ASSIGNMENT OF RIGHTS AGREEMENT
This
Assignment of Rights (the “Agreement”) is entered into as of December 9, 2010
(the “Closing Date”) by
and between New Horizon, Inc., a Texas corporation (“Assignor”), and I-Web Media
Inc., a Delaware corporation (“Assignee”). The Assignor and the Assignee
shall each be referred to as a “Party” and collectively as the
“Parties.”
The Assignor and the Assignee agree as
follows with respect to the Assignment by the Assignor to the Assignee of
certain rights and interests held by Assignor.
ARTICLE
I
ASSIGNMENT OF
INTEREST
1.1 Assignment of
Interest. The Assignor hereby sells, transfers, assigns and
delivers to the Assignee, free and clear of any liens or encumbrances of any
kind which have been created or granted by the Assignor all of the Assignor’s
right, title and interest in the assets listed on Exhibit A (the
“Assigned Assets”).
ARTICLE
II
REPRESENTATIONS &
WARRANTIES OF ASSIGNOR
2.1 The
Assignee shall be entitled to the Assigned Assets.
2.2 The
Assignor has not entered into any agreements or granted any rights, the
performance of which would in any way prevent, limit or restrict the performance
of any of the terms of this Agreement.
2.3 The
Assignor has no knowledge of claims by any person, which, if sustained, would be
contrary to Assignor’s warranties made within this Agreement.
2.4 The
rights and interests hereby assigned are still owing to Assignor over and above
all claims for set-off or otherwise.
2.5 The
Assignor will not receive and accept the assigned rights, unless and expressly
for the sole purpose of delivering such assigned rights and title or funds
resulting therefrom to Assignee.
ARTICLE
III
MISCELLANEOUS
3.1 Amendments; No
Waivers.
(a) Any
provision of this Agreement may be amended or waived if, and only if, such
amendment or waiver is in writing and signed, in the case of an amendment, by
the Assignor and the Assignee, or in the case of a waiver, by the party against
whom the waiver is to be effective.
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(b) No
waiver by a party of any default, misrepresentation or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent occurrence. No failure or delay by a party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law.
3.2 Expenses. All costs
and expenses incurred in connection with the negotiation and execution of this
Agreement and in closing and carrying out the transactions contemplated hereby
shall be paid by the party incurring such cost or expense. This
Section shall survive any termination of this Agreement.
3.3 Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
3.4 Counterparts;
Effectiveness. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument and delivered in
person. Signatures transmitted electronically by .pdf file or
facsimile shall be binding for all purposes.
3.5 Severability. If
any provision of this Agreement, or the application thereof to any Person, place
or circumstance, shall be held to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other Persons,
places and circumstances shall remain in full force and effect if, but only if,
after excluding the portion deemed to be unenforceable, the remaining terms
shall provide for the consummation of the transactions contemplated hereby in
substantially the same manner as originally set forth at the later of the date
this Agreement was executed or last amended.
3.6 Disclosure to Third
Parties. This Agreement may be disclosed to any and all
Third-Parties for the purposes manifested herein.
3.7 Governing Law and
Venue. This Agreement is executed pursuant to and shall be
interpreted and governed for all purposes under the laws of the State of
Texas. Any cause of action brought to enforce any provision of this
Agreement shall be brought in the appropriate court in Fort Bend County,
Texas.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above
written.
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“Assignor”
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“Assignee”
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New
Horizon, Inc.
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a
Texas corporation
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a
Delaware corporation
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/s/ M. Xxxxx Xxxxxxx
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/s/ Xxxxx X. Xxxxxxxxxx
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By:
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M.
Xxxxx Xxxxxxx
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By:
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Xxxxx
X. Xxxxxxxxxx
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Its:
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President
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Its:
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Chief
Executive
Officer
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Exhibit
A
Assigned
Assets
The
Seller owns the rights to receive certain cash distributions from the sale of
certain Business Products as defined in that certain Stock Purchase Agreement by
and between Sunbeam Products, Inc., a Delaware corporation (dba Jarden Consumers
Solutions), Desmond Oregon, LLC, an Oregon limited liability company, and the
selling shareholders (the “Sunbeam Agreement”).
Under the
Sunbeam Agreement, the Sellers Representative (as defined in the Sunbeam
Agreement) will distribute certain amounts arising from sales of the Business
Products. The funds to be distributed to the sellers by the Sellers
Representative are calculated using the following formulas:
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•
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Profit Sharing A – The
Profit Sharing A pays 20% of EBITDA for the 3 subsequent years following
the Product Launch Date (1/01/11), paid at end of each EBITDA year.
The Profit Sharing is net of any investments, or negative EBITDA, made
following the Closing date. No cap.
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•
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Profit Sharing B –
Profit Sharing B pays 20% of EBITDA for the 2 subsequent years following
Year 3 (Year 4 and 5) paid at end of each EBITDA year. The Profit
Sharing B payments shall NOT be offset against any negative Business
EBITDA from any prior periods.
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•
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Earn Out A – An amount
six times the average Business EBITDA Year 1, Year 2, and Year 3 less the
aggregate amount of the Profit Sharing A Payments, due at the end of Year
3. The Earn Out is net of any negative EBITDA associated with Year
3. A cap of $42.5M exists with this
payout.
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Earn Out B – A flat
amount of $25.0M is paid if the cumulative EBITDA is greater than or equal
to $250.0M for Years 1 through 5. The Earn Out B Payment shall not be
offset against any negative Business EBITDA from any prior
periods.
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Of the
total sums determined using the above formulas, the Assigned Assets consist of
the following:
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o
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98.18% (Preferred B
distribution) of the first $6,021,921 distributed by the Sellers
Representative (as defined in the Sunbeam
Agreement).
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o
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0% (Preferred A
distribution) of the next $1,522,000 distributed by the Sellers
Representative.
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o
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60.07% (Common
distribution) of all funds thereafter distributed by the Sellers
Representative.
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