EXHIBIT 6.15
AGREEMENT RE SALE OF INTEREST IN
SKYROCKET, LLC
Xxxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx") and April X. Xxxxxxx ("Xxxxxxx"),
individually and as the members and owners of 100% of Skyrocket LLC, a
California limited liability company ("Skyrocket"), on the one hand, and
Total Film Group, Inc., a Delaware corporation ("Total") and Xxxx
Communications, Inc., a California corporation ("DCI"), on the other hand,
agree as follows:
I. RECITALS
A. Skyrocket is a limited liability company organized, validly existing,
and in good standing under the laws of the State of California. The
Secretary of State's file number for Skyrocket is 101997090046.
B. Total is a Delaware corporation duly organized, validly existing, and
in good standing under the laws of the State of Delaware.
C. DCI is a California corporation duly organized, validly existing, and
in good standing under the laws of the State of California.
X. Xxxxxxxxx and Xxxxxxx are individuals residing in the State of
California, and are the sole members and owners of Skyrocket.
X. Xxxxxxxxx and Xxxxxxx desire to sell Skyrocket to Total and Xxxx, and
Total and Xxxx desire to purchase Skyrocket from Xxxxxxxxx and Xxxxxxx.
II. SALE
Xxxxxxxxx and Xxxxxxx hereby sell and transfer 99% of Skyrocket to Total and
1% of Skyrocket to DCI, on the terms and conditions set forth in this
Agreement. Xxxxxxxxx shall include in the transfer all of their interest in
the assets of Skyrocket whether real, personal, tangible, or intangible
including the goodwill, business and trade names of Skyrocket. Thereafter,
Total and DCI shall have all rights of ownership of Skyrocket including the
rights of a member of the limited liability company and the right to amend
the Articles of Organization and the Operating Agreement.
III. EFFECTIVE DATE
Although this Agreement is entered into as of the date it is executed by the
parties, the effective date for all purposes of the Agreement shall be
January 1st, 1999.
IV. CONSIDERATION
In consideration for the sale and transfer of 100% interest in Skyrocket and
all of its assets and property, Total shall immediately pay to Xxxxxxxxx and
Xxxxxxx Twenty-five thousand Dollars ($25,000.00) and deliver One Hundred
Fifty Thousand (150,000) shares of restricted common stock of Total with
Seventy-five Thousand (75,000) of said shares delivered to Xxxxxxx and
Seventy-five Thousand (75,000) of said shares delivered to Xxxxxxxxx.
V. RIGHT TO DIVEST / CONDITIONAL CONSIDERATION
At any time within six months from the date of the execution of this
Agreement, Total and DCI have the right, in their sole discretion, to divest
themselves from ownership and return 100% interest in Skyrocket back to
Xxxxxxxxx and Xxxxxxx. If Total and DCI exercise their right to divest
themselves from ownership in Skyrocket, they may also in their sole
discretion elect to terminate either one or both of the Employment Agreements
Total is concurrently entering into with Xxxxxxxxx and Xxxxxxx.
Furthermore, at any point in time within six months from the date of
execution of this Agreement, Total and DCI may decide to retain ownership in
Skyrocket at which point Total shall deliver to Xxxxxxxxx and Xxxxxxx a total
of Seventy-five Thousand (75,000) shares of its restricted common stock with
Thirty-seven Thousand Five Hundred (37,500) shares delivered to Xxxxxxx and
stock with Thirty-seven Thousand Five Hundred (37,500) shares delivered to
Xxxxxxxxx.
If, on the sixth month anniversary of the date of execution of this Agreement
by Total and DCI, Total and DCI have not made an election to retain ownership
of Skyrocket, then such inaction shall be deemed to be an election to divest
themselves from ownership of Skyrocket and return 100% interest of Skyrocket
back to Xxxxxxxxx and Xxxxxxx. In that event, Xxxxxxxxx and Xxxxxxx shall
retain all consideration given them pursuant to Paragraph IV above.
VI. COVENANTS AND CONDITIONS
A. Covenants of Xxxxxxxxx and Xxxxxxx.
Xxxxxxxxx and Xxxxxxx represent and warrant that:
x. Xxxxxxxxx and Xxxxxxx own 100% of Skyrocket, and consent to
the sale of their interest in Skyrocket to Total and DCI.
x. Xxxxxxxxx and Xxxxxxx have disclosed to Total and DCI all
known debts, obligations, liens, encumbrances, rights,
defenses, or liabilities concerning Skyrocket or any assets
owned by Skyrocket. A copy of Exhibit "A" reflecting a summary
of assets and liabilities is attached hereto and incorporated
herein by reference.
c. The execution, delivery, and performance of this Agreement are
within Xxxxxxxxx and Xxxxxxx'x xxxxxx and this Agreement
constitutes a valid and binding obligation of Xxxxxxxxx and
Xxxxxxx.
d. Skyrocket has complied with all licensing, permit, and
fictitious name requirements necessary to lawfully conduct the
business in which it is engaged in compliance with all laws
and regulations applicable to any sales, leases, or the
furnishing of services by Skyrocket, including without
limitation those requiring consumer or other disclosures.
e. Skyrocket has all trade names, trade name rights, services
marks, copyrights, patents, licenses, permits and franchises
required in order for Skyrocket to conduct and operate its
business as now or proposed to be conducted without conflict
with the rights of others.
x. Xxxxxxxxx, Xxxxxxx and Skyrocket warrant that Skyrocket has
good and marketable title to all assets covered by this
Agreement and further warrant that its title to said assets is
free and clear of any liens, encumbrances or other defects.
g. The execution, delivery and performance by Xxxxxxxxx, Xxxxxxx
and Skyrocket of this Agreement is not in conflict with any
law, rule, regulation, order or directive, or any indenture,
agreement, or undertaking to which Skyrocket is a party or by
which Skyrocket may be bound or affected, and will not result
in the creation or imposition of any lien pursuant to the
terms of any such indenture, agreement, or undertaking.
h. No representation, warranty, or statement by Skyrocket
contained in this Agreement, in any record or certificate or
other writing furnished by Humphreys, Minnich, or Skyrocket to
Total and DCI (including, without limitation, any financial
statements, books, or records) at any time contains any untrue
statement of material fact, or omits to state a material fact.
i. There are no debts, litigation, claims, tax claims,
proceedings, disputes or litigation pending, or to their
knowledge threatened against or affecting Skyrocket or its
property, except as disclosed in writing to Total and DCI
prior to the date of this Agreement. That all debts and
obligations of Skyrocket have been fully disclosed to Total
and DCI and are set forth in Exhibit "A" which is attached
hereto and incorporated herein by reference.
j. That all of Skyrocket's tax returns and payments that have
become due from it through the date of this Agreement have
been filed and paid by it including any returns or taxes due
for state or federal income or franchise tax, personal or real
property tax levied against any of said assets, sales, or
other tax.
k. Except in the normal course of business and for adequate
value, Skyrocket shall not dispose of any of its assets
between the date of this Agreement and the date on which the
sale shall become effective.
l. All warranties made in this Agreement shall survive the
consummation of the sale and transfer of the assets and
interest in Skyrocket to Total and DCI and that Xxxxxxxxx and
Xxxxxxx agree to be personally bound and personally liable,
jointly and severally, on such warranties should any of them
prove to be untrue from and after the date of this Agreement.
B. Covenants of Total and DCI.
1. Total represents and warrants that:
a. It is a Delaware corporation in good standing, and qualified
to do business in the State of California.
b. The execution, delivery and performance by Total of this
Agreement is not in conflict with any law, rule, regulation,
order or directive, or any indenture, agreement, or
undertaking to which Total is a party or by which Total may be
bound or affected, and will not result in the creation or
imposition of any lien pursuant to the terms of any such
indenture, agreement, or undertaking.
2. DCI represents and warrants that:
a. It is a California corporation in good standing, and qualified
to do business in the State of California.
b. The execution, delivery and performance by Total of this
Agreement is not in conflict with any law, rule, regulation,
order or directive, or any indenture, agreement, or
undertaking to which Total is a party or by which Total may be
bound or affected, and will not result in the creation or
imposition of any lien pursuant to the terms of any such
indenture, agreement, or undertaking.
C. Conditions to Sale.
At the sole discretion of Total and DCI, the sale may be canceled and all
consideration paid therefore returnable in the event any of the representations
and warranties set forth in Paragraph A above are untrue or not complied with,
or in the event any of the following conditions do not take place:
1. Xxxxxxxxx and Xxxxxxx fail to execute the employment contracts attached
hereto as Exhibits "B" and "C".
2. Humphreys, Minnich, and Skyrocket fail to deliver to Total and DCI all
of Skyrocket's property, assets, Operating agreement, Articles of
Organization, records, books, correspondence, intellectual property,
and other writings requested by Total and DCI; or fail to cooperate and
execute all additional documentation to conclude the sale of their 100%
interest in Skyrocket and transfer of its assets to Total and DCI.
VII. ASSIGNIBILITY
This Agreement is assignable by Total and DCI. Total and DCI have the right
to assign their rights and obligations under this Agreement at any time.
VIII. FINANCIAL CONTROL
Upon execution of this Agreement and the payment required pursuant to
Paragraph IV above, Total shall have the exclusive right to control
Skyrocket's finances and shall immediately assume responsibility for handling
all financial affairs of Skyrocket including collecting accounts receivable
and assuring that all accounts payable and other debts are timely paid. Total
shall take responsibility for the finances, accounting, administration,
personnel and all management functions and shall be responsible for the
operation of Skyrocket except to the extent such duties may be delegated to
Xxxxxxxxx and Xxxxxxx pursuant to their Employment Agreements.
IX. INDEMNITY
A. Except as otherwise expressly provided in this Agreement, Skyrocket,
Xxxxxxxxx and Xxxxxxx shall indemnify and hold Total, DCI or their
assignees free and harmless from any and all claims, liability, loss,
damage, or expense resulting from their ownership and transfer of said
assets and interest to Total and DCI or their operation of said assets,
including any claim, liability, loss, or damage arising by reason of
the injury or death of any person or persons, or the damage of any
property.
B. In the event of any liability of Skyrocket which was not previously
disclosed to Total and DCI, Skyrocket's members, Xxxxxxxxx and Xxxxxxx
shall pay, protect, defend, and indemnify Total and/or DCI, and their
employees, officers, directors, shareholders, affiliates,
correspondents, agents, and representatives (herein collectively
referred to as Total/DCI0 against, and hold Total/DCI harmless from,
all claims, actions, proceedings, liabilities, damages, losses,
expenses (including, without limitation, attorney's fees and costs) and
other amounts incurred by Total/DCI.
X. GENERAL PROVISIONS
A. Notices.
Any notices from one party to the other required by this Agreement shall be
given to the parties at the following addresses:
Total Film Group, Inc. & Xxxx Communications, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Skyrocket LLC
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxxx X. Xxxxxxxxx
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
April X. Xxxxxxx
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
B. Laws.
This Agreement shall be construed under the laws of the State of California.
C. Binding effect.
This Agreement is binding upon and shall inure to the benefit of the legal
successors and assigns of the parties.
D. Execution in Counterparts.
This Agreement may be executed in any number of counterparts which, when taken
together, shall constitute but one agreement.
E. Entire Agreement.
This Agreement is intended by the parties as the final expression of their
agreement in connection with the acquisition and supersedes all prior
understandings or agreements concerning the subject matter hereof. This
Agreement may be amended only by a writing signed by all the parties.
However, in construing the intent of the parties, it shall be permissible to
read this Agreement in conjunction with the Employment Agreements of
Xxxxxxxxx and Xxxxxxx as well as the Option to Acquire Skyrocket LLC and
Right to Control Finances.
F. Authority.
Xxxxxxxxx and Xxxxxxx warrant and covenant that they are authorized to enter
into this Agreement individually and on behalf of Skyrocket and that all
appropriate or necessary resolutions to enter into this binding contract have
been obtained and complied with.
Total and DCI warrant and covenant that they are authorized to enter into
this Agreement and that all appropriate or necessary resolutions to enter
into this contract have been obtained and complied with.
DATED: 4/27/99 TOTAL FILM GROUP, INC.
By: /s/ Xxxxxx Xxxxx
Its: President
DATED: 4/27/99 XXXX COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxx
Its: President
DATED: 4/23/99 /s/ Xxxxxxxx X. Xxxxxxxxx
DATED: 4/23/99 /s/ April X. Xxxxxxx
