EX-4.36
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (the "Agreement")
is made as of May 29, 2007 by and among Golden Gate Investors,
Inc., as Assignor (the "Assignor"), Gameznflix, Inc., a Nevada
corporation, as Assignee (the "Assignee") and RMD Technologies,
Inc. ("RMD"). Each of Assignee, Assignor and/or RMD may be
referred to herein as a "Party," or collectively, the "Parties".
WITNESSETH:
WHEREAS, RMD and La Jolla Cove Investors, Inc. ("LJCI")
entered into that certain Securities Purchase Agreement dated as
of January 27, 2006, as amended (the "Securities Purchase
Agreement"), that certain 7 _ % Convertible Debenture, dated as
of January 27, 2006, as amended (the "Debenture"), that certain
Registration Rights Agreement, dated as of January 27, 2006, as
amended (the "Registration Rights Agreement") and that certain
Warrant to Purchase Common Stock, dated as of January 27, 2006,
as amended (including the amendment set forth in that certain
letter agreement between LJCI and RMD dated as of January 27,
2006) (the "Warrant", with the Securities Purchase Agreement, the
Debenture, the Registration Rights Agreement and the Warrant
collectively referred to herein as the "RMD Transaction
Documents"), as attached hereto as Exhibit A;
WHEREAS, LJCI previously transferred the RMD Transaction
Documents to Assignor;
WHEREAS, LJCI has been credited with a prepayment in the
amount of $150,000 under the Warrant to be credited against the
exercise of Warrant Shares (as defined in the Warrant) (the
"Warrant Prepayment");
WHEREAS, LJCI has been credited with a payment in the amount
of $100,000 under the Debenture previously paid to RMD (the
"Debenture Prepayment", along with the Warrant Prepayment, the
"RMD Prepayment"); and
WHEREAS, Assignor wishes to transfer and assign and Assignee
wishes to accept and assume all of Assignor's rights and
interests in the RMD Transaction Documents and the RMD Prepayment
(collectively, the "RMD Transaction").
NOW THEREFORE, in consideration of and for the mutual
promises and covenants contained herein, and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, the Parties have hereby agreed as follows:
1. For value received as set forth in this Agreement, Assignor
hereby assigns and transfers to Assignee, without representation
or warranty, all of Assignor's rights, obligations, interests and
liabilities under the RMD Transaction.
2. For and in consideration of the assignment hereunder,
Assignee hereby assumes all of Assignor's rights, obligations,
interests and liabilities under the RMD Transaction to the same
extent as though it had originally been named as a party thereto
and agrees to observe, perform and fulfill all of the terms and
conditions of the RMD Transaction Documents to the same extent as
if it had been originally named as a party thereto.
3. As consideration for the assignment by Assignee of the
Warrant pursuant to the terms of this Agreement, the Assignee
shall pay and credit to the Assignor on the date hereof an amount
equal to $250,000 in the form of a prepayment under the Warrant
to Purchase Common Stock dated as of November 11, 2004, as
amended, issued by Assignee to Assignor, as further set forth in
that certain Addendum to Convertible Debenture and Warrant to
Purchase Common Stock between Assignor and Assignee dated as of
May 24, 2007.
4. This Agreement shall be binding upon, and inure to the
benefit of Assignor and Assignee, and their respective successors
and assigns.
5. Assignee represents and warrants as follows:
a. Assignee is purchasing the RMD Transaction, the Common
Stock issuable upon conversion of the Debenture (the
"Debenture Shares") and the Common Stock issuable upon
conversion or exercise of the Warrant (the "Warrant Shares"
and, collectively with the Debenture, the Debenture Shares
and the Warrant, the "Securities") for its own account, for
investment purposes only and not with a view towards or in
connection with the public sale or distribution thereof in
violation of the Securities Act of 1933, as amended (the
"Securities Act").
b. Assignee is (i) an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Securities
Act, (ii) experienced in making investments of the kind
contemplated by this Agreement, (iii) capable, by reason of
its business and financial experience, of evaluating the
relative merits and risks of an investment in the
Securities, and (iv) able to afford the loss of its
investment in the Securities.
c. Assignee understands that the Securities are being
offered and sold by the Assignor in reliance on an exemption
from the registration requirements of the Securities Act and
equivalent state securities and "blue sky" laws, and that
the Assignor is relying upon the accuracy of, and Assignee's
compliance with, Assignee's representations, warranties and
covenants set forth in this Agreement to determine the
availability of such exemption and the eligibility of
Assignee to purchase the Securities;
d. The Assignee understands that: (i) the Debenture, the
Debenture Shares, the Warrant and the Warrant Shares have
not been and is not being registered under the Securities
Act or any state securities laws, and may not be offered for
sale, sold, assigned or transferred unless (A) subsequently
registered thereunder, or (B) such Assginee shall have
delivered to RMD an opinion of counsel, in a generally
acceptable form, to the effect that such securities to be
sold, assigned or transferred may be sold, assigned or
transferred pursuant to an exemption from such registration
requirements; (ii) any sale of the Securities made in
reliance on Rule 144 under the Securities Act (or a
successor rule thereto) ("Rule 144") may be made only in
accordance with the terms of Rule 144 and further, if Rule
144 is not applicable, any resale of such securities under
circumstances in which the seller (or the person through
whom the sale is made) may be deemed to be an underwriter
(as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities
Act or the rules and regulations of the Securities and
Exchange Commission ("SEC") thereunder; and (iii) neither
RMD nor any other person is under any obligation to register
the Securities under the Securities Act or any state
securities laws or to comply with the terms and conditions
of any exemption thereunder.
e. The Assignee understands that the certificates or other
instruments representing the Securities shall bear a
restrictive legend in form and substance acceptable to RMD
(and a stop transfer order may be placed against transfer of
such stock certificates).
f. The Assignee understands that no United States federal
or state agency or any other government or governmental
agency has passed on or made any recommendation or
endorsement of the Securities, or the fairness or
suitability of the investment in the Securities, nor have
such authorities passed upon or endorsed the merits of the
offering of the Securities.
g. This Agreement has been duly and validly authorized,
executed and delivered by Assignee and is a valid and
binding agreement of Assignee enforceable against it in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally and except as rights to indemnity and
contribution may be limited by federal or state securities
laws or the public policy underlying such laws.
6. Assignee agrees to defend, indemnify and hold harmless
Assignor and its affiliates, officers, directors, shareholders,
employees, partners, agents and representatives from and against
all claims, demands, obligations, losses, liabilities, damages,
recoveries and deficiencies, including interest, penalties and
reasonable attorneys' fees, costs and expenses arising out of,
resulting from or related in any way whatsoever to the
obligations under the RMD Transaction assumed by Assignee herein,
other than those obligations arising prior to the date hereof
resulting from Assignor's gross negligence or willful misconduct,
and the assignment of the RMD Transaction from Assignor to
Assignee pursuant to the terms of this Agreement.
7. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE RMD TRANSACTION. EACH PARTY HERETO (i)
CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS
OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS HEREIN.
8. This Agreement may be executed in counterparts, each of which
when so executed and delivered shall be an original, but both of
which counterparts shall together constitute one and the same
instrument. A facsimile transmission of this signed Agreement
shall be legal and binding on both Parties hereto.
9. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby. The Parties shall endeavor in good-
faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic
effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
10. This Agreement constitutes the entire agreement between the
Parties hereto pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written, of such Parties. No
supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by both Parties. No waiver of
any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
11. Except as may be otherwise provided herein, any notice or
other communication or delivery required or permitted hereunder
shall be in writing and shall be delivered personally, or sent by
telecopier machine or by a nationally recognized overnight
courier service, and shall be deemed given when so delivered
personally, or by telecopier machine or overnight courier service
as follows:
If to the Assignor, to:
Golden Gate Investors, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Assignee, to:
Gameznflix, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Assignor or Assignee may change the foregoing address by
notice given pursuant to this Section 11.
12. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California without
giving effect to the conflict of laws rules thereof or the actual
domiciles of the Parties. Each of the Parties hereby
unconditionally and irrevocably waives the right to a trial by
jury in any action, suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby. Each
of the Parties unconditionally and irrevocably consents to the
exclusive jurisdiction of the court of the State of California
and the Federal District Courts for the State of California with
respect to any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated
hereby, and each of the Parties hereby unconditionally and
irrevocably agrees that the venue of any such action shall be in
the downtown branch of the courts located in San Diego County,
California. If any breach of or to enforce the provisions of
this Agreement is commenced, the court in such action shall award
to the Party in whose favor a judgment is entered, a reasonable
sum as attorney's fees and costs. Such attorney's fees and costs
shall be paid by the non-prevailing Party in such action.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and year first written above.
ASSIGNOR:
Golden Gate Investors, Inc.
/s/ Xxxxxx Xxxx
Xxxxxx Xxxx, Portfolio Manager
ASSIGNEE:
Gameznflix, Inc.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Its: CEO
