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EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
ASSIGNMENT AND ASSUMPTION OF CONTRACTS dated as of June 30, 1999
between Vitamin Shoppe Industries Inc., a New York corporation ("VSI"), and
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇").
1. VSI hereby assigns to ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ all of its rights under
each of the agreements listed on Schedule A annexed hereto, (each a "Contract",
and collectively, the "Contracts"), each of which relates to the online business
established and operated by VSI prior to the date hereof (the "Internet
Business").
2. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby assumes and agrees to pay, perform,
discharge and carry out all of the obligations and liabilities of VSI relating
to the Internet Business, including without limitation, obligations and
liabilities arising under the Contracts (the "Obligations"), but excluding any
obligations and liabilities of VSI arising from any breaches or defaults which
may have arisen on or prior to the date hereof.
3. The assumption by ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of the Obligations pursuant
to this Agreement shall, in all events, be construed so that none of such
Obligations shall be expanded, increased, broadened or enlarged as to rights or
remedies which third parties would have had against VSI had the assignment and
assumption contemplated hereunder not taken place. Nothing contained herein
shall be deemed to foreclose ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from contesting in good faith
VSI's obligations and liabilities to third parties under the Contracts.
4. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ hereby agrees to indemnify, defend and forever
hold harmless VSI from any and all loss, cost, damage, expense, demands,
liabilities, payments, causes of action, judgments or other claims, including,
without limitation, costs and expenses of litigation and attorneys' fees,
arising out of, based upon or relating to any of the Obligations assumed by
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ under this Agreement, but this indemnity is specifically
limited to such Obligations.
5. VSI hereby agrees to indemnify, defend and forever hold harmless
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ from any and all loss, cost, damage, expense, demands,
liabilities, payments, causes of action, judgments or other claims, including,
without limitation, costs and expenses of litigation and attorneys' fees,
arising out of, based upon or relating to any of the obligations, liabilities or
other matters not specifically assumed by ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ pursuant to this
Agreement, including, without limitation, any form of transferee liability
imposed or sought to be imposed by operation of law or otherwise in respect of
any obligations, liabilities or other matters not specifically assumed by
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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6. (a) To the extent that the assignment to ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ of any
Contract requires the consent of any other party to such Contract, this
Agreement shall not constitute an agreement to assign the same if an assignment
or attempted assignment would constitute a breach thereof, unless and until such
consent is obtained.
(b) If any such consent has not been obtained as of the date
hereof, VSI and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall use all commercially reasonable efforts
after such date to obtain such consents, except to the extent otherwise mutually
agreed. VSI shall cooperate with ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ after the date hereof in any
reasonable arrangement (such as subcontracting, sublicensing or subleasing)
designed to provide to ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ the benefits and obligations under the
applicable Contracts. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ agrees that, so long as
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ is receiving the benefit of such Contracts, ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
will perform VSI's obligations thereunder.
(c) Neither VSI nor ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ shall be required to pay
any fees or other consideration to induce any person whose consent is required
for the assignment of any Contract to be assigned hereunder, nor shall any of
such Contracts be revised or modified (other than to reflect the substitution of
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ for VSI ) as a condition of such assignment, without each
party's prior written consent, which consent shall not be unreasonably withheld.
7. Each of the parties hereto shall, without further consideration,
execute and deliver to the other such other instruments of transfer or
assumption, and take such other action, as the other may reasonably request, or
as may be necessary or desirable to further implement the assignment and
assumption contemplated hereunder.
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IN WITNESS WHEREOF, VSI and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ have caused their respective
duly authorized officers to execute this Agreement as of the day and year first
above written.
VITAMIN SHOPPE INDUSTRIES INC.
By: ___________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: ___________________________
Name:
Title:
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SCHEDULE A
1. Sponsorship Agreement, dated as of March 11, 1999, between ▇▇▇▇▇▇.▇▇▇,
Inc. and Vitamin Shoppe Industries Inc.
2. Sponsorship Agreement, dated as of September 23, 1998, between Excite,
Inc. and Vitamin Shoppe Industries Inc.
3. Sponsorship Agreement, dated as of September 23, 1998, between Excite,
Inc. and Vitamin Shoppe Industries Inc. related to the Excite Portion of
Netscape.
4. Letter Agreement, dated as of May 24, 1999, between Time Inc. New Media
and Vitamin Shoppe Industries Inc. related to the ▇▇. ▇▇▇▇▇▇ website.
5. Letter Agreement, dated as of December 17, 1998, between Time Inc. New
Media and Vitamin Shoppe Industries Inc. related to the ▇▇. ▇▇▇▇ website.
6. Advertising Insertion Order, dated November 1, 1998, between Yahoo! Inc.
and The Vitamin Shoppe.
7. Distribution Agreement, dated April 12, 1998, between Infoseek Corporation
and Vitamin Shoppe Industries Inc., as amended by Amendment No. 1
thereto, dated as of September 29, 1998.
8. Sponsorship and Advertising Agreement, dated as of April 16, 1999, between
InteliHealth, Inc. and Vitamin Shoppe Industries Inc.
9. Sponsorship Agreement, dated as of March 31, 1999, between OnHealth
Network Company and Vitamin Shoppe Industries Inc.
10. Agreement, dated February 1, 1999, between Virtual Communities, Inc. and
Vitamin Shoppe Industries Inc.
11. Merchant Partner Agreement, dated as of April 23, 1999, between
▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and Vitamin Shoppe Industries Inc.
12. Agreement, dated as of December 17, 1998, between NetGravity, Inc. and The
Vitamin Shoppe.
13. Agreement, dated September 25, 1998, between Exodus Communications, Inc.
and Vitamin Shoppe Industries Inc.
14. Internet Data Center Services Order Form, dated September 25, 1998, by
Exodus Communications, Inc.
15. Agreement for RealNames Services for Key Accounts between Centraal
Corporation and Vitamin Shoppe Industries Inc.
16. Partnership Allocation Order, dated February 23, 1999 between San
Francisco Pride '99 and The Vitamin Shoppe.
17. Strategic Planning Services Agreement, dated as of April 29, 1999, between
Jupiter Communications, L.L.C. and The Vitamin Shoppe.
18. License Agreement, dated as of October 5, 1998 between HealthNotes, Inc.
and Vitamin Shoppe Industries Inc.
19. Sublease Agreement, dated as of July 14, 1999 between Yahoo! Inc. and
Vitamin Shoppe Industries Inc.
