Contribution, Assignment and Assumption Agreement - MediaChase Ltd., The Dot to Watch LLC and ReporterTV.com LLC
CONTRIBUTION, ASSIGNMENT AND ASSUMPTION AGREEMENT
This Contribution, Assignment and Assumption Agreement (the
"Agreement") is entered into as of March 28, 2000 (the "Effective Date"), by
and between MediaChase Ltd., a Delaware corporation ("MediaChase") and The
Dot to Watch, LLC, a Delaware limited liability company ("The Dot To Watch"),
on the one hand, and ReporterTV.com, LLC, a Delaware limited liability
company ("ReporterTV"), on the other hand, with reference to the following:
A. MediaChase owned, as of the Effective Date, one hundred percent
(100%) of the membership interests in The Dot To Watch, LLC.
B. As of the Effective Date, MediaChase owned, directly and
indirectly through The Dot To Watch, that certain interactive entertainment
news program known as "ReporterTV" that uses a television format and is
broadcast via the Internet (the "Program") that was developed by MediaChase
and The Dot to Watch.
C. MediaChase has determined that the Program should be owned,
developed, operated and exploited by ReporterTV.
D. Each of MediaChase and The Dot to Watch (each, an "Assignor")
desires to contribute, assign, transfer and convey to ReporterTV the Program
and all 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 its books and records, to the extent the same are used solely in
connection with the development, exploitation and operation of the Program
(together with the Program, collectively referred to as the "Assets"),
subject to all of such Assignor's liabilities and obligations, whether fixed
or contingent, direct or indirect, represented by a written agreement or
otherwise, relating to, arising under or in connection with the Assets,
including without limitation, all intellectual property claims arising out
of, relating to or in connection with the Assets and all other claims arising
from the development and exploitation of the Program (collectively, the
"Liabilities") in exchange for the issuance to MediaChase of one hundred
percent (100%) of the membership interests (the "Membership Interests") in
ReporterTV.
In consideration of the foregoing, the undersigned agree as follows:
1. ASSIGNMENT OF ASSETS. Effective as of the Effective Date, for
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, each Assignor does hereby contribute, assign, transfer,
and convey to ReporterTV, to have and to hold unto ReporterTV, its successors
and assigns forever, all of such Assignor's right, title and interest in and
to the Assets. In addition, MediaChase hereby grants to ReporterTV, a
royalty-free, non-exclusive, non-transferable license to use the MediaChase
logo on the Program (with the size and positioning to be identical to usage
by MediaChase as of the date hereof) and, to the extent agreed upon by
MediaChase, otherwise in connection with the exploitation of the Program.
The term of the foregoing license shall be agreed upon by the parties, and in
the absence of such
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agreement shall be one year from the date hereof. MediaChase will also
transfer to ReporterTV the employees of MediaChase listed on Schedule "A"
(the "Employees").
2. ACCEPTANCE OF ASSIGNMENT. Effective as of the Effective Date,
ReporterTV hereby accepts the assignment to it of all of each Assignor's
right, title and interest in and to the Assets.
3. ASSUMPTION OF LIABILITIES. As further consideration of the
contribution, assignment, transfer and conveyance of the Assets to
ReporterTV, effective as of the Effective Date, ReporterTV hereby assumes and
agrees to pay and perform all of the Liabilities; provided, however, that
with respect to Liabilities included upon an invoice from MediaChase to
Internetstudios.com, Inc. or Onlinefilmsales.com, LLC, MediaChase will agree
to pay such amounts upon receipt of payment by it from Internetstudios.com,
Inc. or Onlinefilmsales.com, LLC, as the case may be, including without
limitation, the payment received by it on March 27, 2000 in the amount of
$353,335.47. Notwithstanding anything to the contrary set forth herein,
ReporterTV shall not assume nor be liable for any of the following
liabilities or obligations of any Assignor:
a. all liabilities and obligations of any Assignor which
pertain primarily to its assets other than the Assets;
b. any of Assignor's Liabilities for any income taxes of any
nature now or hereafter owed by such Assignor or attributable to the Assets;
c. any taxes or expenses or fees incurred by any Assignor
incident to or arising out of the negotiation, preparation, approval or
authorization of this Agreement or the consummation (or preparation of the
consummation) of the transactions contemplated herein, including, without
limitation, any related attorney's and accountant's fees;
d. any Liabilities now or hereafter arising by reason of any
willful and Knowing breach of contract prior to the Effective Date or any of
the following intentional torts: assault and battery, false imprisonment,
conversion, and so long as it is shown that MediaChase acted with malice,
defamation, intentional infliction of emotional distress, invasion of privacy
and interference with business relations;
e. any Assignor's liabilities or obligations now or hereafter
arising with respect to any period or any portion of any period prior to the
Effective Date under any laws relating to industrial hygiene, occupational
safety conditions or environmental conditions on, under or about property,
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial, hazardous or toxic materials or wastes
into the environment (including ambient air, surface water, ground water,
land surface or sub-surface strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, chemicals or industrial hazardous or
toxic materials or wastes ("Environmental Laws");
f. any Liabilities now or hereafter arising by reason of
Assignor engaging, prior to the Effective Date, in sexual harassment,
discrimination or retaliation based on race, religion, color, national
origin, ancestry, physical or mental disability, medical condition, marital
status,
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sex, age, and/or pregnancy ("Labor Claims"); provided, however, that for
clarification all other claims relating to past or current employees or
consultants are being assumed by ReporterTV (e.g., claims for compensation or
benefits) to the extent relating to services provided in connection with the
Assets except as otherwise expressly provided herein; and
g. any Liabilities now or hereafter arising by reason of any
willful and Knowing violation by any Assignor, prior to the Effective Date,
of any law or order (other than Environmental Laws and labor laws (including,
without limitation, those giving rise to Labor Claims) which matters are
covered above, and other than laws relating to intellectual property matters,
as ReporterTV is agreeing to assume such Liabilities).
4. ISSUANCE OF MEMBERSHIP INTEREST. In consideration of the
assignment, transfer, conveyance and delivery by the Assignors of the Assets
to ReporterTV, effective as of the Effective Date, ReporterTV shall issue to
MediaChase a 100% Membership Interest.
5. REPRESENTATIONS AND WARRANTIES.
a. Each Assignor, on the one hand, and ReporterTV, on the other
hand, represents and warrants to the other that (i) it has all requisite
power and authority to execute and deliver this Agreement and any other
instruments and documents to be executed and delivered to effectuate this
Agreement and assumption contemplated hereby (collectively, the "Documents");
(ii) its execution and delivery of this Agreement and the other Documents and
the performance of its obligations hereunder and thereunder have been
authorized by all necessary action and do not violate any laws, regulations
or orders by which it is bound; and (iii) this Agreement and the other
Documents constitute its legal, valid and binding obligations, enforceable
against it in accordance with the terms hereof and thereof.
b. MediaChase represents and warrants to ReporterTV as follows:
i) Except for those liabilities arising under the contracts
and agreements listed on Schedule "B" hereto and the other liabilities listed
on Schedule "C", MediaChase does not have any Knowledge (as defined in
Section 14 below) of any other material Liabilities or any circumstances,
conditions, events or arrangements which may hereafter give rise to any
material Liabilities.
ii) No action, suit, arbitration, dispute or other legal or
administrative or other proceeding or governmental investigation is currently
pending, or to the Knowledge of MediaChase, threatened, against any Assignor
and relating to such Assignor's ownership or operation of the Assets and to
the Knowledge of MediaChase there are no outstanding orders, decrees or
stipulations issued by any governmental authority which relate to the Assets.
The Assets are not to the Knowledge of MediaChase subject to any judgment,
order, writ, injunction or decree that has not been satisfied or complied
with in full.
iii) Schedule "B" sets forth a true and complete list of
all written agreements with Employees and consultants being transferred
("Transferred Consultants") now in effect and all written employee benefit
plans (including, without limitation, all health insurance, retirement,
pension, and profit sharing plans) now in effect relating to Employees.
Since February 29, 2000, except as disclosed on invoices issued by MediaChase
to
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InternetStudios.com, Inc. or Onlinefilmsales.com, LLC, no Assignor has made
any change in the rate of compensation, commission, bonus or other direct or
indirect remuneration payable, or paid or agreed or orally promised to be
paid, conditionally or otherwise, the rate of any bonus, extra compensation
or severance pay, to any Employee or Transferred Consultant.
iv) All of the accounts payable of each Assignor relating
to the Assets arose from bona fide purchases of goods or services in the
ordinary course of business.
v) To the Knowledge of MediaChase, no Assignor has
breached, in any material respect, any contract or other agreement assigned
by such Assignor to ReporterTV hereunder.
6. FURTHER ASSURANCES. Each Assignor shall, at any time and from
time to time, upon the request of ReporterTV, execute, acknowledge and
deliver all such further deeds, assignments, transfers, conveyances, powers
of attorney 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 to the possession of ReporterTV any and all assets
and interests hereby transferred to ReporterTV.
7. DELIVERY. On or promptly following the Effective Date, at
ReporterTV's request, each Assignor shall deliver the following to ReporterTV
or to such location, person or entity as may be designated by ReporterTV:
a. the Assets, including, without limitation, (i) all tangible
personal property; (ii) all originals and copies of material written
contracts and other material written agreements being assigned; and (iii) all
books and records relating to or included in the Assets (excluding tax
returns); and
b. any other information, document, instrument or agreement
with respect to the Assets in the possession or control of such Assignor.
8. NO THIRD-PARTY BENEFICIARY. This Agreement is entered into for
the sole protection and benefit of the parties hereto and their respective
successors and assigns, and no other person or entity shall be a direct or
indirect beneficiary of, or shall have any direct or indirect cause of action
or claim in connection with, this Agreement, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third person or entity to any party to this Agreement.
9. COLLECTION OF ACCOUNTS RECEIVABLES; SUPPORT SERVICES. From and
after the Effective Date, each Assignor shall, at no cost to ReporterTV,
assist ReporterTV in collecting the any accounts receivable transferred to
ReporterTV. Each Assignor shall promptly pay over to ReporterTV any amounts
received by it in respect of such accounts receivable.
10. CHOICE OF LAW. This Agreement shall be governed by the laws of
the State of Delaware and may be executed in counterparts. The parties
hereto agree to execute and deliver any documents reasonably requested by the
other to confirm further and assure consummation of the transaction
consummated hereby.
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11. NO ASSIGNMENT. No party to this Agreement shall have the right
to assign this Agreement or any interest, right or obligation under this
Agreement without obtaining the prior written consent of the other parties
hereto.
12. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
13. ENTIRE AGREEMENT. This Agreement is intended to embody the
final, complete and exclusive agreement among the parties with respect to the
subject matter hereof and is intended to supersede all prior agreements,
understandings and representations, written or oral, with respect thereto;
and may not be contradicted by evidence of any such prior or contemporaneous
agreement, understanding or representation, whether written or oral.
14. AMENDMENTS. No alteration, change, amendment or modification
of or to this Agreement shall be effective unless it is made in writing and
signed on behalf of each party to be charged.
15. KNOWLEDGE. As used herein, the terms "Knowledge" and "Knowing"
shall mean the actual knowledge of Chris Lutz or Melanie Luciano (without
investigation).
16. INDEMNIFICATION. The parties are agreeing to indemnify each
other with respect to the liabilities retained or assumed by them, as
applicable, as set forth in that certain letter agreement, dated of even date
herewith, among MediaChase, StudioBuzz.com, LLC, InternetStudios.com, Inc.,
Onlinefilmsales.com, LLC and ReporterTV.
17. LICENSE. ReporterTV hereby grants to MediaChase, a
royalty-free, perpetual, non-exclusive, non-transferable (except for
sublicenses to Affiliates of MediaChase, as that term is defined in the LLC
Agreement referenced below) license to use the trademark "The Dot To Watch"
for uses which are not "competitive" (as that term is defined in Section
5.7(b) of the Limited Liability Company Agreement of ReporterTV.com, LLC, of
even date herewith (the "LLC Agreement"). MediaChase agrees that all uses of
such trademark will remain comparable in standards of taste as such trademark
is currently used as of the date hereof.
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IN WITNESS WHEREOF, the undersigned have entered into this Agreement
on the date first written above.
MEDIACHASE LTD., a Delaware corporation
By:________________________________
Name:
Title:
THE DOT TO WATCH, a Delaware limited
liability company
By: MEDIACHASE LTD., a Delaware
corporation, its sole Member
By:________________________________
Name:
Title:
REPORTERTV.COM, LLC, a Delaware limited
liability company
By: MEDIACHASE LTD., a Delaware
corporation, its sole Member
By:________________________________
Name:
Title:
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SCHEDULE "A"
EMPLOYEES
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SCHEDULE "B"
CONTRACTS
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SCHEDULE "C"
OTHER LIABILITIES