f8k030609ex10i_adex.htm


    Exhibit 10.1

     

    
      AGREEMENT

      


      This Agreement (“Agreement”) is
entered into on March 6, 2009 (the “Effective Date”)
among AdEx Media Inc. (“AdEx”), a Delaware
corporation, Digital Equity Partners, LLC (“DEP”), a Colorado
limited liability company, and the former members of Digital Instructor, LLC, a
Colorado limited liability company (“DI”) listed on the
signature page hereto (each a “Member” and
collectively, the “Members”).

      


      RECITALS

      


      1. AdEx and
the Members entered into that Membership Interest Purchase Agreement dated
August 12, 2008 (the “Purchase Agreement”),
attached hereto as Exhibit A and
incorporated by reference, in which AdEx purchased all the issued and
outstanding membership interests in DI from the Members pursuant to the terms
set forth in Purchase Agreement;

       

      2. AdEx and
DEP entered into a Senior Secured Promissory Note dated August 12, 2008 (the
“Note”)
attached hereto and incorporated herein by reference as Exhibit B, in which
AdEx agreed to pay DEP the principal sum of Five Hundred Thousand Dollars
($500,000) without interest as part of the consideration set forth in the
Purchase Agreement;

       

      3. AdEx and
DEP entered into a Security Agreement dated August 12, 2008 (the “Security Agreement”)
attached hereto and incorporated herein by reference as Exhibit C in which
AdEx’s obligations under the Note are secured by the grant to DEP of a first
priority security interest in the Collateral (as defined in the Security
Agreement);

       

      4. On
February 12, 2009, AdEx and DEP entered into a First Amendment of the Note, a
copy of which is attached hereto and incorporated herein by reference as Exhibit D-1 (the
“First
Amendment”), in which the Maturity Date of the Note was extended to
February 26, 2009;

       

      5. On
February 26, 2009, AdEx and DEP entered into a Second Amendment of the Note, a
copy of which is attached hereto and incorporated herein by reference as Exhibit D-2 (the
“Second
Amendment”), in which the Maturity Date of the Note was extended to March
9, 2009;

       

      6. DEP
desires to surrender the Note, as amended, and AdEx desires to issue to DEP in
exchange for the Note (i) a new note payable to DEP in the principal amount of
$255,000 substantially in the form attached hereto as Exhibit E (the “New Note”) and (ii) a
cash payment of $245,000 on the Effective Date (the “Cash Payment”)
pursuant to the terms and conditions set forth herein;

       

      7. AdEx and
DEP desire to amend the Security Agreement to reflect DEP’s amended security
interest in the principal amount of $255,000 under the New Note;

       

      8. Pursuant
to Section 2.2.4 of the Purchase Agreement, AdEx is obligated to pay in cash to
the Members the Earn Out (as defined in the Purchase Agreement) following the
expiration of the Earn Out Period (as defined in the Purchase Agreement), as
part of the consideration set forth in the Purchase Agreement;

       

       

      
        
           

        

        
          1

          
            

          

        

        
           

        

      

       

       

       

      9. AdEx and
the Members desire to amend the terms of the Purchase Agreement with respect to
the Earn Out and the Earn Out Period and certain other provisions as set forth
herein.

       

      AGREEMENT

       

      NOW,
THEREFORE, for good and valuable consideration, the parties agree as
follows:

      


      1. Surrender and Cancellation
of the Note. In consideration for (i) AdEx’s payment of the Cash Payment
to DEP on the Effective Date and (ii) the issuance of the New Note, DEP shall
surrender the Note to AdEx and AdEx shall cancel the Note.

       

      1.1 Delivery by DEP. On
the Effective Date, DEP shall deliver to AdEx (i) the original Note, (ii) an
executed copy of this Agreement, (iii) an executed copy of an Amended and
Restated Operating Agreement of DEP substantially in the form attached hereto as
Exhibit F, and
(iv) documents, notices, termination statements or other documents and papers as
may be reasonably necessary and requested by AdEx to release the Collateral (as
defined in the Security Agreement) from the security interest granted to DEP in
the Security Agreement except as necessary to secure AdEx’s obligations under
the New Note.

       

      1.2 Delivery by AdEx. On
the Effective Date, AdEx shall deliver to DEP (i) the original New Note duly
executed, (ii) an executed copy of this Agreement and (iii) the Cash
Payment.

       

      2. Creation of New Note;
Amendment of Purchase Agreement.

       

      2.1 Upon
surrender and cancellation of the Note, AdEx shall issue the New Note payable to
DEP in the principal amount of $255,000, substantially in the form attached
hereto as Exhibit
E.

       

      2.2 The
Purchase Agreement is hereby amended such that all references to the Note in the
Purchase Agreement shall hereinafter be deemed to refer to the New
Note.

       

      3. Amendment of Security
Agreement. AdEx and DEP agree that the second recital of the Security
Agreement attached hereto as Exhibit C is hereby
amended as follows: The figure “$500,000” in the last sentence is hereby deleted
in its entirety and replaced with “$255,000”, such that AdEx’s $255,000
obligation under the New Note will continue to be secured by the Collateral
under the Security Agreement. Unless and until AdEx has disbursed to DEP all
amounts payable pursuant to the New Note, AdEx shall not (i) dissolve DI or
otherwise cause DI to cease to exist, (ii) encumber or otherwise transfer the
assets of DI, or (iii) encumber the Collateral (as defined in the Security
Agreement). For
the avoidance of doubt, it is the intention of the parties that the Security
Agreement remain in full force and effect with respect to the New Note and
continue to give DEP a first priority security interest in the
Collateral.

       

       

      
        
           

        

        
          2

          
            

          

        

        
           

        

      

       

      
 

      4. Amendment to Earn Out
Provisions. In consideration for the New Note and the Cash Payment to DEP
as well as the mutual release set forth herein, the Purchase Agreement is hereby
amended as follows:

      


      4.1 Amendment to Section
2.2.4. Section 2.2.4 of the Purchase Agreement is hereby deleted in its
entirety and replaced with the following:

       

      “2.2.4                      An
additional amount (the “Earn Out”) of up to
Three Hundred Fifty Thousand Dollars ($350,000) payable in cash to the Members,
other than Dennis Hefter (“Hefter”), following
the expiration of the period commencing on the Closing Date and ending on that
date that is twelve (12) months from the Closing Date (the “Earn Out Period”)
based on the Company achieving certain gross revenue performance milestones as
further set forth on Schedule C, subject
to the following:”

       

      4.2 Amendment to Section
2.2.4(a).  Section 2.2.4(a) of the Purchase Agreement shall
remain unchanged and as set forth in the Purchase Agreement, except that all
references to the Earn Out Period in such subsection shall be deemed to equally
apply to the Hefter Earn Out Period (as defined below).

       

      4.3 Amendment to Section
2.2.4(b).  Section 2.2.4(b) of the Purchase Agreement is
deleted in its entirety and replaced with the following:

       

      “(b) Buyer shall have no obligation to
pay the Earn Out or the Hefter Earn Out (as defined below) in the event that
Buyer terminates Hefter for Cause during the Earn Out Period.  Buyer
shall have no obligation to pay the Hefter Earn Out in the event that Buyer
terminates Hefter for Cause during the Hefter Earn Out Period but after the
expiration of the Earn Out Period.  “Cause” shall have the meaning as
defined in that certain Employment Agreement by and between Buyer and Hefter
(the “Employment
Agreement”) substantially in the form as set forth on Exhibit
4.”

       

      4.4 Amendment to Schedule
C.  Schedule C to the
Purchase Agreement is hereby deleted in its entirety and replaced by the revised
Schedule C
attached hereto as Exhibit
G.

       

      4.5 Hefter Earn
Out.  Section 2.2.5 is added to the Purchase Agreement in its
entirety as follows:

       

      “2.2.5                      An
additional amount (the “Hefter Earn Out”) up
to One Hundred Fifty Thousand Dollars ($150,000) payable in cash to Hefter
following the expiration of the period commencing on February 12, 2009 and
ending on February 12, 2010 (the “Hefter Earn Out
Period”) based on the Company achieving certain gross revenue performance
milestones as further set forth on Schedule D, subject
to subsections 2.2.4(a) and (b).

      


      4.6 Addition of Schedule
D.  Schedule D is hereby
added to the Purchase Agreement in the form attached hereto as Exhibit
H.

       

       

      
        
           

        

        
          3

          
            

          

        

        
           

        

      

       

       

      5. Mutual
Release.  Each of AdEx, DEP and the Members do hereby mutually
release, acquit and forever discharge each other, their respective parents,
subsidiaries, successors and assigns and each of their respective directors,
officers, members, managers, agents, shareholders, employees, and affiliates,
from any and all present, accrued and actionable demands, actions, causes of
actions, and claims known to the releasing party arising out of the Purchase
Agreement prior to the date of this Agreement, whether based on tort, contract,
equity or any other theory of recovery, and whether for compensatory or
exemplary damages or other relief or damages, whether such damages are known or
unknown, or liquidated or unliquidated. Each party acknowledges that they have
received independent legal advice with regard to their respective rights, or
asserted rights, arising out of matters in controversy among the parties, and
also with regard to the advisability of making and executing this
Agreement.  The parties further acknowledge that they have not relied
upon any statements or representations other than as set forth herein and in the
Purchase Agreement, whether oral or written, made by any party. The release of
claims given in this section does not apply to obligations arising under this
Agreement.

       

      6. Governing
Law.  This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to that
body of laws pertaining to conflict of laws.

       

      7. Entire
Agreement.  This Agreement together with the New Note
constitutes the entire agreement and understanding of the parties with respect
to the subject matter hereof, and supersede all prior understandings and
agreements, whether oral or written, between the parties with respect to the
subject matter hereof.

       

      8. Severability.  If
one or more provisions of this Agreement are held to be unenforceable under
applicable law, such provision(s) shall be excluded from this Agreement and the
balance of the Agreement shall be interpreted as if such provision(s) were so
excluded and shall be enforceable in accordance with its terms.

       

      9. Successors and Assigns;
Assignment.  This Agreement, and the rights and obligations of
the parties hereunder, is binding on and inures to the benefit of the parties
and their respective successors and assigns.

       

      10. Counterparts; Facsimile
Signatures.  This Agreement may be executed in any number of
counterparts (including facsimile), each of which when so executed and delivered
(including via facsimile) will be deemed an original, and all of which together
shall constitute one agreement.

       

      11. Authority.  Each
party represents and warrants that the person signing this Agreement on behalf
of such party has the authority to do so.

       

      12. Captions.  The
captions or headings of the paragraphs in this Agreement are for convenience
only and shall not control or affect the meaning or construction of any of the
terms or provisions of this Agreement.

       

      13. Further
Assurances.  From and after the date of this Agreement, upon
the request of AdEx, DEP or the Members, AdEx, DEP and the Members shall execute
and deliver such instruments, documents or other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Agreement.

       

       

      
        
           

        

        
          4

          
            

          

        

        
           

        

      

       

       

      14. Amendments. This
Agreement may be amended only by a written agreement executed by each of the
parties hereto.  No amendment of or waiver of, or modification of any
obligation under this Agreement will be enforceable unless set forth in a
writing signed by the party against which enforcement is sought.  Any
amendment effected in accordance with this section will be binding upon all
parties hereto and each of their respective successors and
assigns.  No delay or failure to require performance of any provision
of this Agreement shall constitute a waiver of that provision as to that or any
other instance.  No waiver granted under this Agreement as to any one
provision herein shall constitute a subsequent waiver of such provision or of
any other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically waived.

       

      15. Attorneys’
Fees.  In any proceeding arising out of this Agreement, the
prevailing party shall be entitled to recover all costs, including reasonable
attorneys’ fees, incurred in connection with such proceeding.

       

      16. Notice. Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon delivery, when delivered personally or by overnight courier or
sent by telegram or fax, or forty-eight (48) hours after being deposited in the
U.S. Mail, as certified or registered mail, with postage prepaid, addressed to
the party to be notified at the address or facsimile number set forth on the
signature page below, or at such other address or facsimile number as such other
party may designate by one of the indicated means of notice herein to the other
party, and if to DEP or to the Members, with a copy to Giovanni Ruscitti, Esq.,
Berg Hill Greenleaf & Ruscitti LLP, 1712 Pearl Street, Boulder CO 80302,
facsimile to (303) 402-1601, and if to the AdEx, at the AdEx’s principal
executive office, with a copy to Eric K. Ferraro, Esq., Bullivant Houser Bailey
PC, 601 California Street, Suite 1800, San Francisco, CA 94108, facsimile to
(415) 352-2701.

      


      


      


      


      [Signatures
on following page]

      


      


      
        
           

        

        
          5

          
            

          

        

        
           

        

      

      


      IN WITNESS WHEREOF, the parties have
executed this Agreement by their duly authorized representatives as of the first
date written above.

       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	
                                                    AdEx
      Media, Inc.

                                                     

                                                  	 	
                                                    Digital
      Equity Partners, LLC

                                                  
	 
      	 	 
      
	
                                                    By:
      

                                                  	 	
                                                    By:
      

                                                  
	
                                                    Name:
      

                                                  	 	
                                                    Name:
      

                                                  
	
                                                    Title:
      

                                                  	 	
                                                    Title:
       

                                                  
	 
      	 	 
      
	
                                                    Member

                                                  	 	
                                                    Member

                                                  
	 
      	 	 
      
	 
      	 	 
      
	
                                                    Dennis
      Hefter

                                                  	 	
                                                    Giovanni
      Ruscitti

                                                  
	 
      	 	 
      
	
                                                    Member

                                                  	 	
                                                    Member

                                                  
	 
      	 	 
      
	 
      	 	 
      
	
                                                    Robert
      S. Lazzeri

                                                  	 	
                                                    James
      Walker

                                                  
	 
      	 	 
      
	
                                                    Member

                                                  	 	
                                                    Member

                                                  
	 
      	 	 
      
	 
      	 	 
      
	
                                                    Brian
      C. Frutchey

                                                  	 	
                                                    Michael
      Scott Leslie

                                                  
	 
      	 	 
      
	
                                                    Member

                                                  	 	
                                                    Member

                                                  
	 
      	 	 
      
	 
      	 	 
      
	
                                                    Emmett
      M. Lien III

                                                  	 	
                                                    Cheri
      Belz

                                                  
	 
      	 	 
      
	
                                                    Member

                                                  	 	
                                                    Member

                                                  
	 
      	 	 
      
	 
      	 	 
      
	
                                                    Robert
      Sensenig

                                                  	 	
                                                    Blair
      McNea

                                                  
	 
      	 	 
      


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

       

       

       

      


      
        
           

        

        
          6

          
            

          

        

        
           

        

      

       

       

      EXHIBIT
A

       

      MEMBERSHIP
INTEREST PURCHASE AGREEMENT

       

       

      


       

      


       

      


       

      


       

      


      
        
           

        

        
          7

          
            

          

        

        
           

        

      

       

      


       

      


       

      


       

      EXHIBIT
B

       

      SENIOR
SECURED PROMISSORY NOTE

       

      


      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      
        
           

        

        
          8

          
            

          

        

        
           

        

      

      


       

      EXHIBIT
C

       

      SECURITY
AGREEMENT

       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      
        
           

        

        
          9

          
            

          

        

        
           

        

      

      


       

      EXHIBIT
D-1

       

      AMENDMENT

       

      


       

       

       

       

       

       

      
 

       

      


      
        
           

        

        
          10

          
            

          

        

        
           

        

      

       

      EXHIBIT
D-2

       

      SECOND
AMENDMENT

       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      
        
           

        

        
          11

          
            

          

        

        
           

        

      

      


      EXHIBIT
E

       

      NEW
NOTE

       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      


       

      
        
           

        

        
          12

          
            

          

        

        
           

        

      

      


       

      


       

      


       

      EXHIBIT
F

       

      AMENDED
AND RESTATED OPERATING AGREEMENT OF DIGITAL EQUITY PARTNERS, LLC

       

      


       

      


       

      


       

      


       

      


       

      


      
        
           

        

        
          13

          
            

          

        

        
           

        

      

       

      


       

      EXHIBIT
G

       

      REVISED
SCHEDULE C

       

      


       

      SCHEDULE
C

      


      EARN
OUT

       

      
        
          

        



      
        


      

      Forecasted
Revenue during the Earn Out Period: $7,532,036

      


      December
31, 2007 FY Audited Revenue: $4,786,810

       

      
        
          

        



      
        


        Earn Out
to be paid if revenue during the Earn Out Period is $7,532,036 =
$350,000

        


        Earn Out
to be paid if revenue during the Earn Out Period is $5,791,697= $0

        


        Earn Out
to be paid if revenue during the Earn Out Period is between $5,792,698 and
$7,532,035 shall be calculated pro-rata based on the above scale.

        


        For
example:                                

      

      


      Earn Out
to be paid if revenue during the Earn Out Period is $6,000,000=
$41,891.87

      


      Earn Out
to be paid if revenue during the Earn Out Period is $6,500,000=
$142,446.99

      


      Earn Out
to be paid if revenue during the Earn Out Period is $7,000,000=
$243,002.11

      


       

       

      
        
           

        

        
          14

          
            

          

        

        
           

        

      

       

      
 

      EXHIBIT
H

      NEW
SCHEDULE D

       

      


      SCHEDULE
D

      


      HEFTER
EARN OUT

      


      
        
          
            

          



      

      Forecasted
Revenue during Hefter Earn Out Period: $7,532,036

      


      December
31, 2007 FY Audited Revenue: $4,786,810

       

      
        
          

        



      
        


        Earn Out
to be paid if revenue during Hefter Earn Out Period is $7,532,036 =
$150,000

        


        Earn Out
to be paid if revenue during Hefter Earn Out Period is $5,791,697 =
$0

        


        Earn Out
to be paid if revenue during Hefter Earn Out Period is between $5,792,698 and
$7,532,035 shall be calculated pro-rata based on the above scale.

        


        For
example:                                

      

      


      Earn Out
to be paid if revenue during Hefter Earn Out Period is $6,000,000 =
$17,953.66

      


      Earn Out
to be paid if revenue during Hefter Earn Out Period is $6,500,000 =
$61,048.71

      


      Earn Out
to be paid if revenue during Hefter Earn Out Period is $7,000,000 =
$104,143.76