Exhibit 10.11

 

**AGREEMENT AND PLAN OF MERGER**

 

                THISAGREEMENT AND PLAN OF MERGER (“Agreement”) is entered into this 30thday of August, 2001 by and between (a) Hispanic Television Networks, Inc., aDelaware corporation (“HTVN”), and Cubico.com Acquisition, Inc., a Delawarecorporation to be formed and to be a wholly-owned subsidiary of HTVN (the“Subsidiary”), on the one hand, and (b) Cubico.com, Inc., a Californiacorporation (“Cubico”), and Hector Saldaña and Luis Saldaña, each a shareholderof Cubico (referred to hereinafter singly as a “Shareholder” and collectivelyas the “Shareholders”), on the other hand.

 

**RECITALS**:

 

                WHEREAS,the parties desire to merge Cubico with and into the Subsidiary (with theSubsidiary being the surviving corporation), upon the terms and subject to theconditions set forth in this Agreement;

 

**AGREEMENT**:

 

                NOW,THEREFORE, in consideration of the mutual covenants, agreements,representations and warranties set forth herein and other valuableconsideration, the receipt, adequacy and sufficiency of which are herebyacknowledged, the parties agree as follows:

 

**ARTICLE 1**

**THE MERGER**

 

                1.1**           The Merger**.  In accordance with the provisions of thisAgreement, at the Effective Time (as hereinafter defined), Cubico shall bemerged with and into the Subsidiary (the “Merger”), which shall be thesurviving corporation and shall continue its corporate existence under the lawsof the State of Delaware under the name “Cubico.com, Inc.” (the “SurvivingCorporation”) unimpaired and unaffected by the Merger.  The separate corporate existence of Cubicoshall cease at the Effective Time. Cubico and the Subsidiary are sometimes hereinafter collectivelyreferred to as the “Constituent Corporations.”

 

                1.2**           Effective Time**.  Unless the Agreement is terminated pursuantto Section 10, the Merger shall become effective at the time of (a) theacceptance of the filing of a Certificate of Merger with the Secretary of Stateof Delaware in accordance with the provisions of the Delaware GeneralCorporation Law (the “DGCL”), and (b) the acceptance of the filing of anAgreement of Merger with the Secretary of State of California in accordancewith the provisions of the California Corporation Code (the “CCC”).  Cubico and the Subsidiary agree to file theaforementioned Certificate of Merger and Agreementof Merger at the time of theClosing, as hereinafter defined.  Thedate and time when the Merger shall become effective is referred to herein asthe “Effective Time.”

 

                1.3**           Effect of the Merger**.

 

                (a)           The Surviving Corporation shall,without transfer, thereupon and thereafter possess all assets and property ofevery description, and every interest therein, wherever located, and the rightsprivileges, immunities, powers, franchises and authority, of a public as wellas of a private nature, and be subject to all of the restrictions,disabilities, and duties of each of the Constituent Corporations, and allobligations of or belonging to or due to either of the ConstituentCorporations, shall be vested in the Surviving Corporation without further actor deed; all assets and property of every description, and every interesttherein, wherever located, and the rights privileges, immunities, powers,franchises, and authority shall thereafter be the property of the SurvivingCorporation as effectively as when they were the property of the ConstituentCorporations, and the title to any real estate or any interest therein vestedin either of the Constituent Corporations shall not revert or in any way beimpaired by reason of the Merger; all rights of creditors and all liens uponany property of the Constituent Corporations existing as of the Effective Timeshall be preserved unimpaired; and all debts, liabilities, and duties of theConstituent Corporations shall thenceforth attach to the Surviving Corporationand may be enforced against it to the same extent as if such debts,liabilities, and duties had been incurred for or by it; and any action orproceeding, whether civil, criminal, or administrative, pending by or againsteither Constituent Corporation shall be prosecuted as if the Merger had nottaken place, or the Surviving Corporation may be substituted in any such actionor proceeding.

 

                (b)           All corporate acts, plans, policies, contracts, approvals,and authorizations of Cubico and its shareholders, Board of Directors,committees elected or appointed by its Board of Directors, officers, and agentsthat were valid and effective immediately prior to the Effective Time shall betaken for all purposes as the acts, plans, policies, contracts, approvals, andauthorizations of the Surviving Corporation and shall be effective and bindingthereon as the same were with respect to Cubico.  Any employees of Cubico at the Effective Time shall becomeemployees of the Surviving Corporation.

 

                1.4**           Closing**.  The Closing of the transactions contemplatedby this Agreement (the “Closing”) shall take place at the offices of HTVN assoon as possible after the date of this Agreement, but in no event later thanDecember 30, 2001 (the “Latest Closing Date”), except as mutually agreed to byHTVN, the Subsidiary and Cubico (the date of the Closing being referred tohereinafter as the “Closing Date”).

 

                1.5**           Certificate of Incorporation, Bylaws,and Directors and Officers**.

 

                (a)           The Certificate of Incorporationattached hereto as Exhibit A shall be the Certificate ofIncorporation of the Surviving Corporation until amended as provided by law.

 

                (b)           The Bylaws attached hereto as Exhibit Bshall be the Bylaws of the Surviving Corporation until amended as provided bylaw.

 

                (c)           The following persons shall be thedirectors of the Surviving Corporation, each to his seat in accordance with theCertificate of Incorporation and Bylaws of the Surviving Corporation untiltheir respective successors shall have been elected and qualified:

 

                                                                JamesA. Ryffel

                                                                DougMiller

                                                                MichaelFletcher

                                                                HectorSaldaña

                                                                LuisSaldaña

 

                (d)           The following persons shall be theofficers of the Surviving Corporation, each to hold office in accordance withthe Certificate of Incorporation and Bylaws of the Surviving Corporation untiltheir respective successors shall have been elected and qualified:

 

                **Name of Officer                                                   Offices**

                Hector Saldaña                                                     ChiefExecutive Officer

                Michael Fletcher                                                  ChiefOperating Officer,

                                                                                                Treasurer& Secretary

                Luis Saldaña                                                         VicePresident

 

                1.6**           Shareholder and Director Approvals**.

 

                (a)           Cubico shall submit, forconsideration, approval and adoption at Special Meetings of Shareholdersconvened as soon after the date hereof as is possible (or if feasible, by meansof written consent in lieu of a Special Meeting), the Merger and all otheractions contemplated by this Agreement that require approval and adoption bytheir respective shareholders.

 

                (b)           In submitting the Merger to itsshareholders, Cubico agrees to furnish its shareholders with copies of HTVN’sAnnual Report on Form 10-KSB for its fiscal year ended December 31, 2000 andcopies of all of HTVN’s other filings with the U.S. Securities and ExchangeCommission made thereafter.  Cubicoagrees to use reasonable best efforts to procure from each of its shareholderssuch information and documentation (in form acceptable to HTVN) as HTVN mayrequest to confirm that the issuance of HTVN securities in connection with theMerger pursuant to ARTICLE 2 below will be exempt from all applicable Federaland state securities offering registration requirements.

 

**ARTICLE 2**

**CONVERSION OF SHARES**

 

                2.1**           Conversion**. At theEffective Time, by virtue of the Merger and without any action on the part ofthe holders thereof:

 

                (a)           Each share of the common stock of theSubsidiary issued and outstanding immediately prior to the Effective Time shallremain outstanding after the Merger.

 

                (b)           Each share of Common Stock of Cubicoissued and outstanding immediately prior to the Effective Time (“Cubico CommonStock”) (except for shares of Cubico Common Stock held as treasury shares ofCubico, all of which shall be retired and cancelled) shall automatically beconverted by reason of the Merger and without any action by the holders thereofinto and become one share of Common Stock of HTVN (“HTVN Common Stock”), suchthat an aggregate of 5,596,334 shares of HTVN Common Stock will be issued inconnection with the Merger; the shares of Cubico Common Stock so convertedshall cease to exist as such and shall exist only as shares of HTVN CommonStock.

 

                (c)           Each warrant or option to purchase ashare of Cubico Common Stock outstanding immediately prior to the EffectiveTime shall continue outstanding as a warrant or option to purchase, in lieu ofthe right to purchase a share of Cubico Common Stock, one share of HTVN CommonStock upon the same terms and conditions (including the aggregate exerciseprice, vesting schedule and vesting credit) as applicable immediately prior tothe Effective Time under the relevant warrant or option.

 

                (d)           HTVN’s transfer agent shall beinstructed to issue the HTVN Common Stock pursuant to the terms of thisAgreement.

 

                2.2**           Exchange of Certificates**.

 

                (a)           If the Merger is approved by theshareholders of Cubico after the Effective Time, each holder of an outstandingcertificate or certificates representing shares of Cubico Common Stock may, butis not required to, surrender such certificate or certificates to Cubico alongwith such other documents as may reasonably be deemed necessary by Cubico, theSurviving Corporation or HTVN effectively to surrender and exchange suchcertificate or certificates. From and after the Effective Time and untilcertificates representing shares of Cubico Common Stock are surrendered forexchange or registration of transfer, all certificates that prior to theEffective Time of the Merger represented shares of Cubico Common Stock shall bedeemed for all purposes to represent and evidence the number of shares of HTVNCommon Stock into which they were so converted under the terms of Section2.1(b) of this Agreement.

 

                (b)           After the Effective Time, whenevercertificates that formerly represented Cubico Common Stock are presented forexchange or registration of transfer, HTVN shall cause to be issued in respectthereof certificates representing the number of shares of HTVN Common Stockinto which the surrendered shares of Cubico Common Stock were so convertedunder the terms of Section 2.1(b) of this Agreement.  If certificates for HTVN Common Stock are to be delivered to orin the name of a person other than the person in whose name a surrenderedcertificate is registered, the surrendered certificate shall be properlyendorsed or otherwise be in proper form for transfer and the person requestingthe transfer shall pay to HTVN all transfer or other taxes required by reasonof the change in ownership or establish to HTVN’s satisfaction that such taxeshave been or are not required to be paid.

 

                (c)           If any certificate formerlyrepresenting shares of Cubico Common Stock shall have been lost, stolen, ordestroyed, upon the making of an affidavit in form and substance satisfactoryto HTVN of that fact by the person claiming the certificate to be lost, stolenor destroyed and subject to such other conditions as HTVN may reasonablyimpose, HTVN shall issue in exchange for the lost, stolen or destroyedcertificate a certificate representing the number of shares of HTVN CommonStock into which the shares of Cubico Common Stock represented by the lost,stolen, or destroyed certificate were so converted under the terms of Section2.1(b) of this Agreement.  Whenauthorizing the issuance of the shares of HTVN Common Stock in exchangetherefor, HTVN may, in its discretion and as a condition precedent to theissuance thereof, require the owner of such a certificate to give HTVN a bondor other indemnity in any amount reasonably satisfactory to HTVN against anyclaim arising against HTVN with respect to the stolen or destroyed certificate.

 

                (d)           All shares of HTVN Common Stock intowhich Cubico Common Stock shall have been converted pursuant to this Article 2shall be deemed to have been issued in full satisfaction of all rightspertaining to such converted shares and shall, when issued pursuant to theprovisions hereof, be validly issued, fully paid, and nonassessable.

 

**ARTICLE 3**

**DISSENTING SHAREHOLDERS**

 

###                 3.1           **Demand forAppraisal**.  Notwithstandingany provision of this Agreement to the contrary, any shares of Cubico CommonStock held by a holder who has demanded and perfected appraisal or dissenters’rights for such shares in accordance with California Law and who, as of theEffective Time, has not effectively withdrawn or lost such appraisal ordissenters’ rights (“Dissenting Shares”), shall not be converted into orrepresent a right to receive HTVN Common Stock pursuant to Section 2.2,but the holder thereof shall only be entitled to such rights as are granted byCalifornia Law.

###  

###                 3.2           **Withdrawalor Loss of Demand for Appraisal**. Notwithstanding the provisions of Section 3.1, if any holder of sharesof Cubico Common Stock who demands appraisal of such shares under CaliforniaLaw shall effectively withdraw or lose (through failure to perfect orotherwise) the right to appraisal, then, as of the later of the Effective Timeand the occurrence of such event, such holder’s shares shall automatically beconverted into and represent only the right to receive HTVN Common Stock asprovided in Section 2.1, without interest thereon, upon surrender of thecertificate representing such shares.

 

                3.3           **Notice of Demand for Appraisal**.  Cubico shall give HTVN prompt notice of anywritten demands for appraisal of any shares of Cubico Common Stock, withdrawalsof such demands, and any other instruments served pursuant to California Lawand received by Cubico.

 

**ARTICLE 4**

**REPRESENTATIONS AND WARRANTIES OFSHAREHOLDERS**

 

                EachShareholder hereby represents and warrant, jointly and severally, to HTVN andthe Subsidiary that except as to the Shareholder Schedule of Exceptionsattached hereto as Exhibit C:

 

                4.1           **Organization and Standing of Cubico**.  Cubico is a corporation duly organized,validly existing, and in good standing under the laws of the state ofCalifornia.  Cubico has full requisitecorporate power and authority to carry on its business as it is now beingconducted, and to own, operate, and lease the properties now owned, operated,or leased by it.  Cubico is dulyauthorized and qualified to carry on its business in the manner as nowconducted in each state in which authorization and qualification isrequired.  Schedule 4.1 setsforth a true, correct and complete list of all of the jurisdictions in whichCubico is qualified to do business as a foreign corporation.  Cubico has made available to HTVN and itsrepresentatives as requested true, correct and complete copies of the contentsof Cubico’s minute book, which are accurate in all respects and set forth fullyand fairly all of the Cubico’s transactions.

 

                4.2           **Capitalization of Cubico**.  The authorized capital stock of Cubico (the“Capital Stock”) consists of 20,000,000 shares of Cubico Common Stock,3,218,334 of which were issued and outstanding prior to the consummation of theMerger, and 10,800,000 shares of Preferred Stock, 3,000,000 of which aredesignated Series A Preferred Stock, 2,378,000 of which are issued andoutstanding and 7,800,000 of which are designated Series B Stock, none ofwhich is issued and outstanding.  Theshares of Capital Stock issued and outstanding prior to the consummation of theMerger are duly and validly authorized and issued and are fully paid and non–assessable,and were not issued in violation of the pre–emptive rights of any currentor former shareholder.  The shares ofCapital Stock issued and outstanding prior to the consummation of the Mergerwere issued, and all secondary transfers of such shares permitted by Cubicowere made, in compliance with all applicable law (including, withoutlimitation, available exemptions from the securities offering registrationrequirements of federal and state law). Except as set forth on Schedule 4.2, no option, warrant,call, subscription, convertible security (other than the Preferred Stock) orcommitment of any kind obligating Cubico to issue any Capital Stockexists.  Schedule 4.2 setsforth any and all compensation plans applicable to any of the officers,directors, or employees of Cubico under which compensation accrued or payableis determined, in whole or in part, by reference to Capital Stock.  Except as set forth on Schedule 4.2,there are no agreements or commitments obligating Cubico to repurchase orotherwise acquire any Capital Stock.

 

                4.3           **Subsidiaries and Other Ventures**.  Cubico has no subsidiaries or affiliatedcorporations, and owns no capital stock, bond, or other security of, or has anyequity or proprietary interest in, any corporation, partnership, joint venture,trust, or unincorporated association.

 

                4.4           **Ownership of Stock**.  Schedule 4.4 sets forth thenames of each shareholder of Cubico as well as the number shares owned by eachshareholder as reflected on the books of the Cubico.  Each Shareholder, separately and not jointly, represents andwarrants that such Shareholder owns the number of shares of Capital Stock setforth next to such Shareholder’s name on Schedule 4.4 hereto, freeand clear of any mortgage, lien, security interest, claim, charge, pledge,encumbrance and any restriction on the transfer thereof of any naturewhatsoever, and that none of such Shareholder’s shares of Capital Stock issubject to any voting trust, voting agreement, or other agreement or understandingwith respect to the voting thereof, nor is any proxy in existence with respectto any such shares, other than as is otherwise provided for herein.

 

                4.5           **Capacity to Enter into Agreement**.  Cubico and each Shareholder has full right,power and authority to execute and deliver this Agreement and all otheragreements, documents and instruments to be executed in connection herewith andperform its or his obligations hereunder and thereunder.  The execution and delivery by Cubico of thisAgreement and all other agreements, documents and instruments to be executed byCubico in connection herewith have been authorized by all necessary corporateaction by Cubico, other than for the approval of the shareholders of Cubico,which will be sought pursuant to this Agreement.  When this Agreement and all other agreements, documents andinstruments to be executed by Cubico or a Shareholder in connection herewithhave been executed by Cubico or such Shareholder (as the case may be) anddelivered to HTVN and the Subsidiary, this Agreement and such other agreements,documents and instruments will constitute the valid and binding agreements ofCubico or such Shareholder (as the case may be), enforceable against Cubico orsuch Shareholder (as the case may be) in accordance with their respectiveterms, except as such enforceability may be limited by or subject to (a) anybankruptcy, insolvency, reorganization, moratorium or other similar lawsrelating to creditors’ rights generally and (b) general principles of equity(regardless of whether such enforceability is considered in a proceeding inequity or at law).

 

                4.6           **Conflicts**. Except as set forth in Schedule 4.6 hereto, the execution,delivery, and consummation of the transactions contemplated by this Agreementwill not (a) violate, conflict with or result in the breach or termination of,or otherwise give any other contracting party the right to terminate, orconstitute a default (by way of substitution, novation or otherwise) under theterms of, any contract to which Cubico or any Shareholder is a party or bywhich Cubico or any Shareholder is bound or by which any of the assets ofCubico or any Shareholder is bound or affected, (b) violate any judgmentagainst, or binding upon, Cubico or any Shareholder or upon the assets of Cubicoor any Shareholder, (c) result in the creation of any lien, charge orencumbrance upon any assets of Cubico or any Shareholder pursuant to the termsof any such contract, or (d) violate any provision in the charter documents,bylaws or any other agreement affecting the governance and control of Cubico.

 

                4.7           **Consents**. Except as set forth in Schedule 4.7 hereto, no consent from,or other approval of, any governmental entity or any other person, which hasnot been obtained, is necessary in connection with the execution, delivery, orperformance of this Agreement by Cubico or any Shareholder, other than for theapproval of the shareholders of Cubico, which will be sought pursuant to thisAgreement.

 

                4.8           **Financial Statements**.  Cubico has delivered to HTVN or itsrepresentatives copies of the following financial statements (hereinaftercollectively referred to as the “Financial Statements”):  an unaudited interim balance sheet of Cubicoas of June 30, 2001 (the “Balance Sheet”), an unaudited interim statement ofincome of Cubico for the three-month period ended June 30, 2001, an unauditedinterim balance sheet of Cubico as of March 31, 2001 and an unaudited interimstatement of income of Cubico for the year ended March 31, 2001.  Except as set forth on Schedule 4.8hereto,

 

                (a)           The Financial Statements are complete and correct, presentfairly the financial condition of Cubico as at the respective dates thereof,and the results of operations for the respective periods covered thereby, andhave been prepared in accordance with generally accepted accounting principlesapplied on a consistent basis;

 

                (b)           There is no basis for the assertionof any liabilities or obligations, either accrued, absolute, contingent, orotherwise, which might adversely affect the value, use, operation or enjoymentof the assets or business of Cubico, which liabilities or obligations are notexpressly set forth on the Balance Sheet; and

 

                (c)           Cubico is not a party to or boundeither absolutely or on a contingent basis by any agreement of guarantee,indemnification, assumption or endorsement or any like commitment of theobligations, liabilities or indebtedness of any other person (whether accrued,absolute, contingent or otherwise).

 

                4.9           **Absence of Certain Changes and Events**.  Except as set forth on Schedule 4.9hereto, since the date of the Balance Sheet, there has not been:

 

                (a)           Any material adverse change in thefinancial condition, operations, business prospects, employee relations,customer relations, assets, liabilities (accrued, absolute, contingent, orotherwise) or income of Cubico, or the business of Cubico, from that shown onthe Financial Statements;

 

                (b)           Any declaration, setting aside, orpayment of any distribution in respect of the equity interests in Cubico, orany direct or indirect redemption, purchase, or any other acquisition of anysuch interests, except in the ordinary course of business consistent with pastpractice and to the extent not material;

 

                (c)           Any borrowing of, or agreement toborrow any funds or any debt, obligation, or liability (absolute or contingent)incurred by Cubico (whether or not presently outstanding) except currentliabilities incurred, and obligations under agreements entered into in theordinary course of business;

 

                (d)           Any mortgage, pledge, lien, securityinterest, charge, claim or other encumbrance created on or in any of Cubico’sproperties or assets, except liens for current taxes not yet due and payable;

 

                (e)           Any sale, assignment, or transfer ofCubico’s assets, except in the ordinary course of business, any cancellation ofany debts or claims owed to Cubico, any capital expenditures or commitmentstherefor exceeding in the aggregate $5,000, any damage, destruction or casualtyloss exceeding in the aggregate $5,000 (whether or not covered by insurance),or any charitable contributions or pledges;

 

                (f)            Any amendment or termination of anycontract, agreement, license, or arrangement to which Cubico is or was a partyor to which any assets of Cubico are or were subject, which amendment ortermination has had, or may be reasonably expected to have, a material adverseeffect on the financial condition, properties, assets, liabilities (accrued,absolute, contingent, or otherwise), income or business of Cubico; or

 

                (g)           Any other material transaction byCubico outside the ordinary course of business or any other event or conditionpertaining to, and materially adversely affecting the operations, assets,liabilities (accrued, absolute, contingent, or otherwise), income or businessof Cubico.

 

                4.10         **Assets**. Schedule 4.10(a) contains a true, correct and complete listof each item of Cubico’s machinery, equipment, appliances, motor vehicles,fixtures, furniture, and furnishings as of the date set forth on Schedule 4.10(a)having a value of $250 or more; Schedule 4.10(b) contains a true,correct and complete list of Cubico’s inventories as of the date set forth on Schedule 4.10(b);Schedule 4.10(c) contains a true, correct and complete list ofCubico’s accounts receivable with an accurate aging of the accounts receivable,all as of the date set forth on Schedule 4.10(c); and Schedule 4.10(d)contains a true, correct and complete list of each bank in which Cubico has anaccount or safe deposit box, the account number, the account name and type ofaccount, the names of all persons authorized to draw thereon and have accessthereto as of the date hereof, and a list of all powers of attorney given byCubico to any person for any purpose. Except as set forth on Schedule 4.10 hereto,

 

                (a)           Cubico has good and indefeasibletitle to all of its properties, interests in properties, and assets, real andpersonal, reflected on Schedules 4.10(a), 4.10(b), 4.10(c), 4.10(d), 4.11, 4.12and 4.13 hereto, free and clear of all mortgages, liens, pledges, charges, or encumbrancesof any nature whatsoever, except liens for current taxes not yet due andpayable;

 

                (b)           All of Cubico’s machinery, equipment,appliances, motor vehicles and fixtures reflected on Schedule 4.10(b)hereto or acquired thereafter is in good operating condition and repair,subject only to ordinary wear and tear;

 

                (c)           All of the inventories of Cubicoreflected on Schedule 4.10(c) hereto or acquired thereafter(including, without limitation, raw materials, spare parts and supplies, work–in–process,finished goods) consist of items of a quality, condition and quantity useableand saleable in the normal course of business; and

 

                (d)           All of the accounts receivable ofCubico reflected on Schedule 4.10(d) hereto or created thereafterare valid, subsisting, and genuine, arose out of bona fide transactions and arecurrent and collectible, subject to reserves reflected on the Balance Sheet.

 

                4.11         **Contracts**. Schedule 4.11 contains a true, correct and complete list ofCubico’s contracts, agreements, commitments and leases, whether or not made inthe ordinary course of business, that either (a) involve or may involveaggregate payments by or to Cubico exceeding $10,000 per year; (b) are not bytheir terms terminable by Cubico without premium or penalty within 30 or fewerdays notice, or (c) otherwise materially adversely affect or, to the knowledgeof Cubico, might materially adversely affect the financial condition, property,assets, liabilities (accrued, absolute, contingent, or otherwise), income orbusiness of Cubico.  Except as set forthon Schedule 4.11 hereto,

 

                (a)           All leases, contracts, agreements,arrangement or commitments to which Cubico is a party are in good standing,valid, and effective; and

 

                (b)           There is not, under any such lease,contract, agreement, arrangement or commitment, any existing or prospectivedefault or event of default by Cubico or event which with notice or lapse oftime, or both would constitute a default and in respect to which Cubico has nottaken adequate steps to prevent a default from occurring; and, to the knowledgeof each of the Shareholders, no other party to any such lease, contract,agreement, arrangement or commitment, is in default or breach thereof nor hasany event occurred which with notice or lapse of time would constitute a breachor default of any of such lease, contract, agreement, arrangement orcommitment.

 

                4.12         **Permits**. Schedule 4.12 contains a true, correct and complete list ofCubico’s licenses, permits and authorizations. Except as set forth on Schedule 4.12 hereto,

 

                (a)           Cubico holds all licenses, permitsand authorizations required to carry on its business, and all such licenses,permits and authorizations are in good standing;

 

                (b)           Cubico is in full compliance with andnot in default or violation with respect to any term or provision of any of itslicenses, permits and authorizations;

 

                (c)           No notice of pending, threatened, orpossible violation or investigation in connection with, or loss of, anylicense, permit, or authorization of Cubico, has been received by Cubico;

 

                (d)           Neither of the Shareholders has anyknowledge that the issuance of such a notice is being considered or of anyfacts or circumstances which form the basis for the issuance of such a notice;and

 

                (e)           No license, permit, or authorizationof Cubico is affected by the transactions provided for herein or contemplatedhereby.

 

                4.13         **Intellectual Property**.  Schedule 4.13 contains a listingand summary description of all of Cubico’s patents, trademarks, service marks,trade names, business names, copyrights, and registered designs, andapplications and registrations thereof, trade secrets, confidential know–howand other intellectual property, including, but not limited to, productformulations, drawings, technical specifications, manufacturing data, and testand development data (the foregoing intellectual property is collectivelyreferred to hereinafter as the “Intellectual Property”).  Except as set forth on Schedule 4.13hereto,

 

                (a)           Cubico possesses all IntellectualProperty necessary to the conduct of its businesses, and (in the reasonableopinion of each Shareholder) the loss or expiration of any IntellectualProperty or group of Intellectual Property would not have an adverse effect onthe conduct of its businesses;

 

                (b)           No such loss or expiration is pendingnor (to the best knowledge or belief of each Shareholder) threatened orreasonably foreseeable;

 

                (c)           Cubico owns all right, title, andinterest in and to all of the Intellectual Property;

 

                (d)           There have been no claims made againstCubico for the assertion of the invalidity, abuse, misuse, or unenforceabilityof any of such rights, and there are no reasonable grounds for the same;

 

                (e)           Cubico has not received a notice ofconflict with the asserted rights of others; and

 

                (f)            The conduct of Cubico’s business hasnot infringed any Intellectual Property of others and, the IntellectualProperty of Cubico has not been infringed by other persons.

 

                4.14         **Employees**. Schedule 4.14 sets forth a true, correct and complete listof all of the employees of Cubico, their respective lengths of service andtheir respective salaries or wage rates. Except as set forth on Schedule 4.14 hereto,

 

                (a)           Cubico is not a party as an employerto any employment contract, agreement or understanding which is not terminableat will without any penalty, liquidated damages or other required payment;

 

                (b)           Cubico has satisfied all salaries,wages, unemployment insurance premiums, worker compensation payments, incometax, FICA and other deductions and any like payments required by law; and

 

                (c)           Cubico’s employees are not unionized,and to the knowledge of each of the Shareholders, there have not been attemptsto unionize them.

 

                4.15         **Employee Benefit Plans**.  Schedule 4.15 sets forth a true,correct and complete list of all of the Employee Benefit Plans of Cubico.  Cubico has made true and correct copies ofall governing instruments and related agreements pertaining to such benefitplans available to HTVN and its representatives as requested.  Except as set forth on Schedule 4.15hereto,

 

                (a)           Neither Cubico nor any of its ERISAAffiliates sponsors or has ever sponsored, maintained, contributed to, orincurred an obligation to contribute to, any Employee Pension Benefit Plan;

 

                (b)           No individual shall accrue or receiveadditional benefits, service or accelerated rights to payments of benefitsunder any Employee Benefit Plan including the right to receive any parachutepayment, as defined in Section 280G of the Code, or become entitled toseverance, termination allowance or similar payments as a direct result of thetransactions contemplated by this Agreement;

 

                (c)           No Employee Benefit Plan hasparticipated in, engaged in or been a party to any non-exempt ProhibitedTransaction, and neither Cubico nor any of its ERISA Affiliates has hadasserted against it any claim for taxes under Chapter 43 of Subtitle D of theCode and Sections 4971 et. seq. of the Code, or for penalties under ERISASection 502(c), (i) or (1) with respect to any Employee Benefit Plan nor, tothe knowledge of each of the Shareholders, is there a basis for any suchclaim.  No officer, director or employeeof Cubico has committed a breach of any material responsibility or obligationimposed upon fiduciaries by Title I of ERISA with respect to any Employee BenefitPlan;

 

                (d)           Other than routine claims forbenefits, there is no claim pending or to the knowledge of each of theShareholders threatened, involving any Employee Benefit Plan by any personagainst such plan or Cubico or any ERISA Affiliate.  There is no pending or to the knowledge of each of theShareholders threatened proceeding involving any Employee Benefit Plan beforethe Internal Revenue Service, the U.S. Department of Labor or any othergovernmental authority;

 

                (e)           There is no material violation of anyreporting or disclosure requirement imposed by ERISA or the Code with respectto any Employee Benefit Plan;

 

                (f)            Each Employee Benefit Plan has atall times prior hereto been maintained in all material respects, by its termsand in operation, in accordance with ERISA and the Code.  Cubico and its ERISA Affiliates have madefull and timely payment of all amounts required to be contributed under theterms of each Employee Benefit Plan and applicable law or required to be paidas expenses under such Employee Benefit Plan. Each Employer Benefit Plan intended to be qualified under Code Section401(a) has received a determination letter to that effect from the InternalRevenue Service (“IRS”) or has remaining a period of time under applicableTreasury Regulations or IRS pronouncements in which to apply for such a letterand make any amendment necessary to obtain favorable determination as to thequalified status of each such plan and to the knowledge of Cubico and each ofthe Shareholders, and no event has occurred and no amendment has been made thatwould adversely affect such qualified status;

 

                (g)           With respect to any group healthplans maintained by Cubico or its ERISA Affiliates, whether or not for thebenefit of Cubico’s employees, Cubico and its ERISA Affiliate have complied inall material respects with the provisions of Part 6 of Title I of ERISA and4980B of the Code.  Cubico is notobligated to provide health care benefits of any kind to its retired employeespursuant to any Employee Benefit Plan, including without limitation any grouphealth plan, or pursuant to any agreement or understanding, except as may berequired by COBRA or other applicable statute; and

 

                (h)           Cubico has made available to HTVN acopy of the three (3) most recently filed federal Form 5500 series andaccountant’s opinion, if applicable and available, for each Employee BenefitPlan and all applicable Internal Revenue Service determination letters.

 

                Forpurposes of this Section 4.15, the following definitions shall apply:

 

                (t)            “COBRA” means the ConsolidatedOmnibus Budget Reconciliation Act of 1985, as amended, as set forth in Section4980B of the Code and Part 6 of Title I of ERISA.

 

                (u)           “Code” means the Internal RevenueCode of 1986, as amended.

 

                (v)           “Employee Benefit Plan means anyemployee benefit plan, as defined in Section 3(3) of ERISA, that is sponsoredor contributed to by Cubico or any ERISA Affiliate covering employees or formeremployees of Cubico.

 

                (w)          “Employee Pension Benefit Plan” meansany employee pension benefit plan, as defined in Section 3(2) of ERISA, that issubject to Title IV of ERISA.

 

                (x)            “ERISA” means the EmployeeRetirement Income Security Act of 1974, as amended.

 

                (y)           “ERISA Affiliate” of any person meansany other person that, together with such person as of the relevant measuringdate under ERISA, was or is required to be treated as a single employer underSection 414 of the Code.

 

                (z)            “Prohibited Transaction” means atransaction that is prohibited under Section 4975 of the Code or Section 406 ofERISA and not exempt under Section 4975 of the Code or Section 408 of ERISA,respectively.

 

                4.16         **Litigation**.  Except as set forth on Schedule 4.16 hereto,

 

                (a)           There is no pending suit, action, orlegal, administrative, arbitration, or other proceeding or governmentalinvestigation to which Cubico is a party or which (to the knowledge of each ofthe Shareholders) adversely affects or might adversely affect Cubico;

 

                (b)           Cubico is not in default with respectto any judgment, order, writ, injunction, decree, or award applicable to it ofany court or other governmental instrumentality or arbitrator; and

 

                (c)           There is no action, suit, proceeding,or claim pending or, to the knowledge of each of the Shareholders, threatenedagainst Cubico by persons not a party to this Agreement wherein an unfavorabledecision, ruling, or finding would render unlawful or otherwise adverselyaffect the consummation of the transactions contemplated by this Agreement.

 

                4.17         **Compliance with Law**.  Except as set forth on Schedule 4.17hereto,

 

                (a)           Cubico is not in violation of, or indefault with respect to, or in alleged violation of or alleged default withrespect to, any applicable law, rule, regulation, permit, or any writ or decreeof any court or any governmental commission, board, bureau, agency, orinstrumentality, including without limitation, any laws, ordinances, rules,regulations, permits, or orders relating to the business of Cubico, or thebusiness operations and practices, health and safety, and employment practicesof Cubico;

 

                (b)           Cubico is not delinquent with respectto any report required to be filed with any governmental commission, board,bureau, agency, or instrumentality, or with any trade association orcertification organization that has in the past certified or endorsed thebusiness of Cubico; and

 

                (c)           Cubico is not delinquent with respectto any reports required by private covenants or agreements to which it is aparty.

 

                4.18         **Taxes**. Cubico has delivered to HTVN or its representatives as requested true,correct and complete copies of all federal, state, and other appropriatejurisdictional tax returns, reports, and estimates that have been filed byCubico (collectively, the “Returns”). Except as set forth on Schedule 4.18 hereto,

 

                (a)           Each of the Returns is complete,proper and accurate and has been timely filed with appropriate governmentalagencies by Cubico for each period for which such Return was due;

 

                (b)           All taxes shown by the Returns to bedue and payable have been timely paid;

 

                (c)           The tax provision and accrualsreflected in the Balance Sheet are adequate to cover the liability at the datethereof for all taxes based on income, sales, business, or assets, as well asany other taxes;

 

                (d)           Cubico has not given or beenrequested to give, or executed, any extension of time or waiver of any statuteof limitations with respect to federal, state, or other political subdivisionincome or other tax for any period;

 

                (e)           Cubico has not received any notice ofdeficiency or assessment issued or proposed deficiency or assessment by theInternal Revenue Service or any other taxing authority; and

 

                (f)            There is no pending audit or inquiryof Cubico, nor has Cubico received any oral or written notice of any proposedaudit or inquiry by any taxing authority or jurisdiction.

 

                4.19         **Insurance**. Schedule 4.19 contains a true, correct and complete list ofall insurance policies either maintained by Cubico or maintained by any otherperson which relates to Cubico or its assets in any manner as of the date hereof(collectively, the “Insurance Policies”). Cubico has heretofore delivered to HTVN or its representatives asrequested true, correct and complete copies of all Insurance Policiesrequested.  Except as set forth on Schedule 4.19hereto,

 

                (a)           All Insurance Policies are still infull force and effect, and all premiums due thereon have been paid;

 

                (b)           Cubico has complied in all materialrespects with the provisions of all Insurance Policies;

 

                (c)           No claim is pending under any of theInsurance Policies;

 

                (d)           There are no outstanding requirementsor recommendations by any insurance company that issued any of the Insurancewhich requires or recommends any changes in the conduct of the business of, orany repairs or other work to be done on or with respect to any of theproperties or assets of, Cubico; and

 

                (e)           Cubico has not received any notice orother communication from any such insurance company within the three (3) yearspreceding the date hereof canceling or materially amending or materiallyincreasing the annual or other premiums payable under any of the InsurancePolicies, and (to each of the Shareholders’s knowledge) no such cancellation,amendment or increase of premiums is threatened.

 

                4.20         **Environmental Matters**.  Except as set forth on Schedule 4.20hereto,

 

                (a)           Cubico is in compliance with allapplicable federal, state and local laws and regulations relating to HazardousMaterials (as defined below) including, but not limited to, all laws andregulations governing the generation, use, collection, treatment, storage,transportation, recovery, removal, discharge or disposal of Hazardous Materialsand all laws and regulations with regard to record keeping, notification andreporting requirements respecting Hazardous Materials;

 

                (b)           Cubico has not received any noticefrom any governmental agency with respect to any alleged violation by it of anyapplicable federal, state or local Hazardous Materials statutes and regulationsin connection with Cubico’s operations, nor does either of the Shareholders knowof any basis for any investigation or proceeding against it by any federal,state or local environmental or health and safety enforcement agency inconnection with the operation of the business;

 

                (c)           To the best of each Shareholders’knowledge, Cubico has not been alleged to be in violation of, or has beensubject to any administrative or judicial proceeding pursuant to, such laws andregulations, either now or at any time during the past five years, and so faras each of the Shareholders is aware, there are no such threatened or proposedviolations with respect to such locations;

 

                (d)           There are no permits, licenses,consents, filings or other approvals required to be obtained or made by lawsand regulations relating to Hazardous Materials in connection with Cubico’sbusiness;

 

                (e)           Cubico is not a party to any contractor other agreement relating to the storage, transportation, treatment ordisposal of Hazardous Materials;

 

                (f)            To the best of each Shareholders’knowledge, there are no claims or facts or circumstances that either of theShareholders reasonably believes could form the basis for the assertion of anyclaim relating to environmental matters involving Cubico, including, but notlimited to, any claim arising from past or present practices of the business ofCubico, or with respect to properties now or previously owned or leased, asasserted under the Comprehensive Environmental Response, Compensation, andLiability Act of 1980, 42 U.S. 9601-9657 and any amendments thereto(“CERLA”), or the Resource Conservation and Recovery Act, 42 U.S. ‘‘6901-6987and any amendments thereto (“RCRA”), any other federal, state or localenvironmental statute, or the generation, use, treatment, disposal, discharge,ownership, operation, transportation, storage of Hazardous Materials, or anyother related act or omission of Cubico;

 

                (g)           Cubico is not subject to any remedialobligation under applicable law or administrative order or decree pertaining toenvironmental, health or safety statutes or regulations, including, withoutlimitation, CERLA, RCRA or any similar state statute;

 

                (h)           No Shareholder has any reason tobelieve that any Hazardous Material or other substances known or suspected topose a threat to health or the environmental have been disposed of or otherwisereleased on or near any real property or improvements of Cubico, and there areno off-site locations where Hazardous Materials associated in any way withCubico have been generated, used, collected, treated, stored, transported,recycled, discharged or disposed of; and

 

                (i)            To the best of each of theShareholders’ knowledge and belief, after diligent investigation and inquiry,no real property is owned or leased by Cubico that is on any federal or state“Superfund” list or subject to any environmentally related liens, and no claimhas been made or threatened alleging damages arising from any HazardousMaterials or other substances known or suspected to pose a threat to health orthe environment.

 

                Theterm “Hazardous Materials” shall mean materials, substances, waste orby-products defined as “hazardous substances”, “hazardous wastes” or “solidwastes” in CERLA, RCRA or any other federal, state or local environmentalstatute or regulation or any unwholesome toxic or radioactive material.

 

                4.21         **Transactions with Affiliated Parties**.  Except as set forth on Schedule 4.21hereto,

 

                (a)           There are no transactions currentlyengaged in between Cubico and any party affiliated with Cubico (other thantransactions inherent in the normal capacities of shareholders, officers,directors, or employees);

 

                (b)           Except for the ownership of non–controllinginterests in securities of corporations the shares of which are publiclytraded, neither Shareholder and (to the best of each of the Shareholders’knowledge) no party affiliated with Cubico has any investment or ownershipinterest, directly, indirectly, or beneficially, in any competitor or potentialcompetitor, major supplier, or customer of Cubico; and

 

                (c)           Other than as contemplated by thisAgreement, there are no agreements to which Cubico is a party under which thetransactions contemplated by this Agreement (i) will require payment by Cubicoor any consent or waiver from any shareholder, officer, director, employee,consultant or agent of Cubico, or (ii) will result in any change in the natureof any rights of any shareholder, officer, director, employee, consultant oragent of Cubico under any such agreement.

 

                4.22         **Securities Representations**.  Each Shareholder believes that he isfamiliar with the business and financial condition, properties, operations andprospects of HTVN, he has been given full access to all material informationconcerning the condition, properties, operations and prospects of HTVN, and hehas had an opportunity to ask such questions of, and to receive suchinformation from, HTVN as he has desired and to obtain any additionalinformation necessary to verify the accuracy of the information and datareceived; he has such knowledge, skill and experience in business, financialand investment matters so that he is capable of evaluating the merits and risksof an acquisition of HTVN Common Stock; he alone or with his purchaserrepresentative has reviewed his financial condition and commitments and that,based on such review, he is satisfied that he (a) has adequate means ofproviding for contingencies, (b) has no present or contemplated futureneed to dispose of all or any of HTVN Common Stock to satisfy existing orcontemplated undertakings, needs or indebtedness, (c) is capable of bearingthe economic risk of the ownership of HTVN Common Stock for the indefinitefuture, and (d) has assets or sources of income which, taken together, aremore than sufficient so that he could bear the loss of the entire value of HTVNCommon Stock; he is acquiring HTVN Common Stock solely for his own beneficialaccount, for investment purposes, and not with a view to, or for resale inconnection with, any distribution of HTVN Common Stock, except pursuant toregistration or an exemption therefrom; he understands that HTVN Common Stockhas not been registered under the Securities Act of 1933 or any statesecurities laws and therefore HTVN Common Stock is “restricted” under suchlaws; and he has not offered or sold any portion of HTVN Common Stock and hasno present intention of reselling or otherwise disposing of any portion of HTVNCommon Stock either currently or after the passage of a fixed or determinableperiod of time or upon the occurrence or non-occurrence of any predeterminedevent or circumstance until such time as the HTVN Common Stock has beenregistered or an exemption from registration exists.

 

                4.23         **Finder’s Fees; Certain Expenses**.  All negotiations relative to this Agreementand the transactions contemplated hereby have been carried on by Cubico and theShareholders and their counsel directly with HTVN and the Subsidiary and theircounsel, without the intervention of any other person as the result of any actof any of them, and as far as is known to each of the Shareholders, without theintervention of any other person in such manner as to give rise to any validclaim against any of the parties hereto for a brokerage commission, finder’sfee, or any similar payment.

 

                4.24         **Untrue Statements**.  This Agreement, the schedules and exhibitshereto, and all other documents and information furnished by Cubico or eitherof the Shareholders, or any of their respective representatives pursuant heretoor in connection herewith, do not include any untrue statement of a materialfact or omit to state any material fact necessary to make the statements madeherein and therein not misleading or otherwise.

 

 

**ARTICLE 5**

**REPRESENTATIONS, WARRANTIES, ANDAGREEMENTS**

**OF THE SUBSIDIARY**

 

                TheSubsidiary hereby represents and warrants to Cubico and each Shareholder thatimmediately after the formation of the Subsidiary the following representationsand warranties shall be true except as to the HTVN Schedule of Exceptionsattached hereto as Exhibit D:

 

                5.1.          **Organization and Standing of the Subsidiary**.  The Subsidiary is a corporation  duly organized, validly existing and in goodstanding under the laws of the state of Delaware.  The Subsidiary has full requisite corporate power and authorityto carry on its business as it is now being conducted, and to own, operate, andlease the properties now owned, operated, or leased by it.

 

                5.2           **Capacity to Enter into Agreement**.  The Subsidiary has full right, power andauthority to execute and deliver this Agreement and all other agreements,documents and instruments to be executed in connection herewith and performsuch its obligations hereunder and thereunder. The execution and delivery by the Subsidiary of this Agreement and allother agreements, documents and instruments to be executed by the Subsidiary inconnection herewith have been authorized by all necessary corporate action bythe Subsidiary.  When this Agreement andall other agreements, documents and instruments to be executed by theSubsidiary in connection herewith have been executed by the Subsidiary anddelivered to Cubico, this Agreement and such other agreements, documents andinstruments will constitute the valid and binding agreements of the Subsidiary,enforceable against the Subsidiary in accordance with their respective terms,except as such enforceability may be limited by or subject to (a) anybankruptcy, insolvency, reorganization, moratorium or other similar lawsrelating to creditors’ rights generally and (b) general principles of equity(regardless of whether such enforceability is considered in a proceeding inequity or at law).

 

                5.3           **Conflicts**. The execution, delivery, and consummation of the transactionscontemplated by this Agreement will not (a) violate, conflict with or result inthe breach or termination of, or otherwise give any other contracting party theright to terminate, or constitute a default (by way of substitution, novationor otherwise) under the terms of, any contract to which the Subsidiary is aparty or by which the Subsidiary is bound or by which any of the assets of theSubsidiary is bound or affected, (b) violate any judgment against, or bindingupon, the Subsidiary or upon the assets of the Subsidiary, (c) result in thecreation of any lien, charge or encumbrance upon any assets of the Subsidiarypursuant to the terms of any such contract, or (d) violate any provision in thecharter documents, bylaws or any other agreement affecting the governance andcontrol of the Subsidiary.

 

                5.4           **Consents**. No consent from, or other approval of, any governmental entity or anyother person, which has not been obtained, is necessary in connection with theexecution, delivery, or performance of this Agreement by the Subsidiary, otherthan for the approval of the sole shareholders of the Subsidiary, which will besought pursuant to this Agreement.

 

                5.5           **Litigation**.  There is no action, suit, proceeding, or claim pending or, to theknowledge of the Subsidiary, threatened against the Subsidiary by persons not aparty to this Agreement wherein an unfavorable decision, ruling, or findingwould render unlawful or otherwise adversely affect the consummation of thetransactions contemplated by this Agreement.

 

                5.6           **Finder’s Fees**.  All negotiations relative to this Agreementand the transactions contemplated hereby have been carried on by the Subsidiaryand its counsel directly with Cubico and the Shareholders and their counsel,without the intervention of any other person as the result of any act by theSubsidiary, and so far as is known to the Subsidiary, without the interventionof any other person in such manner as to give rise to any valid claim againstany of the parties hereto for a brokerage commission, finders’ fee, or anysimilar payment.

 

**ARTICLE 6**

**REPRESENTATIONS AND WARRANTIES OF HTVN**

 

                HTVNhereby represents and warrants to Cubico and each Shareholder that except as tothe HTVN Schedule of Exceptions attached hereto as Exhibit D:

 

                6.1.          **Organization and Standing of HTVN**.  HTVN is a corporation  duly organized, validly existing and in goodstanding under the laws of the state of Delaware.  HTVN has full requisite corporate power and authority to carry onits business as it is now being conducted, and to own, operate, and lease theproperties now owned, operated, or leased by it.

 

                6.2           **Capacity to Enter into Agreement**.  HTVN has full right, power and authority toexecute and deliver this Agreement and all other agreements, documents andinstruments to be executed in connection herewith and perform such itsobligations hereunder and thereunder. The execution and delivery by HTVN of this Agreement and all otheragreements, documents and instruments to be executed by HTVN in connectionherewith have been authorized by all necessary corporate action by HTVN.  When this Agreement and all otheragreements, documents and instruments to be executed by HTVN in connection areexecuted by HTVN and delivered to Cubico, this Agreement and such otheragreements, documents and instruments will constitute the valid and bindingagreements of HTVN, enforceable against HTVN in accordance with theirrespective terms, except as such enforceability may be limited by or subject to(a) any bankruptcy, insolvency, reorganization, moratorium or other similarlaws relating to creditors’ rights generally and (b) general principles ofequity (regardless of whether such enforceability is considered in a proceedingin equity or at law).

 

                6.3           **Conflicts**. Except as set forth in Schedule 6.3 hereto, the execution,delivery, and consummation of the transactions contemplated by this Agreementwill not (a) violate, conflict with or result in the breach or termination of,or otherwise give any other contracting party the right to terminate, orconstitute a default (by way of substitution, novation or otherwise) under theterms of, any contract to which HTVN is a party or by which HTVN is bound or bywhich any of the assets of HTVN is bound or affected, (b) violate any judgmentagainst, or binding upon, HTVN or upon the assets of HTVN, (c) result in thecreation of any lien, charge or encumbrance upon any assets of HTVN pursuant tothe terms of any such contract, or (d) violate any provision in the charterdocuments, bylaws or any other agreement affecting the governance and controlof HTVN.

 

                6.4           **Consents**. Except as set forth in Schedule 6.4 hereto, no consent from,or other approval of, any governmental entity or any other person, which hasnot been obtained, is necessary in connection with the execution, delivery, orperformance of this Agreement by HTVN.

 

                6.5           **Litigation**.  There is no action, suit, proceeding, or claim pending or, to theknowledge of HTVN, threatened against HTVN by persons not a party to thisAgreement wherein an unfavorable decision, ruling, or finding would renderunlawful or otherwise adversely affect the consummation of the transactionscontemplated by this Agreement.

 

                6.6           **Finder’s Fees**.  All negotiations relative to this Agreementand the transactions contemplated hereby have been carried on by HTVN and itscounsel directly with Cubico and the Shareholders and their counsel, withoutthe intervention of any other person as the result of any act by HTVN, and sofar as is known to HTVN, without the intervention of any other person in suchmanner as to give rise to any valid claim against any of the parties hereto fora brokerage commission, finders’ fee, or any similar payment.

 

                6.7           **Valid Issuance**.  Each share of HTVN Common Stock to be issued to the shareholdersof Cubico in connection with the Merger shall (when issued in accordance withthis Agreement) be duly and validly authorized and issued, fully paid andnon-assessable.

 

                6.8**           CapitalStructure**.  The authorizedstock of HTVN consists of 200,000,000 shares of Common Stock, of which133,037,352 shares are issued and outstanding and 20,000,000 shares ofPreferred Stock, of which 38,889 are issued and outstanding.  All such shares have been duly authorized,and all such issued and outstanding shares have been validly issued, are fullypaid and non-assessable and are free of any liens or encumberances other thanany liens or encumberances created by or imposed upon the holders thereof.

 

                6.9**           SEC Documents; HTVN FinancialStatements**.  HTVN has furnished or made available to Cubicotrue and complete copies of HTVN’s Annual Report on Form 10-KSB for the fiscalyear ended December 31, 2000 and of all other reports or registrationstatements filed by HTVN with the U.S. Securities and Exchange Commission (the“SEC”) under the Securities Exchange Act of 1934 (the  “Exchange Act”) on or after January 1, 2001, all in the form sofiled (all of the foregoing being collectively referred to as the  “SEC Documents”).  As of their respective filing dates, the SEC Documents compliedin all material respects with the requirements of the Exchange Act, and none ofthe SEC Documents contained any untrue statement of a material fact or omittedto state a material fact required to be stated therein or necessary to make thestatements made therein, in light of the circumstances in which they were made,not misleading, except to the extent corrected by a subsequently filed documentwith the SEC.  The financial statementsof HTVN, including the notes thereto, included in the SEC Documents (the  “HTVN Financial Statements”) comply as toform in all material respects with applicable accounting requirements and withthe published rules and regulations of the SEC with respect thereto, have beenprepared in accordance with generally accepted accounting principlesconsistently applied (except as may be indicated in the notes thereto) andpresent fairly the consolidated financial position of HTVN at the dates thereofand of its operations and cash flows for the periods then ended (subject, inthe case of unaudited statements, to normal audit adjustments).  There has been no change in HTVN accountingpolicies except as described in the notes to the HTVN Financial Statements.

 

                6.10**         No Material Adverse Change**. Since the date of the balance sheet included in HTVN’s most recently filedreport on Form 10-QSB, HTVN has conducted its business in the ordinarycourse and there has not occurred: (a) any material adverse change in thefinancial condition, liabilities, assets or business of HTVN; (b) anyamendment or change in the Certificate of Incorporation or Bylaws of HTVN; or(c) any damage to, destruction or loss of any assets of HTVN, (whether ornot covered by insurance) that materially and adversely affects the financialcondition or business of HTVN.

 

**ARTICLE 7**

**COVENANTS**

 

                7.1**           Conduct of Business of Cubico**.  Except as contemplated by this Agreement,during the period from the date hereof to the Effective Time, unless otherwiseagreed to in writing by HTVN, Cubico shall conduct its business in the ordinarycourse consistent with past practice and shall use reasonable efforts topreserve intact its business.  Withoutlimiting the generality of the foregoing, except as otherwise contemplated bythis Agreement or as otherwise agreed to in writing by HTVN, prior to theEffective Time, Cubico shall not (a) issue, sell or pledge, or authorize orpropose the issuance, sale or pledge of (i) any shares of Capital Stock or anysecurities or rights convertible into, exchangeable for, or evidencing theright to subscribe for, any shares of Capital Stock, or any options, warrants,calls, rights, commitments or any other agreements of any character to purchaseor acquire any shares of Capital Stock or any securities or rights convertibleinto, exchangeable for, or evidencing the right to subscribe for, any suchshares of Capital Stock, other than the issuance of shares of Cubico CommonStock upon the exercise of outstanding options to purchase Cubico Common Stockor the issuance of Cubico Common Stock upon the conversion of shares of CubicoPreferred Stock, or grant or accelerate any right to convert or exchange anysecurities of Cubico for Cubico Common Stock, or (ii) any other securities inrespect of, in lieu of, or in substitution for, shares of Cubico Common Stockoutstanding on the date hereof; (b) redeem or otherwise acquire, or propose toredeem or otherwise acquire, any of the outstanding equity securities ofCubico, except in the ordinary course of business consistent with past practiceand to the extent not material; (c) declare, set aside or pay any dividend orother distribution in respect of any shares of Capital Stock; (d) make anyacquisition, by means of a merger or otherwise, of a material amount of assetsor securities, other than acquisitions in the ordinary course consistent withpast practice; (e) agree to any sale, lease, encumbrance or other dispositionof a material amount of assets or securities or any material change in itscapitalization, other than sales or other dispositions in the ordinary courseconsistent with past practice; (f) enter into any material contract other thanin the ordinary course of business or agree to any release or relinquishment ofany material contract rights; (g) incur any long-term debt or short-term debtfor borrowed money except for debt incurred in the ordinary course consistentwith past practice; (h) propose or adopt any amendments to its Articles ofIncorporation or Bylaws; (i) enter into any new employment, consulting,severance or indemnification agreement with any officer, director or keymanagement employee; or (j) agree in writing or otherwise to take (i) any ofthe foregoing actions or (ii) any action which would make any representation orwarranty of the Shareholders herein untrue or incorrect in any materialrespect.

 

                7.2**           Acquisition Proposals**.From and after the date hereof, Cubico shall not, directly or indirectly, andshall instruct its officers, directors, employees, agents or advisors or otherrepresentatives or consultants not to, directly or indirectly, solicit orinitiate any proposals or offers from any person relating to any acquisition orpurchase of all or a material amount of the assets of, or any securities of, orany merger, consolidation or business combination with, Cubico.

 

                7.3**           Access to Information**.  Between the date hereof and the EffectiveTime, Cubico shall (a) give HTVN and its authorized representatives such accessduring regular business hours to Cubico’s books, records, properties, personneland to such other information as HTVN reasonably request and shall instructCubico’ independent public accountants to provide access to their work papersand such other information as HTVN may reasonably request, and (b) cause its officersto furnish HTVN with such financial and operating data and other informationwith respect to the business and properties of Cubico as HTVN may reasonablyrequest.

 

                7.4**           Best Efforts**.  Upon the terms and subject to the conditionshereof, all of the parties hereto agree to use their reasonable best efforts totake, or cause to be taken, all appropriate action, and to do, or cause to bedone, all things necessary, proper or advisable to consummate and makeeffective the transactions contemplated by this Agreement and to cooperate inconnection with the foregoing, including using reasonable best efforts (a) toobtain any necessary waivers, consents and approvals from other parties tomaterial notes, licenses, agreements, and other instruments and obligations;(b) to obtain any material consents, approvals, authorizations and permitsrequired to be obtained under any federal, state or local statute, rule orregulation; (c) to defend all lawsuits or other legal proceedings challengingthis Agreement or the consummation of the transactions contemplated hereby; and(d) promptly to effect all necessary filings and notifications.  In case at any time after the Effective Timeany further action is necessary or desirable to carry out the purposes of thisAgreement, the proper officers and directors of the Surviving Corporation shalltake all such action on behalf of Cubico and the Subsidiary.

 

                7.5**           Completion of Audit**.  Cubico agrees to complete the auditcurrently being conducted by the American Express Tax and Business Servicesunit of the American Express Company as of and for the year ended March 31,2001 (the “Audit”).  Once the Audit hasbeen completed, Cubico agrees to deliver promptly to HTVN copies of theresulting audited financial statements (the “Audited Financial Statements”).

 

                7.6**           Voting Agreement**.  Each Shareholder agrees to vote all sharesof Cubico Common Stock owned by such Shareholder in favor of the Merger.  The voting obligations imposed by thisSection 7.6 are secured by the proxy granted in this Section 7.6, and theholders of such proxy shall be entitled to exercise such proxy to fulfill thevoting obligations under this Section 7.6 of the grantors of such proxy.  Each Shareholder, by these presents doeshereby irrevocably make, constitute and appoint the James A. Ryffel and DougMiller, acting collectively or singly, as such Shareholder’s  true and lawful proxies, agents andattorneys–in–fact for the limited purpose and with the limitedauthority as herein expressed, to act for, on behalf of, and in suchShareholder’s name, place and stead, hereby giving and granting to saidproxies, agents and attorneys–in–fact full power and authority,acting collectively or singly, to vote on behalf of such Shareholder in favorof the Merger to fulfill the voting obligations of such Shareholder pursuant tothis Section 7.6 above.  The proxygranted by this Section 7.6 is irrevocable, but shall automatically terminateupon the earlier to occur of the termination of this Agreement or theconsummation of the Merger.  The proxygranted by this Section 7.6 is coupled with an interest by virtue of the votingagreement provided for in this Section 7.6 above and certain other matters aswell.  All certificates representingCubico Common Stock now owned or that may hereafter be acquired by aShareholder shall, at the request of HTVN, be endorsed on the back thereof witha legend describing the voting obligations imposed and the proxy granted bythis Section 7.6.

 

                7.7**           Piggy-Back Registration Rights**.

 

                (a)           For purposes of this Section 7.7, allshares of HTVN Common Stock being issued in connection with Merger are referredto as the “Registrable Shares” and the persons who are to receive RegistrableShares are referred to as singly as a “Selling Stockholder” and collectively asthe “Selling Stockholder.”

 

                (b)           If at any time within one year afterthe date of the Closing (in the case of any shareholder of Cubico other thanthe Shareholders) or within two years after the date of the Closing (in thecase of a Shareholder) HTVN proposes to register any HTVN Common Stock underthe Securities Act of 1933, as amended (the “Act”), for sale to the public forcash (and not for issuance pursuant to an employee benefit plan or inconnection with an acquisition of another company or business), HTVN shall givewritten notice to the Selling Stockholders of its intention so to do at least20 days prior to filing the related registration statement (the “RegistrationStatement”).  Upon the written requestof a Selling Stockholder, given within 10 days after receipt of any suchnotice, to register any Registrable Shares, HTVN shall use its best efforts tocause all Registrable Shares, as to which registration shall have been sorequested, to be included in the securities to be covered by the RegistrationStatement, all to the extent requisite to permit the sale or other dispositionby the Selling Stockholder of the Registrable Shares requested to be soregistered; provided, however, that:

 

                                (i)  If, at any time after giving such writtennotice of its intention to register any securities and prior to the effectivedate of the Registration Statement, HTVN shall determine for any reason not toregister such securities, HTVN may, at its election, give written notice ofsuch determination to the Selling Stockholders, and thereupon HTVN shall berelieved of its obligation to register any Registrable Shares in connectionwith such registration;

 

                                (ii)  If such registration involves anunderwritten offering, the Selling Stockholders must sell their RegistrableShares to the underwriters selected by HTVN on the same terms and conditions asapply to HTVN (except as otherwise agreed to by HTVN in writing); and

 

                                (iii)  HTVN shall be obligated to keep theRegistration Statement effective only for six months after its initialeffective date.

 

The number of Registrable Shares to be included in anunderwritten offering may be reduced, pro rata among all HTVN’s stockholdersselling shares in the offering, in a ratio equal to the respective amounts ofshares proposed to be sold by such stockholders, if and to the extent that themanaging underwriter shall advise the Selling Stockholders and HTVN by letterof its belief that the number of securities requested to be registered exceedsthe number that can be sold in (or during the term of) such offering withoutadversely affecting the marketing of the securities to be sold by HTVN.

 

                (c)           In connection with the registrationprovided for hereunder, the Selling Stockholders shall use reasonable effortsto cooperate with HTVN and shall furnish to HTVN in writing such informationwith respect to it and its proposed distribution as shall be reasonablynecessary in order to assure compliance with federal and applicable statesecurities laws.

 

                (d)           HTVN shall pay all expenses incurredby HTVN in complying with its registration obligations pursuant to thisAgreement, including, without limitation, all registration, qualification, andfiling fees, blue sky fees and expenses, printing expenses, fees anddisbursements of counsel and independent public accountants for HTVN, allexpenses of the underwriter customarily paid by issuers or sellers ofsecurities (including fees of the National Association of Securities Dealers,Inc.), transfer taxes, escrow fees, fees of transfer agents and registrars, andcosts of insurance.  The SellingStockholders shall pay all underwriting discounts and selling commissionsapplicable to the sale of the Registrable Shares being registered.

 

                (e)           (i) HTVN shall protect, indemnify and hold the Selling Stockholders, andtheir respective officers, directors, stockholders, attorneys, accountants,employees, affiliates, successors and assigns, harmless from any and alldemands, claims, actions, causes of actions, lawsuits, proceedings,investigations, judgments, losses, damages, injuries, liabilities, obligations,expenses and costs (including costs of litigation and attorneys’ fees), arisingout of or based upon (aa) any untrue statement or alleged untrue statement ofany material fact contained in or incorporated by reference into theRegistration Statement, any preliminary prospectus or final prospectuscontained therein, or any amendment or supplement thereto, (bb) the omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein not misleading, or (cc) anymaterial violation by HTVN of any rule or regulation promulgated under Actapplicable to HTVN and relating to action or inaction by HTVN in connectionwith any such registration; provided, however, that HTVN shall not be liable inthe case of (aa) and (bb) above if and to the extent that the event otherwisegiving rise to indemnification arises out of or is based upon an untruestatement or alleged untrue statement or omission or alleged omission made inconformity with information furnished by a person otherwise entitled toindemnification in writing specifically for use in the Registration Statementor prospectus or information contained in a writing that has been expresslyapproved by a person otherwise entitled to indemnification.

 

                                (ii)   Each Selling Stockholder shall protect,indemnify and hold HTVN and its officers, directors, stockholders, attorneys,accountants, employees, affiliates, successors and assigns, harmless from anyand all demands, claims, actions, causes of actions, lawsuits, proceedings,investigations, judgments, losses, damages, injuries, liabilities, obligations,expenses and costs (including costs of litigation and attorneys’ fees), arisingout of or based upon (aa) any untrue statement or alleged untrue statement ofany material fact contained in or incorporated by reference into theRegistration Statement, any preliminary prospectus or final prospectuscontained therein, or any amendment or supplement thereto, (bb) the omission oralleged omission to state therein a material fact required to be stated thereinor necessary to make the statements therein not misleading, or (cc) anymaterial violation by such Selling Stockholder of any rule or regulation promulgatedunder the Act applicable to such Selling Stockholder and relating to action orinaction by such Selling Stockholder in connection with any such registration;provided, however, that such Selling Stockholder shall be liable in the case of(aa) and (bb) above only if and to the extent that the event giving rise toindemnification arises out of or is based upon an untrue statement or allegeduntrue statement or omission or alleged omission made in conformity withinformation furnished by such Selling Stockholder in writing specifically foruse in the Registration Statement or prospectus or information contained in awriting that has been expressly approved by such Selling Stockholder.

 

                                (iii)   Promptly after receipt by an indemnifiedparty under this Section (e) of notice of the threat or commencement of anyaction, such indemnified party shall, if a claim in respect thereof is to bemade against an indemnifying party hereunder, notify each such indemnifyingparty in writing thereof, but the omission so to notify an indemnifying partyshall not relieve it from any liability which it may have to any indemnifiedparty to the extent that the indemnifying party is not prejudice as a resultthereof.  In case any such action shallbe brought against any indemnified party and it shall notify an indemnifyingparty of the commencement thereof, the indemnifying party shall be entitled toparticipate in and, to the extent it shall wish, to assume and undertake thedefense thereof with counsel reasonably satisfactory to such indemnified party,and, after notice from the indemnifying party to such indemnified party of itselection so to assume and undertake the defense thereof, the indemnifying partyshall not be liable to such indemnified party under this Section (e) for anylegal expenses subsequently incurred by such indemnified party in connectionwith the defense thereof other than reasonable costs of investigation and ofliaison with counsel so elected; provided, however, that, if the defendants inany such action include both an indemnified party and an indemnifying party andthe related indemnified party shall have reasonably concluded that there may bereasonable defenses available to it which are different from or additional tothose available to the indemnifying party or if the interests of theindemnified party reasonably may be believed to conflict with the interests ofthe indemnifying party, the indemnified party shall have the right to selectseparate counsel and to assume such legal defenses and otherwise to participatein the defense of such action, with the expenses and fees of such separatecounsel and other expenses related to such participation to be reimbursed bythe indemnifying party as incurred.  Noindemnifying party shall be subject to any liability for any settlement madewithout consent which shall not be unreasonably withheld.  No indemnifying party shall consent to theentry of any judgment or enter into any settlement which does not include as anunconditional term thereof the giving by the claimant or plaintiff to suchindemnified party of a release from all liability with respect to such claim orlitigation.

 

                                (iv)          If the indemnification provided for inthis Section 7.7 to any person is unavailable to or insufficient to holdharmless such indemnified party in respect of any losses, claims, damages,expenses or liabilities (or actions in respect thereof) referred to therein forany reason other than as specified herein, then the party required to provideindemnification under this Section 7.7 shall contribute to the amount paid orpayable by such indemnified party as a result of such losses, claims, damages,expenses or liabilities (or actions in respect thereof) in such proportion asis appropriate to reflect the relative fault of the indemnifying party on theone hand and the indemnified parties on the other in connection with thestatements or omissions which resulted in such losses, claims, damages,expenses or liabilities (or actions in respect thereof), as well as any otherrelevant equitable considerations.  Therelative fault shall be determined by reference to, among other things, whetherthe untrue or alleged untrue statement of a material fact or the omission oralleged omission to state a material fact relates to information supplied bythe indemnified party and the parties’ relative intent, knowledge, access toinformation and opportunity to correct or prevent such statement oromission.  With respect to anyindemnified party, such relative fault shall also be determined by reference tothe extent (if any) to which such losses, claims, damages, expenses orliabilities result from the fact that such indemnified party sold HTVN CommonStock to a person to whom there was not sent or given, at or prior to thewritten confirmation of such sale, a copy of the prospectus (or of theprospectus as then amended or supplemented if HTVN has previously furnishedcopies thereof to such indemnified party). The amount paid or payable by an indemnified party as a result of thelosses, claims, damages, expenses or liabilities (or actions in respectthereof) referred to above in this paragraph (iv) shall be deemed to includeany legal or other expenses reasonably incurred by such indemnified party inconnection with investigating or defending any such action or claim.  No person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of Act) shall beentitled to contribution from any person who was not guilty of such fraudulentmisrepresentation.

 

                7.8**           Public Disclosure**. Unless otherwise required by law (including, without limitation, securitieslaws) or, as to HTVN, by the rules and regulations of the Nasdaq NationalMarket, prior to the Effective Time, HTVN, the Subsidiary and Cubico shallconsult with each other before making any disclosure (whether or not inresponse to an inquiry) of the subject matter of this Agreement, thetransactions contemplated hereby or of any documents or other confidentialinformation provided by either party, and no public announcement or pressrelease regarding the subject matter of this Agreement or the transactionscontemplated thereby shall be made by any party hereto unless approved by HTVNand Cubico prior to release, provided that such approval shall not beunreasonably withheld.

 

                7.9**           Reorganization Matters**.  The parties hereto intend (a) the Merger toqualify as a reorganization within the meaning of Section 368(a) of theInternal Revenue Code of 1986, as amended (the “Code”) and (b) by executingthis Agreement, to adopt a plan of reorganization within the meaning of Section354(a) of the Code.  Neither HTVN,Cubico nor any of their respective affiliates shall take any action that wouldcause the Merger to fail to qualify as a reorganization within the meaning ofSection 368(a) of the Code.

 

                7.10**         Employee Benefit Plans**.  On and after the Effective Time, HTVN shall,and shall cause its affiliates, to arrange for each participant (includingwithout limitation all dependents) in the Cubico Employee Benefit Plans(“Cubico Participants”) to participate in a substantially similar plan, asdetermined on a plan-by-plan basis, of HTVN (or its applicable affiliate)(“HTVN Plans”).  Each employee that willcontinue on in the service of HTVN or any of its affiliates following theEffective Time (“Continuing Employees”) shall, to the extent permitted by lawand applicable tax qualification requirements, and subject to any generallyapplicable break in service or similar rule, receive credit for all purposes(including without limitation) for eligibility to participate and vesting underHTVN Plans for years of service with Cubico (and its subsidiaries andpredecessors) prior to the Effective Time. HTVN shall then cause any and all pre-existing condition (oractively-at-work or similar) limitations, eligibility waiting periods andevidence of insurability requirements under any group health plans to be waivedwith respect to such Cubico Participants and their eligible dependents andshall provide them with credit for any co-payments, deductibles, and offsets(or similar payments) prior to the Effective Time for purposes of satisfyingany applicable deductible, out-of-pocket, or similar requirements under anyHTVN Plans in which they are eligible to participate after the Effective Time.

 

**ARTICLE 8**

**INDEMNIFICATION**

 

                8.1  **Survival of Representations and Warranties**.  All of the representations and warrantiesmade by the parties hereto in this Agreement or pursuant hereto, shall becontinuing and shall survive the closing hereof and the consummation of thetransactions contemplated hereby, notwithstanding any investigation at any timemade by or on behalf of any party hereto.

 

                8.2  **Indemnification by Shareholders**.  Each Shareholder, jointly and severally,shall protect, indemnify and hold harmless HTVN, the Subsidiary and theSurviving Corporation, from any and all demands, claims, actions, causes ofactions, lawsuits, proceedings, judgments, losses, damages, injuries,liabilities, obligations, expenses and costs (including costs of litigation andattorneys’ fees), arising from any breach of any agreement, representation orwarranty made by either Shareholder in this Agreement.

 

                8.3  **Indemnification by the Subsidiary**.  The Subsidiary shall protect, indemnify andhold harmless Cubico and each Shareholder, from any and all demands, claims,actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,injuries, liabilities, obligations, expenses and costs (including costs oflitigation and attorneys’ fees), arising from any breach of any agreement,representation or warranty made by the Subsidiary in this Agreement.

 

                8.4  **Indemnification by HTVN**.  HTVN shall protect, indemnify and holdharmless Cubico and each Shareholder, from any and all demands, claims,actions, causes of actions, lawsuits, proceedings, judgments, losses, damages,injuries, liabilities, obligations, expenses and costs (including costs oflitigation and attorneys’ fees), arising from any breach of any agreement,representation or warranty made by HTVN in this Agreement.

 

                8.5           **Limitation on Liability**.

 

                (a)           A party shall be liable to anotherparty under this Article 8 only to the extent that the amount of claims forwhich the indemnified party is entitled to indemnification from theindemnifying party hereunder exceeds $75,000.00.

 

                (b)           The liability of an indemnifyingparty to an indemnified party under this Article 8 shall be limited to anamount equal to the product obtained by multiplying 1,000,000 times the closingprice of HTVN Common Stock on the trading date preceding the Closing Date (suchclosing price being referred to hereinafter as the “Closing Price”).

 

                (c)           To the extent that the Shareholdersare found to be liable under Section 8.2 above, the Shareholders shall beentitled to elect to satisfy such liability by means of HTVN Common Stock bygiving written notice of such election to the indemnified party and byremitting to the indemnified party the lesser of (i) a number of shares of HTVNCommon Stock having an aggregate market value, as of the close of the datepreceding the notice required by this subsection (c), equalling the amount ofthe liability, or (ii) a number of shares of HTVN Common Stock which whenmultiplied by the Closing Price equals the amount of the liability, however inno instance shall each Shareholder be liable for any amount greater than500,000 shares of HTVN Common Stock.

 

**ARTICLE 9**

**CONDITIONS TO CLOSING**

 

                9.1**           Conditions to the Parties’Obligations to Close**.  Therespective obligations of Cubico, the Subsidiary and HTVN to enter into theMerger are subject to the satisfaction at or prior to the Effective Time of thefollowing conditions:

 

                (a)           This Agreement and the Merger shallhave been authorized and approved by the shareholders of Cubico in accordancewith the provisions of Section 1201 of the CCC, by the sole shareholder of theSubsidiary in accordance with Section 252 of the DGCL; and

 

                (b)           As of the Effective Time, no action,suit or proceeding shall have been instituted or, to the knowledge of theparties, be pending or threatened before any court or other governmental bodyby any public agency or governmental authority seeking to restrain, enjoin orprohibit the consummation of the transactions contemplated hereby or to seekdamages or other relief in connection therewith against any officer or directorof Cubico, the Subsidiary or HTVN; and

 

                (c)           The affirmative vote of at least 95%of the outstanding shares of Cubico Common Stock; and

 

                (d)           HTVN shall have secured a commitmentfor a debt or equity round of financing of at least $15,000,000 prior to theLatest Closing Date.

 

                9.2**           Further Conditions to Cubico’s andShareholders’ Obligations to Close**. The obligations of Cubico and the Shareholders to enter into the Mergerare further subject to the satisfaction at or prior to the Effective Time ofthe following conditions:

 

                (a)           each of the representations andwarranties of HTVN and the Subsidiary contained in this Agreement shall be trueand correct in all material respects at and as of the Closing as if each suchrepresentation and warranty were made at and as of the Closing, HTVN and theSubsidiary shall have performed in all respects all agreements and covenantsrequired by this Agreement to be performed by them separately or collectivelyprior to or at the Closing, and at the Closing there shall be delivered toShareholders and Cubico customary bring–down certificates (each dated asof the Closing, signed by HTVN and the Subsidiary) to the foregoing effects;and

 

                (b)           All holders of Cubico’s PreferredStock shall have waived their liquidation preference as provided for inCubico’s Articles of Incorporation or shall have converted the Preferred Stockheld by them into shares of Cubico Common Stock, so that all shares of HTVNCommon Stock being issued in connection with the Merger shall be distributed prorata to all Cubico shareholders; and

 

                (c)           The legal research and analysis as tothe availability and anticipated perfection of exemptions from all applicableFederal and state securities offering registration requirements relating to theissuance of the HTVN Common Stock in connection with the Merger shall have beencompleted and shall be satisfactory to Cubico; and

 

                (d)           Each of the persons whose nameappears on Schedule 9.3(f) hereto shall have entered into anEmployment Agreements in the form of Exhibit 9.3(f) hereto,providing for employment with the Subsidiary of the person who is the employeethereunder, for the salary and period of time indicated on Schedule 9.3(f)hereto with respect to such person; and

 

                (e)           Hector Saldaña shall have enteredinto a Consulting Agreement in the form of Exhibit 9.3(g) hereto.

 

                9.3**           Further Conditions to theSubsidiary’s and HTVN Obligations to Close**.  The obligations of the Subsidiary and HTVNto enter into the Merger are further subject to the satisfaction at or prior tothe Effective Time of the following conditions:

 

                (a)           each of the representations andwarranties of the Shareholders contained in this Agreement shall be true andcorrect in all material respects at and as of the Closing as if each suchrepresentation and warranty were made at and as of the Closing, Shareholdersand Cubico shall have performed in all respects all agreements and covenantsrequired by this Agreement to be performed by them separately or collectivelyprior to or at the Closing, and at the Closing there shall be delivered to HTVNand the Subsidiary customary bring–down certificates (each dated as ofthe Closing, signed by Shareholders and Cubico) to the foregoing effects; and

 

                (b)           The business, legal, technical andfinancial due diligence of Cubico shall have been completed and shall besatisfactory to HTVN in its sole discretion; and

 

                (c)           The Audit shall have been completedand the Audited Financial Statements shall not materially adversely differ fromthe Financial Statement; and

 

                (d)           The legal research and analysis as tothe availability and anticipated perfection of exemptions from all applicableFederal and state securities offering registration requirements relating to theissuance of the HTVN Common Stock in connection with the Merger shall have beencompleted and shall be satisfactory to HTVN in its sole discretion; and

 

                (e)           Hector Saldaña shall have enteredinto a Covenant Not to Compete in the form of Exhibit 9.3(e)hereto; and

 

                (f)            Luis Saldaña shall have entered intoan Employment Agreement in the form of Exhibit 9.3(f) hereto, providingfor employment with the Subsidiary, for the salary and period of time indicatedon Schedule 9.3(f) hereto with respect to such person; and

 

                (g)           Hector Saldaña shall have enteredinto a Consulting Agreement in the form of Exhibit 9.3(g) hereto; and

 

                (h)           Each Shareholder shall have enteredinto a Release in the form of Exhibit 9.3(h) hereto; and

 

                (i)            Luis Saldaña shall have entered intoa Non-Solicitation Agreement in the form of Exhibit 9.3(i) hereto;and

 

                (j)            The Subsidiary and HTVN shall havereceived all necessary consents to the Merger from HTVN’s senior lender or allamounts owed to such senior lender shall have been paid in full such that nosuch consent is required from it.

 

**ARTICLE 10**

**ABANDONMENT OF MERGER**

 

                10.01**       Termination**.  Notwithstanding anything contained in thisAgreement to the contrary, this Agreement may be terminated and the Mergerabandoned at any time prior to the Effective Time, whether before or afteradoption and approval of this Agreement by the shareholders of Cubico:

 

                (a)           By mutual consent of the Boards ofDirectors of Cubico, the Subsidiary and HTVN; or

 

                (b)           By the Board of Directors of Cubicoif any of the conditions set forth in Section 9.1 or 9.2 are not satisfied inany respect or waived by Cubico on or before the Closing, or if the Closing hasnot occurred before the end of business hours on the Latest Closing Date, otherthan due to a breach of this Agreement by Cubico; or

 

                (c)           By the Boards of Directors of HTVNand the Subsidiary if any of the conditions set forth in Section 9.1 or 9.3 arenot satisfied in any respect or waived by HTVN and the Subsidiary on or beforethe Closing, or if the Closing has not occurred before the end of businesshours on the Latest Closing Date, other than due to a breach of this Agreementby either of HTVN or the Subsidiary.

 

                10.2         **Termination Fee**.  If the Closing has not occurred before the end of business hourson the Latest Closing Date, other than due to a breach of this Agreement byCubico or as a result of the termination of this Agreement by HTVN or theSubsidiary pursuant to Section 10.1(c) above, then HTVN shall issue to Cubico 2,798,167 shares of HTVN Common Stock (the “TerminationFee”), which Termination Fee may be waived in writing by Cubico, whereupon noparty shall have any further obligations under this Agreement.

 

                10.3         **Effect of Termination**.  If this Agreement is terminated pursuant toSection 10.01 above, this Agreement shall become wholly void and of no force oreffect, without any liability or further obligation on the part of Cubico,either Shareholder, the Subsidiary or HTVN, and no party hereto shall have anyclaim against any other party hereto for such termination or event giving riseto the right to terminate, each party hereto hereby acknowledging that theright to terminate is the sole remedy for a breach of a representation orwarranty or other event resulting in the failure of the Closing to occur.

 

**ARTICLE 11**

**MISCELLANEOUS PROVISIONS**

 

                11.1**         Complete Agreement**. ThisAgreement contains a complete and exclusive statement of the agreement of theparties with respect to the subject matter hereof, and all prior negotiationsand agreements between the parties are superseded by this Agreement.

 

                11.2**         Waiver and Amendment**. Anyrepresentation, warranty, covenant, term or condition of this Agreement whichmay legally be waived, may be waived, or the time of performance thereofextended, at any time by the party entitled to the benefit thereof, and anyterm, condition or covenant hereof (including, without limitation, the periodduring which any condition is to be satisfied or any obligation performed) maybe amended by the parties at any time. Any waiver, extension or amendment shall be evidenced by any instrumentin writing executed on behalf of the appropriate party or parties or on itsbehalf by its Chairman, President or any Vice President or other person who hasbeen authorized by its Board of Directors to execute waivers, extensions oramendments on its behalf.

 

                11.3**         Assignment; Binding Effect**.This Agreement may not be assigned by either party without the written consentof the other party. This Agreement shall be binding upon and inure to thebenefit of the parties and their respective successors and permitted assigns.

 

                11.4**         Notices**.  Any notice, demand, claim or othercommunication under this Agreement shall be in writing and shall be deemed tohave been given upon the delivery or mailing thereof, as the case may be, ifdelivered personally or sent by certified mail, return receipt requested,postage prepaid, to the parties at such address as a party may specify bynotice to the other.

 

                11.5**         Governing Law**. AS TO ALLMATTERS OF LAW, THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCEWITH DELAWARE LAW, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE BE APPLICABLEUNDER PRINCIPLES OF CONFLICTS OF LAW.

 

                11.6**         Headings**. Any headings inthis Agreement are solely for convenience of reference and shall not affect itsinterpretation.

 

                11.7**         Execution of Counterparts**.This Agreement may be executed in several counterparts, each of which shall bedeemed an original and all of which together shall constitute one and the sameinstrument.

 

                11.8**         Severability**. If anyprovision of this Agreement is held or deemed to be, or in fact is, invalid,inoperative or unenforceable for any reason, this Agreement shall be construedas though such invalid, inoperative or unenforceable provision had never beencontained in this Agreement.

 

 

 

 

 

**[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]**

 

 

 

                INWITNESS WHEREOF, the parties hereto have executed and delivered this Agreementon the day and year first above written.

 
| “**HTVN**”                         |   | “**SUBSIDIARY**”          |
|----------------------------------------------|--------|-------------------------------------|
|                                         |   |                                |
| **HISPANIC  TELEVISION NETWORKS, INC.**,     |   | **CUBICO.COM  ACQUISITION, INC.**   |
| a Delaware corporation                       |   | a Delaware corporation to be formed |
|                                         |   |                                |
|                                         |   |                                |
| By:_/s/James S. Ryffel                       |   | By:  /s/ James  A. Ryffel      |
| Name: James A. Ryffel                        |   | Name: James A. Ryffel               |
| Title:   Chairman                       |   | Title:   Chairman              |
|                                         |   |                                |
|                                         |   |                                |
| “**CUBICO**”                       |   |                                |
|                                         |   |                                |
| **CUBICO.COM,  INC.**,                       |   |                                |
| a California corporation                     |   |                                |
|                                         |   |                                |
|                                         |   |                                |
| By:  /s/ Hector  Saldana                |   |                                |
| Name: Hector Saldaña                    |   |                                |
| Title: President and Chief Executive Officer |   |                                |
|                                         |   |                                |
|                                         |   |                                |
| “**SHAREHOLDERS**”                 |   |                                |
|                                         |   |                                |
|                                         |   |                                |
|                                         |   |                                |
| /s/ Hector Saldana                           |   |                                |
| Hector Saldaña                          |   | Luis Saldaña                   |

 

 

**EXHIBIT A**

 

**CERTIFICATE OF INCORPORATION**

 

**OF**

 

**CUBICO.COM ACQUISITION, INC.**

 

                First:  The name of the Corporation is Cubico.comAcquisition, Inc.

 

                Second:  The name and address of the registered agentfor service of process on the Corporation in the State of Delaware isCorporation Service Company, 1013 Center Road, New Castle County, Wilmington,Delaware 19805.

 

                Third:  The nature of the business, objects andpurposes to be transacted, promoted or carried on by the Corporation is toengage in any lawful act or activity for which corporations may be organizedunder the General Corporation Law of Delaware.

 

                Fourth:  The total number of shares of capital stockwhich the Corporation shall have authority to issue is Sixty Million(60,000,000), divided into Fifty Million (50,000,000) shares of Common Stock ofthe par value of one cent ($0.01) per share and Ten Million (10,000,000) sharesof Preferred Stock of the par value of one cent ($0.01) per share.

 

                                A.   No holder of Common Stock or PreferredStock of the Corporation shall have any pre–emptive, preferential, or otherright to purchase or subscribe for any shares of the unissued stock of theCorporation or of any stock of the Corporation to be issued by reason of anyincrease of the authorized capital stock of the Corporation or of the number ofits shares, or of any warrants, options, or bonds, certificates ofindebtedness, debentures, or other securities convertible into or carryingoptions or warrants to purchase stock of the Corporation or of any stock of theCorporation purchased by it or its nominee or nominees or other securities heldin the treasury of the Corporation, whether issued or sold for cash or otherconsideration or as a dividend or otherwise, other than such rights, if any, asthe Board of Directors in its discretion from time to time may grant and atsuch price as the Board of Directors in its discretion may fix.

 

                                B.   The holders of Common Stock shall have theright to one vote per share on all questions to the exclusion of all otherclasses of stock, except as by law expressly provided or as otherwise hereinexpressly provided with respect to the holders of any other class or classes ofstock.

 

                                C.   The Board of Directors is authorized,subject to limitations prescribed by law, by resolution or resolutions toprovide for the issuance of shares of Preferred Stock in series, and by filinga certificate pursuant to the General Corporation Law of Delaware, to establishfrom time to time the number of shares to be included in each such series, andto fix the designation, powers, preferences, and rights of the shares of eachsuch series and the qualifications, limitations or restrictions thereof.  The authority of the Board with respect toeach series shall include, but not be limited to, determination of the following:

 

                                (1)  The number of shares constituting thatseries and the distinctive designation of that series;

 

                                (2)  The dividend rights and dividend rate on theshares of that series, whether dividends shall be cumulative, and, if so, fromwhich date or dates, and the relative rights of priority, if any, of payment ofdividends on shares of that series;

 

                                (3)  Whether that series shall have votingrights, in addition to the voting rights provided by law, and, if so, the termsof such voting rights;

 

                                (4)  Whether that series shall have conversion orexchange privileges, and, if so, the terms and conditions of such conversion orexchange including provision for adjustment of the conversion or exchange ratein such events as the Board of Directors shall determine;

 

                                (5)  Whether or not the shares of that seriesshall be redeemable, and, if so, the terms and conditions of such redemption,including the date or date upon or after which they shall be redeemable, andthe amount per share payable in cash on redemption, which amount may vary underdifferent conditions and at different redemption dates;

 

                                (6)  Whether that series shall have a sinkingfund for the redemption or purchase of shares of that series, and, if so, theterms and amount of such sinking fund;

 

                                (7)  The rights of the shares of that series inthe event of voluntary or involuntary liquidation, dissolution or winding up ofthe corporation, and the relative rights of priority, if any, of payment ofshares of that series;

 

                                (8)  Any other relative rights, preferences andlimitations of that series; or

 

                                (9)  Any or all of the foregoing terms.

 

                                D.   Except where otherwise set forth in theresolution or resolutions adopted by the Board of Directors of the Corporationproviding for the issue of any series of Preferred Stock created thereby, thenumber of shares comprising such series may be increased or decreased (but notbelow the number of shares then outstanding) from time to time by like actionof the Board of Directors of the Corporation. Should the number of shares of any series be so decreased, the sharesconstituting such decrease shall resume the status which they had prior toadoption of the resolution originally fixing the number of shares of suchseries.

 

                                E.   Shares of any series of Preferred Stockwhich have been redeemed (whether through the operation of a sinking fund orotherwise), purchased or otherwise acquired by the Corporation, or which, ifconvertible or exchangeable, have been converted into or exchanged for sharesof stock of any other class or classes, shall have the status of authorized andunissued shares of Preferred Stock and may be reissued as a part of the seriesof which they were originally a part or may be reclassified or reissued as partof a new series of Preferred Stock to be created by resolution or resolutionsof the Board of Directors or as part of any other series of Preferred Stock,all subject to the conditions or restrictions adopted by the Board of Directorsof the Corporation providing for the issue of any series of Preferred Stock andto any filing required by law.

 

                Fifth:  The Corporation is to have perpetualexistence.

 

                Sixth:  The number of directors constituting theinitial Board of Directors is one, and the name and address of the person whois to serve as director until the first annual meeting of the stockholders oruntil their respective successors are elected and qualify are:

 

| Name            |   | Mailing Address                                           |
|-----------------|--------|-----------------------------------------------------------|
|            |   |                                                      |
| James A. Ryffel |   | 6125 Airport Freeway, Suite 200   Fort Worth, Texas 76117 |

 

 

                Seventh:  In furtherance and not in limitation of thepowers conferred by the General Corporation Law of Delaware, the Board ofDirectors is expressly authorized:

 

                                (1)  To make, alter or repeal the by–lawsof the Corporation.

 

                                (2)  To authorize and cause to be executedmortgages and liens upon the real and personal property of the Corporation.

 

                                (3)  To set apart out of any of the funds of theCorporation available for dividends a reserve or reserves for any properpurpose and to abolish any such reserve in the manner in which it was created.

 

                                (4)  By a majority of the whole Board ofDirectors, to designate one or more committees, each committee to consist oftwo or more of the directors of the Corporation.  The Board of Directors may designate one or more directors asalternate members of any committee, who may replace any absent or disqualifiedmember at any meeting of the committee. Any such committee, to the extent provided in the resolution or in theby–laws of the Corporation, shall have and may exercise the powers of theBoard of Directors in the management of the business and affairs of theCorporation and may authorize the seal of the Corporation to be affixed to allpapers which may require it; provided, however, the by–laws may providethat in the absence or disqualification of any member of such committee orcommittees, the member or members thereof present at any meeting and notdisqualified from voting, whether or not he or they constitute a quorum, mayunanimously appoint another member of the Board of Directors to act at themeeting in the place of any such absent or disqualified member.

 

                                (5)  When and as authorized by the affirmativevote of the holders of a majority of the stock issued and outstanding havingvoting power given at a stockholders' meeting duly called upon such notice asis required by the General Corporation Law of Delaware, or when authorized bythe written consent of the holders of a majority of the voting stock issued andoutstanding, to sell, lease or exchange all or substantially all the propertyand assets of the Corporation, including its goodwill and its corporatefranchises, upon such terms and conditions and for such consideration, whichmay consist in whole or in part of money or property including securities ofany other corporation or corporations, as the Board of Directors shall deemexpedient and for the best interests of the Corporation.

 

                Eighth:  To the fullest extent permitted by theGeneral Corporation Law of Delaware as the same exists or may hereafter beamended, a director of this Corporation shall not be liable to the Corporationor its stockholders for monetary damages for breach of fiduciary duty as adirector.

 

                Ninth:  This Corporation shall, to the maximumextent permitted from time to time under the law of the State of Delaware,indemnify and upon request shall advance expenses to any person who is or was aparty or is threatened to be made a party to any threatened, pending orcompleted action, suit, proceeding or claim, whether civil, criminal,administrative or investigative, by reason of the fact that such person is orwas or has agreed to be a director or officer of this Corporation or any of itsdirect or indirect subsidiaries or while such a director or officer is or wasserving at the request of this Corporation as a director, officer, partner,trustee, employee or agent of any corporation, partnership, joint venture,trust or other enterprise, including service with respect to employee benefitplans, against expenses (including attorney's fees and expenses), judgments,fines, penalties and amounts paid in settlement incurred in connection with theinvestigation, preparation to defend or defense of such action, suit,proceeding or claim; provided, however, that the foregoing shall not requirethis Corporation to indemnify or advance expenses to any person in connectionwith any action, suit, proceeding, claim or counterclaim initiated by or onbehalf of such person.  Suchindemnification shall not be exclusive or other indemnification rights arisingunder any bylaws, agreement, vote of directors or stockholders or otherwise andshall inure to the benefit of the heirs and legal representatives of suchperson.  Any person seekingindemnification under this Article Ninth shall be deemed to have met the standardof conduct required for such indemnification unless the contrary shall beestablished.

 

                Tenth:  In connection with the exercise of itsjudgement in determining what is in the best interest of the Corporation and ofthe stockholders, when evaluating a Business Combination, the Board of Directorsof the Corporation is hereby expressly authorized to consider, in addition tothe adequacy of the consideration to be paid in connection with suchtransaction, the following factors and any other factors which it deemsrelevant, including, without limitation: (i) the long term interests of the Corporation's stockholders,including, among other factors, the consideration being offered in relation to(a) the then current market price of the Corporation's equity securities andthe historical range of such prices, (b) the then current value of theCorporation in a freely negotiated transaction, and (c) the Board of Directors'then estimate of the future value of the Corporation as an independent entity;(ii) the economic, social and legal effects on the Corporation and itssubsidiaries, including, among other factors, such effects on the Corporation'semployees, customers, suppliers and the communities in which they operate orare located; (iii) the business and financial condition and earnings prospectsof the acquiring person or persons, including, but not limited to, debt serviceand other existing financial obligations, financial obligations to be incurredin connection with the acquisition, and other likely financial obligations ofthe acquiring person or persons, and the possible effect of such conditionsupon the Corporation, its subsidiaries, and the other elements of thecommunities in which the Corporation and its subsidiaries operate or arelocated; and (iv) the competence, experience and integrity of the acquiringperson or person, and its or their management. For purposes of this Article Tenth, "Business Combination" isdefined as (a) a tender or exchange offer for any equity securities of theCorporation, (b) a proposal to merge or consolidate the Corporation withanother company, (c) a proposal to purchase or otherwise acquired all orsubstantially all of the properties and assets of the Corporation, or (d) aproposal to engage in any other similar form of combination with theCorporation.

 

                Eleventh:  Meetings of stockholders may be held withinor without the State of Delaware, as the by–laws may provide.  The books of the Corporation may be kept(subject to any provision contained in the General Corporation Law of Delaware)outside the State of Delaware at such place or places as may be designated fromtime to time by the Boards of Directors or in the by– laws of theCorporation.  Elections of directorsneed not be by written ballot unless the by–laws of the Corporation shallso provide.

 

                Twelfth:  Whenever the vote of stockholders at ameeting thereof is required or permitted to be taken for or in connection withany corporate action, the meeting and vote of stockholders may be dispensedwith and such action may be taken with the written consent of stockholdershaving not less than the minimum percentage of the vote required by the GeneralCorporation Law of Delaware for the proposed corporate action, provided thatprompt notice shall be given to all stockholders of the taking of corporate actionwithout a meeting and by less than unanimous consent.

 

                Thirteenth:  Whenever a compromise or arrangement isproposed between this Corporation and its creditors or any class of them and/orbetween this Corporation and its stockholders or any class of them, any courtof equitable jurisdiction within the State of Delaware may, on the applicationin a summary way of this Corporation or of any creditor or stockholder thereofor on the application of any receive or receivers appointed for this Corporationunder the provisions of Section 291 of the General Corporation Law of Delawareor on the application of trustees in dissolution or of any receiver orreceivers appointed for this Corporation under the provision of Section 279 ofthe General Corporation Law of Delaware, order a meeting of the creditors orclass of creditors, and/or of the stockholders or class of stockholders of thisCorporation, as the case may be, to be summoned in such manner as the saidcourt directs.  If a majority in numberrepresenting three–fourths in value of the creditors or class ofcreditors, and/or of the stockholders or class of stockholders of thisCorporation, as the case may be, agree to any compromise or arrangement and toany reorganization of this Corporation as consequence of such compromisearrangement, the said compromise or arrangement and the said reorganizationshall, if sanctioned by the court to which the said application has been made,be binding on all the creditors or class of creditors, and/or on all the stockholdersor class of stockholders, of this Corporation, as the case may be, and also onthis Corporation.

 

                Fourteenth:  The Corporation reserves the right to amend,alter, change or repeal any provision contained in this Certificate ofIncorporation, in the manner now or hereafter prescribed by the GeneralCorporation Law of Delaware, and all rights conferred upon stockholders hereinare granted subject to this reservation.

 

                Fifteenth:  The name and mailing address of theincorporator are:

 

| Name                |   | Mailing Address                                  |
|---------------------|--------|--------------------------------------------------|
|                |   |                                             |
| Randall W. Heinrich |   | 1000 Louisiana, Suite 6905  Houston, Texas 77002 |

 

 

                THEUNDERSIGNED, being the incorporator hereinbefore named, for the purpose offorming a corporation pursuant to the General Corporation Law of the State ofDelaware, does make this Certificate, hereby declaring and certifying that thisis my act and deed and the facts herein stated are true, and accordingly havehereunto set my hand this _____ day of ____________________, 2001.

 
|   |   |
|--------|--------|
|   |   | Randall W. Heinrich, |
|   |   | Incorporator |
|        |        |  |  |

** **

 

**EXHIBIT B**

**BYLAWS**

 

**OF**

 

**CUBICO.COM ACQUISITION, INC.**

 

**(a Delaware corporation)**

 

ARTICLEI

 

STOCKHOLDERS

 

                                1.CERTIFICATES REPRESENTING STOCK. Certificates representing stock in the corporation shall be signed by,or in the name of, the corporation by (a) the Chairman or Vice-Chairman of theBoard of Directors, if any, or by the President or a Vice­ President and (b) bythe Treasurer or an Assistant Treasurer or the Secretary or an AssistantSecretary of the corporation.  Any orall the signatures on any such certificate may be a facsimile.  In case any officer, transfer agent, orregistrar who has signed or whose facsimile signature has been placed upon acertificate shall have ceased to be such officer, transfer agent, or registrarbefore such certificate is issued, it may be issued by the corporation with thesame effect as if he were such officer, transfer agent, or registrar at thedate of issue.

 

                                Wheneverthe corporation shall be authorized to issue more than one class of stock ormore than one series of any class of stock, and whenever the corporation shallissue any shares of its stock as partly paid stock, the certificatesrepresenting shares of any such class or series or of any such partly paidstock shall set forth thereon the statements prescribed by the GeneralCorporation Law.  Any restrictions onthe transfer or registration of transfer of any shares of stock of any class orseries shall be noted conspicuously on the certificate representing such shares.

 

                                Thecorporation may issue a new certificate of stock or uncertificated shares inplace of any certificate theretofore issued by it, alleged to have been lost,stolen, or destroyed, and the Board of Directors may require the owner of thelost, stolen, or destroyed certificate, or his legal representative, to givethe corporation a bond sufficient to indemnify the corporation against anyclaim that may be made against it on account of the alleged loss, theft, ordestruction of any such certificate or the issuance of any such new certificateor uncertificated shares.

 

                                2.UNCERTIFICATED SHARES.  Subject to anyconditions imposed by the General Corporation Law, the Board of Directors ofthe corporation may provide by resolution or resolutions that some or all ofany or all classes or series of the stock of the corporation shall beuncertificated shares.  Within areasonable time after the issuance or transfer of any uncertificated shares,the corporation shall send to the registered owner thereof any written noticeprescribed by the General Corporation Law.

 

                                3.FRACTIONAL SHARE INTERESTS.  Thecorporation may, but shall not be required to, issue fractions of a share.  If the corporation does not issue fractionsof a share, it shall (1) arrange for the disposition of fractional interests bythose entitled thereto,  (2) pay in cashthe fair value of fractions of a share as of the time when those entitled toreceive such fractions are determined, or (3) issue scrip or warrants inregistered form (either represented by a certificate or uncertificated) orbearer form (represented by a certificate) which shall entitle the holder toreceive a full share upon the surrender of such scrip or warrants aggregating afull share.  A certificate for afractional share or an uncertificated fractional share shall, but scrip orwarrants shall not unless otherwise provided therein, entitle the holder toexercise voting rights, to receive dividends thereon, and to participate in anyof the assets of the corporation in the event of liquidation.  The Board of Directors may cause scrip orwarrants to be issued subject to the conditions that they shall become void ifnot exchanged for certificates representing the full shares or uncertificatedfull shares before a specified date, or subject to the conditions that the sharesfor which scrip or warrants are exchangeable may be sold by the corporation andthe proceeds thereof distributed to the holders of scrip or warrants, orsubject to any other conditions which the Board of Directors may impose.

 

                                4.STOCK TRANSFERS.  Upon compliance withprovisions restricting the transfer or registration of transfer of shares ofstock, if any, transfers or registration of transfers of shares of stock of thecorporation shall be made only on the stock ledger of the corporation by theregistered holder thereof, or by his attorney thereunto authorized by power ofattorney duly executed and filed with the Secretary of the corporation or witha transfer agent or a registrar, if any, and, in the case of shares representedby certificates, on surrender of the certificate or certificates for suchshares of stock properly endorsed and the payment of all taxes due thereon.

 

                                5.RECORD DATE FOR STOCKHOLDERS.  In orderthat the corporation may determine the stockholders entitled to notice of or tovote at any meeting of stockholders or any adjournment thereof, the Board ofDirectors may fix a record date, which record date shall not precede the dateupon which the resolution fixing the record date is adopted by the Board ofDirectors, and which record date shall not be more than sixty nor less than tendays before the date of such meeting. If no record date is fixed by the Board of Directors, the record datefor determining stockholders entitled to notice of or to vote at a meeting ofstockholders shall be at the close of business on the day next preceding theday on which notice is given, or, if notice is waived, at the close of businesson the day next preceding the day on which the meeting is held.  A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment of the meeting; provided, however, that the Board of Directorsmay fix a new record date for the adjourned meeting.  In order that the corporation may  determine the stockholders entitled to consent to corporateaction in writing without a meeting, the Board of Directors may fix a recorddate, which record date shall not precede the date upon which the resolutionfixing the record date is adopted by the Board of Directors, and which dateshall not be more than ten days after the date upon which the resolution fixingthe record date is adopted by the Board of Directors.  If no record date has been fixed by the Board of Directors, therecord date for determining the stockholders entitled to consent to corporateaction in writing without a meeting, when no prior action by the Board ofDirectors is required by the General Corporation Law, shall be the first dateon which a signed written consent setting forth the action taken or proposed tobe taken is delivered to the corporation by delivery to its registered officein the State of Delaware, its principal place of business, or an officer oragent of the corporation having custody of the book in which proceedings ofmeetings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand orby certified or registered mail, return receipt requested.  If no record date has been fixed by theBoard of Directors and prior action by the Board of Directors is required bythe General Corporation Law, the record date for determining stockholdersentitled to consent to corporate action in writing without a meeting shall beat the close of business on the day on which the Board of Directors adopts theresolution taking such prior action.  Inorder that the corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights or thestockholders entitled to exercise any rights in respect of any change,conversion, or exchange of stock, or for the purpose of any other lawfulaction, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date isadopted, and which record date shall be not more than sixty days prior to suchaction.  If no record date is fixed, therecord date for determining stockholders for any such purpose shall be at theclose of business on the day on which the Board of Directors adopts theresolution relating thereto.

 

                                6.MEANING OF CERTAIN TERMS.  As usedherein in respect of the right to notice of a meeting of stockholders or awaiver thereof or to participate or vote thereat or to consent or dissent inwriting in lieu of a meeting, as the case may be, the term "share" or"shares" or "share of stock" or "shares of stock"or "stockholder" or "stockholders" refers to an outstandingshare or shares of stock and to a holder or holders of record of outstandingshares of stock when the corporation is authorized to issue only one class ofshares of stock, and said reference is also intended to include any outstandingshare or shares of stock and any holder or holders of record of outstandingshares of stock of any class upon which or upon whom the certificate ofincorporation confers such rights where there are two or more classes or seriesof shares of stock or upon which or upon whom the General Corporation Lawconfers such rights notwithstanding that the certificate of  incorporation may provide for more than oneclass or series of shares of stock, one or more of which are limited or deniedsuch rights thereunder; provided, however, that no such right shall vest in theevent of an increase or a decrease in the authorized number of shares of stockof any class or series which is otherwise denied voting rights under theprovisions of the certificate of incorporation, except as any provision of lawmay otherwise require.

 

                                7.STOCKHOLDER MEETINGS.

 

                                -TIME.  The annual meeting shall be heldon the date and at the time fixed, from time to time, by the directors,provided, that the first annual meeting shall be held on a date within thirteenmonths after the organization of the corporation, and each successive annualmeeting shall be held on a date within thirteen months after the date of thepreceding annual meeting.  A specialmeeting shall be held on the date and at the time fixed by the directors.

 

                                -PLACE.  Annual meetings and specialmeetings shall be held at such place, within or without the State of Delaware,as the directors may, from time to time, fix. Whenever the directors shall fail to fix such place, the meeting shallbe held at the registered office of the corporation in the State of Delaware.

 

                                -CALL.  Annual meetings and special meetings may becalled by the directors or by any officer instructed by the directors to callthe meeting.  Special meetings must alsobe called upon the instruction of one or more stockholders holding singly orcollectively at least 20% of the outstanding common stock in the corporation.

 

                                -NOTICEOR WAIVER OF NOTICE.  Written notice ofall meetings shall be given, stating the place, date, and hour of the meetingand stating the place within the city or other municipality or community atwhich the list of stockholders of the corporation may be examined.  The notice of an annual meeting shall statethat the meeting is called for the election of directors and for thetransaction of other business which may properly come before the meeting, andshall (if any other action which could be taken at a special meeting is to betaken at such annual meeting) state the purpose or purposes.  The notice of a special meeting shall in allinstances state the purpose or purposes for which the meeting is called.  The notice of any meeting shall alsoinclude, or be accompanied by, any additional statements, information, ordocuments prescribed by the General Corporation Law.  Except as otherwise provided by the General Corporation Law, acopy of the notice of any meeting shall be given, personally or by mail, notless than ten days nor more than sixty days before the date of the meeting,unless the lapse of the prescribed period of time shall have been waived, anddirected to each stockholder at his record address or at such other addresswhich he may have furnished by request in writing to the Secretary of thecorporation.  Notice by mail shall bedeemed to be given when deposited, with postage thereon prepaid, in the UnitedStates Mail.  If a meeting is adjournedto another time, not more than thirty days hence, and/or to another place, andif an announcement of the adjourned time and/or place is made at the meeting,it shall not be necessary to give notice of the adjourned meeting unless thedirectors, after adjournment, fix a new record date for the adjournedmeeting.  Notice need not be given toany stockholder who submits a written waiver of notice signed by him before orafter the time stated therein.  Attendanceof a stockholder at a meeting of stockholders shall constitute a waiver ofnotice of such meeting, except when the stockholder attends the meeting for theexpress purpose of objecting, at the beginning of the meeting, to thetransaction of any business because the meeting is not lawfully called orconvened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thestockholders need be specified in any written waiver of notice.

 

                                -STOCKHOLDER LIST.  The officer who hascharge of the stock ledger of the corporation shall prepare and make, at leastten days before every meeting of stockholders, a complete list of thestockholders, arranged in alphabetical order, and showing the address of eachstockholder and the number of shares registered in the name of eachstockholder.  Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten days prior to themeeting, either at a place within the city or other municipality or communitywhere the meeting is to be held, which place shall be specified in the noticeof the meeting, or if not so specified, at the place where the meeting is to beheld.  The list shall also be producedand kept at the time and place of the meeting during the whole time  thereof, and may be inspected by anystockholder who is present.  The stockledger shall be the only evidence as to who are the stockholders entitled toexamine the stock ledger, the list required by this section or the books of thecorporation, or to vote at any meeting of stockholders.

 

                                -CONDUCT OF MEETING.  Meetings of thestockholders shall be presided over by one of the following officers in theorder of seniority and if present and acting -- the Chairman of the Board, ifany, the Vice-Chairman of the Board, if any, the President, a Vice-President,or, if none of the foregoing is in office and present and acting, by a chairmanto be chosen by the stockholders.  TheSecretary of the corporation, or in his absence, an Assistant Secretary, shallact as secretary of every meeting, but if neither the Secretary nor anAssistant Secretary is present the Chairman of the meeting shall appoint asecretary of the meeting.

 

                                -PROXY REPRESENTATION.  Every stockholdermay authorize another person or persons to act for him by proxy in all mattersin which a stockholder is entitled to participate, whether by waiving notice ofany meeting, voting or participating at a meeting, or expressing consent ordissent without a meeting.  Every proxymust be signed by the stockholder or by his attorney-in-fact.  No proxy shall be voted or acted upon afterthree years from its date unless such proxy provides for a longer period.  A duly executed proxy shall be irrevocableif it states that it is irrevocable and, if, and only as long as, it is coupledwith an interest sufficient in law to support an irrevocable power.  A proxy may be made irrevocable regardlessof whether the interest with which it is coupled is an interest in the stock itselfor an interest in the corporation generally.

 

                                -INSPECTORS.  The directors, in advanceof any meeting, may, but need not, appoint one or more inspectors of electionto act at the meeting or any adjournment thereof.  If an inspector or inspectors are not appointed, the personpresiding at the meeting may, but need not, appoint one or moreinspectors.  In case any person who maybe appointed as an inspector fails to appear or act, the vacancy may be filledby appointment made by the directors in advance of the meeting or at themeeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of hisduties, shall take and sign an oath faithfully to execute the duties ofinspectors at such meeting with strict impartiality and according to the bestof his ability.  The inspectors, if any,shall determine the number of shares of stock outstanding and the voting powerof each, the shares of stock represented at the meeting, the existence of aquorum, the validity and effect of proxies, and shall receive votes, ballots,or consents, hear and determine all challenges and questions arising inconnection with the right to vote, count and tabulate all votes, ballots, orconsents, determine the result, and do such acts as are proper to conduct theelection or vote with fairness to all stockholders.  On request of the person presiding at the meeting, the inspectoror inspectors, if any, shall make a report in writing of any challenge,question, or matter determined by him or them and execute a certificate of anyfact found by him or them.    Except asotherwise required by subsection (e) of Section 231 of the General CorporationLaw, the provisions of that Section shall not apply to the corporation.

 

                                -QUORUM.  The holders of a majority ofthe outstanding shares of stock shall constitute a quorum at a meeting ofstockholders for the transaction of any business.  The stockholders present may adjourn the meeting despite theabsence of a quorum.

 

                                -VOTING.  Each share of stock shallentitle the holders thereof to one vote. Directors shall be elected by a plurality of the votes of the sharespresent in person or represented by proxy at the meeting and entitled to voteon the election of directors.  Any otheraction shall be authorized by a majority of the votes cast except where theGeneral Corporation Law prescribes a different percentage of votes and/or adifferent exercise of voting power, and except as may be otherwise prescribedby the provisions of the certificate of incorporation and these Bylaws.  In the election of directors, and for anyother action,  voting need not be byballot.

 

                                8.  STOCKHOLDER ACTION WITHOUT MEETINGS.  Any action required by the GeneralCorporation Law to be taken at any annual or special meeting of stockholders,or any action which may be taken at any annual or special meeting ofstockholders, may be taken without a meeting, without prior notice and withouta vote, if a consent in writing, setting forth the action so taken, shall besigned by the holders of outstanding stock having not less than the minimumnumber of votes that would be necessary to authorize or take such action at ameeting at which all shares entitled to vote thereon were present andvoted.  Prompt notice of the taking ofthe corporate action without a meeting by less than unanimous written consentshall be given to those stockholders who have not consented in writing.  Action taken pursuant to this paragraphshall be subject to the provisions of Section 228 of the General CorporationLaw.

 

                                9.STOCKHOLDER PROPOSALS.  At an annual ora special meeting of the stockholders, only such business shall be conducted asshall have been properly brought before the meeting.  To be properly brought before an annual or special meetingbusiness must be (a) specified in the notice of meeting (or any supplementthereto) given by or at the direction of the Chairman of the Board, thePresident, or the Board of Directors, (b) otherwise properly brought before themeeting by or at the direction of the Chairman of the Board, the President, or theBoard of Directors, or (c) otherwise properly brought before the meeting by astockholder.

 

                Noproposal by a stockholder shall be presented at an annual or a special meetingof stockholders unless such stockholder shall provide the Board of Directors orthe Secretary of the corporation with timely written notice of intention topresent a proposal for action at the forthcoming meeting of stockholders, whichnotice shall include (a) the name and address of such stockholder, (b) thenumber of voting securities he or she holds of record and which he or she holdsbeneficially, (c) the text of the proposal to be presented at the meeting, (d)a statement in support of the proposal, and (e) any material interest of thestockholder in such proposal.  To betimely, a stockholder's notice must be delivered to or mailed and received atthe principal executive offices of the corporation, not less than 60 days normore than 90 days prior to the meeting; provided, however, that in the eventthat less than 70 days' notice or prior public disclosure of the date of themeeting is given or made to stockholders, notice by the stockholder to betimely must be so received not later than the close of business on the fifth(5th) day following the day on which such notice of the date of the annualmeeting was mailed or such public disclosure was made.  Any stockholder may make any other proposalat an annual or special meeting of stockholders and the same may be discussedand considered, but unless stated in writing and filed with the Board ofDirectors or the Secretary prior to the date set forth above, no action withrespect to such proposal shall be taken at such meeting and such proposal shallbe laid over for action at an adjourned, special, or annual meeting of thestockholders taking place no earlier than 60 days after such meeting.

 

                Thisprovision shall not prevent the consideration and approval or disapproval at anannual meeting of reports of officers, directors, and committees; but inconnection with such reports, no new business shall be acted upon at suchannual meeting unless stated and filed as provided in these Bylaws.  Notwithstanding anything in the Bylaws tothe contrary, no business shall be conducted at any annual or special meetingexcept in accordance with the procedures set forth in this these Bylaws.  The chairman of the annual meeting shall, ifthe facts warrant, determine and declare to the meeting that business was notproperly brought before the meeting and in accordance with the provisions ofthese Bylaws, and if he should so determine, he shall so declare to the meetingand any such business not properly brought before the meeting shall not betransacted.

 

                Notwithstandingany other provision of these Bylaws, the corporation shall be under noobligation to include any stockholder proposal in its proxy statement materialsor otherwise present any such proposal to stockholders at a special or annualmeeting of stockholders if the Board of Directors reasonably believes theproponents thereof have not complied with Sections 13 and 14 of the SecuritiesExchange Act of 1934, as amended, and the rules and regulations promulgatedthereunder, and the corporation shall not be required to include in its proxystatement material to stockholders any stockholder proposal not required to beincluded in its proxy material to stockholders in accordance with such Act,rules, or regulations.

 

                                10.NOMINATION OF DIRECTORS.  Only personswho are nominated in accordance with the procedures of these Bylaws shall beeligible for election as directors. Subject to the rights of holders of any class or series of stock havinga preference over the common stock as to dividends or upon liquidation,nominations for the election of directors may be made by the Board of Directorsor by any stockholder entitled to vote in the election of directors generallywho complies with the notice procedures set forth in this these Bylaws.  Any stockholder entitled to vote in theelection of directors generally may nominate one or more persons for electionas a director at a meeting only if timely written notice of such stockholder'sintent to make such nomination or nominations has been given, either bypersonal delivery or by U.S. mail, first class postage prepaid, return receiptrequested, to the Secretary of the corporation.

 

                Tobe timely, a stockholder's notice shall be delivered to or mailed and receivedat the principal executive offices of the corporation not less than 60 days normore than 90 days prior to the meeting; provided, however, that in the eventthat less than 70 days' notice or prior public disclosure of the date of themeeting is give or made to stockholders, notice by the stockholder to be timelymust be so received not later than the close of business on the fifth (5th) dayfollowing the day on which such notice of the date of the meeting was mailed orsuch public disclosure was made.  Eachsuch notice shall set forth: (a) the name and address of the stockholder whointends to make the nomination, (b) the name, age, business address, and homeaddress of the person or persons to be nominated; (c) the principal occupationof the person or persons nominated; (d) a representation that the stockholderis a holder of record of stock of the corporation entitled to vote at suchmeeting and intends to appear in person or by proxy at the meeting and intendsto appear at the meeting to nominate the person or persons specified in thenotice; (e) a description of all arrangements or understandings between thestockholder and each nominee and any other person or persons (naming suchperson or persons) pursuant to which the nomination or nominations are to bemade by the stockholder; (f) such other information regarding each nomineeproposed by such stockholder as would be required to be included in a proxystatement filed pursuant to the rules of the Securities and ExchangeCommission, had the nominee been nominated, or intended to be nominated, by theBoard of Directors; and (g) the consent of each nominee to serve as a directorof the corporation if so elected.  Atthe request of the Board of Directors any person nominated by the Board ofDirectors for election as a Director shall furnish to the Secretary of thecorporation that information required to be set forth in a stockholder's noticeof nomination which pertains to the nominee.

 

                Noperson shall be eligible for election as a Director of the corporation unlessnominated in accordance with the procedures set forth in these Bylaws.  The chairman of the meeting shall, if thefacts warrant, determine and declare to the meeting that a nomination was notmade in accordance with the procedures prescribed by the Bylaws, and if heshould so determine, he shall so declare to the meeting and the defectivenomination shall be disregarded.

 

ARTICLEII

 

DIRECTORS

 

                                1.FUNCTIONS AND DEFINITION.  The businessand affairs of the corporation shall be managed by or under the direction ofthe Board of Directors of the corporation. The Board of Directors shall have the authority to fix the compensationof the members thereof.  The use of thephrase "whole board" herein refers to the total number of directorswhich the corporation would have if there were no vacancies.

 

                                2.QUALIFICATIONS AND NUMBER.  A directorneed not be a stockholder, a citizen of the United States, or resident of theState of Delaware.  The initial Board ofDirectors shall consist of two persons. Thereafter the number of directors constituting the whole board shall be the number determined by the Boardof Directors, provided, however, that at least one director is alwaysrequired.  Subject to the foregoinglimitation and except for the first Board of Directors, such number may befixed from time to time by action of the stockholders or of the directors, or,if the number is not fixed, the number shall be three.  The number of directors may be increased ordecreased by action of the stockholders or of the directors.

 

                                3.ELECTION AND TERM.  The first Board ofDirectors, unless the members thereof shall have been named in the certificateof incorporation, shall be electedby the incorporator or incorporators andshall hold office until the first annual meeting of stockholders and untiltheir successors are elected and qualified or until their earlier resignationor removal.  Any director may resign atany time upon written notice to the corporation.  Thereafter, directors who are elected at an annual meeting ofstockholders, and directors who are elected in the interim to fill vacanciesand newly created directorships, shall hold office until the next annualmeeting of stockholders and until their successors are elected and qualified oruntil their earlier resignation or removal. Except as the General Corporation Law may otherwise require, in theinterim between annual meetings of stockholders or of special meetings ofstockholders called for the election of directors and/or for the removal of oneor more directors and for the filling of any vacancy in that connection, newlycreated directorships and any vacancies in the Board of Directors, includingunfilled vacancies resulting from the removal of directors for cause or withoutcause, may be filled by the vote of a majority of the remaining directors thenin office, although less than a quorum, or by the sole remaining director.

 

                                4. MEETINGS.

 

                                -TIME.  Meetings shall be held at suchtime as the Board shall fix, except that the first meeting of a newly electedBoard shall be held as soon after its election as the directors mayconveniently assemble.

 

                                -PLACE.  Meetings shall be held at suchplace within or without the State of Delaware as shall be fixed by the Board.

 

                                -CALL.  No call shall be required forregular meetings for which the time and place have been fixed.  Special meetings may be called by or at thedirection of the Chairman of the Board, if any, the Vice-Chairman of the Board,if any, of the President, or of a majority of the directors in office.

 

                                -  NOTICE OR ACTUAL OR CONSTRUCTIVEWAIVER.  No notice shall be required forregular meetings for which the time and place have been fixed.  Written, oral, or any other mode of noticeof the time and place shall be given for special meetings in sufficient timefor the convenient assembly of the directors thereat.  Notice need not be given to any director or to any member of acommittee of directors who submits a written waiver of notice signed by himbefore or after the time stated therein. Attendance of any such person at a meeting shall constitute a waiver ofnotice of such meeting, except when he attends a meeting for the express purposeof objecting, at the beginning of the meeting, to the transaction of anybusiness because the meeting is not lawfully called or convened Neither thebusiness to be transacted at, nor the purpose of, any regular or specialmeeting of the directors need be specified in any written waiver of notice.

 

                                -QUORUM AND ACTION.  A majority of thewhole Board shall constitute a quorum except when a vacancy or vacanciesprevents such majority, whereupon a majority of the directors in office shallconstitute a quorum, provided, that such majority shall constitute at leastone-third of the whole Board.  Amajority of the directors present, whether or not a quorum is present, mayadjourn a meeting to another time and place. Except as herein otherwise provided, and except as otherwise provided bythe General Corporation Law, the vote of the majority of the directors presentat a meeting at which a quorum is present shall be the act of the Board.  The quorum and voting provisions hereinstated shall not be construed as conflicting with any provisions of the GeneralCorporation Law and these Bylaws which govern a meeting of directors held tofill vacancies and newly created directorships in the Board or action ofdisinterested directors.

 

                                Anymember or members of the Board of Directors or of any committee designated bythe Board, may participate in a meeting of the Board, or any such committee, asthe case may be, by means of conference telephone or similar communicationsequipment by means of which all persons participating in the meeting can heareach other.

 

                                -CHAIRMAN OF THE MEETING.  The Chairmanof the Board, if any and if present and acting, shall preside at allmeetings.  Otherwise, the Vice-Chairmanof the Board, if any and if present and acting, or the President, if presentand acting, or any other director chosen by the Board, shall preside.

 

                                5.REMOVAL OF DIRECTORS.  Except as mayotherwise be provided by the General Corporation Law, any director or theentire Board of Directors may be removed, with or without cause, by the holdersof a majority of the shares then entitled to vote at an election of directors.

 

                                6.COMMITTEES.  The Board of Directors may,by resolution passed by a majority of the whole Board, designate one or morecommittees, each committee to consist of one or more of the directors of thecorporation.  The Board may designateone or more directors as alternate members of any committee, who may replaceany absent or disqualified member at any meeting of the committee.  In the absence or disqualification of anymember of any such committee or committees, the member or members thereofpresent at any meeting and not disqualified from voting, whether or not he orthey constitute a quorum, may unanimously appoint another member of the Boardof Directors to act at the meeting in the place of any such absent ordisqualified member.  Any suchcommittee, to the extent provided in the resolution of the Board, shall haveand may exercise the powers and authority of the Board of Directors in themanagement of the business and affairs of the corporation with the exception ofany authority the delegation of which is prohibited by Section 141 of theGeneral Corporation Law, and may authorize the seal of the corporation to beaffixed to all papers which may require it.

 

                                7.WRITTEN ACTION.  Any action required orpermitted to be taken at any meeting of the Board of Directors or any committeethereof may be taken without a meeting if all members of the Board orcommittee, as the case may be, consent thereto in writing, and the writing orwritings are filed with the minutes of proceedings of the Board or committee.

 

                                8.COMPENSATION.  Unless otherwise restric­tedby the certificate of incorporation, the Board of Directors shall have theauthority to fix the compensation of directors.  No provision of these Bylaws shall be construed to preclude anydirector from serving the corporation in any other capacity and receivingcompensation therefor.

 

                                9.RELIANCE.  Each director and each memberof any committee designated by the Board of Directors shall, in the performanceof his duties, be fully protected in relying in good faith upon the books ofaccount or reports made to the corporation by any of its officers, or by anindependent certified public accountant, or by an appraiser selected withreasonable care by the Board of Direc­tors or by any such committee, or inrelying in good faith upon other records of the corporation.

 

ARTICLEIII

 

OFFICERS

 

                                1.OFFICES AND QUALIFICATIONS.  Theofficers of the corporation shall consist of a President, a Secretary, aTreasurer, and, if deemed necessary, expedient, or desirable by the Board ofDirectors, a Chairman of the Board, a Vice-Chairman of the Board, an ExecutiveVice-President, one or more other Vice-Presidents, one or more AssistantSecretaries, one or more Assistant Treasurers, and such other officers with such titles as the resolutionof the Board of Directors choosing them shall designate.  Except as may otherwise be provided in theresolution of the Board of Directors choosing him, no officer other than theChairman or Vice-Chairman of the Board, if any, need be a director.  Any number of offices may be held by thesame person, as the directors may determine.

 

                                2.TERM.  Unless otherwise provided in theresolution choosing him, each officer shall be chosen for a term which shallcontinue until the meeting of the Board of Directors following the next annualmeeting of stockholders and until his successor shall have been chosen andqualified.  Any officer may resign atany time upon written notice to the corporation.  Any officer may be removed, with or without cause, by the Boardof Directors.  Any vacancy in any officemay be filled by the Board of Directors.

 

                                3.COMPENSATION.  The salaries of allofficers and agents of the corporation shall be fixed by the Board of Directorsor pursuant to its direction; no officer shall be prevented from receiving suchsalary by reason of his also being a director.

 

                                4.AUTHORITY AND DUTIES.  All officers ofthe corporation shall have such authority and perform such duties in themanagement and operation of the corporation as shall be prescribed in theresolutions of the Board of Directors designating and choosing such officersand prescribing their authority and duties, and shall have such additionalauthority and duties as are incident to their office except to the extent thatsuch resolutions may be inconsistent therewith.  In addition to the preceding, the officers of the corporation shallhave the following authority and duties:

 

                                -CHAIRMAN OF THE BOARD.  The Chairman ofthe Board (if such office is created by the Board) shall preside at allmeetings of the Board of Directors or of the stockholders of the corporation.  In the Chairman's absence, such duties shallbe attended to by the Vice Chairman of the Board (if any, but if there is morethan one, the Vice Chairman who is senior in terms of time as such) or (ifthere is no Vice Chairman) by the President. The Chairman shall formulate and submit to the Board of Directors or theexecutive committee (if any) matters of general policy of the corporation andshall perform such other duties as usually apper­tain to the office or as maybe prescribed by the Board of Direc­tors or the executive committee.

 

                                -VICE CHAIRMEN OF THE BOARD.  In theabsence of the Chairman of the Board, or in the event of his inability orrefusal to act, the Vice Chairman (if any, but if there is more than one, theVice Chairman who is senior in terms of time as such) shall perform the dutiesand exercise the powers of the Chairman of the Board, and when acting shallhave all the powers of and be subject to all the restriction upon the Chairmanof the Board.  In the absence of theChairman of the Board, such Vice Chairman shall preside at all meetings of theBoard of Directors or of the stockholders of the corporation.  In the Chairman's and Vice Chairmen'sabsence, such duties shall be attended to by the President.  The Vice Chairmen shall perform such otherduties, and shall have such other powers, as from time to time may be assignedto them by the Board of Directors or the executive committee (if any).

 

                                -PRESIDENT.  The President shall be thechief executive officer of the corporation and, subject to the control of theBoard of Directors, shall in general manage, supervise and control theproperties, business and affairs of the corporation with all such powers as maybe reasonably incident to such responsibilities.  Unless the Board of Directors otherwise determines, the Presidentshall have the authority to agree upon and execute all leases, contracts,evidences of indebtedness and other obligations in the name of thecorporation.  In the absence of theChairman of the Board, the President shall preside at all meetings of theStockholders and (should he be a director) of the Board of Directors.  He may also preside at any such meetingattended by the Chairman of the Board if he is so designated by theChairman.  He shall have the power toappoint and remove subordinate officers, agents and employees, except thoseelected or appointed by the Board of Directors.  The President shall keep the Board of Directors and the ExecutiveCommittee fully informed and shall consult them concerning the business of thecorpora­tion.  He may sign with theSecretary or any other officer of the corporation thereunto authorized by theBoard of Directors, certificates for shares of the corporation and any deeds,bonds, mortgages, contracts, checks, notes, drafts or other instruments whichthe Board of Directors has authorized to be executed, except in cases where thesigning and execution thereof has been expressly delegated by these by–lawsor by the Board of Directors to some other officer or agent of the corpora­tion,or shall be required by law to be otherwise executed.  He shall vote, or give a proxy to any other officer of thecorpora­tion to vote all shares of stock of any other corporation stand­ing inthe name of the corporation and shall exercise any and all rights and powerswhich this corporation may possess by reason of its ownership of securities insuch other corporation and in general he shall perform all other dutiesnormally incident to the office of President and such other duties, and shallhave such other pow­ers, as may be prescribed by the stockholders, the Board ofDirectors or the Executive Committee (if any) from time to time.

 

                                -VICE PRESIDENTS.  In the absence of thePresident, or in the event of his inability or refusal to act, the ExecutiveVice President (or in the event there shall be no Vice President designatedExecutive Vice President, any Vice President designated by the Board) shallperform the duties and exercise the powers of the President, and when so actingshall have all the powers of and be subject to all the restrictions upon thePresident.  In the absence of adesignation by the Board of Directors of a Vice President to perform the dutiesof the President, or in the event of his absence or inability or refusal toact, the Vice President who is present and who is senior in terms of time as aVice President of the corporation shall so act.  Any Vice President may sign, with the Secretary or Assist­antSecretary, certificates for shares of the corporation.  The Vice Presidents shall perform such otherduties, and shall have such other powers, as from time to time may be assignedto them by the President, the Board of Directors or the executive commit­tee(if any).

 

                                -SECRETARY.  The Secretary shall (a) keepthe minutes of the meetings of the stockholders, the Board of Directors andcommittees of directors; (b) see that all notices are duly given in accordancewith the provisions of these by–laws and as required by law; (c) becustodian of the corporate records and of the seal of the corporation, and seethat the seal of the corporation or a facsimile thereof is affixed to allcertificates for shares prior to the issue thereof and to all documents, theexecution of which on behalf of the corporation under its seal is dulyauthorized in accordance with the provisions of these by–laws and attestthe affixation of the seal of the corporation thereto; (d) keep or cause to bekept a register of the post office address of each stockholder which shall befurnished by such stockholder; (e) sign with the President, or an ExecutiveVice President or Vice President, certificates for shares of the corporation,the issue of which shall have been authorized by resolution of the Board ofDirectors; (f) have general charge of the stock transfer books of thecorporation, which may be kept (subject to any provision contained in theGeneral Corporation Law) outside the State of Delaware at such place or placesas may be designated from time to time by the Board of Directors; and (g) ingeneral, perform all duties normally incident to the office of Secretary andsuch other duties, and shall have such other powers, as from time to time maybe assigned to him by the President, the Board of Directors or the executivecommittee (if any).

 

                                -TREASURER.  If required by the Board ofDirectors, the Treasurer shall give a bond for the faithful discharge of hisduties in such sum and with such surety or sureties as the Board of Directorsshall determine.  He shall (a) havecharge and custody of and be responsible for all funds and securities of thecorporation; receive and give receipts for moneys due and payable to thecorporation from any source whatso­ever and deposit all such moneys in the nameof the corporation in such banks, trust companies or other depositories asshall be selected in accordance with the provisions of these Bylaws; (b)prepare, or cause to be prepared, for submis­sion at each regular meeting ofthe Board of Directors, at each annual meeting of the stockholders, and at suchother times as may be required by the Board of Directors, the President or theexecutive committee (if any), a statement of financial condition of thecorporation in such detail as may be required; and (c) in general, perform allthe duties incident to the office of Treas­urer and such other duties, andshall have such other powers, as from time to time may be assigned to him bythe President, the Board of Directors or the executive committee (if any).

 

                                -ASSISTANT SECRETARY OR TREASURER.  TheAssistant Secretaries and Assistant Treasurers shall, in general, perform suchduties and have such powers as shall be assigned to them by the Secretary orthe Treasurer, respectively, or by the President, the Board of Directors or theExecutive Committee.  The AssistantSecretaries and Assistant Treasurers shall, in the absence or inability orrefusal to act of the Secretary or Treasurer, respectively, perform allfunctions and duties which such absent officers may delegate, but suchdelegation shall not relieve the absent officer from the responsibilities andliabili­ties of his office.  TheAssistant Secretaries may sign, with the President or a Vice President,certificates for shares of the corporation, the issue of which shall have beenauthorized by a resolution of the Board of Directors.  The Assistant Treasurers shall respectively, if required by theBoard of Directors, give bonds for the faithful discharge of their duties insuch sums and with such sureties as the Board of Directors shall determine.

 

ARTICLEIV

 

INDEMNIFICATION

 

                                1.             INDEMNIFICATION.  This corporation shall, to the maximumextent permitted from time to time under the law of the State of Delaware,indemnify and upon request shall advance expenses to any person who is or was aparty or is threatened to be made a party to any threatened, pending orcompleted action, suit, proceeding or claim, whether civil, criminal,administrative or investigative, by reason of the fact that such person is orwas or has agreed to be a director or officer of this corporation or any of itsdirect or indirect subsidiaries or while such a director or officer is or wasserving at the request of this corporation as a director, officer, partner,trustee, employee or agent of any corporation, partnership, joint venture,trust or other enterprise, including service with respect to employee benefitplans, against expenses (including attorney's fees and expenses), judgments,fines, penalties and amounts paid in settlement incurred in connection with theinvestigation, preparation to defend or defense of such action, suit,proceeding or claim; provided, however, that the foregoing shall not requirethis corporation to indemnify or advance expenses to any person in connectionwith any action, suit, proceeding, claim or counterclaim initiated by or onbehalf of such person.  Suchindemnification shall not be exclusive of other indemnification rights arisingunder any bylaws, agreement, vote of directors or stockholders or otherwise andshall inure to the benefit of the heirs and legal representatives of suchperson.  Any person seekingindemnification under this Article IV shall be deemed to have met the standardof conduct required for such indemnification unless the contrary shall beestablished.

 

                                2.             INSURANCE.  The corporation may purchase and maintaininsurance on behalf of any person who is or was a director, officer, employeeor agent of the corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise against any liabilityasserted against him and incurred by him in any such capacity, or arising outof his status as such, whether or not the corporation would have the power toindemnify him against such liability under the provisions of this Article IV ofthe by–laws.

 

                                3.             DEFINITIONS.  For purposes of this Article IV, referenceto the "corporation" shall include, in addition to the resultingcorporation, any constituent corpora­tion (including any constituent of aconstituent) absorbed in a consolidation or merger which, if its separateexistence has continued, would have had power and authority to indemnify itsdirectors, officers and employees or agents, so that any person who is or was adirector, officer, employee or agent of such constituent corporation, or is orwas serving at the request of such constituent corporation as a director,officer, employee or agent of another corporation, partnership, joint venture,trust or other enterprise, shall stand in the same position under theprovisions of this Article IV with respect to the resulting or survivingcorporation as he would have with respect to such constituent corporation ifits separate existence had continued.

 

                                Forpurposes of this Article IV, references to "other enterprises" shallinclude employee benefit plans; references to "fines" shall includeany excise taxes assessed on a person with respect to any employee benefitplan; and references to "serving at the request of the corporation"shall include any service as a director, officer, employee or agent of the corporationwhich imposes duties on, or involves services by, such director, offi­cer,employee, or agent with respect to an employee benefit plan, its participants,or beneficiaries; and a person who acted in good faith and in a manner hereasonably believed to be in the interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner "notopposed to the best interests of the corporation" as referred to in thisArticle IV.

 

ARTICLEV

 

DIVIDENDS

 

                                1.             DECLARATION.  Dividends upon the capital stock of thecorporation, subject to applicable provisions of the cer­tificate ofincorporation, if any, may be declared by the Board of Directors at any regularor special meeting, pursuant to applicable law.  Dividends may be paid in cash, in property or in shares of capi­talstock, subject to applicable provisions of the certificate of incor­poration.

 

                                2.             RESERVE.  Before payment of any dividend, there may be set aside out of anyfunds of the corporation avail­able for dividends such sum or sums as the Boardof Direc­tors from time to time, in its absolute discretion, shall think properas a reserve or reserves to meet contingencies, or for equalizing dividends, orfor repairing or maintaining any pro­perty of the corporation, or for suchother purpose as the Board of Directors shall think conducive to the interestof the corp­ora­tion, and the Directors may modify or abolish any such reservein the manner in which it was created.

 

ARTICLEVI

 

CORPORATESEAL

 

                                Thecorporate seal shall be in such form as the Board of Directors shall prescribe.

 

ARTICLEVII

 

FISCALYEAR

 

                                Thefiscal year of the corporation shall be fixed, and shall be subject to change,by the Board of Directors.

 

ARTICLEVIII

 

CONTROLOVER BYLAWS

 

                                Subjectto the provisions of the certificate of incorporation and the provisions of theGeneral Corporation Law, the power to amend, alter, or repeal these Bylaws andto adopt new Bylaws may be exercised by the Board of Directors or by thestockholders.

 

 

                                IHEREBY CERTIFY that the foregoing is a full, true, and correct copy of theBylaws of Cubico.com Acquisition, Inc., a Delaware corporation, as in effect onthe date hereof.

 

Dated: ____________________ _____, 2001

 

 

                                                                                                __________________________________________

                                                                                                Secretaryof Cubico.com Acquisition, Inc.

 

(SEAL)

**EXHIBIT C**

**SHAREHOLDER SCHEDULE OFEXCEPTIONS**

 

The following information and referenced documentshave been provided to Hispanic Television Networks, Inc. (“HTVN”) pursuant toArticles 4, 7, and 9 of the Agreement and Plan of Merger (the “Agreement”)by and among HTVN, the Subsidiary, Cubico.com, Inc. (“Cubico”) and HectorSaldaña and Luis Saldaña (collectively the “Shareholders”).  Each sectionnumber referenced herein corresponds to the section number of the Agreement towhich the disclosures contained herein relate. Unless otherwise stated all statements made herein are made as of thedate of the execution of the Agreement. This Schedule of Exceptions is furnished solely for the information ofHTVN and the Subsidiary in connection with the Agreement and may not be reliedupon by any other person.

                Mattersreflected in this Schedule of Exceptions are not necessarily limited to mattersrequired by the Agreement to be disclosed herein; such additional matters areincluded for informational purposes only. By describing such matters the Shareholders are not representing thatsuch disclosures are material to the business or operations of Cubico, or thatall similar or related matters have been disclosed.  The headings and captions used in this Schedule of Exceptions areused for convenience of reference only, and disclosure made under one sectionor schedule shall be deemed disclosed for any other section or schedule of thisSchedule of Exceptions.  Capitalizedterms, unless otherwise defined herein, have the meanings assigned to them inthe Agreement.

 

**Schedule4.1**

**Organization and Standing of Cubico**

** **

Non-Applicable.

 

**Schedule4.2**

**Capitalization of Cubico**

1.             Thefollowing is a list of holders of options under Cubico’s 2000 Stock Plan.  Each of the options listed below (other thanoptions that are fully vested or accelerated as noted) vests as follows:  1/3 of the option vests one (1) year afterthe Vesting Commencement Date and 1/36 of the option vests monthly thereafter.

 
| **Name**            |   | **ISO/NSO** |   | **Vesting Commencement Date** |   | **Number of Shares** |
|---------------------|--------|-------------|--------|-------------------------------|--------|----------------------|
| Yadira  Albarran    |   | ISO         |   | 6/27/01                       |   | 5,000                |
| Jesus  Aguilar      |   | ISO         |   | 10/20/00                      |   | 10,000               |
| Tricia  A. Herrera  |   | ISO         |   | 1/24/01                       |   | 10,000               |
| Tu  D. Tonnu        |   | ISO         |   | 11/21/00                      |   | 15,000               |
| Alfredo  Calvillo   |   | ISO         |   | 1/28/01                       |   | 20,000               |
| Geovanni  E. Hudson |   | ISO         |   | 1/10/01                       |   | 20,000               |
| Guadalupe  Gervas   |   | ISO         |   | 9/13/00                       |   | 30,000               |
| Antonio  Robles     |   | ISO         |   | 9/11/00                       |   | 40,000               |
| Efrain  Robles      |   | ISO         |   | 9/11/00                       |   | 40,000               |
| Christian  J Vera   |   | ISO         |   | 4/15/00                       |   | 50,000               |
| Mark  Sierra        |   | NSO         |   | 4/15/00                       |   | 60,000               |
| Sarai  Rodgers      |   | NSO         |   | 11/1/00                       |   | 15,000               |
| Maria  Montoya      |   | NSO         |   | Fully vested upon termination |   | 100,000              |

 

 
| **Name**       |   | **ISO/NSO** |   | **Vesting Commencement Date** |   | **Number of Shares** |
|----------------|--------|-------------|--------|-------------------------------|--------|----------------------|
| Nora  Sandoval |   | NSO         |   | Fully vested upon termination |   | 400,000              |
| **Total**      |   |        |   |                          |   | **815,000**          |

 

2.             Acopy of Cubico’s 2000 Stock Plan has been provided to HTVN pursuant to HTVN’sdue diligence request.

 

3.             Cubicohas a repurchase option relative to Restricted Stock Purchase Agreementsentered into between Cubico and each of the Shareholders.  Each Shareholder purchased 1,500,000 sharesof Cubico Common Stock on March 1, 2000. The vesting schedule for each of the Shareholders mandates that 1/3 ofthe shares held by each Shareholder vests immediately and is released from therepurchase option.  Of the remaining sharessubject to the repurchase option, 1/36 vests each month after the closing ofCubico’s Series A Preferred Stock financing which closed on June 29,2000.

 

4.             Cubicohas a repurchase option relative to a Restricted Stock Purchase Agreemententered into between Cubico and Robert Lauridsen (“Director”), a Cubicodirector.  Director purchased 50,000shares of Cubico Common Stock on November 27, 2000 for $0.10 pershare.  The vesting schedule forDirector mandates that 1/3 of the shares held by Director vests on October 3,2001 and 1/36 vests each month thereafteras long as Director continues to be a service provider to Cubico.  The repurchase option lapses and the stockvests in full should the Director’s status as a service provider be terminatedfollowing a change in control of Cubico. Pursuant to a Consulting Agreement entered into by Director and theCompany, the purchase price for the shares purchase by Director was waived inconsideration for consulting services rendered.

 

5.             Cubicohas a repurchase option relative to a Restricted Stock Purchase Agreemententered into between Cubico and WS Investment Company 2000A (“WS”).  WS purchased 60,000 shares of Cubico CommonStock on December 29, 2000.  Thevesting schedule for shares held by WS mandates that 1/3 of the shares heldvest on June 29, 2001 and 1/36 vests each month thereafter as long asWS continues to be a service provider to Cubico.  The repurchase option lapses and the stock vests in full shouldWS’s status as a service provider be terminated following a change in controlof Cubico.

 

**Schedule4.4**

**Ownership of Stock**

 
| **Name**                              |   | **Security Owned**       |   | **Number of Shares Owned** |
|---------------------------------------|--------|--------------------------|--------|----------------------------|
| Hector Saldaña                   |   | Common  Stock            |   | 1,500,000                  |
| Luis  Saldaña                    |   | Common Stock             |   | 1,500,000                  |
| Japan  E-fund 1(b) Partnership        |   | Series A Preferred Stock |   | 333,334                    |
| DS  Data Systems SPA                  |   | Series A Preferred Stock |   | 250,000                    |
| The  Entrepreneurs’ Fund II L.P. |   | Series A Preferred Stock |   | 200,000                    |
| The  Entrepreneurs’ Fund, L.P.   |   | Series A Preferred Stock |   | 200,000                    |
| The  Ryffel Children’s Trust     |   | Series A Preferred Stock |   | 200,000                    |
| Japan  E-fund 1(a) Partnership        |   | Series A Preferred Stock |   | 166,666                    |
| Harvey  M. Mueller, II                |   | Series A Preferred Stock |   | 150,000                    |
| Jeffrey  T. Webber                    |   | Series A Preferred Stock |   | 124,810                    |
| Richard  Halden                       |   | Series A Preferred Stock |   | 100,000                    |
| Robert  Dow                           |   | Series A Preferred Stock |   | 100,000                    |
| Richard  Kirk                         |   | Series A Preferred Stock |   | 90,000                     |
| RBW  Investments, LLC                 |   | Series A Preferred Stock |   | 75,190                     |
| Hector  Saldaña                  |   | Series A Preferred Stock |   | 70,000                     |
| Paul  Rodriguez                       |   | Common Stock             |   | 60,000                     |
| WS  Investment Company 2000A          |   | Common Stock             |   | 60,000                     |
| Bob  J. Bryant                        |   | Series A Preferred Stock |   | 50,000                     |
| Donald  B. Sallee                     |   | Series A Preferred Stock |   | 50,000                     |
| Robert  Lauridsen                     |   | Common Stock             |   | 50,000                     |

 
| **Name**                                                                        |   | **Security  Owned**       |   | **Number  of Shares Owned** |
|---------------------------------------------------------------------------------|--------|---------------------------|--------|-----------------------------|
| WS  Investment Company 2000A                                                    |   | Series A Preferred Stock  |   | 50,000                      |
| J. Sebastian  Matte Bon                                                         |   | Series  A Preferred Stock |   | 40,000                      |
| Scott  Montoya                                                                  |   | Common Stock              |   | 40,000                      |
| Pascale  Masson                                                                 |   | Series A Preferred Stock  |   | 31,000                      |
| Emanuela  Rocchi                                                                |   | Series A Preferred Stock  |   | 27,000                      |
| John  C. Cuero                                                                  |   | Series A Preferred Stock  |   | 25,000                      |
| Stanley  John Goodwin                                                           |   | Series A Preferred Stock  |   | 25,000                      |
| Henry  P. Massey, Jr. Trustee Of The Massey Family Trust UDT Dated July 6, 1988 |   | Series A Preferred Stock  |   | 10,000                      |
| Michelle  Hatfield-Kuramoto                                                     |   | Common  Stock             |   | 8,334                       |
| Alejo  Lugo                                                                     |   | Series A Preferred Stock  |   | 5,000                       |
| Quickstart  2000 LLP                                                            |   | Series A Preferred Stock  |   | 5,000                       |
| **Total**                                                                       |   |                      |   | **5,596,334**               |

 

Item 3 of Schedule 4.2 is hereby incorporated byreference.

 

**Schedule4.6**

**Conflicts**

 

**Cubico is a party to aRental Agreement for its executive of**fices with Ventana PropertyServices (“Ventana”) which mandates that Cubico must receive the consent ofVentana prior to any change of control.

 

**Schedule4.7**

**Consents**

 

Part4.6 above is hereby incorporated by reference.

 

**Schedule4.8**

**Financial Statements**

 

Non-Applicable.

 

**Schedule4.9**

**Absence of Certain Changes and Events**

 

**1.             The Shareholders have made loans to Cubico in theamounts listed below:**

** **
| **Date**       |   | **Name**                |   | **Amount**                                        |
|----------------|--------|-------------------------|--------|---------------------------------------------------|
| **04/27/2001** |   | **Hector Saldaña** |   | **$30,000.00**                                    |
| **05/14/2001** |   | **Hector Saldaña** |   | **$28,000.00**                                    |
| **05/31/2001** |   | **Hector Saldaña** |   | **$25,000.00**                                    |
| **06/04/2001** |   | **Luis Saldaña**   |   | **$7,000.00**                                     |
| **06/15/2001** |   | **Hector Saldaña** |   | **$20,000.00**                                    |
| **06/26/2001** |   | **Hector Saldaña** |   | **$30,000.00**                                    |
| **07/13/2001** |   | **Hector Saldaña** |   | **$30,000.00**                                    |
|           |   | **Hector Saldaña** |   |                                              |
|           |   | **Hector Saldaña** |   |                                              |
|           |   | **Hector Saldaña** |   |                                              |
| **Total**      |   |                    |   | **$170,000.00 (to be updated prior to  8/30/01)** |

 

2.             The following is an aging summaryof accounts payable: **(to be updated as of 8/30/01)**

** **
|                                      |   | **Current**   |       | **1 – 30** |       | **31 - 60**   |       | **61 - 90**   |       | **> 90**   |       | **TOTAL**      |       |
|-------------------------------------------|--------|---------------|------------|-----------------|------------|---------------|------------|---------------|------------|---------------|------------|----------------|------------|
| **Accudata Partners Group**               |   | 0.00          |       | 0.00            |       | 500.00        |       | 4,278.75      |       | 0.00          |       | 4,778.75       |       |
| **AT&T**                              |   | 0.00          |       | 377.87          |       | 0.00          |       | 0.00          |       | 0.00          |       | 377.87         |       |
| **Big Bear Bottled Water**                |   | 68.75         |       | 0.00            |       | 0.00          |       | 0.00          |       | 0.00          |       | 68.75          |       |
| **Cooper White and Cooper**               |   | 0.00          |       | 0.00            |       | 0.00          |       | 0.00          |       | 5,000         |       | 1,716.00       |       |
| **Critical Path**                         |   | 307.20        |       | 1,408.80        |       | 0.00          |       | 0.00          |       | 0.00          |       | 1,716.00       |       |
| **Fashion Wire Daily**                    |   | 0.00          |       | 500.00          |       | 1,500.00      |       | 0.00          |       | 0.00          |       | 2,000.00       |       |
| **FedEx**                                 |   | 0.00          |       | 114.31          |       | 120.12        |       | 0.00          |       | 0.00          |       | 234.43         |       |
| **Foto Express**                          |   | 0.00          |       | 102.70          |       | 0.00          |       | 17.17         |       | 0.00          |       | 119.87         |       |
| **Internal Revenue Service**              |   | 0.00          |       | 0.00            |       | 0.00          |       | 9,849.49      |       | 0.00          |       | 9,849.49       |       |
| **Isyndicate**                            |   | 3,400.00      |       | 3,400.00        |       | 7,300.00      |       | 3,500.00      |       | 0.00          |       | 17,600.00      |       |
| **Johanna Vera**                          |   | 0.00          |       | 2,476.88        |       | 0.00          |       | 25.00         |       | 0.00          |       | 2,501.88       |       |
| **Kemper Insurance  Companies**           |   | 0.00          |       | 695.00          |       | 0.00          |       | 0.00          |       | 0.00          |       | 695.00         |       |
| **Lizal**                                 |   | 0.00          |       | 1,500.00        |       | 0.00          |       | 0.00          |       | 0.00          |       | 1,500.00       |       |
| **Muze**                                  |   | 0.00          |       | 0.00            |       | 5,500.00      |       | 5,500.00      |       | 5,500.00      |       | 16,500.00      |       |
| **Nora Sandoval**                         |   | 0.00          |       | 0.00            |       | 4,166.67      |       | 0.00          |       | 0.00          |       | 4,166.67       |       |
| **Pacific Bell**                          |   | 0.00          |       | 1,128.92        |       | 0.00          |       | 0.00          |       | 0.00          |       | 1,128.92       |       |
| **PG & E**                            |   | 0.00          |       | 0.00            |       | 1.18          |       | 0.00          |       | 0.00          |       | 1.18           |       |
| **Rapidigm**                              |   | 0.00          |       | 0.00            |       | 0.00          |       | 0.00          |       | 4,903.00      |       | 4,903.00       |       |
| **RB Webber & Company**               |   | 0.00          |       | 0.00            |       | 0.00          |       | 0.00          |       | 5,350.00      |       | 5,350.00       |       |
| **Stephen Lin**                           |   | 0.00          |       | 187.50          |       | 0.00          |       | 0.00          |       | 0.00          |       | 187.50         |       |
| **Talk City**                             |   | 10,000.00     |       | 27,312.50       |       | 11,041.68     |       | 11,041.68     |       | 11,562.00     |       | 70,957.86      |       |
| **Televideo**                             |   | 0.00          |       | 0.00            |       | 945.00        |       | 0.00          |       | 0.00          |       | 945.00         |       |
| **Verizon Wireless**                      |   | 0.00          |       | 667.68          |       | 0.00          |       | 0.00          |       | 0.00          |       | 667.68         |       |
| **Williams Communications  Solutions**    |   | 0.00          |       | 0.00            |       | 0.00          |       | 0.00          |       | 13,662.75     |       | 13,662.75      |       |
| **Wilson Sonsini Goodrich  & Rosati** |   | 0.00          |       | 4,143.20        |       | 3,900.60      |       | 4,138.90      |       | 6,109.85      |       | 18,292.55      |       |
| **XO Communications**                     |   | 203.17        |       | 0.00            |       | 0.00          |       | 0.00          |       | 0.00          |       | 203.17         |       |
| **TOTAL**                                 |   | **13,979.12** | ** ** | **44,015.36**   | ** ** | **34,975.25** | ** ** | **38,350.99** | ** ** | **52,087.60** | ** ** | **183,408.32** | ** ** |
|                                      |   |          |       |            |       |          |       |          |       |          |       |           |       |

** **

**Schedule4.10(a)**

**Equipment**

 
| **LAPTOPS** | ***MODEL*** | ***SERIAL NO.*** |  
***TOSHIBA TECRA 8100***

PT810U

30472052U

 
 

PT810U

30486797U

 
 

PT810U

30487139U

 
 

PT810U

70827353U

 
 

PT810U

70827107U

 
 

PT810U

70827530U

 
 

PT810U

70828141U

 
 

PT810U

70828186U

 
 

PT810U

70827991U

 
 

PT810U

11179679U

 
**SCANNERS**

 

 

 
***AGFA DUOSCAN T1200***

DUOSCAN T1200

658E8191

 
 

 

 

 
**TELEPHONES**

 

 

 
***POLYCOM SOUND STATION***

SOUND STATION

2201-03308-001F OR S/N  12368999

 
 

 

 

 
**MISC. EQUIPTMENT**

 

 

 
***Brothers electronic labeling system***

PT-1700

KOJ3792

 
 

 

 

 
***KEYS***

**NAME**

**KEY**

 
312

Nora

Door

 

 

Luis

 

 

 

Guadalupe

Door

Outside

 

Efrain

Door

 

 

 

 

 

315

Efrain

Door

 

 

Luis

Door

 

 

Tony Ru

Door

 

 

Nora 

Door

 

 
****
 

**Inventory  Information**

**Description**

 

**Model**

 

**Serial Number**

 

**Location**

Corel Photo Paint 8.0

 

W/M

 

PP8X0-19Z7462142

 

Design Station/Al

MacroMedia Flash 5.0 Mac

 

Mac

 

FLM500-08842-87286-65676

 

Art Dept Storage Room

MacroMedia Flash 5.0 PC

 

Windows

 

FLW500-05941-77238-56959

 

Art Dept Storage Room

MacroMedia DreamWeaver 3.0

 

Windows

 

DWW300-03711-18280-79867

 

Design Station/Al

Adobe Illustrator 8.0

 

Mac

 

AAW800R7106614-151

 

Design Station/Al

Adobe PageMaker 6.5 Plus

 

Windows

 

03W652Y7108535-682

 

Design Station/Al

Adobe Illustrator 9.0

 

Mac

 

AAW900R7123113-926

 

Design Station/Al

Adobe Acrobat 4.0

 

Windows

 

KWW400Y7105456-729

 

Design Station/Al

Adobe Photoshop 5.5

 

Windows

 

PWW550Y7110231-690

 

Design Station/Al

Adobe Photoshop LE

 

 

 

SDM500B4759679-745

 

Design Station/Al

Extensis Photoframe V2.0

 

W/M

 

BDE-200-001-467-019983

 

Design Station/Al

Extensis Mask Pro V2.0

 

W/M

 

MCE-200-001-093-028418

 

Design Station/Al

Sonic Foundry Sound Forge 4.5

 

 

 

1050040854-254609

 

Art Dept Storage Room

Sonic Foundry Sound Forge XP,  included with Acid Pro

 

 

 

195-0221827-194606

 

Art Dept Storage Room

Sonic Foundry Acid Pro 2.0

 

 

 

76-0JF6J9-TGW13NR-ZG2KK9

 

Art Dept Storage Room

Adobe Photoshop 6.0  (Macintosh)

 

Mac

 

PSW600R7116564-324

 

Art Dept Storage Room

Adobe Live Motion  (Windows/Mac)

 

W/M

 

LIW100R7117938-310

 

Art Dept Storage Room

Adobe Photoshop 6.0 Upgrade

 

Windows

 

PWW550Y71100231-690

 

Art Dept Storage Room

Adobe Premiere 6.0

 

Windows

 

MBW600R7110458-285

 

Art Dept Storage Room

Adobe Premiere 6.0

 

Mac

 

PRW600R7101027-159

 

Art Dept Storage Room

Adobe Illustrator

 

Windows

 

ABW900Y7108990-384

 

Art Dept Storage Room

Extensis Portfolio 5

 

W/M

 

None

 

Art Dept Storage Room

Microsoft Office 2001 (5  users)

 

Mac

 

880-5513941  (G3 Powerbook)

 

Art Dept Storage Room

 

 

Mac

 

880-5518943  (G4 Cube)

 

Art Dept Storage Room

 

 

Mac

 

880-5516146 (Luis S.  Powerbook)

 

Art Dept Storage Room

 

 

Mac

 

880-5519186 (G4 Tower)

 

Art Dept Storage Room

 

 

Mac

 

Open

 

Art Dept Storage Room

Microsoft Windows NT Server

 

Windows

 

876-7079694

 

Art Dept Storage Room

 

 

**Asset Management**

 

 

 

 

 

 

 

**Description**

 

**Model**

 

**Serial Number**

 

**Location**

AGFA Flat Bed  Scanner

 

Douscan T1200

 

48AE8049

 

Photographer’s  Station/Jesus

Kensington Optical  Mouse

 

Optical Pro

 

A0032020837

 

Photographer’s  Station/Jesus

Compaq Graphic  Workstation+Keyboard

 

Desktop EN

 

6048DYSZK339

 

Multimedia  Station/Freddie

Iomega External  Zip Drive

 

Zip 100 External

 

C6BL42CBFV

 

Multimedia  Station/Freddie

Sony 19” Trinitron  Monitor

 

Multiscan E400

 

8,081,725

 

Multimedia  Station/Freddie

Cambridge Sound  System  Speaker System

 

CSW250

 

SW0250221002183

 

Multimedia  Station/Freddie

Apple G4 Cube

 

G4 Cube

 

XA0350TVK59

 

Design Station

Apple Studio Flat  Panel Display

 

Studio Display

 

CY0060HZH4B

 

Design Station

Iomega Zip Drive

 

Z100USBNC

 

C6BL42C9LM

 

Design Station

Epson Epson Photo  Printer

 

Sylus Photo 2000P

 

CHU0000180

 

Design Station

Iomega Zip Drive

 

Z250USBPCM

 

7BE009B12H

 

Design  Station/Tony

Apple Power Book  G3

 

G3 Power Book

 

QT0230VXHDS

 

Design  Station/Tony

Microsoft Optical  Mouse

 

X05-77975

 

52195-576-3092626-000001

 

Design  Station/Tony

Britek Flash Fuse  -5A

 

120V 150W G6.35

 

506H0552

 

Art Dept Storage  Room

Hewlett Packard  Scanner HP

 

C7670A

 

SG05N26003

 

Art Dept Storage  Room

Dalite Background  Stand (2X)

 

13G

 

-

 

Art Dept Storage  Room

Iomega Zip Drive

 

Z100S2

 

RAA5472490

 

Art Dept Storage  Room

Trimax Compact  Stand

 

307 CS

 

Code: 4064

 

Art Dept Storage  Room

Timax Mini Light  Stand

 

305 MLS

 

Code: 4008

 

Art Dept Storage  Room

Xtra Large Light  Box

 

-

 

-

 

Art Dept Storage  Room

Adaptec Scsi Card

 

1,772,900

 

BD0C0-180254

 

Art Dept Storage  Room

Pantone Pantone  Color Set-swatch books

 

-

 

-

 

Design Station/Al

ViewSonic 21”  Viewsonic Graphic Series

 

-

 

403,003,201,226

 

Design Station/Al

Virtual Micro PC  Design Station, CD Writer, Sound Card+keyboard

 

-

 

42,993

 

Design Station/Al

Creative Labs  Speaker system

 

-

 

SG15001011002728

 

Design Station/Al

Canon  DV Camera

 

2,090,201,930

 

DM-GL1A

 

Art Dept Storage  Room

Canon  Large DV Camera Battery

 

BP945

 

-

 

Art Dept Storage  Room

Canon  Small DV Camera Battery

 

BP915

 

-

 

Art Dept Storage  Room

Canon  Video light

 

VL-10L1

 

-

 

Art Dept Storage  Room

Microphone

 

Ex-413

 

-

 

Art Dept Storage  Room

Canon Compact  Power Adaptor

 

CA-910A

 

-

 

Art Dept Storage  Room

Azden Wireless Mic  For DV Camera

 

WR-PRO

 

-

 

Art Dept Storage  Room

 
****
 

**Schedule4.10(b)**

**Inventories**

 

Non-applicable.

 

**Schedule4.10(c)**

**Accounts Receivable**

 

Non-applicable.

 

**Schedule 4.10(d)**

**Bank Accounts**

 

1.     Silicon Valley Bank.  Checking Account Number 3300221646.

 

2.     Silicon Valley Bank.  Cash Reserve Account Number 3300221646.

 

3.     Silicon Valley Bank.  CD Number 8800053078.

 

4.     The only persons with access to the abovebank accounts are Hector Saldaña and Mark Sierra.

 

**Schedule4.11**

**Contracts**

 

1.             Cubicois past due in payments under that certain Short Form Service Agreement, datedas of May 31, 2001,  Cubico and TalkCity Services.  It currently owesapproximately $71,000.

 

2.             Cubicohas entered into that certain Content User Agreement, dated as of May 4, 2000,with Isyndicate, which will terminate as of May 4, 2002, if Cubico gives thirty(30) days prior written notice of such termination to Isyndicate.  The contract requires monthly payments of$2,000.

 

3.             Cubicohas entered into that certain Subscription Agreement for Internet Licensees,dated as of June 4, 2001, with Fashion Wire Daily, Inc., which will terminateas of June 4, 2002, if Cubico gives ninety (90) days prior written notice ofsuch termination to Fashion Wire Daily, Inc. The contract requires monthly payments of $500.

 

**Schedule4.12**

**Permits**

 

City of San Jose Business License.
****
 

**Schedule4.13**

**Intellectual Property**

 

Tradename: Cubico.com, Inc.

 

**Schedule4.14**

**Employees**

 

1.             The following is a list ofemployees of the Company:

 

**Name**

 

**Salary**

 

**Start Date**

Yadira  Albarran

 

$16/hour

 

6/27/01

Jesus  Aguilar

 

$16/hour

 

10/20/00

Alfredo  Calvillo

 

$32,000

 

1/28/01

Manuel  Cornejo

 

$6,000

 

6/01

Guadalupe  Gervas

 

$27,500

 

9/13/00

Tricia  A. Herrera

 

$16/hour

 

1/24/01

Geovanni  E. Hudson

 

$27,500

 

1/10/01

Tu  D. Tonnu

 

$16/hour

 

11/21/00

Antonio  Robles

 

$48,000

 

9/11/00

Efrain  Robles

 

$48,000

 

9/11/00

Luis  Saldaña

 

$75,000

 

4/00

Tu  D. Ton Nu

 

$16/hour

 

11/21/00

Christian  J. Vera

 

$16/hour

 

4/15/00

Jeadi  Vilchis

 

$6,000

 

6/01

 

2.             Part 4.18 is hereby incorporated byreference.

 
****
 

**Schedule 4.15**

**Employee Benefit Plans**

 

1.             Item2 of Part 4.2 above is hereby incorporated byreference.

 

2.             MedicalInsurance.  Blue Cross; group policynumber C588QZ.

 

3.             Dental.  The Guardian; group policy number 00351401.

 

4.             Vision.  VSP; group policy number 12-149282-0001.

 

5.             TheCompany has not made available the documents identified in Section 4.15(h).

 

**Schedule 4.16**

**Litigation**

 

Non-Applicable.

 

**Schedule4.17**

**Compliance with Law**

 

1.             Part 4.18 is hereby incorporated byreference.

 

 

**Schedule4.18**

**Taxes**

 

                The Company has failed to payquarterly withholding taxes when due for the last quarter, but has not yetreceived any notices of violation from the Internal Revenue service.

 

**Schedule 4.19**

**Insurance**

 

1.             Commercial Insurance.  St. Paul Insurance; policy numberVP09400515.

 

2.             Workers’ Compensation.  Kamper Insurance; group policy number3BA86930-00.

 

**Schedule 4.20**

**Environmental Matters**

 

Non-Applicable.
****
 

**Schedule 4.21**

**Transactions with Affiliates**

 

Part 4.9 is herebyincorporated by reference.

 

**Schedule 9.3(f)**

**Employment Agreements**

 

1.             Term.  2 years.

2.             Annual Salary.  $75,000.

 
****
**EXHIBIT D**

**HTVN SCHEDULE OFEXCEPTIONS**

 

The following information and referenced documentshave been provided to Cubico.com, Inc. (“Cubico”) pursuant to Articles 5and 6 of the Agreement and Plan of Merger (the “Agreement”) by and amongCubico, the Subsidiary, Hispanic Television Networks, Inc. (“HTVN”) and Hector Saldañaand Luis Saldaña (collectively the “Shareholders”).  Each section numberreferenced herein corresponds to the section number of the Agreement to whichthe disclosures contained herein relate.  Unless otherwise stated allstatements made herein are made as of the date of the execution of theAgreement.  This Schedule of Exceptionsis furnished solely for the information of Cubico in connection with theAgreement and may not be relied upon by any other person.

                Mattersreflected in this Schedule of Exceptions are not necessarily limited to mattersrequired by the Agreement to be disclosed herein; such additional matters areincluded for informational purposes only. By describing such matters HTVN is not representing that suchdisclosures are material to the business or operations of HTVN, or that allsimilar or related matters have been disclosed.  The headings and captions used in this Schedule of Exceptions areused for convenience of reference only, and disclosure made under one sectionor schedule shall be deemed disclosed for any other section or schedule of thisSchedule of Exceptions.  Capitalizedterms, unless otherwise defined herein, have the meanings assigned to them inthe Agreement.

 
****
 

**Schedule 5.3**

**Conflicts**

 

Prior to the consummation of the Merger,HTVN must receive the consent to the Merger by the lenders who provided thecredit facility pursuant to that certain Loan and Security Agreement dated July25, 2000 by and between HTVN and the lenders set forth on the Lenders Scheduleattached thereto, as such agreement has heretofore been amended

 

**Schedule 5.4**

**Consents**

 

Part5.3 above is hereby incorporated by reference.

 

**Schedule 6.3**

**Conflicts**

 

Part5.3 above is hereby incorporated by reference.

** **

**Schedule 6.4**

**Consents**

 

Part5.3 above is hereby incorporated by reference.

** **

 

**EXHIBIT 9.3(e)**

**FORM OF COVENANT NOT TOCOMPETE**

 

                THIS COVENANT NOT TO COMPETE(the “Agreement”) is made and entered into this _____ day of_________________________, 2001 in favor of Hispanic Television Networks, Inc.,a Delaware corporation (“HTVN”), and Cubico.com Acquisition, Inc., a Delawarecorporation and a wholly-owned subsidiary of HTVN (the “Subsidiary”), by theperson whose signature appears under the caption “COVENANTOR” on the signaturepage hereof, such person being referred to hereinafter as the “Covenantor.”

 

**RECITAL:**

 

                WHEREAS,HTVN, the Subsidiary and Cubico.com, Inc., a California corporation (“Cubico”),have entered into an Agreement and Plan of Merger pursuant to which Cubico willbe merged with and into the Subsidiary and the shareholders of Cubico will beissued shares of stock in HTVN (“Shares”); and

 

                WHEREAS,Covenantor is a shareholder of Cubico and has agreed to enter into thisAgreement in connection with the merger of Cubico with and into the Subsidiary(the “Merger”) as an inducement to HTVN’s and the Subsidiary’s agreement toenter into the Merger transaction and to issue Shares to Covenantor inconnection therewith; and

 

                WHEREAS,HTVN and the Subsidiary would not have agreed to enter into the Merger transactionor to issue any Shares to Covenantor in connection therewith, but forCovenantor’s agreement to execute and deliver this Agreement;

 

**AGREEMENT:**

 

                NOWTHEREFORE, for and in consideration of and as an inducement to HTVN’s and theSubsidiary’s agreement to enter into the Merger transaction and to issue Sharesto Covenantor, and other independent valuable consideration (the receipt ofwhich Covenantor hereby acknowledges), Covenantor hereby agrees as follows:

 

                1.  Covenant Not to Compete.  Covenantor agrees that:

 

                (a)           Fora period of two years after the effective date of the Merger (such two-yearperiod is referred to hereinafter as the “Restricted Period”), Covenantor shallnot directly or knowingly, acting alone or in any capacity with any otherbusiness entity: (i) engage anywhere in the world in the business of owning oroperating an Internet portal focused on the Latino population (Covenantorhereby acknowledging that the business that the Subsidiary intends to conductwith the assets of Cubico after the Merger is expected to be worldwide ingeographical scope), or engage in the business of owning or operating atelevision or radio station focused on the Latino population in any televisionor radio market in which HTVN now or hereafter directly or knowingly owns oroperates a station; (ii) solicit, deal, negotiate, enter into an arrangement,contract or attempt to do any of the foregoing, with any person who had abusiness relationship with Cubico during the two (2) year period prior to thedate hereof, or attempt to cause any such person not to continue with theSubsidiary after the Merger a business relationship akin to the businessrelationship that such person had with Cubico prior to the Merger; (iii)disclose to any person, firm, or corporation any trade secrets or proprietarydata relating to, or any details relating to the methods of operation of thebusiness conducted by Cubico prior to the Merger and to be conducted by theSubsidiary after to the Merger, including, without limitation, the customerlists and contents of other business records, or otherwise attempt to take anyform of advantage of such information; or (iv) induce or attempt to influence,directly or knowingly, any person employed by or under contract with Cubicoimmediately prior to the Merger to terminate the employment or contractualrelationship that he or she will have with the Subsidiary immediately after theMerger by virtue of the Merger and the operation of law.

 

                (b)           Notwithstanding the foregoingprovisions, Covenantor shall be permitted to own up to five percent (5%) of apublicly traded or privately held entity that is a competitor of Cubico.

 

                (c)           Covenantor hereby specificallyacknowledges and agrees that the temporal and other restrictions contained insubsection (a) above are reasonable and necessary to protect the business ofCubico being succeeded to by the Subsidiary and thus being acquired by HTVN,and that the enforcement of the provisions of this section will not work anundue hardship on him.

 

                (d)           Covenantor further agrees that in theevent either the duration, geographical scope, or any other restriction, orportion thereof, set forth in subsection (a) above is held to be overlyrestrictive and unenforceable in any court proceeding, the court may reduce ormodify such restrictions to those which it deems reasonable and enforceableunder the circumstances and the parties agree that the restrictions ofsubsection (a) above will remain in full force and effect as reduced ormodified.

 

                (e)           Covenantor further agrees andacknowledges that HTVN and the Subsidiary do not have an adequate remedy at lawfor the breach or threatened breach by him of the covenants contained insubsection (a) above, and Covenantor therefore specifically agrees that HTVNand the Subsidiary, in addition to other remedies which may be available tothem hereunder, may file a suit in equity to enjoin Covenantor from such breachor threatened breach.

 

                (f)            Covenantor further agrees that therunning of the Restricted Period shall be tolled for any period of time duringwhich Covenantor is in violation of this Agreement.

 

                (g)           Covenantor further agrees, in theevent that any provision of subsection (a) above is held to be invalid oragainst public policy, the remaining provisions of subsection (a) above and theremainder of this Agreement shall not be affected thereby.

 

                2.  Cure of Breach.                None of Covenantor’s actionsunder this Agreement will not be deemed a breach of any provision contained inthis Agreement before Covenantor is given the opportunity to cure such actionswithin thirty (30) days following delivery to Covenantor of a writtenexplanation specifying the basis for the Company’s beliefs with respect to suchevents.

 

                3.  Miscellaneous.                 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED INACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.  This Agreement embodies the entire agreement and understandingbetween the parties hereto with respect to the subject matter hereof andsupersede all prior agreements and understandings, whether written or oral,relating to the subject matter hereof. This Agreement shall be binding upon and shall inure to the benefit ofeach party hereto and his or its respective successors, heirs, assigns, andlegal representatives, but neither this Agreement nor any rights hereunder maybe assigned by any party hereto without the consent in writing of the otherparty.  No remedy conferred by any ofthe specific provisions of this Agreement is intended to be exclusive of anyother remedy, and each and every remedy shall be cumulative and shall be inaddition to every other remedy given hereunder or now or hereafter existing atlaw or in equity or by statute or otherwise. The election of any one or more remedies by any party hereto shall notconstitute a waiver of the right to pursue other available remedies.

 

                INWITNESS WHEREOF, the undersigned has executed this Agreement effective as ofthe date and year first hereinabove written.

 

                                                                                                                

 

 

 

 

“**COVENANTOR**”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name:

 

 

 

 

 

 

 

 

 

                Theundersigned set their hands hereunto solely for the purpose of evidencing theiracceptance of their respective rights, benefits and remedies provided for bythis Agreement.

 

 

“**HTVN**” 

 

“**SUBSIDIARY**”

 

 

 

 

 

**HISPANIC  TELEVISION NETWORKS, INC.**a Delaware corporation 

 

**CUBICO.COM  ACQUISITION, INC.**a Delaware corporation

 

 

 

 

 

By:

 

 

By:

 

 

 

 

 

 

Name:

 

 

Name:

 

 

 

 

 

 

Title:

 

 

Title:

 

 

 

 

 

 

 

 

**EXHIBIT 9.3(f)**

**FORM OF EMPLOYMENTAGREEMENT**

 

**[To come from Randy Heinrich]**

** **

 

**EXHIBIT 9.3(g)**

**FORM OF CONSULTINGAGREEMENT**

 

                THISCONSULTING AGREEMENT (the “Agreement”) is made and entered into as of the _____day of ______________________, 2001 by and between Hector Saldaña(“Consultant”) and Hispanic Television Networks, Inc. (the “Company”).

 

**RECITALS:**

 

                WHEREAS,the Company desires to engage Consultant to provide to the Company certainconsulting services described hereinafter (the “Services”), and Consultant iswilling and desires to be engaged by the Company to provide the Services to theCompany, upon the terms, provisions and conditions set forth hereinafter; and

 

                WHEREAS,the Company and Consultant desire to set forth the terms, provisions andconditions of Consultant’s engagement by the Company;

 

**AGREEMENTS:**

 

                NOW,THEREFORE, in consideration of the premises and the mutual covenants hereinafterset forth and for other good and valuable consideration, the receipt, adequacyand sufficiency of which are hereby acknowledged by each of the Company andConsultant, each of the Company and Consultant hereby agrees as follows:

 

                1.             Engagement.  Subject to the terms, provisions andconditions hereinafter stated, the Company hereby engages Consultant to provideto the Company the following services, which are referred to hereinafter as the“Services”, and Consultant hereby accepts such engagement:

 

                Consultation services regardingall aspects of the business which was conducted by Cubico.com, Inc., aCalifornia corporation (“Cubico”), prior to its merger with and into Cubico.comAcquisition, Inc., a Delaware corporation and a wholly-owned subsidiary of theCompany (the “Subsidiary”), and which is now being conducted by the Subsidiary.

 

Consultant shall also provide such other services asfrom time to time may be reasonably requested by the President of theCompany.  In providing Serviceshereunder, Consultant shall use reasonable, and Consultant’s best, efforts, andshall perform the Services in a competent, professional and good workman–likemanner of the highest caliber. Consultant shall devote a sufficient amount of his business time andattention so that he is able to perform satisfactorily his dutieshereunder.  Consultant shall be based inthe locale of his residence, but shall undertake such travel as is necessary oradvisable for him to perform his duties hereunder.

 

                2.             Compensation and Expense Reimbursement.

 

                                (a)           As compensation for providing theServices, Consultant shall be paid for each month during the term of thisAgreement a fee of 100,000 restricted shares of the common stock, par value$.01 per share, of the Company (such shares, which in the aggregate number 1.2million, are referred to hereinafter as “Shares”).  An installment of 100,000 Share shall due and payable within fivedays after the end of each month during the term of this Agreement.  Consultant shall not be entitled to participatein any employee benefit plan now or hereafter established by the Company unlessthe Company agrees to this expressly in writing.

 

                                (b)           The Company shall reimburseConsultant, from time to time, for all business expenses with respect to whichthe Company has given prior written authorization for Consultant to incur.  To the extent that the Company has givengeneral prior written authorization for Consultant to incur expenses but hasnot given the specifics pertaining thereto, then in order for Consultant to bereimbursed for such expenses, such expenses shall be actual, reasonable andnecessary business expenses incurred by Consultant on behalf of the Company,and Consultant must present to the Company documentary evidence, such as areceipt or a paid bill, that states sufficient information to establish theamount, date, place, and the essential character of the expenditure for eachsuch expenditure.  No expenditure willbe reimbursed pursuant hereto unless the expense is verified as provided aboveand approved by the President of the Company or such person designated by thePresident of the Company.

 

                3.             Term.  Subject to Section 4 below, the term of thisAgreement shall begin on the date hereof and shall continue for one yearthereafter.

 

                4.             Termination.

 

                                (a)  For Cause.  The Company may, at its election, terminate Consultant’sengagement at any time for just cause, which shall include, without anylimitations thereon, the following:  (i)Consultant shall have failed or refused to faithfully, diligently andcompetently perform the Services under this Agreement or otherwise to havebreached any term or provision contained herein; (ii) Consultant shall bedisabled or otherwise unable for whatever reason to fully perform the Serviceshereunder for 60 consecutive days; (iii) Consultant shall be guilty of fraud,dishonesty, or similar acts of misconduct; or (iv) Consultant shall be finallyconvicted of a felony or a misdemeanor involving moral turpitude.  At any time after the occurrence of an eventpermitting the Company to terminate Consultant’s engagement pursuant to thisSection 4(a), the Company may elect for termination of Consultant’s engagementby notifying Consultant as to the Company’s election to terminate, andthereupon Consultant’s engagement with the Company will terminate on the datespecified in the notice or (if no date is specified) upon the delivery of thenotice.  Notwithstanding the preceding,upon anyan event permitting the Company to terminate Consultant’s engagementpursuant to this Section 4(a) and in lieu of terminating Consultant’sengagement, the Company may, with or without notice to Consultant, suspend theperformance of the Company’s obligations under this Agreement (including,without limitation, the Company’s obligations under Section 2), and while suchan event has occurred and has not been cured, (x) the Company shall not beobligated to fulfill, but shall be relieved of, the Company’s obligations underthis Agreement (including, without limitation, the Company’s obligations underSection 2), (y) such obligations shall not accrue, and (z) Consultant shallforfeit all rights and remedies with respect thereto.  Notwithstanding anything else contained herein, if the Companysuspends any of its obligations to Consultant pursuant to the precedingsentence, the Company may thereafter elect to terminate Consultant’s engagementin accordance with the other provisions of this Section 4(a).

 

                                (b)  Automatic.  The term of this Agreement shall automatically terminate uponConsultant’s death.

 

                                (c)  Effect of Termination.  Upon termination of Consultant’s engagement,all rights and obligations under this Agreement shall cease except for (i) therights, obligations, representations and warranties under Section 5, 6, 7, 8and 9 hereof, and (ii) the rights and obligations under Section 2 hereof to theextent Consultant has not been compensated for services performed prior totermination (Consultant’s fee to be pro rated for the portion of the pay periodprior to termination).

 

                5.             Representations and Warranties.  Consultant warrants and represents that hehas been a director of the Company, and that as such he is familiar with thebusiness and financial condition, properties, operations and prospects of theCompany, to his knowledge, he has been given full access to all materialinformation concerning the condition, properties, operations and prospects ofthe Company, he has had an opportunity to ask such questions of, and to receivesuch information from, the Company as he has desired and to obtain anyadditional information necessary to verify the accuracy of the information anddata received, and he is satisfied that there is no material informationconcerning the condition, properties, operations and prospects of the Company,of which he is unaware; he has such knowledge, skill and experience inbusiness, financial and investment matters so that he is capable of evaluatingthe merits and risks of and an acquisition of Shares; he has reviewed hisfinancial condition and commitments and that, based on such review, he issatisfied that he (a) has adequate means of providing for contingencies, (b)has no present or contemplated future need to dispose of all or any Shares tobe acquired, to satisfy existing or contemplated undertakings, needs or indebtedness,(c) is capable of bearing for the indefinite future the economic risk of theownership of Shares to be acquired, and (d) has assets or sources of incomewhich, taken together, are more than sufficient so that he could bear the lossof the entire value of Shares to be acquired; he is and will be acquiringShares solely for his own beneficial account, for investment purposes, and notwith a view to, or for resale in connection with, any distribution of Shares;he understands that the Shares to be acquired have not been and are not likelyto be registered under the Securities Act of 1933 or any state securities lawsand therefore the Shares to be acquired are and will be “restricted” under suchlaws and may not be resold without registration or an exemption therefrom, andall stock certificates representing Shares to be issued to him will bear alegend to such effect; and he has not offered or sold and will not offer orsell any Shares to be acquired and has no present intention of reselling or otherwisedisposing of any Shares to be acquired either currently or after the passage ofa fixed or determinable period of time or upon the occurrence or non–occurrenceof any predetermined event or circumstance.

 

                6.             Confidentiality.

 

                                (a)           “Confidential Information” means andrefers to information and materials belonging to the Company that are notgenerally known outside the Company, including, without limitation, customersand customer lists, pricing policies, operational procedures, sources ofsupply, methods, formulae, processes, software programs, hardwareconfigurations, know–how, computer programs and access codes,technological information, information relating to the cost of its products andservices, marketing strategies, financial statements and projections, and anyother information which bears a logical relationship to the ConfidentialInformation described above such that Consultant knows or should logicallyconclude that the Company regards the information to be ConfidentialInformation.  Confidential Informationshall not include any knowledge or information that Consultant already knows asof the date of this Agreement, that is already known to the general public asof the date of this Agreement or that becomes known to the general public afterthe date of this Agreement through no breach of Consultant’s confidentialityobligations.

 

                                (b)           Consultant hereby recognizes andacknowledges that Consultant may receive information from, or may developinformation on the behalf of, the Company Confidential Information.  Consultant hereby agrees to maintain on aconfidential basis all Confidential Information, and Consultant agrees thatConsultant shall not, without the prior express written consent of the Company,use for Consultant’s or anyone else’s benefit or disclose to any other personany Confidential Information, except in connection with Consultant’s work onbehalf of the Company.  Consultanthereby acknowledges that, as between the Company and Consultant, the Companyhas the complete, sole and full right, title and interest in and to theConfidential Information, and that Consultant has no rights, expressed orimplied, with respect to the foregoing other than those expressly provided forto the contrary in a writing signed by both the Company and Consultant.  Consultant further agrees that Consultantshall, immediately upon the Company’s request, return to the Company allwritten Confidential Information and all writings regarding oral ConfidentialInformation whether such writings were authorized or not.  Consultant hereby agrees that theconfidentiality agreement provided for hereby shall last with respect to anyConfidential Information for five years after such Confidential Information isdisclosed by the Company to Consultant or developed by Consultant on behalf ofthe Company, as the case may be.

 

                7.             Assignment.

 

                                (a)  Consultant agrees that all copyrightablematerial, notes, records, drawings, designs, inventions, improvements,developments, discoveries and trade secrets (collectively, “Inventions”)conceived, made or discovered by Consultant, solely or in collaboration withothers, during the period of this Agreement which relate in any manner to thebusiness of the Company that Consultant may be directed to undertake,investigate or experiment with, or which Consultant may become associated within work, investigation or experimentation in the line of business of Company inperforming the Services hereunder, are the sole property of the Company.  Consultant further agrees to assign (or causeto be assigned) and does hereby assign fully to the Company all Inventions andany copyrights, patents, mask work rights or other intellectual property rightsrelating thereto.

 

                                (b) Further Assurances. Consultant agrees to assist Company, or its designee, at the Company’sexpense, in every proper way to secure the Company’s rights in the Inventionsand any copyrights, patents, mask work rights or other intellectual propertyrights relating thereto in any and all countries, including the disclosure to theCompany of all pertinent information and data with respect thereto, theexecution of all applications, specifications, oaths, assignments and all otherinstruments which the Company shall deem necessary in order to apply for andobtain such rights and in order to assign and convey to the Company, itssuccessors, assigns and nominees the sole and exclusive right, title andinterest in and to such Inventions, and any copyrights, patents, mask workrights or other intellectual property rights relating thereto.  Consultant further agrees that Consultant’sobligation to execute or cause to be executed, when it is in Consultant’s powerto do so, any such instrument or papers shall continue after the termination ofthis Agreement.

 

                8.             Property of the Company.  In addition to the provisions of Section 6above, Consultant agrees that, upon the expiration or termination ofConsultant’s engagement with the Company, Consultant will immediately surrenderto the Company all property, equipment, funds, lists, books, records, and othermaterials of the Company or any affiliate thereof in the possession of orprovided to Consultant.

 

                9.             Indemnification.  Consultant shall protect, indemnify and holdharmless the Company and the Subsidiary from any and all demands, threats,claims, suits, proceedings, actions, causes of actions, damages, injuries,judgements, liabilities, obligations, expenses and costs (including costs oflitigation and attorneys’ fees), arising from (a) any breach by Consultant ofany agreement, covenant, promise, representation or warranty made by Consultantin this Agreement, or (b) any action or omission constituting negligence orwillful misconduct of Consultant in the course of, or connected with, theperformance of the Services pursuant hereto.

 

                10.           Law Governing.  THIS AGREEMENT HAS BEEN ENTERED INTO IN THESTATE OF TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THELAWS OF THE STATE OF TEXAS.

 

                11.           Notices.  Any notice or request herein required orpermitted to be given to any party hereunder shall be given in writing andshall be personally delivered or sent to such party by prepaid mail at theaddress set forth below the signature of such party hereto or at such otheraddress as such party may designate by written communication to the other partyto this Agreement.  Each notice given inaccordance with this paragraph shall be deemed to have been given, ifpersonally delivered, on the date personally delivered, or, if mailed, on thethird day following the day on which it is deposited in the United States mail,certified or registered mail, return receipt requested, with postage prepaid.

 

                12.           Headings.  The headings of the paragraphs of thisAgreement have been inserted for convenience of reference only and shall in noway restrict or modify any of the terms or provisions hereof.

 

                13.           Severability.  If any provision of this Agreement is heldto be illegal, invalid, or unenforceable under present or future laws effectiveduring the term hereof, such provision shall be fully severable and thisAgreement shall be construed and enforced as if such illegal, invalid orunenforceable provision had never comprised a part of this Agreement and theremaining provisions of this Agreement shall remain in full force and effectand shall not be affected by the illegal, invalid or unenforceable provision orby its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceableprovision, there shall be added automatically as a part of this Agreement aprovision as similar in terms to such illegal, invalid, or unenforceableprovision as may be possible and be legal, valid, and enforceable.

 

                14.           Entire Agreement.  This Agreement embodies the entire agreementand understanding between the parties hereto with respect to the subject matterhereof and supersede all prior agreements and understandings, whether writtenor oral, relating to the subject matter hereof.

 

                15.           Binding Effect.  This Agreement shall be binding upon andshall inure to the benefit of each party hereto and his, her or its respectivesuccessors, heirs, assigns, and legal representatives, but neither thisAgreement nor any rights hereunder may be assigned by any party hereto withoutthe consent in writing of the other party.

 

                16.           Remedies.  No remedy conferred by any of the specificprovisions of this Agreement is intended to be exclusive of any other remedy,and each and every remedy shall be cumulative and shall be in addition to everyother remedy given hereunder or now or hereafter existing at law or in equityor by statute or otherwise.  Theelection of any one or more remedies by any party hereto shall not constitute awaiver of the right to pursue other available remedies.

 

 

                INWITNESS WHEREOF, the undersigned have set their hands hereunto as of the firstdate written above.

 

 

 

“**COMPANY**”

 

 

 

 

 

 

 

**HISPANIC  TELEVISION NETWORKS, INC.**

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

Name:

 

 

 

 

 

 

 

Title:

 

 

 

 

 

 

 

Address:

6125 Airport Freeway, Suite 200

 

 

 

Fort Worth, Texas 76117

 

 

 

 

 

 

“**CONSULTANT**”

 

 

 

 

 

 

 

 

 

Hector Saldaña

 

 

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

**EXHIBIT 9.3(h)**

**FORM OF RELEASE**

 

                THISRELEASE (the “Release”) is made effective this _____ day of____________________, 2001 by the person whose signature appears under thecaption “RELEASOR” on the signature page hereof (such person being referred tohereinafter as “Releasor”) in favor of Cubico.com, Inc., a Californiacorporation (“Released Party”).

 

**RECITALS:**

 

                WHEREAS,Hispanic Television Networks, Inc., a Delaware corporation (“HTVN”), Cubico.comAcquisition Corporation, a Delaware corporation and a wholly-owned subsidiaryof HTVN (the “Subsidiary”), and Cubico have entered into an Agreement and Planof Merger pursuant to which Cubico will be merged with and into the Subsidiaryand the shareholders of Cubico will be issued shares of stock in HTVN(“Shares”); and

 

                WHEREAS,Releasor is a shareholder of Cubico and has agreed to enter into this Releasein connection with the merger of Cubico with and into the Subsidiary (the“Merger”) as an inducement to HTVN’s and the Subsidiary’s agreement to enterinto the Merger transaction and to issue Shares to Releasor in connectiontherewith; and

 

                WHEREAS,HTVN and the Subsidiary would not have agreed to enter into the Mergertransaction or to issue any Shares to Releasor in connection therewith, but forReleasor’s agreement to execute and deliver this Release;

 

**AGREEMENTS:**

 

                NOWTHEREFORE, for and in consideration of and as an inducement to HTVN’s and theSubsidiary’s agreement to enter into the Merger transaction and to issue Sharesto Releasor, and other independent valuable consideration (the receipt of whichReleasor hereby acknowledges), Releasor hereby agrees as follows:

 

                1.             Releasor and Releasor’s affiliates,agents, heirs, beneficiaries, legal representatives, successors and assigns,has this day released and by these presents do release, acquit and foreverdischarge Released Party and its officers, directors, shareholders, employees,affiliates, agents, successors and assigns, from any and all Claims.  For purposes of this Release, “Claims” meansall demands, complaints, claims, rights, actions, causes of actions, suits,proceedings, damages, judgments, costs, expenses, compensation, promises,agreements, debts, liabilities and obligations of any kind whatsoever, at commonlaw, by statute, contract, or otherwise which Releasor has or might haveagainst a person released hereby, known or unknown, directly or indirectlyattributable to any transactions, dealings, or occurrences between such partiesprior to the date of this Release, or resulting from any act or omission priorto the date of this Release of any person hereby released. Notwithstanding the preceding, “Claims” shall not mean or include any matterdescribed on Schedule 1 hereto.

 

                2.             It is expressly understood andagreed that the terms of this Release are contractual and not merelyrecitations and that the agreements herein contained are to compromise doubtfuland disputed Claims, avoid litigation, and buy peace and that no releases orother consideration given shall be construed as an admission of liability, allliability being expressly denied by each party hereto.

 

                3.             It is further understood and agreedthat this Release contains the entire agreement between the parties andsupersedes any and all prior agreements, arrangements, or understandingsbetween the parties relating to the subject matter hereof.  No oral understandings, statements,promises, or inducements contrary to the terms of this Release exist.  This Release cannot be changed or terminatedexcept in writing signed by all parties hereto.

 

                4.             IT IS FURTHER UNDERSTOOD AND AGREEDTHAT THIS RELEASE SHALL BE GOVERNED BY, CONSTRUED UNDER, AND ENFORCED INACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.

 

                5.             By execution of this Release,Releasor represents and warrants to Released Party that no Claim that he has,had, might have or might have had in the past against any other person releasedhereby, has previously been conveyed, assigned, or in any manner transferred,in whole or in part, to any third party. Releasor expressly represents and warrants to Released Party that he hasfull authority to enter into this Release and to release any and all Claims henow has, had, might have or might have had in the past against each personreleased hereby.

 

                6.             By execution of this Release,Releasor warrants and represents to Released Party that he understands thatthis is a full, final, and complete settlement with each party released herebyof all known and unknown Claims.

 

                7.             Should any court, by judgment ordecree, determine that this Release does not fully and finally discharge allClaims which Releasor has or might have had against any person released hereby,prior to the date of this Release, then Releasor agrees to reform this documentto release any such Claims not hereby released.

 

 

 

 

**[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]**

 

 

                INWITNESS WHEREOF, the undersigned have set their hands hereunto as of the firstdate written above.

 

 

 

 

 

“**RELEASOR**”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Name Printed:

 

 

 

                Theundersigned set their hands hereunto solely for the purpose of evidencing itsacceptance of its rights, benefits and remedies provided for by this Release.

 

 

“**RELEASED PARTY**”

 

 

**CUBICO.COM, INC.**

a California corporation

 

 

 

 

By:

 

 

 

Name:

 

 

 

Title:

 

 

 

**SCHEDULE1**

 
Exceptions to Release
 

                The following one or morematters (if any) are not being released pursuant to the Release to which thisSchedule 1 is attached:

 

                1.

 

 

**EXHIBIT 9.3(i)**

**FORM OF NON-SOLICITATIONAGREEMENT**

** ** |
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