EXHIBIT 10.6
ASSET TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSET TRANSFER, ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement")
is made and entered into the 16th day of April, 1996, by and between Bexy
Communications, Inc. a Delaware corporation ("Assignor"), and Mar Ventures Inc.,
a Delaware corporation ("Assignee").
RECITALS
WHEREAS, Assignor is a company engaged in the media business (the
"Business");
WHEREAS, Assignor has entered into a certain Agreement and Plan of
Reorganization dated as of April 16, 1996 (the "Reorganization Agreement") by
and among Assignor, Cheniere Energy Operation Co., Inc. ("Cheniere"), the
stockholders of Cheniere and Xxxxx Xxxxx, pursuant to which Assignor will effect
a reorganization (the "Reorganization") of the management, business, capital
structure and operations of Assignor;
WHEREAS, in connection with the Reorganization, Assignor contemplates
acquiring the business of a company engaged in the oil and gas exploration
business;
WHEREAS, it is contemplated by the Reorganization Agreement, that
Assignor transfer all of its assets to Assignee and that Assignee assume all of
the liabilities of Assignor, including but not limited to, its obligations under
the Reorganization Agreement;
WHEREAS, Assignor has formed Assignee to receive the transfer of and
hold Assignor's assets (the "Assets") and operate the Business; and
WHEREAS, the parties desire to set forth the terms of the transfer and
assumption herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. TRANSFER, ASSIGNMENT AND ASSUMPTION.
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1.1 Transfer and Assignment of Assets. Assignor hereby grants,
conveys, assigns and transfers to Assignee all of its right, title and interest
in and to all of the Assets, including, but not limited to, the following:
1.1.1 Intellectual Property. All of those trademarks' trade
names, copyrights, service marks, licenses or patents listed in the Schedule of
Patents, Copyrights and Trademarks attached hereto as Exhibit A and incorporated
herein by referenced (the "Intellectual Property");
1.1.2 Personal Property. All of those items of furniture,
fixtures, all associated production equipment and other equipment, computer
equipment, hardware and other tangible personal property listed on the Schedule
of Personal Property attached hereto as Exhibit B and incorporated herein by
reference (the "Personal Property");
1.1.3 Program Agreements. All of the Assignor's right, title and
interest in and to those certain production and distribution agreements and
contracts (the "Agreements") related to the attached hereto as Exhibit C and
incorporated herein by reference;
1.1.4 Equipment Leases. All of Assignor's right, title and
interest as lessee in and to those certain equipment leases for leased equipment
owned by Assignor listed on the Schedule of Equipment Leases attached hereto as
Exhibit D and incorporated herein by reference (the "Equipment Leases");
1.1.5 Contracts, Accounts Receivable and Inventory. Any
contracts, accounts receivable and inventory of Assignor relating exclusively to
the Business attached hereto as Exhibit E (the "Contracts");
1.1.6 All Other Assets. All of the other assets of Assignor
described in Exhibit F and incorporated herein by reference whether or not
specifically referred to in any of the preceding paragraphs of this Section 1.
1.2 Assumption of Liabilities. Assignee accepts the grant,
conveyance, assignment and transfer of the Assets as provided in Section 1.1 and
in exchange for Assignor's transfer of Assets, the Assignee agrees to
irrevocably and unconditionally assume all of the liabilities (including taxes)
of Assignor with respect to the Business or any of the Assets, including, but
not limited to, each of those liabilities described on the list attached as
Exhibit G and incorporated herein by reference (the "Assumed Liabilities"). The
Assignor does not have in effect:
1.2.1 any collective bargaining agreements; or
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1.2.2 any employee benefit plan as defined in ERISA.
2. CONSIDERATION. In consideration for the transfer of the Assets
and the assumption of Assumed Liabilities of the Business, Assignee shall issue
452,000 of its shares of common stock to Assignor.
3. NO FURTHER CONVEYANCE NECESSARY. This Agreement shall
effectively assign, transfer and convey all of the interest in the Assets from
Assignor to Assignee without any further documents of conveyance. Likewise,
this Agreement shall fully evidence the assumption of all of the Assumed
Liabilities by Assignee without any further instrument of conveyance or
assumption.
4. REPRESENTATIONS OF ASSIGNOR. Assignor represents and warrants as
follows as of the date hereof:
4.1 Organization, etc. Assignor is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the corporate powers necessary to own its property and to carry
on its business as now conducted and as proposed to be conducted.
4.2 Authorization. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
Assignor. This Agreement constitutes the valid and binding obligation of
Assignor, enforceable against it in accordance with its terms.
4.3 No Breach. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not violate,
result in any breach of, or constitute a default under (i) Assignor's
Certificate of Incorporation or Bylaws, (ii) any material agreement to which
Assignor is a party or by which Assignor is bound, (iii) any order, judgment,
injunction or decree of any court, arbitrator or governmental agency binding
upon Assignor or by which any of its material assets are bound or (iv) any law,
rule or regulation applicable to Assignor.
4.4 Tax and Other Returns and Reports. Except as set forth in
Schedule of Assumed Liabilities in Exhibit G, delivered concurrently herewith,
(i) all tax returns and tax reports required to be filed by Assignor have been
filed with the appropriate governmental agencies in all jurisdictions in which
such returns and reports are required to be filed and where failure to file
would materially and adversely effect Assignor, (ii) all
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government income, franchise, property and other taxes paid or chargeable to the
operation of Assignor in accordance with its normal initial accounting and
operational procedure (including interest and penalties) (x) have been fully
paid or (y) are being contested in good faith by appropriate proceedings and are
not material to Assignor and (iii) no issues have been raised or are currently
pending by the IRS or any other governmental taxing authority in connection with
any of the returns and reports referred to in the foregoing clause (i) which,
individually or in the aggregate, might have a material adverse effect on
Assignor and (iv) no waivers of the applicable statue of limitations have been
executed.
4.5 Title to Property. Assignor will transfer to Assignee on
the date hereof good and marketable title to the Assets, free and clear of
mortgages, pledges, charges, encumbrances, equities, claims, covenants,
conditions or reclaims, except for matters that, in the aggregate are not
substantial in amount and do not materially detract from or interfere with the
present or intended use of any of the Assets, or materially impair the Business
(other than the Assumed Liabilities).
4.6 Effect of Representations. The representations and
warranties of Assignor set forth in Section 3 are made solely for the purpose of
this Agreement and shall not (i) survive the consummation of the transactions
contemplated by this Agreement, (ii) inure to the benefit of, or be enforceable
by or against, either the successors or permitted assigns of the parties hereto
or any other person, or (iii) give rise to any action or claim against Assignor,
including, without limitation, any action for negligent misrepresentation.
5. INDEMNIFICATION. The Assignor and Assignee agree to
indemnify and hold harmless each other as follows:
5.1 Assignor shall indemnify, defend and hold harmless Assignee
from any and all loss, cost, expense and liability (including attorneys' fees)
incurred in connection with any claim or asserted claim which may be made
against Assignee and which arises directly or indirectly from any breach of this
Agreement by Assignor.
5.2 Assignee shall indemnify, defend and hold harmless Assignor
from any and all loss, cost, expense and liability (including attorneys' fees)
incurred in connection with any claim or asserted claim which may be made
against Assignor and which arises directly or indirectly from any breach of this
Agreement by Assignee.
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5.3 Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against either party
hereunder, the indemnified party will notify the other party in writing of the
commencement thereof and the other party shall, subject to the provisions stated
below, assume the defense of such action (including the employment of counsel,
who shall be counsel reasonably satisfactory to the indemnified party and shall
not be counsel to the other party), and the payment of expenses insofar as such
action shall relate to any alleged liability in respect of which indemnity as
available. The indemnified party shall have the right to employ separate
counsel in any action and to participate in the defense thereof, but the fees
and expenses of its counsel shall not be at the expense of the other party
unless the employment of that counsel has been specifically authorized by the
other party.
6. ACCESS TO INFORMATION. Assignor and Assignee and each of their
counsel, accountants and other representatives shall have full access during
normal business hours to all properties, books, accounts, records, contracts and
documents of or relating to the business of each other, and each of Assignor and
Assignee shall furnish to each other and his representatives all information
concerning the business, finances and properties of the other, that may
reasonably be requested in connection with the transactions contemplated hereby.
Assignor and Assignee will treat all information so obtained as confidential and
preparation to this Agreement.
7. DISTRIBUTION OF ASSIGNEE SHARES. It is contemplated that such
shares shall be distributed by Assignor to its stockholders or record as of May
15, 1996, subject to approval of such distribution by the stockholders of
Assignor at a special meeting of stockholders to be called to approve the
Reorganization and the Closing as described in the Reorganization Agreement.
8. REPRESENTATIONS OF ASSIGNEE. Assignee represents and warrants as
follows:
8.1 Organization, etc. Assignee is a corporation duly
organized and validly existing under the laws of the State of Delaware and has
the corporate powers necessary to own its property and carry on its business as
proposed to be conducted.
8.2 Authorization. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the part of
Assignee. This Agreement constitutes the valid and binding
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obligation of Assignee, enforceable against it in accordance with its terms.
8.3 No Breach. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby will not violate
(i) the Certificate of Incorporation or Bylaws of Assignee, (ii) any material
agreement to which Assignee is a party or by which Assignee is bound, (iii) any
order, judgment, injunction or decree of any court, arbitrator or governmental
agency binding upon Assignee or by which any of its material assets are bound or
(iv) any law, rule or regulation applicable to Assignee.
8.4 Effect of Representations. The representations and
warranties of Assignee set forth in paragraphs 8.1, 8.2 and 8.3 are made solely
for the purpose of this Agreement and shall survive the consummation of the
transactions contemplated by this Agreement, and inure to the benefit of, or be
enforceable by, either the successors or permitted assigns of Assignor.
9. MISCELLANEOUS.
9.1 Assignment. No assignment or transfer of any interest,
right or obligation of any party hereunder shall be allowed without the prior
written consent of all parties to this Agreement.
9.2 Amendments. This Agreement may not be amended,
supplemented or otherwise modified except in writing signed by or on behalf of
each party hereto.
9.3 Severability. In the event that any provision of this
Agreement shall be held to be invalid, illegal or unenforceable, in whole or in
part, such invalidity, illegality or unenforceability shall not in any way
whatsoever affect the validity of the other provisions of this Agreement and
such other provisions shall remain in full force and effect.
9.4 Further Assurances. Each of the parties hereto agrees
that, from and after the date hereof upon the reasonable request of the other
party hereto and without further consideration, such party shall execute and
deliver to such other party such documents and shall take such other actions as
such other party may reasonably request in order to carry out the purposes and
intentions of this Agreement, including, without limitation, the vesting in
Assignee of the title to the Assets in accordance with such terms of this
Agreement and the correction of related errors and defects.
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9.5 Governing Law. This Agreement shall be governed by the
laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ASSIGNOR:
BEXY COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/Xxxxx Xxxxx
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Its: President
ASSIGNEE:
MAR VENTURES, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
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Its: President
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EXHIBIT A
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SCHEDULE OF PATENTS, COPYRIGHTS AND TRADEMARKS
A-1
EXHIBIT C
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SCHEDULE OF PROGRAM AGREEMENTS
C-1
EXHIBIT D
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SCHEDULE OF EQUIPMENT LEASES
D-1
EXHIBIT E
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CONTRACTS
E-1
EXHIBIT F
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SCHEDULE OF OTHER ASSETS
F-1
EXHIBIT G
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SCHEDULE OF ASSUMED LIABILITIES
1. ALL LIABILITIES AS SHOWN ON BEXY'S FEBRUARY 29, 1996, FORM 10-QSB.
2. ALL ACCOUNTS PAYABLE, OBLIGATIONS AND ACCRUED COSTS RELATING TO THE
OPERATION OF BEXY'S BUSINESS DURING THE PERIOD OF MARCH 1, 1996, THROUGH
THE CLOSING (AS DEFINED IN THE REORGANIZATION AGREEMENT).
3. ALL OBLIGATIONS OF BEXY UNDER THAT CERTAIN AGREEMENT AND PLAN OF
REORGANIZATION.
G-1
