ASSET PURCHASE AGREEMENT
between
LUX
DIGITAL PICTUTES GmbH.
(a German
Registered Company)
and
Midnight
Movies Entertainment, INC.,
(a Nevada
corporation)
THIS
ASSET PURCHASE AGREEMENT (this "Agreement"), dated April 14, 2008, between
Midnight Movies Entertainment, Inc(" Seller " herein), a Nevada corporation, and
Lux Digital Pictures GmbH., a German registered corporation, (“Buyer "), is made
with reference to the following provisions, and shall be effective upon payment
of the Purchase Price and execution of this Agreement.
RECITALS
A.
The Seller owns certain “brands” and business concepts in and to “Midnight
Movies”, “New Broadway Cinema”, “DigiTheater” and “Short Screams” and certain
assets and rights relating to its development, financing and production of two
(2), partially completed, feature length documentary motion pictures “Nightmares
in Red, White and Blue”, produced and written by Joseph Maddley, and “American
Grindhouse”, written and directed by Xxxxxx Xxxxxxx, and all of Seller’s
interest in and to the motion picture “Night of the Living Dead 3D” (“Assets”).
The Assets shall include but not be limited to, all underlying properties and
agreements including all revenue streams under certain assigned contracts with
LionsGate Films, Inc and Showcase Entertainment, Inc, all underlying talent
agreements, all copyrights, all licenses, logos, edited footage, all film
“clips” and source materials, all domain names, right to use names and logos and
all goodwill and any and all other right, title and interest in and to the
Assets held by Seller, not specifically described herein.
B.
The Buyer desires to acquire the Assets and assume all of Seller's right, title
and interest in and to the Assets.
C.
The Buyer and Seller agree that, upon execution of the document and payment of
the Purchase Price, title to the assets shall immediately pass to Buyer and
Buyer shall have complete use and control of assets.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual agreements, warranties and
representations contained in this agreement, the parties hereby agree as
follows.
Incorporation
of Recitals
The
recitals and prefatory phrases and paragraphs set forth above are hereby
incorporated in full and made part of this agreement.
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ASSET
PURCHASE AND CONSIDERATION
1.
Assets. Seller agrees to sell and transfer, and Buyer agrees to purchase the
Assets free and clear of all liens, claims and encumbrances, except for any and
all future talent participations and/or residuals due, if any, and the full cost
and expense of completing the documentary motion pictures which shall be solely
determined by Buyer.
4.
Assignment of Rights. Seller will assign and Buyer will accept and assume
all of Seller's rights, title and interest in and to the Assets and related
assets if any.
5.
Purchase Price. The purchase price for the Assets shall be the cash payment to
Buyer of ONE HUNDRED NINETY SEVEN THOUSAND FOUR HUNDRED AND TWO DOLLARS
($197,402.)(“Purchase Price”). Buyer hereby acknowledges the receipt of and the
full payment of the Purchase Price paid by wire transfer to Buyer, at the
direction and instruction of Seller, on April 14 2008.
6.
Execution and Closing. The consummation of the transaction contemplated by this
Agreement shall occur immediately upon the execution of this Agreement and the
receipt of Seller of the Purchase Price at which time Buyer shall be delivered
all required materials in connection with the conveyance of the Assets and at
which time Buyer shall assume full control of the Assets.
After
execution of this Agreement, Seller will provide, at its own expense, full
delivery to Buyer of any and all materials, elements, agreements and physical
properties and materials that may be required herein for Buyer to effectively
and efficiently assume all right, title and benefits of the acquired Assets.
Unless agreed to otherwise by both parties in writing the Seller shall provide
assignments, such bills of sale and instruments of transfer and conveyance as
shall be reasonably be required by Buyer for the transfer to Buyer of all right,
title and interest of Seller in, to the Assets. Each party shall also deliver to
each other such officer certificates and other instruments as the other party
shall reasonably request after the closing as may be reasonably
required.
BULK
SALE, ASSET LIABILITY, AND CREDITORS
7.
Asset Liability. Buyer shall not assume or be responsible for any liabilities or
obligations of Seller, except for those assumed obligations described herein,
including without limitation, any liabilities which Seller was obligated to
satisfy prior to execution Date, or for any tax liability of the Seller . Buyer
shall take all Assets transferred by this Agreement free of any liens, claims,
and encumbrances existing or claimed to exist on the Assets.
8.
Bulk Sale. Seller recognizes the regulation of "Bulk Transfers" by Article 6 of
the Uniform Commercial Code generally, and that the states of Florida, Texas,
and New Jersey have repealed such "Bulk Transfer" sections from their respective
State versions of the Uniform Commercial Code.
9.
Creditors. In order to eliminate any and all liens, claims, and encumbrances
that may currently existing on the Assets, the Seller shall endeavor to pay all
debts owed to creditors prior to the execution of this Agreement, excepting the
following obligations which are necessary for the completion of the motion
pictures, and which will follow this transfer of Assets to the Buyer , and which
the Buyer agrees to accept the assignment of the following existing contracts,
attached hereto as Exhibit “A” and any debt relating to those
agreements:
(a)
Production
Services Agreement between Xxxxxx Xxxxxxx and Seller.
(b)
Production
Services Agreement between Xxxxxx Xxxxxxx and Seller.
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OTHER
REPRESENTATIONS OF THE SELLER'S AND BUYER
10.
Other Representations of the Seller. Seller hereby represents and warrants to
Buyer as follows:
(a)
Title to the Purchase Assets. Seller is the lawful owner and has good and
marketable title to all of the Assets and hereby grants indemnification unto
Buyer and its successors and assigns against claims of any third parties. Seller
is a duly authorized corporation under the laws of the State of Nevada, validly
existing and in good standing. This Agreement has been duly authorized by the
Board of Directors of Seller and constitutes the binding and enforceable
obligation of Seller. Seller has authority to sell and transfer the Assets,
which are free and clear from any liens or encumbrances. Additionally, Seller
has received all consents regarding the acquisition from any entities whose
consents are necessary, including but not limited to, any and all governmental
regulatory agencies whose consents are necessary, holders of notes, company
affiliates, and corporate consents.
(b)
Seller's Liabilities. Seller does not have any liability or obligation (direct
or indirect, contingent or absolute, known or unknown, mature or unmatured of
any nature whatsoever, whether arising out of contract, tort, statute or other
("Liabilities"), except: (i) as specifically disclosed in a Schedule hereto to
be provided to the Seller on or before the date hereof, which is incorporated
herein by reference; (ii) liabilities incurred in the ordinary course of
business which will not individually or in the aggregate be materially adverse
to, or result in a material increase in the current or long term liabilities or
obligations of Seller . To the best knowledge of the Seller, upon due inquiry,
there is no basis for assertion against Seller of any liabilities accept for
liabilities to be listed in a Schedule hereto to be provided to the Buyer at the
closing.
(C)
Compliance with Laws. Seller has complied with and is not in default under any
applicable law, ordinance regulation or order, the violation of which would
materially and adversely affect the Assets. There is no litigation proceeding or
investigation pending or known to be threatened which might materially and
adversely effect the Assets.
(d)
Taxes. Seller has duly filed all federal, state, local, and foreign tax returns,
if any, necessary to be filed by it and has duly paid all taxes (including any
interest or penalties) which are or will be due or payable with respect to
taxes. There are no known or proposed penalty, interest or deficiency
assessments with respect to taxes that require payment by, relate to or could
adversely affect the Purchased Assets.
(e)
Completeness of Statements. No representation or warranty in this Agreement and
no statement set forth in any schedule attached hereto contains any untrue
statement of any material fact, or omits to state any material fact necessary to
make the statements contained therein not misleading.
(f)
Operation in the Ordinary Course. During the period of Seller's ownership up and
to and including the date hereof: (i) there has been no damage destruction or
loss or any event materially adversely affecting the Assets, and (ii) there has
been no sale or other disposition of the Assets.
11. Representation
and Warranties of the Buyer. Buyer represents and warrants to Seller that Buyer
is a corporation duly organized, validly existing and in good standing under the
laws of Germany, and this agreement has been duly authorized by the Board of
Directions of Buyer and constitutes the valid binding and enforceable obligation
of the Buyer .
12.
Notice of Default. In the event of default by either party, the non-defaulting
party shall provide written notice of default to the defaulting party. Such
notice of default shall provide ninety (90) days for the defaulting party to
cure the default.
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13.
Commissions and Finder's Fees. Buyer and the Seller each hereby represent and
warrant that neither of them have retained or used the services of any
individual, firm or corporation in such manner as to entitle such individual,
firm or corporation to any compensation for broker's or finder's fees with
respect to the transactions contemplated hereby for which the other may be
liable.
14.
Governing Law. By executing this Agreement, the parties agree that this
Agreement shall be governed by and construed in accordance with the laws of the
Republic of Germany. It is the intention of the parties that this Agreement and
any dispute arising out of this agreement be governed and construed, by any
Court or judicial body, under the laws of Germany. Furthermore the parties
recognize and declare that Germany has the most significant relationship to this
Agreement and any dispute that may arise from it and that any other claimed
venue or claimed jurisdiction has no legitimate interest in this Agreement or
any dispute arising from.
15.
Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the respective successors of Seller and Buyer and their assigns.
Buyer may freely assign its rights under this Agreement without the consent of
Seller.
16.
Entire Agreement. This Agreement sets forth the entire Agreement and
understanding of Seller and the Buyer with respect to the subject matter hereof
and supersedes all prior contemporaneous written or oral agreements,
understandings or representations which are not specifically contained herein.
Both parties participated in the drafting of this Agreement and therefore
consent that the terms of this Agreement shall not be construed for or against
either party. This Agreement may be amended or modified only by a written
instrument signed by Seller and the Buyer.
17.
Disputes. The parties agree to attempt to resolve any claim or dispute arising
out of or relating to this Agreement by mediation and good faith reasonable
negotiation prior to resorting to litigation or other judicial process. In the
event this Agreement is placed in the hands of an attorney for enforcement, the
prevailing party shall be entitled to recover court costs and their reasonable
attorney fees.
18.
Publicity. Prior to the Execution Date, no notices to third parties (including
press releases) or to any employees, suppliers or customers of Buyer or Seller
(other than key management and other persons whose knowledge is required), shall
be made by any party hereto unless mutually agreed to, planned and coordinated
jointly among the parties hereto.
19.
Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same Agreement.
20.
No Third Party Beneficiaries. The terms and provisions contained in this
Agreement (including the documents and the instruments referred to herein) are
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder except for assignees of Buyer.
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21.
Further Assurances. From and after the date of execution, upon the request of
any party, the other party shall do, execute, acknowledge and deliver all such
further acts, assurances, deeds, assignments, transfers, conveyances and other
instruments and papers as may be reasonably required or appropriate to carry out
the transactions contemplated by this Agreement.
22.
Amendment. This Agreement maybe amended, or any provision of this Agreement may
be waived, provided that any such amendment or waiver is set forth in a writing
executed by Seller and Buyer or their assigns or respective successors in
interest. No course of dealing between or among any persons having any interest
in this Agreement will be deemed effective to modify, amend or discharge any
part of this Agreement or any rights or obligations of any person under or by
reason of this Agreement.
23.
Waiver. No waiver by either party of any breach of a provision of this Agreement
shall be a waiver of any subsequent breach, whether of the same or a different
provision of this Agreement.
IN
WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the date
first above written.
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BUYER
:
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SELLER'S
:
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Lux
Digital Pictures GmbH
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Midnight
Movies Entertainment, Inc
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By
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Xx.
Xxxx Xxxxx
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Xx.
Xxxx Xxxxxxxxxxx, Acting
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Operating
Manager
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President
and Chief Executive Officer
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