Exhibit 10.2
ASSUMPTION OF OBLIGATIONS AND PLEDGE AGREEMENT
(VIDEO CATALOG)
This Assumption of Obligations and Pledge Agreement (this "Agreement") is
made and entered into as of March 21, 2005, by and between Genius Products,
Inc., a Delaware corporation ("Pledgee"), and American Vantage Companies, a
Nevada corporation ("Pledgor").
WHEREAS, Pledgee and Pledgor are parties to that certain Agreement and
Plan of Merger dated as of March 21, 2005 (the "Merger Agreement"), pursuant to
which Pledgee will acquire the Company (as defined in the Merger Agreement);
WHEREAS, as a further inducement to Pledgee to enter into and consummate
the transactions contemplated by the Merger Agreement, Pledgee desires to
assign, and Pledgor desires to assume, certain obligations of the Company, on a
going-forward basis, following the consummation of the transactions contemplated
by the Merger Agreement; and
WHEREAS, the execution and delivery of this Agreement by the parties
hereto is a condition to the closing of the transactions contemplated by the
Merger Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
1. CAPITALIZED TERMS. Capitalized terms used but not defined herein shall
have the meanings for such terms that are set forth in the Merger Agreement.
2. CERTAIN DEFINITIONS.
(a) "Assignment" has the meaning set forth in Section 3 hereof.
(b) "Certificates" means the certificate or certificates evidencing
ownership of the Collateral, in such denominations as Pledgor shall reasonably
request.
(c) "Collateral" means seven hundred thousand (700,000) shares of
Purchaser Common Stock registered in the name of Pledgor and/or its Affiliates,
which comprises a portion of the Merger Consideration, to the extent not
released and distributed by Pledgee to Pledgor in accordance with Section 10(b)
hereof.
(d) "Default" has the meaning set forth in Section 8 hereof.
(e) "Obligations" has the meaning set forth in Section 3(a) hereof.
3. ASSIGNMENT, ASSUMPTION AND OTHER AGREEMENTS.
(a) Effective as of immediately following the Effective Time,
Pledgee hereby assigns, sells, transfers and sets over (collectively, the
"Assignment") to Pledgor the Pledgee's obligations and liabilities related to or
associated with (i) accounts payable that are attributable to the Direct
Response Video Catalog of Wellspring Media that are set forth on Schedule 1
attached
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hereto, and (ii) amounts owing under the lease for the property in the name of
Wellspring Media at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ (the "Wilshire Blvd.
Premises"), in all cases without set-off or counterclaims against Pledgee
(collectively, the "Obligations"). Pledgor hereby accepts the Assignment and
assumes and agrees to pay and discharge all of the Obligations when due from and
after the Closing. In addition to any remedies available to Pledgee under
Section 9 hereof, in the event that Pledgor fails to pay any Obligation when it
becomes due, and Pledgee shall pay such amount on behalf of Pledgor, then
Pledgor shall pay the amount of such Obligation to Pledgee with such amount
carrying interest at a rate of 10.0% per annum from the due date for such
Obligation until such amount plus accrued interest is paid in full to Pledgee
(with any such accrued interest also constituting an Obligation hereunder).
(b) Pledgee agrees to vacate the Wilshire Blvd. Premises within 15
days following the sale or shutdown of the Video Catalog business conducted at
that location, and will reasonably cooperate with Pledgor in subletting or
assigning the Wilshire Blvd. Premises thereafter.
(c) Pledgor agrees, following the Effective Time, to segregate and
deposit 50% of the net proceeds actually received by Pledgor or its Affiliates
from the sale of Merger Consideration, until such time as $1,100,000 of proceeds
is actually deposited by Pledgor (which shall be no later than 60 days following
the Effective Time), into a joint bank account with Pledgee, which account will
require the signatures of both Pledgee and Pledgor to make withdrawals or
transfers. The parties agree to promptly use such funds for the payment of
Obligations and Pledgor's other obligations hereunder until they are fully
satisfied, after which time the remaining funds, if any, will promptly be
released back to Pledgor.
s (d) Pledgor agrees to pay to Pledgee one-half of any reduction in
amounts legally owing under any individual Obligation resulting primarily from
the negotiation or efforts of Pledgee with the creditor, within five days of
receipt of written notice by Pledgor accompanied by reasonable proof or other
documentation evidencing the subject creditor's unconditional agreement to such
reduction. For example, if Pledgee obtains a settlement with a creditor of an
Obligation legally reducing the amount owed to such creditor from $20,000 to
$10,000, Pledgor will pay to Pledgee $5,000 within five days of receipt of such
notice and proof or documentation of such reduction.
4. PLEDGE AND SECURITY INTEREST. To secure Pledgor's obligations to
Pledgee to assume and fully discharge when due all of the Obligations and
Pledgor's other obligations hereunder, Pledgor hereby pledges the Collateral to
Pledgee and grants to Pledgee a continuing security interest in the Collateral.
5. DEPOSIT OF COLLATERAL. Pledgor shall (i) deliver to Pledgee the
Certificates; and (ii) deliver to Pledgee one original stock power for each
Certificate in the form of Exhibit A attached hereto, duly executed in blank.
6. WARRANTIES AND COVENANTS OF PLEDGOR.
Pledgor represents, warrants, covenants and agrees as follows:
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(a) Obligations. Schedule 1 attached hereto sets forth a true,
correct and accurate listing of all obligations and liabilities related to or
associated with accounts payable that are attributable to the Direct Response
Video Catalog of Wellspring Media.
(b) Novations. Pledgor shall use its best efforts to seek novations
of all of the Obligations such that Pledgor is the obligor of record with
respect to all of the Obligations. Notwithstanding anything herein or in the
Merger Agreement to the contrary and for the avoidance of doubt, upon and
following the Assignment, Pledgor shall be the primary obligor with respect to
all of the Obligations.
(c) Ownership of Collateral. Pledgor has good, valid marketable
title to the Collateral, free from any liens, charges, pledges, security
interests, encumbrances, rights to purchase or other claim or interest of any
kind, other than those granted herein.
(d) Liens. Pledgor will neither create nor permit the creation of
any lien charge, pledge, security interest, encumbrance or other claim or
interest in the Collateral without the prior written consent of Pledgee.
(e) First-Priority Security Interest. Pledgee will at all times have
a valid, perfected first-priority security interest in the Collateral.
(f) Transfers. Pledgor will neither make nor permit any transfer of
the Collateral without the prior written consent of Pledgee.
(g) Reimbursement of Expenses. Pledgor will reimburse Pledgee for
any expenses reasonably incurred by Pledgee in protecting or realizing on the
Collateral.
(h) Payment of Taxes and Indebtedness. Pledgor shall promptly pay
all liens, taxes, assessments, or contributions required by law which may come
due and which are lawfully levied or assessed with respect to the Obligations or
any of the Collateral.
7. EXERCISE OF SHAREHOLDER RIGHTS.
(a) Receipt of Dividends and Distributions. Prior to the occurrence
of a Default, Pledgor shall have the right to receive and retain any ordinary
dividends or other distributions paid on the Collateral.
(b) Right to Vote. Prior to the occurrence of a Default, Pledgor may
vote the Collateral for all purposes allowed within the restrictions set by this
Agreement and otherwise imposed by the Merger Agreement and the agreements
related thereto, including, without limitation, the Resale and Voting Agreement.
8. DEFAULT.
Pledgor shall be in default hereunder (each such occurrence, a "Default"),
and Pledgee shall have the rights and remedies of a secured party under Article
9 of the Uniform Commercial Code of Nevada, in addition to any other remedies
available to it hereunder or under any other
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agreement, if Pledgor fails to pay or perform any of the Obligations when the
same become due and payable or performable.
9. REMEDIES UPON DEFAULT.
(a) Pledgee May Register Shares. Upon the occurrence of a Default,
Pledgee may cause the Collateral to be transferred to Pledgee's name and may
exercise any right normally incident to the ownership of the Collateral,
including the right to vote and to receive all dividends or other payments.
(b) Collateral. Upon the occurrence of a Default, Pledgee may sell
all or any part of the Collateral at public or private sale, or retain the
Collateral in full or partial satisfaction of the Obligations. Pledgee may
purchase all or any part of the Collateral at the sale. Proceeds of any sale
shall be applied first to pay all costs and expenses related to the Default and
sale of the Collateral, including all attorneys' fees, and second, to pay all
amounts owed on the Obligations, with any excess to be returned to Pledgor.
(c) Remedies Cumulative. Upon the occurrence of a Default, Pledgee
shall have all rights and remedies available at law or in equity, including all
rights available under the Uniform Commercial Code, and all rights and remedies
granted under this Agreement, the Merger Agreement and any other related
documents or agreements. These rights and remedies shall be cumulative, and may
be exercised singly or concurrently with all other rights and remedies Pledgee
may have.
(d) Acknowledgments and Agreements of Pledgor. Pledgor hereby
acknowledges and agrees (i) that Pledgor waives all rights of redemption, stay,
valuation and appraisal under any applicable laws, (ii) that ten (10) days'
prior written notice of Pledgee's intention to make any sale of the Collateral
is commercially reasonable notice, (iii) that the requirements of federal and
state securities laws may limit Pledgee's sale of all or part of the Collateral
as well as the extent or manner in which any subsequent transferee could dispose
of the same, (iv) in light of such restrictions, Pledgee may effect a private
sale to one or more purchasers who will agree, among other things, to acquire
the Collateral for their own account, for investment, and not with a view to the
distribution or resale thereof, (v) that Pledgee may proceed to make such a sale
whether or not a registration statement for the purpose of registering the
Collateral shall have been filed and may approach and negotiate with a single
potential purchaser to effectuate such sale, (vi) any such sale might result in
prices or other terms less favorable than if such sale were a public sale
without such restrictions, and Pledgee shall incur no liability for selling any
Collateral under such circumstances, and (vii) the foregoing shall apply not
withstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which Pledgee
sells.
(e) Registration. Pledgor hereby assigns to Pledgee, upon the
occurrence of a Default, all registration rights Pledgor now has or may
hereafter acquire with respect to the Collateral.
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10. TERMINATION OF PLEDGE AND SECURITY INTEREST.
(a) Sections 4, 5, 7, 8 and 9 of this Agreement shall remain in full
force and effect until the Obligations have been fully and finally discharged.
(b) Pledgee agrees that as Pledgor provides satisfactory evidence
(in the reasonable discretion of Pledgee) that Pledgor has fully paid,
discharged and satisfied each $100,000.68 increment of the Obligations (except
with respect to the balance under the final $100,000.68 of Obligations, which
shall be such remaining balance), Pledgee will distribute to Pledgor from the
Collateral, within five (5) business days of Pledgee's receipt of such
satisfactory evidence, a stock certificate evidencing Collateral having an
aggregate Face Value equal to $100,000.68, together with the stock power with
respect to such delivered stock certificate if such stock power relates solely
to the stock certificate being distributed to Pledgor. For purposes of this
Agreement, "Face Value" means $1.56 per share (subject to appropriate adjustment
for stock splits, stock dividends, combinations and other recapitalizations).
(c) Set forth on Schedule 2 attached hereto is a list of physical
properties associated with the Direct Response Video Catalog of Wellspring Media
(the "Inventory"). To the extent that Pledgee sells (i) units of Inventory
during the term of the security interest granted hereunder, or (ii) the Video
Catalog business (consisting of the trademark "Video Catalog" and the related
mailing list(s) used in the business) or any portion thereof, the amount of the
Obligations (or such lesser amount of Obligations to which Pledgor may then be
subject) shall be reduced, on a dollar-for-dollar basis (but not below zero), by
the amounts actually collected and received by Pledgee in respect of such sales,
net of any direct costs incurred by Pledgee related to the sale of such
Inventory or the collection of payment therefor (any such reduced amount of
Obligations, an "Inventory Sales Amount"). Notwithstanding anything contained
herein to the contrary, all Inventory Sales Amounts will be applied, on a
dollar-for-dollar basis, as a payment, discharge and satisfaction of Obligations
for purposes of Section 10(b) hereof in accordance with the terms and conditions
thereof. If Pledgee realizes any net Inventory Sales Amounts after Pledgor has
fully satisfied and paid all of its Obligations hereunder (or such lesser amount
which will satisfy all of the Obligations), Pledgee shall promptly remit any
such Inventory Sales Amounts to Pledgor, up to the amount of Obligations
actually paid by Pledgor.
11. MISCELLANEOUS.
(a) Waiver. No right or obligation under this Agreement will be
deemed to have been waived unless evidenced by a writing signed by the party
against which the waiver is asserted or by its duly authorized representative.
Any waiver will be effective only with respect to the specific instance
involved, and will not impair or limit the right of the waiving party to insist
upon strict performance of the right or obligation in any other instance, in any
other respect, or at any other time.
(b) Notice. Any notice or other communication required or permitted
under this Agreement shall be delivered in accordance with the notice provision
set forth in the Merger Agreement.
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(c) Modifications to Be in Writing. To be effective, any
modification to this Agreement must be in writing signed by all parties to the
Agreement.
(d) Agreement Binding upon Successors and Assigns. This Agreement
shall bind Pledgor and its successors and assigns. All rights, privileges and
powers granted to Pledgee under this Agreement shall benefit Pledgee and its
successors and assigns.
(e) Assignment of Agreement. At any time, Pledgee may assign or
transfer any of its rights or powers under this Agreement to any person or
entity. Pledgor may not transfer its rights, duties or obligations under this
Agreement without the prior written consent of Pledgee.
(f) Further Assurances. Both Pledgor and Pledgee agree to take any
further actions and to make, execute and deliver any further written instruments
which may be reasonably required to carry out the terms, provisions, intentions
and purposes of this Agreement.
(g) Governing Law. This Agreement shall be governed by and construed
and interpreted in accordance with the law of the State of California, without
regard to that state's conflict of laws principles. All disputes between the
parties hereto, whether sounding in contract, tort, equity or otherwise, shall
be resolved only by state and federal courts located in Los Angeles, California,
and the courts to which an appeal therefrom may be taken. All parties hereto
waive any objections to the location of the above referenced courts, including
but not limited to any objection based on lack of jurisdiction, improper venue
or forum non-conveniens. Notwithstanding the foregoing, any party obtaining any
order or judgment in any of the above referenced courts may bring an action in a
court in another jurisdiction in order to enforce such order or judgment.
(h) Recovery of Fees by Prevailing Party. If any legal action,
including, without limitation, an action for arbitration or injunctive relief,
is brought relating to this Agreement or the breach hereof, the prevailing party
in any final judgment or arbitration award shall be entitled to the full amount
of all reasonable expenses, including all court costs, arbitration fees and
actual attorneys' fees paid or incurred in good faith.
(i) Severability. If any provision of this Agreement or any
application of any provision is determined to be unenforceable, the remainder of
this Agreement shall be unaffected. If the provision is found to be
unenforceable when applied to particular persons or circumstances, the
application of the provision to other persons or circumstances shall be
unaffected.
(j) Headings. Headings used in this Agreement have been included for
convenience and ease of reference only and will not in any manner influence the
construction or interpretation of any provision of this Agreement.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original and all of which
together will constitute a single agreement.
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IN WITNESS WHEREOF, the parties have executed this Assumption of
Obligations and Pledge Agreement as of the date first above written.
PLEDGEE:
GENIUS PRODUCTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: CEO
PLEDGOR:
AMERICAN VANTAGE COMPANIES
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CEO
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