Contribution, Assignment and Assumption Agreement - InternetStudios.com Inc and OnlineFilmSales.com LLC
CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT
(ASSETS)
This Contribution, Assignment and Assumption Agreement (this
"Agreement") is made and entered into as of March 28, 2000 (the
"Effective Date"), by and between InternetStudios.com, Inc., a Nevada
corporation ("InternetStudios"), and Onlinefilmsales.com, LLC, a Delaware
limited liability company (the "Company"), with reference to the following
facts:
A. The Company is a newly formed Delaware limited liability company.
B. InternetStudios is in the business of compiling an online
database of filmed entertainment and facilitating a digital market targeted
at the entertainment industry (the "Business") and wishes to contribute to
the Company substantially all of the assets and properties held by it in
connection with the Business in exchange for the issuance of a membership
interest in the Company, all upon the terms and conditions set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. ASSIGNMENT. Effective as of the Effective Date, except for the
Excluded Assets (as defined below), InternetStudios hereby assigns,
transfers, conveys and delivers to the Company, and the Company hereby
accepts from InternetStudios, all of InternetStudios' right, title and
interest in and to all of the business, goodwill, assets, properties and
rights of every nature, kind and description throughout the world, whether
tangible or intangible, real, personal or mixed, wherever located and whether
or not carried or reflected on the books and records of InternetStudios, to
the extent the same relate to or are used or held for use in connection with
the Business (collectively, the "Assets"). The Assets shall include, but not
be limited to, the following:
(a) all real property interests, including, without limitation,
the office leases listed on Schedule 1 attached hereto, together with all
fixtures, trade fixtures, plant and other improvements located thereon or
attached thereto; all of InternetStudios' rights arising out of use thereof;
and all subleases, licenses, permits, easements and rights-of-way which are
appurtenant thereto;
(b) all inventories, including, without limitation, materials,
supplies and goods relating to or used or held for use in connection with the
Business, whether located on the premises leased by InternetStudios, in
transit to or from such premises, in storage facilities or otherwise
(collectively, the "Inventories");
(c) all equipment, vehicles, furniture, supplies and other
tangible personal property relating to or used or held for use in connection
with the Business, other than the Inventories and the Books and Records
(collectively, the "Tangible Personal Property");
(d) all prepaid items of the Business (such as insurance
deposits, municipal or local tax payments or deposits, utility deposits and
the like), deferred charges,
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reserve accounts and other security and similar deposits relating to or used
or held for use in connection with the Business, other than those which
pertain to the Excluded Assets;
(e) all licenses and permits issued or obtained for the
Business, to the extent assignable;
(f) all of its rights, title and interest in and to that
certain Secured Promissory Note, dated November 12, 1999, by MediaChase Ltd.,
a Delaware corporation ("MediaChase"), payable to the order of
InternetStudios, in the original principal amount of $2,025,000, as amended
by those certain Allonges to Secured Promissory Note, each by MediaChase,
dated November 18, 1999, December 16, 1999, February 1, 2000 and March 27,
2000;
(g) all contracts, agreements, warranties, guaranties, options,
leases (including, without limitation, equipment and automobile leases),
subleases, licenses, purchase orders, sales orders, commitments or binding
arrangements of any nature whatsoever, express or implied, written or
unwritten, and all amendments thereto, entered into by or binding upon
InternetStudios or to which any of the properties relating to or used or held
for use in connection with the Business may be subject (collectively, the
"Contracts and Other Agreements");
(h) all books and records, ledgers, employee records, customer
lists, files, correspondence, and other written records of every kind
relating to or used or held for use in connection with the Business
(collectively, the "Books and Records"), other than those which pertain to
the Excluded Assets;
(i) all rights of InternetStudios under express or implied
warranties from suppliers or contractors with respect to the Assets, to the
extent assignable;
(j) all of InternetStudios' claims, causes of action, choses in
action, rights of recovery and rights of set-off of any kind, to the extent
assignable, other than those which pertain to the Excluded Assets;
(k) all of InternetStudios' rights to receive mail and other
communications, other than mail and communications which pertain to the
Excluded Assets;
(l) all certifications and approvals from all certifying
agencies issued to InternetStudios with respect to the Business and all
rights to all data and records held by certifying agencies to the extent
relating to the Business;
(m) all goodwill of the Business as a going concern;
(n) all proprietary information and rights relating to or used
or held for use in connection with the Business (the "Proprietary Information
and Rights"), including, without limitation, (i) all foreign and domestic
registered and unregistered trademarks, service marks, trade names (other
than "InternetStudios" or "InternetStudios.com") and slogans, the domain
name, onlinefilmsales.com, all applications therefor, and all associated
goodwill; (ii) all statutory, common law and registered copyrights (whether
foreign or domestic), all applications therefor and all associated goodwill;
(iii) all know-how, trade secrets, proprietary information
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and other related data, and all associated goodwill; (iv) all "software" and
documentation thereof, (including all electronic data processing systems and
program specifications, source codes, input data and report layouts and
format, record file layouts, diagrams, functional specifications, narrative
descriptions, and flow charts); and (v) all other inventions, discoveries,
improvements, confidential information, know-how and ideas (including those
in the possession of third parties, but relating to or used or held for use
in connection with the Business), and all drawings, records, books or other
tangible media embodying the foregoing;
(o) all accounts, notes, accounts receivable, contract rights,
drafts, and other forms of claims, demands, instruments, receivables and
rights to the payment of money or other forms of consideration, whether for
goods sold or leased, services performed or to be performed, or otherwise, to
the extent relating to or used or held for use in connection with the
Business, together with all guarantees, security agreements and rights and
interests securing the same (collectively, the "Accounts Receivable");
(p) all cash and cash equivalents, bank accounts, certificates
of deposit, bankers' acceptances, United States Government (or Agency)
securities or other securities relating to or used or held for use in
connection with the Business; and
(q) all other properties, tangible and intangible, not
otherwise referred to above to the extent relating to or used or held for use
in connection with the Business, other than those which pertain to the
Excluded Assets.
2. Notwithstanding anything to the contrary set forth herein, the
Assets shall not include any of the following rights, interests or assets,
all of which shall be retained by InternetStudios (the "Excluded Assets"):
(a) all of InternetStudios' rights to refunds of all or any
part of any taxes paid by InternetStudios, including, without limitation, all
federal, state and local income and franchise tax credits and tax refund
claims (and any foreign equivalents thereof) relating to or arising out of
the Business prior the Effective Date;
(b) all contracts, agreements, guaranties, options, rights,
warrants, commitments or binding arrangements of any nature whatsoever,
entered into by or binding upon InternetStudios relating to (i) any
commercial or private financing, or (ii) the sale of InternetStudios' capital
stock or other securities;
(c) all trademarks (whether or not registered, service marks,
trade names, and domain names, containing "InternetStudios.com" or
"InternetStudios", and all associated goodwill;
(d) all of InternetStudios' Stock Option Plans;
(e) all of InternetStudios' tax and information returns; all
correspondence between InternetStudios and its stockholders; all corporate
documents relating to the formation and capitalization of InternetStudios or
pertaining to its relations with its stockholders; stock and minute books,
and all other financial records of InternetStudios which do not relate in any
way to InternetStudios' ownership and operation of the Business; provided,
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however, that upon reasonable notice from the Company to InternetStudios or
its successors-in-interest, InternetStudios or its successors-in-interest
shall provide the Company with access at no charge to any of the foregoing
described material and with copies of any of said documents;
(f) all registrations with the Securities and Exchange
Commission and state securities authorities, all registrations and listings
with any securities exchanges and all documents relating thereto;
(g) all of InternetStudios' claims, causes of action, choses in
action, and rights of set-off of any kind against or pertaining to its
stockholders, officers and directors;
(h) all of InternetStudios' property and liability insurance
policies and all rights of every nature and description under or arising out
of such insurance policies;
(i) all of InternetStudios' equity interest in
InternetStudios.com.inc, U.K., Ltd. and all assets thereof;
(j) all of InternetStudios' rights under that certain Letter of
Intent, dated February 4, 2000 with itstv.com and any additional agreements
or instruments entered into in connection with the transactions contemplated
thereby; and
(k) all of InternetStudios' rights to receive mail and other
communications, which do not relate in any way to the operation of the
Business.
3. FAILURE TO OBTAIN CONSENTS. This Agreement shall not constitute
an assignment of any claim, asset, right, contract, permit or license if the
attempted assignment thereof without the consent of the other party thereto
would constitute a breach thereof or in any way adversely affect the rights
of InternetStudios thereunder. If such consent is not obtained, or if any
attempted assignment thereof would be ineffective or would adversely affect
the rights of InternetStudios thereunder so that the Company would not in
fact receive all such rights, then (a) only the proceeds of such claim,
asset, right, contract, permit or license shall be deemed to have been
transferred to the Company pursuant hereto and InternetStudios shall
otherwise retain such claim, asset, right, contract, permit or license and
(b) InternetStudios hereby engages the Company, and the Company hereby
accepts the engagement, to act as the attorney-in-fact of InternetStudios in
order to obtain for the Company the benefit of such claim, asset, right,
contract, permit, franchise or license.
4. ISSUANCE OF MEMBERSHIP INTEREST. In consideration of
InternetStudios' assignment, transfer, conveyance and delivery of the Assets
to the Company, effective as of the Effective Date, the Company shall issue
to InternetStudios a 100% Class A membership interest in the Company (the
"Membership Interest").
5. ASSUMPTION OF LIABILITIES AND OBLIGATIONS. As further
consideration for the assignment, transfer, conveyance and delivery of the
Assets to the Company, effective as of the Effective Date, the Company hereby
assumes and agrees to pay and perform all of the liabilities and obligations
of InternetStudios relating to, arising under or in connection with the
Assets, whether arising or accruing prior to, on or after the Effective Date,
including, without limitation, all liabilities and obligations with respect
to the Contracts and Other Agreements
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("Liabilities"); PROVIDED, HOWEVER, that in no event shall Liabilities
include the obligations arising under the instruments set forth on Schedule 2
hereto.
6. REPRESENTATIONS AND WARRANTIES.
(a) Each of InternetStudios and the Company represents and
warrants to the other that (i) it has all requisite power and authority to
execute and deliver this Agreement and any other assignments, instruments and
documents to be executed and delivered to effectuate the assignment and
assumption contemplated hereby (collectively, the "Assignment Documents");
(ii) its execution and delivery of this Agreement and the other Assignment
Documents and the performance of its obligations hereunder and thereunder
have been authorized by all necessary corporate or limited liability company
action and do not violate any laws, regulations or orders by which it is
bound; and (iii) this Agreement and the other Assignment Documents constitute
its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof and thereof.
(b) InternetStudios represents and warrants to the Company that
(i) it owns, leases or has the legal right to use all of the Assets and, with
respect to rights under the Contracts and the Other Agreements, is a party to
and enjoys the right to the benefits of all such Contracts and Other
Agreements, and (ii) it has good and marketable title to, or in the case of
leased or subleased Assets, valid and subsisting leasehold interests in, all
of the Assets, free and clear of all liens and other encumbrances other than:
(x) liens for current taxes not yet due and payable and (y) minor liens or
other encumbrances which will not materially impair the value or utility of
any material component of the Assets from and after the Effective Date.
(c) The Company understands and agrees that except as set forth
in Section 6(b) above, InternetStudios is making no representation or
warranty whatsoever, express or implied, with respect to the Assets and that
the Company is acquiring the Assets "as is" and "with all faults, if any".
7. DELIVERY. On or promptly following the Effective Date,
InternetStudios shall deliver the following to the Company or to such
location, person or entity as may be designated by the Company:
(a) The Assets, including, without limitation, (i) all Tangible
Personal Property; (ii) all originals and copies of the Contracts and Other
Agreements; and (iii) all Books and Records relating to or included in the
Assets; and
(b) Any other information, document, instrument or agreement
with respect to the Assets in the possession or control of InternetStudios.
8. REIMBURSEMENT OBLIGATION. If an amount is received or recovered
by InternetStudios after the Effective Date in respect of the Assets,
InternetStudios shall promptly pay such amount to the Company after receipt
thereof and assign to the Company any related rights under contract or
otherwise.
9. COLLECTION OF ACCOUNTS RECEIVABLE; SUPPORT SERVICES.
From and after the Effective Date, InternetStudios shall, at no cost to the
Company, assist the Company in
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collecting the Accounts Receivable transferred to
the Company. InternetStudios shall promptly pay over to the Company any amounts
received by it in respect of the Accounts Receivable. In this regard,
InternetStudios shall provide such personnel, equipment and other resources as
the Company may reasonably request to enhance and support the Company's contract
servicing and collection efforts.
10. FURTHER ASSURANCES. Each of InternetStudios and the Company
shall, at any time and from time to time after the date hereof, upon request
of the other party, execute, acknowledge and deliver all such further acts,
deeds, assignments, transfers, conveyances and assurances, and take all such
further actions, as shall be necessary or desirable to give effect to the
transactions hereby consummated and to collect and reduce any and all of the
Assets to the possession of the Company.
11. CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with the laws of the State of California.
12. SUCCESSORS AND ASSIGNS. This Agreement and the covenants and
agreements herein contained shall inure to the benefit of and shall bind the
respective parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
InternetStudios.com, Inc.,
a Nevada corporation
By:_________________________________
Its:_________________________________
Onlinefilmsales.com, LLC, a Delaware
limited liability company
By: InternetStudios.com, Inc., a Nevada
corporation, its Manager
By:_________________________________
Its:_________________________________
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SCHEDULE 1
REAL PROPERTY
1. Lease with respect to 207-1040 Hamilton Street, Vancouver, BC.
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SCHEDULE 2
EXCLUDED LIABILITIES
Those certain Loan Agreements with Pacific Capital Markets, Inc., dated
August 26, 1999, September 3, 1999, September 24, 1999, February 9, 2000 and
March 13, 2000.