ASSIGNMENT AND ACKNOWLEDGMENT
THIS
ASSIGNMENT AND ACKNOWLEDGMENT (the “Assignment”), dated as of March 7, 2007, is
entered into by and among Xxxxxx Center, Inc., a Delaware corporation; Xxxxxx
Health and Media, Inc., the wholly-owned subsidiary of Xxxxxx Center, Inc.
(Xxxxxx Center, Inc. and Xxxxxx Health and Media are collectively referred
to
herein as the “Company”); and Xxxxx X.X. Xxxxxx, LCSW, Ph.D., an individual
(“Xx. Xxxxxx”). The Company and Xx. Xxxxxx are sometimes referred to herein as
“party” or collectively as “parties”.
RECITALS
WHEREAS,
the Company has executed a secured convertible promissory note in favor of
The
Hunter Fund Ltd. (“Hunter Fund”) dated October 6, 2006 pursuant to which Hunter
Fund loaned Two Hundred Thousand Dollars ($200,000.00) to the Company (the
“2006
Note”);
WHEREAS,
the Company has executed a secured convertible promissory note in favor of
the
Hunter Fund dated as of the date hereof pursuant to which Hunter Fund has agreed
to loan Two Hundred Twenty-Five Thousand Dollars ($225,000.00) to the Company
(the “2007 Note,” and together with the 2006 Note, the “Notes”);
WHEREAS,
Xx. Xxxxxx is employed by the Company as President pursuant to that certain
Employment Agreement, dated as of June 16, 2005 (as amended, the “Employment
Agreement”), a copy of which is attached hereto as Exhibit
A;
and
WHEREAS,
it is a condition to the Hunter Fund’s obligation to fund the 2007 Note that
each party execute and deliver this Assignment to the other party, assigning
to
the Company certain rights created or licensed by Xx. Xxxxxx in connection
with
services provided to the Company pursuant to the Employment
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
contained, and for other good and valuable consideration, it is hereby agreed
by
and between the parties hereto as follows:
1. Representations
and Warranties. Xx.
Xxxxxx represents and warrants to the Company that the agreements set forth
on
Schedule
1
attached
hereto represent all agreements entered into by Xx. Xxxxxx, either in her
individual capacity or through affiliated entities, in connection with the
Services, as defined in the Employment Agreement and as rendered pursuant to
the
Employment Agreement.
2. Assignment
of Revenue.
(a) Subject
to Section 2(b) below, Xx. Xxxxxx hereby grants, transfers, and assigns to
the
Company, to the extent permitted by law, any and all net revenues generated
(i)
as a result of the agreements set forth on Schedule
1
as long
as Xx. Xxxxxx continues to receive her annual salary of Two Hundred Thousand
Dollars ($200,000.00) pursuant to the terms and conditions of the Employment
Agreement; and (ii) in connection with any Products (as defined in the
Employment Agreement), Services, and licenses related thereto, created or
performed during the term of her Employment Agreement (regardless of whether
such revenue is derived from agreements entered into by Xx. Xxxxxx, individually
or companies affiliated with Xx. Xxxxxx) as long as Xx. Xxxxxx continues to
receive her annual salary of Two Hundred Thousand Dollars ($200,000.00) pursuant
to the terms and conditions of the Employment Agreement. Notwithstanding
anything in this Xxxxxxx 0, Xx. Xxxxxx shall not be required to pay or
contribute to the Company any income, revenue or other compensation derived
from
honorarium fees, live speaking engagements, or any real estate owned by Xx.
Xxxxxx.
-1-
(b) In
the
event that the Company becomes insolvent and enters into bankruptcy, Xx.
Xxxxxx’x xxxxx, transfer, and assignment of net revenues to the Company under
Section 2(a) shall continue as long as Xx. Xxxxxx is entitled to and receives
her annual salary of Two Hundred Thousand Dollars ($200,000.00) pursuant to
the
terms and conditions of the Employment Agreement; provided
that, however,
if the
Company fails to generate at least Two Hundred Thousand Dollars ($200,000.00)
in
gross revenues in any given fiscal year in which the Company is in bankruptcy,
then Xx. Xxxxxx shall only be entitled to receive as compensation under her
Employment Agreement such lesser amount equal to the gross revenues generated
by
the Company in such fiscal year. In any given fiscal year in which the Company
is in bankruptcy, Xx. Xxxxxx shall not be entitled to receive the difference
between her $200,000 salary and such lesser amount that may have been paid
to
her in the previous fiscal year under this Section 2(b). Solely for purposes
of
exemplification, if the Company generated gross revenues of $150,000 in Year
1
of bankruptcy, Xx. Xxxxxx shall be entitled to receive $150,000 as her annual
salary. In Year 2 of bankruptcy, Xx. Xxxxxx shall not be entitled to receive
the
$50,000 difference but instead shall be entitled to receive up to her $200,000
salary or such lesser amount equal to the amount of the gross revenues generated
in Year 2.
(c) Nothing
in this Section 2 shall be interpreted to prevent the Company and Xx. Xxxxxx
from agreeing to modify the amount and terms of Xx. Xxxxxx’x annual salary under
her Employment Agreement, and such modification shall not affect Xx. Xxxxxx’x
xxxxx, transfer, and assignment of net revenues to the Company under Sections
2(a) and 2(b). In addition, Xx. Xxxxxx may not circumvent her obligations under
Sections 2(a) and 2(b) by intentionally causing the Company to withhold payment
of her annual salary.
(d) If
Xx.
Xxxxxx’x xxxxx, transfer, and assignment of net revenues to the Company under
Sections 2(a) and 2(b), above, terminates during the term of the Notes, Xx.
Xxxxxx and Xx. Xxxxxx Xxxxxxx (“Xx. Xxxxxxx”) shall transfer and assign all of
the shares of the Company’s common stock owned by them to the Holder of the
Notes (as Holder is defined in the Notes). In connection therewith, Xx. Xxxxxx
and Xx. Xxxxxxx agree to execute any and all documents and instruments as may
reasonably be required in order to effectuate the terms and intentions of this
Section 2(d).
3. Enforceability.
If any
provision hereof is found by a court of competent jurisdiction to be prohibited
or unenforceable, it shall be ineffective only to the extent of such prohibition
or unenforceability, and such prohibition or unenforceability shall not
invalidate the balance of such provision to the extent it is not prohibited
or
unenforceable, nor invalidate the other provisions hereof.
4. Assignment.
This
Assignment shall be binding upon the parties, and each party’s successors and
assigns.
-2-
5. Governing
Law.
This
Assignment shall be governed by and construed in accordance with the laws of
the
State of California applicable to contracts made and to be carried out in
California. Each of the parties submit to the exclusive jurisdiction of any
state or federal court sitting in Los Angeles, California in any action or
proceeding arising out of or relating to this Agreement and further agrees
that
all claims in respect of the action or proceeding may be heard and determined
in
any such court and agrees not to bring any action or proceeding arising out
of
or relating to this Assignment in any other court. Each of the parties agree
that a final judgment in any action or proceeding so brought shall be conclusive
and may be enforced by suit on the judgment or in any other manner so provided
by law.
[Signature
Page to Follow]
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IN
WITNESS WHEREOF, this Assignment and Acknowledgement is executed as of the
date
first written above.
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XXXXXX
CENTER, INC., a Delaware corporation
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| By: | /s/ Xxxxxx Xxxxxx | |
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Name:
Title:
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Xxxxxx
Xxxxxx
Chief
Financial Officer
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XXXXXX
HEALTH AND MEDIA, INC., a Delaware
corporation
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| By: | /s/ Xxxxxx Xxxxxx | |
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Name:
Title:
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Xxxxxx
Xxxxxx
Chief
Financial Officer
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XXXXX
X.X. XXXXXX, LCSW, Ph.D.
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| /s/ Xxxxx X.X. Xxxxxx, LCSW, Ph.D. | ||
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Xxxxx
X.X. Xxxxxx, LCSW, Ph.D.
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XXXXXX
XXXXXXX
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| /s/ Xxxxxx Xxxxxxx | ||
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Xxxxxx
Xxxxxxx
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-4-
SCHEDULE
1
COPIES
OF AGREEMENTS ENTERED INTO BY XX. XXXXXX, OR AFFILIATE THEREOF, WITH RESPECT
TO
PRODUCTS AND SERVICES OF THE COMPANY
INDEX
TO SCHEDULE 1
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Parties
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Brief
Description of Agreement
|
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Waterfront
Media
|
xxx.xxxxxxxxxxxxx.xxx
|
|
View
Film
|
“Sexual
Healing” TV Show
|
|
Hyperion
Publishing
|
“Passion
Prescription” book royalties
|
|
Xxxxx
Xxxxx Publishing
|
“For
Women Only” book royalties
|
|
Hyperion
Publishing
|
“Secrets
of the Sexually Satisfied Woman” book royalties
|
|
Xxxxx
Media and JJJ Marketing
|
“Xx.
Xxxxxx Can Help” DVD series
|
|
Xxxxx
Media
|
Audio
Series
|
|
California
Exotics Novelties
|
Novelty
Agreement
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