OBLIGATION TO PAY RENT TO DEBTOR OR OTHERS, AND REMOVE
COLLATERAL THEREFROM TO THE PREMISES OF SECURED PARTY OR ANY
AGENT OF SECURED PARTY FOR SUCH TIME AS SECURED PARTY MAY
DESIRE IN ORDER TO MAINTAIN, COLLECT, SELL AND/OR PREPARE THE
COLLATERAL FOR SALE, LIQUIDATION OR COLLECTION;
9.2.2. DEBTOR SHALL UPON DEMAND OF SECURED
PARTY, ASSEMBLE AND MAKE THE TANGIBLE PARTS OF THE
COLLATERAL AVAILABLE TO THE SECURED PARTY AT SUCH MOVING
AND STORAGE COMPANY AS SECURED PARTY MAY DESIGNATE.
9.3. UPON TAKING OR OBTAINING POSSESSION OF THE
COLLATERAL, SECURED PARTY MAY:
9.3.1. PROPOSE TO RETAIN THE COLLATERAL IN
SATISFACTION OF THE OBLIGATION OWING BY DEBTOR, BY GIVING
NOTICE OF SUCH PROPOSAL IN ACCORDANCE WITH COMMERCIAL
CODE SECTION 9505; AND/OR
9.3.2. SELL THE COLLATERAL AT PUBLIC OR PRIVATE SALE
IN ACCORDANCE WITH COMMERCIAL CODE SECTION 9501; AND/OR
9.3.3. WITHOUT TAKING POSSESSION, SELL, LEASE, OR
OTHERWISE DISPOSE OF THE COLLATERAL AT PUBLIC OR PRIVATE SALE
IN ACCORDANCE WITH COMMERCIAL CODE SECTION 9504.
9.4. THE SELECTION BY SECURED PARTY OF ANY ONE OR
SEVERAL REMEDIES OR METHODS OF REDRESS IN AN EVENT OF DEFAULT
SHALL NOT BE DEEMED TO HAVE RELIEVED, EXCUSED, DISCHARGED OR
RELEASED DEBTOR OF ANY OBLIGATIONS OWING BY DEBTOR.
9.5. ANY PUBLIC OR PRIVATE SALE OF THE COLLATERAL, AFTER
DEFAULT, MAY BE HELD IN SUCH OF THE COUNTIES IN WHICH THE SECURED
PARTY CONDUCTS BUSINESS OR IN THE COUNTIES IN WHICH THE
COLLATERAL, OR ANY PART THEREOF, IS THEN LOCATED. ANY SUCH SALE MAY
BE CONDUCTED BY AN OFFICER OR AGENT OF SECURED PARTY, OR BY
DEPUTY SHERIFF OR MARSHAL, OR BY ANY AUCTIONEER SELECTED BY
SECURED PARTY. AT ANY SUCH SALE THE COLLATERAL MAY BE SOLD FOR
CASH OR CREDIT, UPON SUCH TERMS AS THE SECURED PARTY MAY ELECT.
NO PART OF THE COLLATERAL NEED BE IN VIEW OF THOSE ATTENDING SUCH
SALE AND SECURED PARTY NEED NOT TAKE OR HAVE THE SAME IN THE
PHYSICAL POSSESSION AT SUCH SALE OR AS A CONDITION TO SELLING THE
COLLATERAL OR ANY PART THEREOF. SECURED PARTY MAY CAUSE THE
COLLATERAL TO BE SOLD IN SUCH ORDER, PRIORITY AND LOTS AS SECURED
PARTY IN SECURED PARTY'S SOLE DISCRETION MAY DESIGNATE, AND
DEBTOR SHALL NOT HAVE THE RIGHT OR POWER TO DIRECT IN WHAT ORDER
OR PRIORITY THE COLLATERAL IS SOLD.
9.6. IN THE EVENT OF A SALE, IF ANY CREDITS ARE DUE TO
DEBTOR UNDER THE PROVISIONS OF THE COMMERCIAL CODE, SUCH
CREDITS SHALL BE APPLIED TO DEBTOR'S ACCOUNT ONLY WHEN THE SAME
EXCEED THE TOTAL AMOUNT REQUIRED TO PAY, DISCHARGE AND SATISFY ALL
OF THE SECURED OBLIGATIONS.
9.7. IN THE EVENT OF A SALE FROM WHICH THE PROCEEDS ARE
INSUFFICIENT TO FULLY PAY, DISCHARGE AND SATISFY ALL OF THE SECURED
OBLIGATIONS, SECURED PARTY SHALL BE ENTITLED TO RECOVER FROM
DEBTOR THE BALANCE OF ANY SUCH SECURED OBLIGATION(S) WHICH IS
NOT SO PAID OR SATISFIED.
9:8. PENDING THE OUTCOME OF ANY LITIGATION WHICH MAY
ARISE WITH RESPECT TO THE PROMISSORY NOTE, THIS AGREEMENT OR ANY
OF THE SECURED OBLIGATIONS, SECURED PARTY MAY, AT SECURED
PARTY'S SOLE ELECTION, HOLD THE COLLATERAL FOR FINAL PAYMENT,
DISCHARGE OR SATISFACTION OF THE SECURED OBLIGATIONS AFTER THE
LITIGATION HAS CONCLUDED.
10. IMPAIRMENT OF SECURITY NOT A PREREQUISITE TO EXERCISE
OF SECURED PARTY'S RIGHTS.
10.1. IN AN EVENT OF DEFAULT, THE RIGHT OF SECURED PARTY
TO EXERCISE ANY RIGHTS OR SEEK ANY REMEDY OR REDRESS TO WHICH
SECURED PARTY IS AVAILED UNDER THIS AGREEMENT OR AT LAW OR EQUITY,
SHALL BE ABSOLUTE WITHOUT THE NECESSITY OF FIRST DETERMINING,
ASSERTING, CLAIMING OR PROVING THAT THE EVENT OF DEFAULT HAS
RESULTED IN AN IMPAIRMENT OF THE SECURED INTEREST GRANTED
HEREUNDER OR THAT THE EVENT OF DEFAULT HAS RENDERED THE SECURITY
INTEREST INADEQUATE.
11. NO DUTY OF SECURED PARTY TO GIVE CONSENT.
11.1. SECURED PARTY SHALL HAVE THE RIGHT OF SOLE DISCRETION
WITH RESPECT TO THE WITHHOLDING OR GRANTING OF CONSENT WITH
RESPECT TO ALL PROPOSED ACTS BY DEBTOR AND WITH RESPECT TO ALL
EVENTS OR OCCURRENCES WHICH ARE PROHIBITED OR WHICH CONSTITUTE
EVENTS OF DEFAULT IN THE ABSENCE OF SECURED PARTY'S CONSENT, AND
THE WITHHOLDING OF CONSENT IN ANY INSTANCE OR SUBSEQUENT OR
SUCCESSIVE INSTANCES SHALL NOT BE DEEMED TO BE UNREASONABLE.
12. ALL REMEDIES CUMULATIVE.
12.1. ALL REMEDIES, RIGHTS, OPTIONS, ELECTIONS AND POWERS
ACCORDED TO SECURED PARTY HEREUNDER, ARE CUMULATIVE, AND NO ONE
OF THEM IS EXCLUSIVE OF ANY OF THE OTHERS OR ANY OTHER RIGHT OR
PRIORITY ALLOWED BY LAW, EQUITY OR BY THIS AGREEMENT.
13. NO WAIVER.
13.1. NO WAIVER BY THE SECURED PARTY OF ANY OF SECURED
PARTY'S RIGHTS WITH RESPECT TO ANY DEFAULT OR BREACH OF ANY ONE OR
MORE OF THE TERMS, CONDITIONS OR COVENANTS CONTAINED IN THE
PROMISSORY NOTE, THIS AGREEMENT OR CONTAINED IN ANY OTHER
DOCUMENTS, INSTRUMENTS OR AGREEMENTS PERTAINING TO THE
COLLATERAL, AND NO ACQUIESCENCE BY THE SECURED PARTY IN ANY
SINGLE BREACH OR DEFAULT SHALL BE DEEMED TO IMPLY OR CONSTITUTE A
WAIVER OF ANY RIGHTS OR REMEDIES IN UPON THE OCCURRENCE OF ANY
OTHER OR SUCCEEDING OR REPEATED BREACH OR DEFAULT. THE CONSENT OR
APPROVAL BY SECURED PARTY TO OR OF ANY ACT BY DEBTOR SHALL NOT BE
DEEMED TO WAIVE OR RENDER UNNECESSARY SUCH CONSENT OR APPROVAL
OR OF ANY SUBSEQUENT SUCH ACTS.
14. MISCELLANEOUS PROVISIONS.
14.1. ADDITIONAL DOCUMENTS. THE PARTIES HERETO EACH
AGREE THAT THEY SHALL EXECUTE AND, IF APPROPRIATE, ACKNOWLEDGE
ANY AND ALL ADDITIONAL AND OTHER DOCUMENTS, INSTRUMENTS AND
WRITINGS WHICH MAY BE NECESSARY TO, OR WHICH WOULD REASONABLY
FACILITATE, THE PURPOSES OF THIS AGREEMENT,
14.2. ATTORNEYS' FEES & COSTS. IN THE EVENT THAT ANY
ACTION OR OTHER FORMAL PROCEEDING IS INSTITUTED TO ENFORCE OR
INTERPRET ANY PART OF THIS AGREEMENT, THE PARTY PREVAILING IN SUCH
ACTION OR PROCEEDING SHALL BE ENTITLED TO RECOVER, IN ADDITION TO
THE PREVAILING PARTY'S COSTS OF SUIT, SUCH ATTORNEYS' FEES AS THE
PRESIDING TRIBUNAL DEEMS TO HAVE BEEN REASONABLY INCURRED BY THE
PREVAILING PARTY,
14.3. BINDING AGREEMENT. ALL TERMS, CONDITIONS AND
COVENANTS TO BE OBSERVED AND PERFORMED BY THE PARTIES HERETO
SHALL BE APPLICABLE TO AND BINDING UPON THEIR RESPECTIVE AGENTS,
SERVANTS, HEIRS, EXECUTORS, ADMINISTRATORS, AFFILIATES, SUBSIDIARIES,
ASSOCIATES, EMPLOYEES, SUCCESSORS AND ASSIGNS,
14.4. CAPTIONS. ALL CAPTIONS (PARAGRAPH HEADINGS) SET
FORTH IN THIS AGREEMENT ARE INSERTED ONLY AS A MATTER OF
CONVENIENCE AND FOR REFERENCE, AND SHALL NOT BE CONSTRUED TO
DEFINE, LIMIT, INTERPRET, PRESCRIBE OR DESCRIBE THE SCOPE OR INTENT
OF THIS AGREEMENT, MEANING. AND SHALL NOT BE CONSIDERED FOR SUCH
PURPOSES, OR ANY PART HEREOF, NOR AFFECT ITS
14.5. COUNTERPARTS. THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE
DEEMED AN ORIGINAL BUT ALL OF WHICH, WHEN TAKEN TOGETHER, SHALL
CONSTITUTE ONE AND THE SAME DOCUMENT.
14.6. ENTIRE AGREEMENT. THIS AGREEMENT IS AN
INTEGRATED DOCUMENT CONTAINING AND EXPRESSING ALL TERMS,
COVENANTS, CONDITIONS, WARRANTIES AND AGREEMENTS OF THE PARTIES
RELATING TO THE SUBJECT MATTER HEREOF, NO OTHER OR PRIOR
AGREEMENTS OR UNDERSTANDINGS PERTAINING TO THE SAME SHALL BE
VALID OR OF ANY FORCE OR ELECT.
14.7. AMENDMENT ONLY BY WRITING. THIS AGREEMENT
CANNOT BE AMENDED, ALTERED OR MODIFIED, EXCEPT IN WRITING SIGNED
BY THE PARTIES HERETO.
14.8. DEFINITION OF WRITING. ALL REFERENCES IN THIS
AGREEMENT TO "WRITTEN" CONSENTS, NOTICES OR OTHER DOCUMENTATION
REQUIRED TO BE GIVEN, RECEIVED OR OBTAINED, SHALL MEAN A WRITING
(PRINTED, TYPEWRITTEN OR HANDWRITTEN) ACTUALLY SIGNED BY THE
PARTY GIVING SUCH CONSENT, NOTICE OR OTHERWISE, WITH THE INTENT TO
GIVE SUCH CONSENT, NOTICE OR OTHERWISE, FREE FROM DURESS, UNDUE
INFLUENCE, FRAUD AND COERCION.
14.9. GENDER; PLURAL AND SINGULAR. WHENEVER
REQUIRED BY THE CONTEXT HEREOF, THE SINGULAR SHALL BE DEEMED TO
INCLUDE THE PLURAL, THE PLURAL SHALL BE DEEMED TO INCLUDE THE
SINGULAR, THE MASCULINE THE FEMININE, AND THE NEUTER GENDER SHALL
BE DEEMED TO INCLUDE THE OTHERS.
14.10. GOVERNING LAW. THIS AGREEMENT SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY, IN ACCORDANCE WITH AND
CONSISTENT WITH THE LAWS OF THE STATE OF CALIFORNIA, WHICH SHALL
APPLY IN ALL RESPECTS, INCLUDING STATUTES OF LIMITATIONS, TO ANY
DISPUTES OR CONTROVERSIES ARISING OUT OF OR PERTAINING TO THIS
AGREEMENT.
14.11. NEITHER PARTY TO BE DEEMED DRAFTER. THIS
CONTRACT IS TO BE DEEMED TO HAVE BEEN PREPARED JOINTLY BY THE
PARTIES HERETO AND ANY UNCERTAINTY OR AMBIGUITY EXISTING HEREIN
SHALL NOT BE INTERPRETED AGAINST EITHER PARTY ON THE BASIS THAT
SUCH PARTY WAS THE DRAFTER HEREOF, BUT INSTEAD SHALL BE INTERPRETED
ACCORDING TO THE APPLICATION OF RULES FOR THE INTERPRETATION OF
CONTRACTS, IF SUCH AN UNCERTAINTY OR AMBIGUITY EXISTS.
14.12. METHOD OF GIVING NOTICES. ANY NOTICE REQUIRED OR
PERMITTED TO BE GIVEN HEREUNDER SHALL BE SO GIVEN BY REGISTERED OR
CERTIFIED (RETURN RECEIPT) UNITED STATES POSTAL SERVICE MAIL,
POSTAGE PRE-PAID, UNLESS A NOTICE TRANSMITTED IN SAID MANNER IS
RETURNED TO THE SENDER AS UNCLAIMED, REFUSED OR UNDELIVERABLE, OR
UNLESS THE PARTY GIVING NOTICE HAS A GOOD FAITH REASON TO BELIEVE
THAT A NOTICE TRANSMITTED IN SAID MANNER WILL BE SO RETURNED, IN
WHICH CASE SUCH NOTICE MAY BE GIVEN, AT THE SENDER'S OPTION, BY
PERSONAL SERVICE OR BY FIRST CLASS MAIL PROVIDED THAT SUCH
ALTERNATIVE METHOD IS EFFECTUATED BY A DISINTERESTED PARTY WHO
ATTESTS THERETO BY A WRITTEN DECLARATION UNDER PENALTY OF PERJURY
IN A FORM CONSISTENT WITH THE PROVISIONS OF CALIFORNIA CODE OF
CIVIL PROCEDURE SECTION1013A AUTHORIZING SERVICE BY MAIL, ANY SUCH
NOTICE SHALL BE ADDRESSED TO OR DELIVERED TO THE RECIPIENT AS
FOLLOWS:
IN THE CASE OF: ADDRESSED TO:
SELLER: INTEGRATED MARKETING AGENCY, INC.
ATTENTION: JOHN TEUBER, PRESIDENT
20457 KELSEY DRIVE
CANYON COUNTRY, CALIFORNIA 91351
BUYER: ADVANCED OXYGEN TECHNOLOGIES, INC.
ATTENTION: ROBERT E. WOLFE, PRESIDENT
C/O CROSSFIELD INCORPORATED
230 PARK AVENUE, SUITE 1000
NEW YORK, NEW YORK 10169
IN THE EVENT THAT NOTICE IS TRANSMITTED BY U.S. MAIL, SUCH NOTICE
SHALL BE DEEMED TO HAVE BEEN RECEIVED BY THE ADDRESSEE AND
SERVICE THEREOF SHALL BE EFFECTIVE, FIVE (5) DAYS FOLLOWING DEPOSIT
THEREOF WITH THE UNITED STATES POSTAL SERVICE, OR UPON ACTUAL
RECEIPT, WHICHEVER FIRST OCCURS, UNLESS THE ADDRESS FOR DELIVERY IS
NOT WITHIN ONE OF THE UNITED STATES OR ITS TERRITORIES OR
POSSESSIONS, IN WHICH CASE SERVICE SHALL BE ELECTIVE SEVEN (7) DAYS
FOLLOWING DEPOSIT, OR UPON ACTUAL RECEIPT WHICHEVER FIRST OCCURS.
A PARTY MAY CHANGE THE ABOVE SPECIFIED ADDRESS BY GIVING THE
OTHER PARTY NOTICE OF THE NEW ADDRESS IN THE MANNER ABOVE-
PRESCRIBED FOR ALL NOTICES.
14.13. RELATIONSHIP OF PARTIES. NEITHER PARTY TO THIS
AGREEMENT SHALL BE DEEMED IN ANY WAY, NOR CONSTRUED TO BE, THE
PARTNER, JOINT VENTURE, AGENT, EMPLOYEE OR SERVANT OF THE OTHER,
THEIR ENTIRE RELATIONSHIP BEING THAT OF DEBTOR AND SECURED PARTY,
AS INDEPENDENT CONTRACTING PARTIES.
14.14. SEVERABILITY. IN THE EVENT THAT ANY TERM, PROVISION,
CLAUSE, ARTICLE, CONDITION OR OTHER PORTION OF THIS AGREEMENT IS
DETERMINED TO BE INVALID, VOID OR UNENFORCEABLE BY A FORUM OF
COMPETENT JURISDICTION, THE SAME SHALL NOT AFFECT ANY OTHER TERM,
PROVISION, CLAUSE, ARTICLE, CONDITION OR OTHER PORTION HEREOF, AND
THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND
EFFECT, AS IF SUCH INVALID, VOID OR UNENFORCEABLE TERM, PROVISION,
CLAUSE, ARTICLE, CONDITION OR OTHER PORTION OF THIS AGREEMENT DID
NOT APPEAR HEREIN.
.
IN WITNESS WHEREOF, THE PARTIES HAVE SUBSCRIBED
THEIR NAMES TO THIS AGREEMENT OR IN THE CASE OF CORPORATE PARTIES,
HAVE CAUSED THEIR DULY-AUTHORIZED OFFICERS TO EXECUTE THIS
AGREEMENT, EFFECTIVE ON THE DATE FIRST WRITTEN ABOVE,
SECURED PARTY:
INTEGRATED
MARKETING AGENCY,
INC.
BY:.........................................
NAME:
ITS:
DEBTOR:
ADVANCED OXYGEN
TECHNOLOGIES, INC.
BY:.........................................
NAME: ROBERT E. WOLFE
ITS: PRESIDENT
EXHIBIT F
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, DATED MARCH 9,
1998, FOR PURPOSES OF IDENTIFICATION, IS MADE AND ENTERED INTO BY
AND BETWEEN ADVANCED OXYGEN TECHNOLOGIES, INC.,
A DELAWARE CORPORATION (HEREINAFTER REFERRED TO AS "EMPLOYER"),
AND JOHN TEUBER, A NATURAL PERSON, (HEREINAFTER REFERRED TO
AS "EMPLOYEE"), IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA.
1. DEFINITIONS & INTERPRETATION.
1.1 IN ADDITION TO ANY OTHER TERMS THAT MAY BE DEFINED
ELSEWHERE IN THIS AGREEMENT, THE FOLLOWING SHALL GOVERN THE
CONSTRUCTION AND INTERPRETATION HEREOF:
1.1.1 THE "BOARD" MEANS AND REFERS TO THE BOARD
OF DIRECTORS OF EMPLOYER.
1.1.2 "CONTRACT YEAR" MEANS AND REFERS TO A SPAN
OF TIME WHICH BEGINS ON THE DATE FIRST SET FORTH
ABOVE IN ANY CALENDAR YEAR DURING THE TERM OF THE
EMPLOYMENT HEREUNDER AND WHICH ENDS AT
MIDNIGHT ON THE DAY IMMEDIATELY PRECEDING THE
SAME DATE IN SUBSEQUENT CALENDAR YEAR.
1.2 WHENEVER IN THIS AGREEMENT THERE APPEARS THE LOCATIVE
ADVERBS "HEREIN", "HEREUNDER", HEREINBELOW", "HEREINABOVE", OR
ANY SUBSTANTIALLY SIMILAR ADVERB, THE SAME SHALL BE DEEMED TO
REFER TO THIS AGREEMENT IN ITS ENTIRETY AND NOT TO ANY SPECIFIC
ARTICLE, SECTION, SUBSECTION, SUBPART, PARAGRAPH OR SUBPARAGRAPH.
2. RECITALS.
2.1 THE CONTRACTUAL RELATIONSHIP CREATED BY OPERATION OF
THIS AGREEMENT IS PREMISED UPON THE FOLLOWING FACTS:
2.1.1 EMPLOYER HAS PURCHASED CERTAIN ASSETS (THE
"PURCHASED ASSETS") USED IN THE BUSINESS OF
TELEMARKETING SERVICES FROM INTEGRATED MARKETING
AGENCY, INC. PURSUANT TO THAT CERTAIN AGREEMENT
FOR PURCHASE AND SALE OF SPECIFIED BUSINESS ASSETS
DATED THE DATE HEREOF.
2.1.2 EMPLOYER'S BOARD OF DIRECTORS HAS
DETERMINED THAT EMPLOYEE HAS SUBSTANTIAL
EXPERIENCE AS A MARKETING AND SALES
REPRESENTATIVE AND IN UTILIZING THE PURCHASED
ASSETS, BY VIRTUE OF WHICH EMPLOYEE POSSESSES
SKILLS, ABILITY AND BACKGROUND IN AND KNOWLEDGE
OF EMPLOYER'S BUSINESS AND THE INDUSTRY WHICH IT
IS ENGAGED, WHICH ARE ESSENTIAL TO THE BEST
INTERESTS OF EMPLOYER.
2.2 IN CONSIDERATION OF THE MUTUAL DUTIES CREATED HEREIN
AND THE MUTUAL BENEFITS CONFERRED HEREBY, THE ADEQUACY OF WHICH
IS HEREBY ACKNOWLEDGED, EACH OF THE UNDERSIGNED VOLUNTARILY
ENTERS INTO THIS AGREEMENT.
3. TERM OF EMPLOYMENT; EFFECT OF EXPIRATION OF TERM.
3.1 EMPLOYER HEREBY EMPLOYS EMPLOYEE AND EMPLOYEE
HEREBY ACCEPTS THE BELOW-SPECIFIED EMPLOYMENT FOR A PERIOD OF
TWO (2) CONTRACT YEARS.
3.2 IF THE EMPLOYMENT CREATED HEREUNDER CONTINUE AFTER
EXPIRATION OF THE SECOND CONTRACT YEAR, SUCH EMPLOYMENT SHALL
AUTOMATICALLY BECOME AT-WILL SUCH THAT EITHER PARTY MAY THEN
TERMINATE THE EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE OR
REASON.
4. EMPLOYEE'S DUTIES.
4.1 EMPLOYEE SHALL RENDER SERVICES FOR THE DEVELOPMENT OF
NEW BUSINESS FOR EMPLOYER IN ACCORDANCE WITH THE POLICIES
ESTABLISHED BY THE BOARD, AND CONSISTENT WITH EMPLOYER'S
EMPLOYMENT POLICY MANUAL ADOPTED BY THE BOARD (AND AS SAME
MAY BE HEREAFTER AMENDED). THIS AGREEMENT, AND THE SAID POLICY
MANUAL, SHALL BE CONSTRUED AS ONE CONTRACT, SUCH THAT THE TWO
TOGETHER SHALL BE DEEMED TO SET FORTH ALL THE TERMS, CONDITIONS AND
COVENANTS OF THE AGREEMENT EXISTING BETWEEN EMPLOYER AND
EMPLOYEE. IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF
THIS AGREEMENT AND SAID POLICY MANUAL, THE TERMS OF THIS
AGREEMENT SHALL PREVAIL TO THE EXTENT PERMITTED BY LAW.
4.2 EMPLOYEE SHALL DEVOTE SUBSTANTIALLY ALL OF EMPLOYEE'S
PROFESSIONAL TIME, ATTENTION AND ENERGY TO THE BEST OF HIS ABILITY
AND EXPERIENCE, AND SHALL LOYALLY AND CONSCIENTIOUSLY PERFORM THE
DUTIES AND OBLIGATIONS EITHER EXPRESSLY OR IMPLICITLY REQUIRED OF
HIM UNDER THIS AGREEMENT AND ATTENDANT TO THE POSITION FOR WHICH
HE IS EMPLOYED HEREUNDER, AND SHALL CARRY OUT SUCH DUTIES IN A
MANNER THAT IS CONSISTENT WITH GOOD AND LAWFUL BUSINESS
PRACTICES.
4.3 NOTHING IN THIS AGREEMENT SHALL BE INTERPRETED TO
PROHIBIT OR RESTRICT OFF-DUTY ACTIVITIES BY EMPLOYEE OR OUTSIDE
EMPLOYMENT OF EMPLOYEE; PROVIDED, HOWEVER, THAT EMPLOYEE
SHALL NOT DO ANY OF THE FOLLOWING:
4.3.1 PARTICIPATE IN ANY OTHER BUSINESS ACTIVITIES
DURING THE TERM OF HIS EMPLOYMENT HEREUNDER ON
BEHALF OF ANY PERSON, FIRM, COMPANY OR ENTITY (IN
ANY CAPACITY, INCLUDING BUT NOT LIMITED TO THAT OF
EMPLOYEE, AGENT, OFFICER, DIRECTOR, CONSULTANT OR
INVESTOR), WHETHER FOR PROFIT OR NOT-FOR-PROFIT,
WHICH IS ENGAGED IN ANY BUSINESS THAT IS
COMPETITIVE WITH EMPLOYER'S BUSINESS;
4.3.2 PARTICIPATE IN ANY OTHER BUSINESS ACTIVITIES,
DURING OR AFTER THE TERM OF HIS EMPLOYMENT
HEREUNDER WHICH ARE PROSCRIBED BY THAT CERTAIN
COVENANT OF NON-COMPETITION TO WHICH EMPLOYEE
IS A PARTY AND WHICH IS EXECUTED BY EMPLOYEE
CONTEMPORANEOUSLY WITH THIS AGREEMENT.
4.4 UNLESS AND UNTIL OTHERWISE DETERMINED BY THE BOARD,
EMPLOYEE SHALL REPORT DIRECTLY TO THE GENERAL MANAGER OF
EMPLOYER.
5. COMPENSATION OF EMPLOYEE; BONUS.
5.1 EMPLOYER SHALL COMPENSATE EMPLOYEE FOR EMPLOYEE'S
SERVICES HEREUNDER AS FOLLOWS:
5.1.1 IF, DURING THE FIRST CONTRACT YEAR HEREUNDER,
THE GROSS REVENUES OF EMPLOYER FOR SUCH CONTRACT YEAR LESS
ACCOUNTS RECEIVABLE AGED MORE THAN 60 DAYS (AS
DETERMINED BY GENERALLY-ACCEPTED ACCOUNTING PRINCIPLES),
EXCEEDS $4,900,000, THEN EMPLOYEE SHALL RECEIVE
COMPENSATION (THE "YEAR 1 COMPENSATION" HEREIN) FOR
SUCH CONTRACT YEAR EQUIVALENT TO AN AMOUNT WHICH IS TWO
AND ONE-HALF PERCENT (2 1/2%) OF SUCH EXCESS. ANY SUCH
YEAR 1 COMPENSATION SHALL BE PAYABLE THIRTY (30) DAYS
FOLLOWING THE END OF THE FIRST CONTRACT YEAR (LESS CUSTOMARY
WITHHOLDINGS OF TAXES AND OTHER DEDUCTIONS AS REQUIRED BY
LAW).
5.1.2 COMMENCING DURING THE SECOND CONTRACT
YEAR, A BASE SALARY AT THE ANNUAL RATE OF FORTY-EIGHT
THOUSAND U.S. DOLLARS ($48,000.00)(THE "BASE SALARY"
HEREIN), PAYABLE IN REGULAR, PERIODIC INSTALLMENTS, AT SUCH
TIMES AS ARE CONSISTENT WITH EMPLOYER'S REGULAR PAYROLL
PROCEDURES (LESS CUSTOMARY WITHHOLDINGS OF TAXES AND
OTHER DEDUCTIONS AS REQUIRED BY LAW).
5.1.3 IF, DURING ANY CONTRACT YEAR OTHER THAN THE
FIRST CONTRACT YEAR HEREUNDER, THE GROSS REVENUES OF
EMPLOYER FOR SUCH CONTRACT YEAR LESS ACCOUNTS RECEIVABLE
AGED MORE THAN 60 DAYS (AS DETERMINED BY GENERALLY-
ACCEPTED ACCOUNTING PRINCIPLES), EXCEEDS THE PREVIOUS
CONTRACT YEAR'S GROSS REVENUES, THEN EMPLOYEE SHALL
RECEIVE ADDITIONAL COMPENSATION (THE "SUBSEQUENT BONUS"
HEREIN) FOR SUCH CONTRACT YEAR EQUIVALENT TO AN AMOUNT
WHICH IS TWO AND ONE-HALF PERCENT (2 1/2%) OF SUCH EXCESS
LESS THE BASE SALARY OF $48,000. ANY SUCH SUBSEQUENT
BONUS SHALL BE PAYABLE THIRTY (30) DAYS FOLLOWING THE END
OF THE SUBJECT CONTRACT YEAR (LESS CUSTOMARY WITHHOLDINGS
OF TAXES AND OTHER DEDUCTIONS AS REQUIRED BY LAW).
6. BENEFITS.
6.1 DURING THE TERM OF THE EMPLOYMENT HEREUNDER,
EMPLOYEE SHALL BE ENTITLED TO RECEIVE THE FOLLOWING BENEFITS
GENERALLY ENJOYED BY ALL EMPLOYER'S EMPLOYEES:
6.1.1 FULLY-PAID LEAVES OF ABSENCE FOR SUCH HOLIDAYS
AS MAY BE GRANTED FROM TIME IN ACCORDANCE WITH
EMPLOYER'S THEN-CURRENT POLICIES GOVERNING SUCH LEAVES
FOR ALL EMPLOYEES; AND
6.1.2 LEAVES OF ABSENCE AS MAY BE REQUIRED BY
APPLICABLE LAW (INCLUDING FOR PURPOSES OF EXAMPLE, BUT NOT
AS A LIMITATION, REASONABLE TIME FROM WORK TO VOTE IN
ELECTIONS, TO SERVE AS A JUROR AND TO TESTIFY IN LEGAL
PROCEEDINGS IF SUBPOENAED TO DO); PROVIDED, HOWEVER, THAT
SUCH LEAVES WILL BE FULLY-PAID ONLY WHERE REQUIRED BY LAW
AND WILL BE LIMITED IN DURATION AS REQUIRED BY LAW; AND
6.1.3 LEAVES OF ABSENCE ON ACCOUNT OF ILLNESS,
BEREAVEMENT OR FAMILY EMERGENCY IN SUCH FREQUENCY AND
DURATION AS PROVIDED BY EMPLOYER'S THEN-CURRENT POLICIES
GOVERNING SUCH LEAVES FOR ALL EMPLOYEES.
6.2 IN ADDITION TO THE FOREGOING BENEFITS (BUT NOT AS A
LIMITATION THEREON), EMPLOYEE SHALL BE ENTITLED TO BE ABSENT FROM
HIS EMPLOYMENT HEREUNDER FOR A TOTAL OF TWENTY (20) BUSINESS DAYS
(TOTALING FOUR (4) CALENDAR WEEKS WHEN WEEKENDS ARE INCLUDED) AS
AND FOR VACATION LEAVES FOR EACH COMPLETED CONTRACT YEAR
HEREUNDER. DURING SUCH VACATION LEAVE, EMPLOYEE SHALL BE
COMPENSATED AT THE RATE OF HIS ABOVE-PRESCRIBED BASE SALARY,
TOGETHER WITH ALL OTHER BENEFITS SPECIFIED IN THIS AGREEMENT. SUCH
VACATION LEAVE MAY BE TAKEN CONSECUTIVELY OR IN SEPARATE TIME
SEGMENTS; PROVIDED, HOWEVER, THAT UNLESS OTHERWISE EXPRESSLY
AGREED TO BY THE EMPLOYER-CORPORATION'S PRESIDENT, ALL ACCRUED
VACATION LEAVE MUST BE TAKEN WITHIN TWELVE (12) MONTHS FOLLOWING
THE ACCRUAL THEREOF. A FAILURE BY EMPLOYEE TO TAKE VACATION LEAVE
WITHIN THE PRESCRIBED TIME SHALL WORK AS A FORFEITURE OF
EMPLOYEE'S RIGHT TO TAKE SUCH TIME, BUT NOT AS A FORFEITURE OF
EMPLOYEE'S RIGHT TO BE PAID BASE SALARY THEREFOR. FOR PURPOSES
OF THIS AGREEMENT, THE TERM "BUSINESS DAY" IS DEFINED AS ANY DAY
WHICH IS NOT A SATURDAY, A SUNDAY, A DAY CUSTOMARILY GRANTED BY
EMPLOYER AS A HOLIDAY OR A DAY WHICH EMPLOYEE WOULD HAVE
OTHERWISE BEEN ENTITLED TO BE ABSENT FROM WORK UNDER EMPLOYER'S
THEN-CURRENT POLICIES GOVERNING SUCH LEAVES FOR ALL EMPLOYEES.
7. REIMBURSEMENT OF BUSINESS EXPENSES INCURRED BY
EMPLOYEE.
7.1 EMPLOYER SHALL REIMBURSE EMPLOYEE FOR REASONABLE
OUT-OF-POCKET EXPENSES INCURRED AND PAID BY EMPLOYEE DURING
THE TERM OF THE EMPLOYMENT HEREUNDER IN CONNECTION WITH THE
CONDUCT OF EMPLOYER'S BUSINESS AND/OR THE DISCHARGE OF
EMPLOYEE'S DUTIES INCLUDING, FOR PURPOSES OF EXAMPLE BUT NOT AS
A LIMITATION, TRAVEL EXPENSES, FOOD AND LODGING WHILE AWAY FROM
HOME SUBJECT, HOWEVER, TO THE PRIOR APPROVAL OF EMPLOYER.
7.2 EMPLOYER'S OBLIGATIONS TO REIMBURSE EMPLOYEE FOR ANY
EXPENSES SPECIFIED IN THIS AGREEMENT SHALL NOT ARISE UNLESS AND
UNTIL EMPLOYEE HAS SUBMITTED TO EMPLOYER WRITTEN VOUCHERS
EVIDENCING SUCH EXPENSES IN A FORM AS MAY BE PRESCRIBED FROM
TIME TO TIME BY THE RULES OF STATE AND FEDERAL TAX AUTHORITIES.
8. OBLIGATIONS NOT CONDITIONED ON OR RELATED TO OTHERS.
8.1 EMPLOYER MAY TERMINATE EMPLOYEE'S EMPLOYMENT: (I)
BY GIVING EMPLOYEE WRITTEN NOTICE OF SUCH TERMINATION AT LEAST 30
DAYS IN ADVANCE, AND (II) AT ANY TIME FOR CAUSE.
8.2 EMPLOYEE'S EMPLOYMENT HEREUNDER SHALL TERMINATE
IMMEDIATELY UPON HIS DEATH OR DISABILITY. FOR PURPOSES OF THIS
SECTION 8.2, EMPLOYEE SHALL BE DEEMED TO BE "DISABLED" IF, ON
ACCOUNT OF ILLNESS OR OTHER INCAPACITY, HE HAS BEEN UNABLE TO
PERFORM HIS DUTIES FOR 60 CONSECUTIVE DAYS. THE EMPLOYER SHALL
CONTINUE TO PAY EMPLOYEE HIS BASE SALARY AND OTHER EMPLOYMENT
BENEFITS HEREUNDER PRIOR TO TERMINATION BY THE BOARD OF DIRECTORS
PURSUANT TO THIS SECTION 8.1, EVEN THOUGH EMPLOYEE IS DISABLED
DURING THE 60-DAY PERIOD PRECEDING SUCH TERMINATION.
8.3 THIS AGREEMENT MAY BE TERMINATED WITH THE MUTUAL
CONSENT OF THE PARTIES.
8.4 IF EMPLOYEE'S EMPLOYMENT HEREUNDER IS TERMINATED BY
EMPLOYER WITHOUT CAUSE PURSUANT TO THE FOREGOING SECTION 8.1,
EMPLOYER SHALL, WITHIN 30 DAYS AFTER THE EFFECTIVE DATE OF SUCH
TERMINATION MAKE A CASH PAYMENT EQUAL TO EMPLOYEE'S BASE
SALARY FOR A PERIOD OF TIME EQUAL TO THE LESSER OF (X) THE REMAINING
CONTRACT YEAR (ASSUMING NO FURTHER RENEWALS THEREOF) AND (Y) SIX
(6) MONTHS.
8.5 IF EMPLOYEE'S EMPLOYMENT HEREUNDER IS TERMINATED FOR
ANY REASON, THEN ALL RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL TERMINATE AUTOMATICALLY THEREUPON, EXCEPT (I) AS
TO ANY RIGHT WHICH EMPLOYEE'S ESTATE OR DEPENDENTS MAY HAVE
UNDER "COBRA" OR ANY OTHER FEDERAL OR STATE LAW, (II) AS TO ANY
BASE SALARY EARNED BY HIM PRIOR TO SUCH TERMINATION, OR [(III) TO
THE EXTENT OTHERWISE SPECIFICALLY SET FORTH HEREIN (INCLUDING UNDER
THE FOREGOING SECTION 8.4).]
8.6 FOR PURPOSES OF THIS AGREEMENT:
"CAUSE" MEANS, WHEN USED IN CONNECTION WITH THE
TERMINATION OF EMPLOYEE'S EMPLOYMENT WITH EMPLOYER (OR
THE RIGHT TO EFFECT SUCH TERMINATION):
(I) EMPLOYEE'S COMMISSION OF ANY CRIME
INVOLVING MORAL TURPITUDE OR ANY FELONY;
(II) EMPLOYEE'S COMMISSION OF AN ACT OF FRAUD
OR EMBEZZLEMENT UPON EMPLOYER;
(III) WILLFUL MISCONDUCT OR WILLFUL FAILURE BY
EMPLOYEE TO PERFORM HIS DUTIES TO EMPLOYER
OR MATERIAL BREACH OF THIS AGREEMENT;
(IV) HABITUAL DRUG, ALCOHOL OR OTHER SUBSTANCE
ABUSE BY EMPLOYEE;
(V) FAILURE BY EMPLOYEE TO DISCLOSE MATERIAL,
ADVERSE PERSONAL, BUSINESS OR FINANCIAL
INFORMATION AT THE TIME OF SIGNING THIS
AGREEMENT WHICH FAILURE CAN MATERIALLY
AND ADVERSELY AFFECT THE BUSINESS AND
AFFAIRS OF EMPLOYER.
8.7 UPON TERMINATION OF THE EMPLOYMENT HEREUNDER FOR
ANY REASON, EMPLOYEE SHALL FORTHWITH DELIVER BACK TO EMPLOYER
ANY AND ALL PROPERTY BELONGING TO EMPLOYER OF EVERY TAPE AND
NATURE, INCLUDING BUT NOT LIMITED TO, KEYS, DOCUMENTS, MANUALS,
CATALOGS, CORRESPONDENCE, PRODUCT SAMPLES AND DOCUMENTATION OF
EVERY TYPE AND NATURE.
9. CONFIDENTIALITY.
9.1 WITHOUT THE SPECIFIC PRIOR WRITTEN CONSENT OF
EMPLOYER, EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, AT ANY TIME
AFTER THE DATE HEREOF, DIVULGE TO ANY PERSON OR ENTITY, OR USE FOR
HIS OWN DIRECT OR INDIRECT BENEFIT, ANY INFORMATION CONFIDENTIAL
AND/OR PROPRIETARY TO EMPLOYER CONCERNING ITS BUSINESS, AFFAIRS,
PRODUCTS, SERVICES, ASSETS, LIABILITIES, REVENUES, CONDITION (FINANCIAL
OR OTHERWISE), OR PROSPECTS, CUSTOMERS OR SUPPLIERS, INCLUDING,
WITHOUT LIMITATION, ANY DATA OR STATISTICAL INFORMATION OF OR WITH
RESPECT TO EMPLOYER WHETHER CREATED OR DEVELOPED BY EMPLOYER
OR ON ITS BEHALF, OR WITH RESPECT TO WHICH EMPLOYEE MAY HAVE
KNOWLEDGE OR ACCESS, IT BEING THE INTENT OF THE PARTIES HERETO TO
RESTRICT EMPLOYEE FROM DISSEMINATING OR USING ANY SUCH
INFORMATION OF OR WITH RESPECT TO EMPLOYER WHICH IS AT THE TIME
OF SUCH USE OR DISSEMINATION UNPUBLISHED AND NOT READILY
AVAILABLE OR GENERALLY KNOWN TO THE PUBLIC OR IN EMPLOYER'S
TRADE; PROVIDED THAT NOTHING IN THIS SECTION 9 SHALL PROHIBIT SUCH
DISCLOSURE WITHIN THE SCOPE OF EMPLOYEE'S EMPLOYMENT OR IN THE
BEST INTEREST OF EMPLOYER.
10. MISCELLANEOUS PROVISIONS.
10.1 UNCONDITIONAL OBLIGATIONS. THE LEGAL RELATIONSHIP,
DUTIES AND OBLIGATIONS OF THE PARTIES HEREUNDER ARE NOT
CONDITIONED UPON OR RELATED TO THE PERFORMANCE OR SATISFACTION OF
ANY TERMS, COVENANTS, CONDITIONS, OBLIGATIONS OR DISCHARGE OF ANY
DUTIES UNDER ANY OTHER CONTRACT OR OTHER OBLIGATION OR
RELATIONSHIP ARISING OR EXISTING BETWEEN THE PARTIES.
10.2 ATTORNEYS' FEES, ETC. IN THE EVENT THAT ANY SUIT IN LAW
OR EQUITY, OR OTHER FORMAL PROCEEDING IS INSTITUTED BY ANY PARTY
TO THIS AGREEMENT, TO ENFORCE, INTERPRET OR RECOVER DAMAGES FOR
BREACH OF ANY PROVISION OR PART OF THIS AGREEMENT, THEN THE PARTY
PREVAILING IN SUCH ACTION OR OTHER FORMAL PROCEEDING SHALL BE
ENTITLED TO RECOVER, IN ADDITION TO THE COSTS OF SUIT INCURRED BY
SUCH PREVAILING PARTY, SUCH ATTORNEYS' FEES AS THE TRIBUNAL
PRESIDING IN SUCH ACTION OR OTHER FORMAL PROCEEDING SHALL DEEM TO
HAVE BEEN REASONABLY INCURRED BY SUCH PREVAILING PARTY.
10.3 BINDING AGREEMENT. ALL TERMS, CONDITIONS AND
COVENANTS TO BE OBSERVED AND PERFORMED BY THE PARTIES HERETO
SHALL BE APPLICABLE TO AND BINDING UPON THEIR RESPECTIVE AGENTS,
SERVANTS, HEIRS EXECUTOR'S ADMINISTRATORS, AFFILIATES, SUBSIDIARIES,
ASSOCIATES, EXECUTIVES, SUCCESSORS AND ASSIGNS.
10.4 CAPTIONS. ALL CAPTIONS (PARAGRAPH HEADINGS) SET FORTH
IN THIS AGREEMENT ARE INSERTED ONLY AS A NO MATTER OF CONVENIENCE
AND FOR REFERENCE, AND SHALL NOT BE CONSTRUED TO DEFINE, LIMIT,
INTERPRET, PRESCRIBE OR DESCRIBE THE SCOPE OF INTENT OF THIS
AGREEMENT, OR ANY PART HEREOF, NOR AFFECT ITS MEANING, AND SHALL
NOT BE CONSIDERED FOR SUCH PURPOSES.
10.5 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN
ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL BUT ALL OF WHICH, WHEN TAKEN TOGETHER, SHALL CONSTITUTE
ONE AND THE SAME DOCUMENT.
10.6 FAIR INTERPRETATION. THE LANGUAGE APPEARING IN LL
PARTS OF THIS AGREEMENT SHALL BE CONSTRUED, IN ALL CASES, ACCORDING
TO ITS FAIR MEANING AND NOT STRICTLY CONSTRUED FOR OR AGAINST EITHER
PARTY HERETO.
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE INTERPRETED,
CONSTRUED AND GOVERNED BY, IN ACCORDANCE WITH AND CONSISTENT
WITH THE LAWS OF THE STATE OF CALIFORNIA, WHICH SHALL IN ALL RESPECTS,
INCLUDING STATUTES OF LIMITATIONS, TO ANY DISPUTES OR CONTROVERSIES
ARISING OUT OF OR PERTAINING TO THIS AGREEMENT.
10.8 METHOD OF GIVING NOTICES. ANY NOTICE REQUIRED OR
PERMITTED TO BE GIVEN HEREUNDER SHALL BE SO GIVEN BY REGISTERED OR
CERTIFIED (RETURN RECEIPT) UNITED STATES POSTAL SERVICE MAIL,
POSTAGE PRE-PAID, UNLESS A NOTICE TRANSMITTED IN SAID MANNER IS
RETURNED TO THE SENDER AS UNCLAIMED, REFUSED OR UNDELIVERABLE, OR
UNLESS THE PARTY GIVING NOTICE HAS A GOOD FAITH REASON TO BELIEVE
THAT A NOTICE TRANSMITTED IN SAID MANNER WILL BE SO RETURNED, IN
WHICH CASE SUCH NOTICE MAY BE GIVEN, AT THE SENDER'S OPTION, BY
PERSONAL SERVICE OR BY FIRST CLASS MAIL PROVIDED THAT SUCH
ALTERNATIVE METHOD IS EFFECTUATED BY A DISINTERESTED PARTY WHO
ATTESTS THERETO BY A WRITTEN DECLARATION UNDER PENALTY OF PERJURY
IN A FORM CONSISTENT WITH THE PROVISIONS OF CALIFORNIA CODE CIVIL
PROCEDURES SECTION1013A AUTHORIZING SERVICE BY MAIL. ANY SUCH NOTICE
SHALL BE ADDRESSED TO OR DELIVERED TO THE RECIPIENT AS FOLLOWS:
IN THE CASE OF: ADDRESSED TO:
EMPLOYER: ADVANCED OXYGEN
TECHNOLOGIES INC.
C/O CROSSFIELD INC
230 PARK AVENUE - SUITE 1000
NEW YORK, NEW YORK 10169
ATTN: ROBERT E. WOLFE, PRESIDENT
EMPLOYEE: JOHN TEUBER
20457 KELSEY DRIVE
CANYON COUNTRY, CALIFORNIA 91351
IN THE EVENT THAT NOTICE IS TRANSMITTED BY U.S. MAIL, SUCH NOTICE
SHALL BE DEEMED TO HAVE BEEN RECEIVED BY THE ADDRESSEE AND
SERVICE THEREOF SHALL BE EFFECTIVE, FIVE (5) DAYS FOLLOWING DEPOSIT
THEREOF WITH THE UNITED STATES POSTAL SERVICE, OR UPON ACTUAL
RECEIPT, WHICHEVER FIRST OCCURS. A PARTY MAY CHANGE THE ABOVE-
SPECIFIED ADDRESS BY GIVING THE OTHER PARTY NOTICE OF THE NEW
ADDRESS IN THE MANNER ABOVE-PRESCRIBED FOR ALL NOTICES.
IN WITNESS WHEREOF THE PARTIES HAVE SUBSCRIBED
THEIR NAMES OR CAUSED AN AUTHORIZED OFFICER TO SUBSCRIBE THIS
AGREEMENT, EFFECTIVE ON THE DATE FIRST WRITTEN ABOVE.
ADVANCED OXYGEN TECHNOLOGIES, INC.
BY: ____________________________________
NAME: ROBERT E. WOLFE
ITS: PRESIDENT
______________________________________
JOHN TEUBER
EXHIBIT G-UCC1
