FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT
Exhibit 10.9
FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT
THIS FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT (the “Agreement”), dated as of February 23, 2016 (the “Effective Date”), is entered into by and among HOSS PROMOTIONS, LLC, a New York corporation (“Seller”) and ALLIANCE MMA, INC., a Delaware corporation (“Buyer”).
ARTICLE 1
1.1 Definitions. The following terms have the following meanings when used herein:
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“Affiliate” shall mean a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. For purposes of this definition, the terms “control,” “controlled by” and “under common control with” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person and, in the case of an entity, shall require (i) in the case of a corporate entity, direct or indirect ownership of at least a majority of the securities having the right to vote for the election of directors, and (ii) in the case of a non-corporate entity, direct or indirect ownership of at least a majority of the equity interests with the power to direct the management and policies of such non-corporate entity.
“Agreement” means this Asset Purchase Agreement, including all Schedules and Exhibits hereto, as it may be amended from time to time in accordance with its terms.
“Buyer” has the meaning set forth in the preamble hereto.
“Business Day” means any day of the year on which national banking institutions in New York are open to the public for conducting business and are not required or authorized to close.
“Closing” means the closing of the purchase and sale of the Fight Library contemplated by this Agreement which shall occur substantially concurrently with the closing of the IPO.
“Closing Date” means the date set forth in Section 4.1.
“Copyright Transfer Agreement” means the Copyright Transfer Agreement in substantially the form attached hereto as Exhibit A.
“Confidential Information” has the meaning set forth in Section 12.3.
“Encumbrance” shall mean any interest, consensual or otherwise, in property, whether real, personal or mixed property or assets, tangible or intangible, securing an obligation owed to, or a claim by a third Person, or otherwise evidencing an interest of a Person other than the owner of the property, whether such interest is based on common law, statute or contract, and including, but not limited to, any security interest, security title or lien arising from a mortgage, recordation of abstract of judgment, deed of trust, deed to secure debt, encumbrance, restriction, charge, covenant, claim, exception, encroachment, easement, right of way, license, permit, pledge, conditional sale, option trust (constructive or otherwise) or trust receipt or a lease, consignment or bailment for security purposes and other title exceptions and encumbrances affecting the property.
“Copyrights” means (a) any rights in original works of authorship fixed in any tangible medium of expression as set forth in 17 U.S.C. § 101 et. seq.; (b) all registrations for and applications to register the foregoing anywhere in the world; (c) all foreign counterparts and analogous rights anywhere in the world; and (d) all rights in and to any of the foregoing, in each case related to the Fight Library.
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“IPO” means an underwritten public offering of shares of Common Stock or other equity interests which generates cash proceeds sufficient to close on the Target Company Transactions pursuant to which the Common Stock or other equity interests will be listed or quoted on a Trading Market.
“Law” means any federal, state, local or foreign law, statute, code, ordinance, rule or regulation (including rules of any self-regulatory organization).
“Order” shall mean any: (a) order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, subpoena, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court or other Governmental Authority; or (b) agreement with any Governmental Authority entered into in connection with any Proceeding.
“Other Agreements” means, collectively, the Copyright Assignment Agreement and the Agreement.
“Person” means any individual, corporation, partnership, limited partnership, joint venture, limited liability company, trust or unincorporated organization, governmental entity, government or any agency or political subdivision thereof.
“Proceeding” shall mean any action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding and any informal proceeding), prosecution, contest, hearing, inquiry, inquest, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any Governmental Authority.
“Purchase Price” has the meaning set forth in Section 3.1.
“Registration Statement” has the meaning set forth in the recitals.
“Seller” has the meaning set forth in the preamble hereto.
“Target Companies” has the meaning set forth in the recitals.
“Target Company Transactions” has the meaning set forth in the recitals.
“Trading Market” means the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the American Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange or the OTC Bulletin Board.
ARTICLE 2
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ARTICLE 3
3.2 Payment of Purchase Price. The Purchase Price shall be paid at the Closing by delivery:
(a) To Seller of One Hundred Thousand and no/100 dollars ($100,000.00) in cash by wire transfer of immediately available funds to the account designated by Seller at least two (2) Business Days prior to the Closing Date; and
(b) To Seller of number of shares of Common Stock (rounded to the nearest whole number) equal to Two Hundred Thousand and no/100 dollars ($200,000.00) divided by the IPO Price.
ARTICLE 4
4.2 Transactions at Closing. At the Closing, subject to the terms and conditions hereof:
(a) Transfer of Copyrights to Fight Library and Seller’s Closing Deliveries. Seller shall transfer and convey or cause to be transferred and conveyed to Buyer all of the Copyrights to the Fight Library and Seller shall execute and deliver to Buyer each of the Other Agreements and such other good and sufficient instruments of transfer and conveyance as shall be necessary to vest in Buyer title to all of the Copyrights to the Fight Library or as shall be reasonably requested by the Buyer. The Seller shall also deliver to Buyer the Seller Officer’s Certificate required by Section 8.2(b) and all other documents required to be delivered by Seller at Closing pursuant hereto.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
(a) Seller has full corporate power and authority to execute, deliver and perform its obligations under this Agreement and the Other Agreements, and the execution and delivery of this Agreement and the Other Agreements and the performance of all of its obligations hereunder and thereunder has been duly and validly authorized and approved by all necessary corporate action of the Seller, including approval of this Agreement and the Other Agreements by the board of directors of the Seller.
(b) Subject to obtaining any consents of Persons listed on Schedule 5.5, the signing, delivery and performance of this Agreement and the Other Agreements by Seller is not prohibited or limited by, and will not result in the breach of or a default under, or conflict with any obligation of Seller with respect to the Copyrights in the Fight Library under any material agreement or instrument to which Seller is a party. This Agreement has been, and on the Closing Date the Other Agreements will have been, duly executed and delivered by Seller and constitutes, or, in the case of the Other Agreements, will constitute, the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with their respective terms, except as enforceability may be limited or affected by applicable bankruptcy, insolvency, moratorium, reorganization or other laws of general application relating to or affecting creditors’ rights generally.
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5.6 Absence of Undisclosed Liabilities. To Seller’s knowledge, Seller has not incurred any material liabilities or obligations with respect to the Copyrights in the Fight Library (whether accrued, absolute, contingent or otherwise), which continue to be outstanding, except as otherwise expressly disclosed in this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
6.1 Organization. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own its property and to carry on its business as it is now being conducted.
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ARTICLE 7
COVENANTS AND CONDUCT OF SELLER
FROM THE DATE OF EXECUTION OF THIS AGREEMENT TO THE CLOSING DATE
Seller and the Seller, jointly and severally, covenant that from the date of the execution of this Agreement to the Closing Date, Seller shall:
7.1 Encumbrance of Copyrights in the Fighter Library. Not cause any Encumbrance of any kind to be placed upon any of the Copyrights in the Fight Library.
7.2 Disposition of Copyrights in the Fighter Library. Not sell or transfer any of the Copyrights in the Fight Library, except for single commercial end user licenses on a fight-by-fight basis in each case in the ordinary course of business and consistent with past practice.
ARTICLE 8
(c) Payment of Purchase Price. Buyer shall have paid the Purchase Price.
(d) No Action or Proceeding. No legal or regulatory action or proceeding shall be pending or threatened by any Person to enjoin, restrict or prohibit the purchase and sale of the Copyrights in the Fight Library contemplated hereby.
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(c) No Action or Proceeding. No legal or regulatory action or proceeding shall be pending or threatened by any Person to enjoin, restrict or prohibit the purchase and sale of the Copyrights in the Fight Library contemplated hereby.
(f) IPO. Buyer shall have completed the IPO.
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ARTICLE 9
POST-CLOSING COVENANTS, OTHER AGREEMENTS
9.1 Availability of Records. After the Closing, Buyer, shall make available to Seller as reasonably requested by Seller, its agents and representatives, all information, records and documents relating to the Copyrights in the Fight Library for all periods prior to Closing. Prior to destroying any records related to the Copyrights in the Fighter Library for the period prior to the Closing, Buyer shall notify Seller ninety (90) days in advance of any such proposed destruction of its intent to destroy such records, and Buyer will permit Seller to retain any such records.
9.2 Post-Closing Delivery. Seller agrees to arrange for physical delivery to Buyer of all audiovisual works and records related to the Copyrights in the Fight Library in Seller’s possession. The Copyrights in the Fight Library will be delivered to Buyer in electronic form consistent with common industry practice.
ARTICLE 10
ARTICLE 11
(a) with the mutual consent of Buyer and Seller;
(b) by Buyer, if it is not then in material breach of its obligations under this Agreement and if (A) any of Seller’s representations and warranties contained in this Agreement shall be inaccurate such that the condition set forth in Section 8.2(b) would not be satisfied, or (B) any of covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.2(a) would not be satisfied; provided, however, that Buyer shall not terminate this Agreement under this Section on account of any breach or inaccuracy that is curable by Seller unless Seller fails to cure such inaccuracy or breach within ten (10) Business Days after receiving written notice from Buyer of such inaccuracy or breach; or
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(c) by Seller, if it is not then in material breach of its obligations under this Agreement and if (A) any of Buyer’s representations and warranties contained in this Agreement shall be inaccurate such that the condition set forth in Section 8.1(b) would not be satisfied, or (B) any of Buyer’s covenants contained in this Agreement shall have been breached such that the condition set forth in Section 8.1(a) would not be satisfied; provided, however, that Seller shall not terminate this Agreement under this Section on account of any breach or inaccuracy that is curable by Buyer unless Buyer fails to cure such inaccuracy or breach within ten (10) Business Days after receiving written notice from Seller of such inaccuracy or breach.
(d) by Buyer or Seller if the Closing has not occurred on or prior to June 30, 2016, as such date may be extended by mutual agreement of Buyer and Seller, upon written notice by Buyer to Seller or Seller to Buyer; provided that the Person providing notice of termination is not then in material breach of any representation, warranty, covenant or agreement contained in this Agreement.
(a) In the event that this Agreement is validly terminated as provided herein, then each of the parties shall be relieved of its duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to Buyer or Seller; provided, however, that the obligations of the parties set forth in Article 10, this Section 11.3 and Sections 12.2, 12.3, 12.5, 12.6, 12.8, 12.12, and 12.13 hereof shall survive any such termination and shall be enforceable hereunder.
(b) Nothing in this Section 11.3 shall relieve Buyer or Seller of any liability for a material breach of this Agreement prior to the date of termination, the damages recoverable by the non-breaching party shall include all attorneys’ fees reasonably incurred by such party in connection with the transactions contemplated hereby.
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ARTICLE 12
(a) As may be required by the Securities Act for inclusion in the Registration Statement; or
(b) As may be required by applicable Law provided that, in any such event, the party required to make the disclosure will (I) provide the other party with prompt written notice of any such requirement so that such other party may seek a protective order or other appropriate remedy, (II) consult with and exercise in good faith all reasonable efforts to mutually agree with the other party regarding the nature, extent and form of such disclosure, (III) limit disclosure of Confidential Information to what is legally required to be disclosed, and (IV) exercise its best efforts to preserve the confidentiality of any such Confidential Information; or
(c) Buyer may disclose the terms of this Agreement and the transactions contemplated hereby to an actual or prospective underwriter, lender, investor, partner or agent, subject to a non-disclosure agreement pursuant to which such lender, investor, partner or agent agrees to be bound by the terms of this Section 12.2; or
(d) Disclosure to a party’s representatives and advisors in connection with advising such party and preparing its tax returns.
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12.8 Governing Law. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware without regard to the conflicts of laws provisions thereof.
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Notices shall be addressed as follows:
If to Buyer, to:
Alliance MMA, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, III, CEO
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxx Song & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Seller, to:
Hoss Promotions, LLC
000 Xxxxxxx Xxxxxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxx Xxxxxx
Fax: (000) 000-0000
provided, however, at the time of mailing or within three (3) Business Days thereafter there is or occurs a labor dispute or other event that might reasonably be expected to disrupt the delivery of documents by mail, any communication, notice or consent provided for herein shall be given in person or by means of facsimile or by overnight courier, and further provide that if any party shall have designated a different address by notice to the others, then to the last address so designated.
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12.16 Submission to Jurisdiction. Each of Buyer and Seller (a) submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or any other federal or state court in the State of Delaware if it is determined that the Court of Chancery does not have jurisdiction over such action) in any action or proceeding arising out of or relating to this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined only in any such court, and (c) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each party waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of the other party with respect thereto. Either party may make service on the other party by sending or delivering a copy of the process to the Party to be served at the address and in the manner provided for the giving of notices in Section 12.12. Nothing in this Section 12.16, however, shall affect the right of any Party to serve legal process in any other manner permitted by law.
[Signature Page to Fight Library Copyright Purchase Agreement Follows]
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[Signature Page to Fight Library Copyright Purchase Agreement]
SELLER: | |||
HOSS PROMOTIONS, LLC | |||
By: | /s/ Xxxxx Xxxxxx | ||
Name: | Xx. Xxxxx Xxxxxx | ||
Title: | Managing Member | ||
BUYER: | |||
ALLIANCE MMA, INC. | |||
By: | /s/ Xxxxxx Xxxxxxxxx | ||
Name: Xxxxxx Xxxxxxxxx | |||
Title: Director |
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EXHIBITS AND SCHEDULES
Exhibits
Exhibit A: | Form of Copyright Transfer Agreement |
Exhibit B: | Form of Buyer Officer’s Certificate |
Exhibit C: | Form of Seller Officer’s Certificate |
Schedules
Schedule 5.3 | Title |
Schedule 5.4 | Intellectual Property |
Schedule 5.5 | Required Consents |
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Exhibit A
COPYRIGHT TRANSFER AGREEMENT
This COPYRIGHT TRANSFER AGREEMENT dated as of ______ __, 2016 is entered into by and among HOSS PROMOTIONS, LLC, a New York corporation (“Assignor”) and ALLIANCE MMA, INC., a Delaware corporation (“Assignee”) and is delivered pursuant to, and subject to the terms of, that certain FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT, dated as of February 23, 2016 (the “Copyright Purchase Agreement”), by and among Assignor and Assignee.
1. Assignor hereby transfers, assigns and otherwise conveys to Assignee, all of Assignor’s rights, title, and interest in, to, and under the following:
A. the Copyrights and applications for registration of copyrights included in the Copyrights, and all corresponding rights, including, without limitation, moral rights, that are or may be secured under the laws of the United States or any other jurisdiction, now or hereafter in effect; and
B. all proceeds of the Copyrights transferred pursuant to subsection 1(A) above, including, without limitation, the right to xxx for, and collect on, (i) any claim by Assignor against third parties for past, present, or future infringement of the such Copyrights, and (ii) any income, royalties, or payments due or payable and related exclusively to such Copyrights as of the date of this assignment or thereafter.
2. Assignor authorizes the pertinent officials of the United States Copyright Office and the pertinent official of similar offices or governmental agencies in any applicable jurisdictions outside the United States to record the transfer of the Copyrights and related registrations and applications for registration set forth on Schedule A to Assignee as assignee of Assignor’s entire rights, title and interest therein. Assignor agrees to further execute any documents reasonably necessary to effect the assignment specified herein or to confirm Assignee’s ownership of the Copyrights.
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3. The terms of the Copyright Purchase Agreement are incorporated herein by reference. Except as set forth herein, the rights and obligations of the Assignor and Assignee set forth in the Copyright Purchase Agreement remain unmodified. Capitalized terms used herein or in the Schedule A hereto but not otherwise defined herein or in the Schedule 1 hereto shall have the respective meanings given to them in the Copyright Purchase Agreement.
4. This Copyright Transfer Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware without regard to the conflicts of laws provisions thereof.
5. This Copyright Transfer Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.
[Signature Page for Copyright Transfer Agreement to follow]
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[Signature Page for Copyright Property Transfer Agreement]
ASSIGNOR: | |||
HOSS PROMOTIONS, LLC | |||
By: | /s/ Xxxxx Xxxxxx | ||
Name: | Xx. Xxxxx Xxxxxx | ||
Title: | Managing Member | ||
ASSIGNEE: | |||
ALLIANCE MMA, INC. | |||
By: | /s/ Xxxx X. Xxxxxx | ||
Name: | Xxxx X. Xxxxxx | ||
Title: | CEO |
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SCHEDULE A
COPYRIGHTS
The CFFC Fight Library including all Cage Fury Fighting Championship and CFFC Shows Numbered 7 through 34 listed in the Go Fight Live MMA video database located a xxx.xxx.xx including any derivative works of such shows, together with all other copyrights in and to all the copyrightable materials included in the Copyrights in the Fight Library.
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Exhibit B
OFFICER’S CERTIFICATE
OF
ALLIANCE MMA, INC.
Reference is made to that certain FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT (the “Agreement”), dated as of February 23, 2016 (the “Effective Date”) by and among HOSS PROMOTIONS, LLC, a New York corporation (“Seller”) and ALLIANCE MMA, INC., a Delaware corporation (“Buyer”). Capitalized terms used herein and not otherwise defined herein shall have the meaning given to them in the Agreement.
The undersigned hereby certifies, on behalf of the Buyer on the Closing Date, that:
(a) he is the Chief Executive Officer of Buyer, and
(b) each of the conditions specified in clauses (a) through (f) of Section 8.1 of the Agreement are satisfied in all respects.
(c) the representations and warranties of Buyer contained in Article 6 of Agreement that are qualified as to materiality are true and correct, and all other representations and warranties of Seller contained in Article 5 of the Agreement are true and correct except for breaches of, or inaccuracies in, such representations and warranties that, in the aggregate, would not have a material adverse effect on the expected benefits to Seller or the Seller of the transactions contemplated by the Agreement taken as a whole.
Dated as of __________ __, 2016.
ALLIANCE MMA, INC. | ||
By: | ||
Name: Xxxx X. Xxxxxx | ||
Title: Chief Executive Officer |
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Exhibit C
OFFICER’S CERTIFICATE
OF
HOSS PROMOTIONS, LLC
FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT (the “Agreement”), dated as of February 23, 2016 (the “Effective Date”) by and among HOSS PROMOTIONS, LLC, a New York corporation (“Seller”) and ALLIANCE MMA, INC., a Delaware corporation (“Buyer”). Capitalized terms used herein and not otherwise defined herein shall have the meaning given to them in the Agreement.
The undersigned hereby certifies, on behalf of the Seller on the Closing Date, that:
(a) she is the Managing Member of Seller, and
(b) each of the conditions specified in clauses (a) through (f) of Section 8.2 of the Agreement are satisfied in all respects.
(c) the representations and warranties of Seller and the Seller contained in Article 5 of Agreement that are qualified as to materiality are true and correct, and all other representations and warranties of Seller and the Seller contained in Article 5 of the Agreement are true and correct except for breaches of, or inaccuracies in, such representations and warranties that, in the aggregate, would not have a material adverse effect on the expected benefits to Buyer of the transactions contemplated by the Agreement taken as a whole.
Dated as of __________ __, 2016.
HOSS PROMOTIONS, LLC | ||
By: | ||
Name: Xx. Xxxxx Xxxxxx | ||
Title: Managing Member |
C-1 |
SCHEDULES TO
HOSS FIGHT LIBRARY COPYRIGHT PURCHASE AGREEMENT
Schedule 5.3 | Title |
None | |
Schedule 5.4 | Intellectual Property |
None | |
Schedule 5.5 | Required Consents |
None |
C-2 |