ASSIGNMENT AGREEMENT
Agreement, dated as of March 17, 1997, (the "Agreement") by and between
Unapix Entertainment, Inc., a Delaware corporation, with offices at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Unapix"), and Xxxxxxx X. Xxxxx, an individual
residing at 00000 XX 0xx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX ("Xxxxx").
R E C I T A L S
1. Between February and August of 1996 Miramar Images, Inc., a Washington
corporation ("Miramar"), borrowed, for working capital and other purposes, a
total of $520,000 from Xxxxx pursuant to a series of promissory notes, the
originally executed versions of which are attached to the Assignment (defined
below) (collectively, the "Notes") having as the signatories Miramar, G. Xxxx
Xxxxxxxx, in his individual capacity and Xxxxx X. Xxxxxxxx, in his individual
capacity, (collectively, the "Signatories").
2. Unapix has reached an agreement in principle to acquire all of the
capital stock of Miramar (the "Acquisition").
3. On the date of the closing of the Acquisition (said date referred to as
the "Closing Date" and said event being referred to herein as the "Closing")
Xxxxx agrees to sell and assign the Notes (as well as any other interest he may
have in any other indebtedness of Miramar) to Unapix subject to the terms and
conditions set forth herein.
4. Unapix further desires to purchase pursuant to this Agreement, any
other claims that Xxxxx may now, or hereafter have, against Miramar, the
Signatories any other principals, officers, directors, shareholders of Miramar,
agents or representatives of Miramar (the "Related Partners"), arising in
connection with the Notes and/or any other transactions by and between Xxxxx,
Miramar, G. Xxxx Xxxxxxxx, Xxxxx X. Xxxxxxxx, and any other shareholder officer,
director, principal, agent or representative of Miramar prior to the Closing,
including, without limitation, claims, suits, charges, causes of action, in
connection with or in any way arising out of the Notes or any event of default
thereunder or other loans, or any agreement to sell equity interests to Xxxxx
(collectively, all such claims, including the Notes and the indebtedness
evidenced thereby the "Claims") subject to the terms and conditions contained
herein.
NOW, THEREFORE, it is agreed as follows:
1. Xxxxx hereby agrees to sell and assign to Unapix all Claims for the
consideration provided by Unapix in the Pooled Consideration Agreement of even
date herewith by and among
Xxxxx, Unapix and the other parties thereto (as amended from time to time in
writing, the "Consideration Agreement"). The shares of Unapix's Common Stock
delivered pursuant to the Consideration Agreement shall be hereinafter referred
to as the "Shares".
2. Unapix shall, as soon as practicable, and in any event within six
months of the Closing Date, use its best efforts to (i) (a) prepare and file
under the Securities Act of 1933, as amended (the "Act"), a registration
statement relating to the resale of the Shares (the term "registration
statement" as used herein being deemed to include any form which may be used to
register a distribution of securities to the public for cash); (b) prepare and
file with the appropriate state blue sky authorities the necessary documents to
register or qualify the Shares in such states as may be reasonably requested by
Xxxxx, if any is required; and (c) use reasonably diligent efforts to cause such
registration statement to become effective and to keep such registration
statement and state blue sky filings, if any, current and effective for a period
of two years.
3. All expenses in connection with preparing and filing of any
registration statement (and any registration or qualification under the blue sky
laws of the states in which the offering will be made under such registration
statement) shall be borne in full by Unapix, except that the underwriting
commissions, discounts and expenses attributable to the Shares so registered and
the fees and disbursements of counsel, if any, for Xxxxx shall be borne by
Xxxxx. Unapix may include other securities in any such registration statement.
4. Unapix shall indemnify Xxxxx against any and all losses, claims,
damages, expenses and liabilities caused by any untrue statement of a material
fact contained in such registration statement or contained in a prospectus
furnished under the Act or caused by any omission to state a material fact
therein necessary to make the statements therein not misleading, insofar as such
losses, claims, damages, expenses and liabilities are not caused by such untrue
statement or omission based upon information furnished in writing to Unapix by
Xxxxx or any of his attorneys, accountants or other agents and expressly
designated for use in such registration statement or prospectus. ("Xxxxx
Supplied Information"). Xxxxx shall indemnify Unapix and each person who
controls Unapix within the meaning of Section 15 of the Act, from and against
any and all losses, claims, damages, expenses and liabilities caused any untrue
statement of a material fact in such registration statement or prospectus or
caused by any omission to state a material fact therein necessary to make the
statements therein not misleading, insofar as such losses, claims, damages,
expenses and liabilities are caused by an untrue statement or omission in the
Xxxxx Supplied Information.
5. Xxxxx acknowledges and agrees:
(a) that there can be no assurance when or if such registration
statement or blue sky filing will be declared effective. Xxxxx hereby agrees to
complete, execute and deliver all such documents and undertakings as Unapix may
deem necessary or desirable for purposes of compliance with applicable Federal
and state securities laws. Unapix's obligations set forth in Section 2 are
contingent on Xxxxx'x satisfaction of his obligations set forth herein; and
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(b) that until such Shares are registered they are subject to
certain limitations imposed by state and federal law and Xxxxx will be subject
to such restrictions concerning transfer with regard to the shares; and
(c) Xxxxx further acknowledges and agrees that the Shares will be
subject to the following restrictions which may appear on each Stock
Certificate:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE (OR ANY SECURITIES
FOR WHICH SUCH SECURITIES ARE EXERCISABLE) HAVE BEEN ACQUIRED BY THE HOLDER
SOLELY FOR HIS OWN ACCOUNT FOR THE PURPOSE OF INVESTMENT AND NOT WITH A VIEW TO
OR FOR SALE IN CONNECTION WITH ANY DISTRIBUTION OF ANY SUCH SECURITIES. THE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR STATE SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHOUT REGISTRATION UNDER THE ACT OR AN EXCEPTION THEREFROM AS
EVIDENCED BY A WRITTEN OPINION OF LEGAL COUNSEL FOR THE COMPANY; and
(d) the sale, assignment, transfer, pledge, encumbrance, or other
disposition of the shares, or any interest in such securities, are further
restricted by the terms and conditions of this Agreement and the Consideration
Agreement.
(e) the Shares will be deposited, maintained, liquidated and
disbursed pursuant to the terms and conditions set forth in the Consideration
Agreement.
6. Xxxxx acknowledges that Unapix has delivered to him copies of its
Annual Report on Form 10-KSB for the year ended December 31, 1995, its Proxy
Statement for its 1996 Annual Meeting of Stockholders, and its Quarterly Report
on Form 10-QSB for the Quarterly Period ended September 30, 1996 (collectively,
the "Disclosure Documents").
7. Xxxxx hereby represents, warrants and agrees as follows:
(a) He has been afforded the opportunity to obtain any information
necessary to verify the accuracy of any information set forth in the Disclosure
Documents and has had all of his inquiries to Unapix answered in full, and has
been furnished all requested materials relating to Unapix and the sale of the
Shares;
(b) Xxxxx has not been furnished any literature about Unapix
other than the Disclosure Documents;
(c) Xxxxx is acquiring the Shares as principal for his own
investment account, and not (i) with a view to the resale or distribution of all
or any part of such Shares, or (ii) on behalf of another person who has not made
the foregoing representation;
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(d) Xxxxx is an accredited investor, as defined in Rule 501(a) of
Regulation D promulgated pursuant to the Act, by virtue of the fact that he
either: (i) had individual income (exclusive of any income attributable to his
spouse) of more than $200,000 in each of the most recent two years or joint
income with his spouse in excess of $300,000 and reasonably expects to have
income of at least the same level for the current year; or (ii) has an
individual net worth, or a combined net worth with his spouse, in excess of
$1,000,000. For purposes of this paragraph, "individual net worth" means the
excess of total assets at fair market value, including home and personal
property, over total liabilities;
(e) The original of each of the Notes are annexed to the assignment
thereof attached hereto as Exhibit A (the "Assignment") and this and all other
notes, written contracts or other writing which evidence the indebtedness
obligation, or binding agreement of Miramar or the Related Partners to which
Xxxxx is a party;
(f) He has not previously transferred or sold any of the Claims
and will not transfer or sell any of the Claims prior to the Closing;
(g) He has, and will at the Closing have, full power and authority
to enter into this Agreement and the Assignment and to complete the transactions
contemplated hereby; and
(h) The representations set forth in the Assignment are true,
correct and complete in all respects.
8. This transaction contemplated by the Agreement will be effected
simultaneously with the Closing.
9. Notwithstanding anything to the contrary contained herein, it is hereby
acknowledged and agreed that:
(a) All of Unapix's obligations contained herein are expressly
subject to and contingent upon the consummation of the Acquisition;
(b) Unapix shall have no liability whatsoever for the failure to
complete the Acquisition and accordingly for the failure to consummate the
transactions contemplated hereby and Xxxxx hereby waives any claim and releases
Unapix of any liability whatsoever hereunder of any nature for damages matured
or contingent, that may arise or be in any way connected with this Agreement,
the Notes or the Claims;
(c) If the Closing has not occurred before March 31, 1997 because
the Acquisition has not closed prior to that date, then this Agreement shall
cease to be of any further force or effect; and
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(d) Xxxxx hereby agrees to take no legal action with respect to the
Claims until the earlier of (x) March 31, 1997 and (y) the Closing.
10. This Agreement is made under and shall be construed and enforced in
accordance with the laws of the State of New York, without giving effect to
conflict of law principles.
11. This Agreement contains the entire agreement between the parties
hereto relative to the subject matter hereof. No waiver or modification of this
Agreement shall be valid unless in writing and duly executed by both parties.
12. If any provision of this Agreement shall be held unenforceable to any
extent, the remainder of this Agreement shall not be effected thereby and shall
be enforced to the fullest extent permitted by law.
13. Each of the parties hereafter shall execute and deliver such further
instruments and do such further acts and things consistent with the provisions
of this Agreement as may be required or useful to carry out the intent and
purpose of this Agreement.
14. This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original, all of which shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and
seals on the date of this Agreement.
UNAPIX ENTERTAINMENT, INC.
By: /s/ Xxxxx X. Xxx
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Name Xxxxx X. Xxx
Title: President & CEO
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
EXHIBIT A
ASSIGNMENT AGREEMENT
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