UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20509
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
October
23, 2015
Date
of Report
(Date
of earliest event reported)
FONU2
INC.
(Exact
name of registrant as specified in its charter)
NEVADA |
|
000-49652 |
|
65-0773383 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File No.) |
|
(IRS
Employee
I.D. No.) |
135
Goshen Road Ext., Suite 205
Rincon,
GA 31326
(Address
of Principal Executive Offices)
(912)
655-5321
Registrant's
Telephone Number
N/A
Former
name or former address, if changed since last report
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item
1.01 – Entry into a Material Definitive Agrement
Mammoth
Settlement Agreement
On
October 23, 2015, the Company signed a settlement agreement with Mammoth Corporation to settle an August 28, 2015 complaint against
Moon River Studios, Inc., Jake Shapiro and the Company. The complaint claims that Moon River, Jake Shapiro and the Company owes
Mammoth $136,953 and seeks additional punitive damages and legal expense recovery from the Company. Under the terms of the agreement,
the Company signed a Convertible Promissory Note in the amount of $140,000. The note bears no interest unless it goes into default.
The agreement calls for monthly cash payments of the principal as follows:
In
full and complete settlement and satisfaction of the Lawsuit and any and all actual and/or potential claims relating thereto,
the Company agreed to:
|
● |
Enter
into a production agreement which shall be disclosed by it in a Form 8-K filed with the SEC or in a press release, by October
30, 2015; |
|
● |
Pay
$15,000 to Mammoth within 10 days of FONU2 entering into pre production, but in no event later than December 1, 2015; |
|
● |
Pay
$25,000 to Mammoth one month after the payment described in (b) above, which shall be in no event later than January 1, 2016.
In the event the payment is not made by January 1, 2016, a l0 day grace period shall apply before action is taken to enforce
the Agreement; |
|
● |
Pay
$25,000 to Mammoth one month after the payment described in Section 2(c) above, which shall be in no event later than February
1, 2016. In the event the payment is not made by February 1, 2016, a 10 day grace period shall apply before action is taken
to enforce the Agreement; |
|
● |
Pay
$25,000 to Mammoth one month after the payment described in Section (d) above, which shall be in no event later than March
1, 2016. In the event the payment is not made by March 1, 2016, a 10 day grace period shall apply before action is taken to
enforce the Agreement; |
|
● |
Pay
$25,000 to Mammoth one month after the payment described in Section (e) above, which shall be in no event later than April
1, 2016. In the event the payment is not made by April 1, 2016, a 10 day grace period shall apply before action is taken to
enforce the Agreement; and |
|
● |
Pay
the balance of FONU Mammoth Note Number 001 one month after the payment described in Section (h) of the agreement, which shall
be in no event later than May 1, 2016. In the event the payment is not made by May l, 2016, a 10 day grace period shall apply
before action is taken to enforce the Agreement. |
The
parties also agreed to have the Court retain jurisdiction for the sole purpose of enforcing the terms of the Agreement by entering
a judgment against Defendants in the amount of $140,000, less any payments received, plus interest and the costs of enforcing
the Agreement, including reasonable attorney fees in the event the terms of the Agreement are not followed.
Yellow
Distribution Agreements
On
October 28, 2015, the Company announced that in association with, and as procured by Magna Entertainment, the Company has signed
agreements for the distribution of Yellow by Screen Media Ventures, LLC (“Screen Media”). Under terms of the
agreement:
| ● | The
Company issued a Convertible Promissory Note to Magna Entertainment dated September 30,
2015 for $696,128.73, in replacement of a note in the same amount from Medient. The principal
accrues interest at a rate of eight percent per annum and is due in full on August 11,
2016. The company can prepay the Note on or before the maturity date. Optionally,
the Note may be converted by Magna Entertainment at a rate of 65% of the lowest bid price
of the Company’s common stock during the ten (10) consecutive trading days prior
to the date of the conversion notice. |
| ● | Gross
receipts from the distribution of Yellow will be allocated as follows: |
| ● | 30%
of all Gross Receipts to Screen Media as a distribution fee. |
| ● | 70%
will be distributed as follows: |
| ● | Once
all domestic and foreign Distributors have recouped their marketing fees, out
of pocket expenses, notes, and costs, the balance of the film’s proceeds will be
sent to an independent collection agent. |
| ● | The
collection agent will determine the waterfall of payments as per the signed
agreements. |
| ● | As
per the agreements, the Company will receive ten percent of remaining receipts,
and the balance will be paid to Moon River Studios (formerly known as Medient Studios)
as per the written agreements. |
Memorandum
of Understanding with Effingham County Industrial Development Authority
On
October 30, 2015, the Company signed a new Memorandum of Understanding (“MOU”) with the Effingham County Industrial
Development Authority. Some of the key terms of the new MOU are as follows:
| ● | The
initial leased area will consist of Phase One on the Master Plan, which allows for the
construction of ten stages, four warehouses, support buildings, and offices. |
| ● | The
annual lease payments by the Company will be reduced from $555,000 per year to $51,000
per year. |
| ● | The
required capital investments by the Company have been reduced from Ninety Million Dollars
($90,000,000) to Ten Million Dollars ($10,000,000) over a five year period. |
| ● | Unless
otherwise in use, the Company will have full access to the balance of the property for
shooting, construction of back lots, etc. |
| ● | The
IDA will be responsible for all of the construction costs of the roads and waterlines
on the initial leased area. |
| ● | The
IDA has authorized the transfer of the current contract with Preferred Site Construction
to be transferred to their name as the client, and upon final review, for construction
of the roads and infrastructure to begin as soon as possible. |
Penny Marshall
Agreement
It
has come to the Company’s attention that there may be some confusion regarding the previously signed agreements between
Studioplex, a subsidiary of the Company, and an entity owned by Ms. Penny Marshall regarding the production of two movies.
The confusion apparently relates to the start dates of the film Effa, along with the triggering of required
payments. The Company has sent a draft amended contract for review by Ms. Marshall and her counsel. The Company
has further offered to release Ms. Marshall from the current agreement. Until notified otherwise by Ms. Marshall, the
Company believes that the parties intend to continue their business relationship premised on the original signed agreement,
and continues to account for Ms. Marshall’s “make good” provision for her director’s fees as a
liability on the Company’s balance sheet. In the event that there is an amendment or cancellation of the current
agreement, the Company shall promptly file a Current Report on Form 8-K describing such event and filing any
relevant exhibits.
Item 2.04 – | Triggering
Events that Accelerate or Increase a Direct Financial Obligation under an Off-Balance
Sheet Arrangement |
ROCWAL
Capital Default
On
October 26, 2015, the Company received a Notice from ROCWAL Capital LLC stating that the Company was in default on a Promissory
Note dated February 12, 2015, for an original amount of $23,689. The current outstanding balance is $10,516.60. The notice states
that the Company is unable to deliver shares of its common stock to ROCWAL in partial conversion of the Note, because it lacks
authorized reserved shares. Negotiations to purchase the Note are ongoing.
Mammoth
Settlement Agreement
The
disclosure set forth in Item 1 with resepct to the Convertible Promissory Note in the amount of $140,000 are hereby incorporated
by reference into this Item 2.04.
Yellow
Distribution Agreements
This
disclosure set forth in Item 1 with resepct to the Convertible Promissory Note to Magna Entertainment dated September 30, 2015
for $696,128.73 are hereby incorporated by reference into this Item 2.04.
Item 9.01 Financial
Statements and Exhibits.
(d) Exhibits
Exhibit
No. |
|
Description
of Exhibit |
|
|
|
10.1
|
|
Mammoth
Convertible Promissory Note
|
|
|
|
10.2 |
|
Mammoth Settlement Agreement |
|
|
|
10.3 |
|
Magna Yellow Distribution
Agreement |
|
|
|
10.4 |
|
Memoruandum of Understanding
with Effingham County Industrial Development Authority |
SIGNATURES
Pursuant
to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this Current Report to be signed
on its behalf by the undersigned hereunto duly authorized.
Date: November 3, 2015 |
FONU2 INC., a Nevada corporation |
|
|
|
|
By: |
/s/ Roger Miguel |
|
|
Roger Miguel, |
|
|
Chief Executive Officer |
6
Exhibit 10.1
FONU
MAMMOTH NOTE NUMBER 001
NEITHER
THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED 'WITH THE SECURITIES AND
EXCHANGE COMMISSION, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT.
CONVERTIBLE
PROMISSORY NOTE
DUE
NINE MONTHS FROM ISSUANCE DATE
OF
FONU2
INC.
Issuance
Date: October 20, 2015
MOON
RIVER STUDIOS, INC. (F/K/A MEDIENT STUDIOS, INC.)
FOLLOWING
Debt Securities Assumed by FONU2, Inc.
DATE ISSUED | |
AMOUNT | | |
CURRENT BALANCE | | |
DESCRIPTION OF ASSUMED NOTE |
12-6-2013 | |
$ | 25,000 | | |
| 21,871.96 | | |
MDNT MAMMOTH NOTE 002 |
1-20-2014 | |
$ | 30,000 | | |
| 35,115.00 | | |
MDNT MAMMOTH NOTE 004 |
3-20-2014 | |
$ | 50,000 | | |
| 56,900.00 | | |
MDNT MAMMOTH NOTE 006 |
10-10-2014 | |
$ | 25,000 | | |
| 25,726.04 | | |
MDNT MAMMOTH NOTE 007 |
Stated
Principal Amount In This Note: $140,000 (Current Balance of Assumed Notes)
THIS
NOTE ("Note") is one of a duly authorized issue of Promissory Notes of FONU2 INC., a corporation duly organized
and existing under the laws of the State of Nevada (the "Company").
FOR
VALUE RECEIVED, and good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, including settling
the action brought by Mammoth Corporation against FONU2, Inc. in the Circuit Court of the 19th Judicial Circuit in
Lake County, Illinois (Case Number 15 L 616) which is being settled pursuant to a Settlement Agreement dated the same date as
this Note, the Company hereby promises to pay to the order of Mammoth Corporation or its registered assigns or successors-in-interest
("Holder") the principal sum of One-Hundred Forty Thousand Dollars (U.S.$140,000), which principal amount shall include
any commission paid by the Company, together with all accrued but unpaid interest thereon, if any, on the earlier of the Maturity
Date or the date on which the Company closes on any transaction relating to the term sheet attached to this Note as Exhibit A,
to the extent such principal amount and interest has not been repaid or converted into the Company's Common Stock,$0.000l par
value per share (the "Common Stock"), in accordance with the terms hereof. Interest on the unpaid principal balance
hereof shall not accrue during the term of this note, unless an uncured default occurs, at which time Interest on this Note shall
accrue daily commencing on the date of the uncured default and shall be computed on the basis of a 365-day year and actual days
elapsed and shall be payable in accordance with Section 1 hereof. Notwithstanding anything contained herein, this Note shall bear
interest on the due and unpaid Principal Amount from and after the occurrence and during the continuance of an Event of Default
pursuant to Section 4(a) at the rate (the "Default Rate") equal to the lower of eighteen (18%) per annum or the highest
rate permitted by law. Unless otherwise agreed or required by applicable law, payments will be applied first to any unpaid collection
costs, then to unpaid interest and fees and any remaining amount to principal.
All
payments of principal and interest on this Note shall be made in lawful money of the United States of America by wire transfer
of immediately available funds to such account as the Holder may from time to time designate by written notice in accordance with
the provisions of this Note or by a bank certified check. This Note may be prepaid in whole or in part. Whenever any amount expressed
to be due by the terms of this Note is due on any day which is not a Business Day (as defined below), the same shall instead be
due on the next succeeding day which is a Business Day.
For
purposes hereof the following terms shall have the meanings ascribed to them below:
"Bankruptcy
Event" means any of the following events: (a) the Company or any subsidiary commences a case or other proceeding
under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation
or similar law of any jurisdiction relating to the Company or any subsidiary thereof; (b) there is commenced against the Company
or any subsidiary any such case or proceeding that is not dismissed within 60 days after commencement; (c) the Company or any
subsidiary is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is
entered; (d) the Company or any subsidiary suffers any appointment of any custodian or the like for it or any substantial part
of its property that is not discharged or stayed within 60 days; (e) the Company or any subsidiary makes a general assignment
for the benefit of creditors; (f) the Company or any subsidiary fails to pay, or states that it is unable to pay or is unable
to pay, its debts generally as they become due; (g) the Company or any subsidiary calls a meeting of its creditors with a view
to arranging a composition, adjustment or restructuring of its debts; or (h) the Company or any subsidiary, by any act or failure
to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other
action for the purpose of effecting any of the foregoing.
"Business
Day" shall mean any day other than a Saturday, Sunday or a day on which commercial banks in the City of New York
are authorized or required by law or executive order to remain closed.
"Change
in Control Transaction" will be deemed to exist if (i) there occurs any consolidation, merger or other business combination
of the Company with or into any other corporation or other entity or person (whether or not the Company is the surviving corporation),
or any other corporate reorganization or transaction or series of related transactions in which in any of such events the voting
stockholders of the Company prior to such event cease to own 50% or more of the voting power, or corresponding voting equity interests,
of the surviving corporation after such event (including without limitation any "going private" transaction under Rule
13e-3 promulgated pursuant to the Exchange Act or tender offer by the Company under Rule 13e-4 promulgated pursuant to the Exchange
Act for 20% or more of the Company's Common Stock), (ii) any person (as defined in Section 13(d) of the Exchange Act), together
with its affiliates and associates (as such terms are defined in Rule 405 under the Act), beneficially owns or is deemed to beneficially
own (as described in Rule l 3d-3 under the Exchange Act without regard to the 60.-day exercise period) in excess of 35% of the
Company's voting power, (iii) there is a replacement of more than one-half of the members of the Company's Board of Directors
which is not approved by those individuals who are members of the Company's Board of Directors on the date thereof, (iv) in one
or a series of related transactions, there is a sale or transfer of all or substantially all of the assets of the Company, determined
on a consolidated basis, or (v) the Company enters into any agreement providing for an event set forth in (i), (ii), (iii) or
(iv) above.
"Conversion
Ratio" means, at any time, a fraction, of which the numerator is the entire outstanding Principal Amount of this
Note (or such portion thereof that is being redeemed or repurchased), and of which the denominator is the Conversion Price as
of the date such ratio is being determined.
"Conversion
Price" shall equal 60% of the Market Price.
"Convertible
Securities" means any convertible securities, to exchange for shares of Common Stock.
"Equity
Conditions" shall mean (i) the resale of all Underlying Shares is covered by an effective registration statement
which is not subject to any suspension or stop order (with a current and deliverable prospectus that is not subject at the time
to any blackout or similar circumstance) or pem1itted pursuant to an exemption including pursuant to Rule 144(b)(l)(i) under the
Securities Act.
"Exchange
Act" shall mean the Securities Exchange Act of 1934, as amended.
"Market
Price'' shall equal the lesser of the average of the 5 lowest trades of the Common Stock for any Trading Day(s) during
the Pricing Period, or the closing bid price on the last day of the pricing period.
"Pricing
Period" shall mean the fifteen trading days preceding the date of the applicable conversion notice. The Pricing Period
may be extended to the day before the shares issued pursuant to the conversion notice are delivered, in the event the shares issued
are registered or an exemption from registration is available. Delivered shall mean the date the shares clear deposit into Holder's
brokerage account which shall be the date Holder is able to trade the shares free from restriction s of any kind including by
the Holder's Brokerage firm, DTC, Issuer or Issuer's Transfer Agent (the "Extended Pricing Period"). The
pricing period will be extended in the event the Market Price calculated using the Extended Pricing Period would be lower. Extending
the pricing period will not adjust the number of shares delivered but will adjust the, market price, conversion price and the
amount the note is reduced as a result of the conversion, and will be memorialized by and Amended Conversion Notice, which will
be submitted to the Issuer by the Holder, if applicable.
"Principal
Amount" shall refer to the sum of (i) the original principal amount of this Note, (ii) all accrued but unpaid interest
hereunder, and (iii) any default payments owing under the Agreements but not previously paid or added to the Principal Amount.
"Principal
Market" shall mean the OTC Markets or such other principal market or exchange on which the Common Stock is quoted
for trading.
"Securities
Act" shall mean the Securities Act of 1933, as amended.
"Trading
Day" shall mean a day on which there is trading on the Principal Market.
"Underlying
Shares" means the shares of Common Stock into which the Notes are convertible (including interest or principal payments
in Common Stock as set forth herein) in accordance with the terms hereof.
The
following terms and conditions shall apply to this Note:
Section
l. Interest Payments.
(a) Interest
Payments. As long as a default does not occur, Interest shall not accrue on the remaining unconverted principal balance
of this Note ("Interest Amount").
Section
2. Conversion.
(a) Conversion
Right. Subject to the terms hereof and restrictions and limitations contained herein, the Holder shall have the right, at
such Holder's option, at any time and from time to time to convert the outstanding Current Principal Amount under this Restated
Note in whole or in part by delivering to the Company a fully executed notice of conversion in the form of conversion notice attached
hereto as Exhibit A (the "Conversion Notice"), which may be transmitted by facsimile or email. Notwithstanding
anything to the contrary herein, this Note and the outstanding Principal Amount hereunder shall not be convertible into Common
Stock to the extent that such conversion would result in the Holder hereof exceeding the limitations contained in, or otherwise
violating the provisions of, Section 2(i) below.
| (b) | Common
Stock Issuance upon Conversion. |
(i) Conversion
Date Procedures. Upon conversion of this Note pursuant to Section 2(a) above, the outstanding Current Principal Amount of
the Restated Note elected to be converted hereunder shall be converted into such number of fully paid, validly issued and non-assessable
shares of Common Stock, free of any liens, claims and encumbrances and without any restrictions or legends (if the shares are
registered or if an exemption from registration is available and restricted if the shares are not registered or an exemption from
registration is unavailable), as is determined by dividing the amount of the Current outstanding Principal Amount of this Restated
Note being converted by the then applicable Conversion Price:
For example,
a $40,000 conversion amount with a Conversion Price of $0.25 would be entitled to 160,000 conversion shares ($40,000/$0.25).
Obligor
shall pay holder liquidated damages in the event holder does not receive free trading shares after a conversion notice has been
sent, if the shares are registered or an exemption from registration is available and restricted if the shares are not registered
or an exemption from registration is unavailable. The Liquidated Damages are not a penalty but are designed to set and limit damages,
which are uncertain and cannot be known at this time. The damages will be the greater of: (1) I 00% of the outstanding Principal
Amount of the Notes held by the Holder {plus all accrued and unpaid interest, if any); (2) the product of (A) the average of the
20 highest closing prices at any time up to the date a judgment is entered by the Court times the number of shares that would
be delivered on the date of the default if the entire note were converted using the thirty days preceding the date of the default
as the Pricing Period.
(ii) Delivery.
The Company will deliver to the Holder not later than three (3) Trading Days after the Conversion Date, shares (which certificate(s)
shall be free of restrictive legends and trading restrictions if the shares are registered or an exemption from registration is
available) representing the number of shares of Common Stock being acquired upon the conversion of this Note via Deposits and
Withdrawal at Custodian (DWAC), if possible and unrestricted ce1tificates if the shares cannot be sent via DWAC. If in the case
of any conversion hereunder, such shares are not delivered to the Holder by the third Trading Day after the Conversion Date, the
Holder shall be entitled by written notice to the Company at any time on or before its receipt of such shares, to rescind such
conversion, in which event the Company shall immediately return this Note tendered for conversion. Lf the Company fails to deliver
to the Holder such shares pursuant to this Section 2 of this Agreement (free of any restrictions on transfer or legends, if the
shares are registered or if an exemption from registration is available and restricted if the shares are not registered or an
exemption from registration is unavailable) in accordance herewith, prior to the fifth Trading Day after the Conversion Date,
the Company note shall be in default.
(iii) Surrender
of Note Not Required. The date of any Conversion Notice hereunder and any Payment Date shall be referred to herein as the
"Conversion Date". If the Holder is converting less than all of the outstanding Principal Amount hereunder pursuant
to a Conversion Notice, the Company shall promptly deliver to the Holder (but no later than five Trading Days after the Conversion
Date) a Note for such outstanding Principal Amount as has not been converted if this Note has been surrendered to the Company
for partial conversion. The Holder shall not be required to physically surrender this Note to the Company upon any conversion
hereunder unless the full outstanding Principal Amount represented by this Note is being converted or repaid. The Holder and the
Company shall maintain records showing the outstanding Principal Amount so convened and repaid and the dates of such conversions
or repayments or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical
surrender of this Note upon each such conversion or repayment.
| (c) | Conversion
Price Adjustments. |
(i) Stock
Dividends, Split and Combinations. If the Company or any of its subsidiaries, at any time while the Notes are
outstanding (A) shall pay a stock dividend or otherwise make a distribution or distributions on any equity securities
(including instruments or securities convertible into or exchangeable for such equity securities) in shares of Common Stock,
(B) subdivide outstanding Common Stock into a larger number of shares, or (C) combine outstanding Common Stock into a smaller
number of shares, then each Affected Conversion Price (as defined below) shall be multiplied by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding before such event and the denominator of which shall be the
number of shares of Common Stock outstanding after such event. Any adjustment made pursuant to this Section 3(c)(i) shall
become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in the case of a subdivision or
combination.
As
used herein, the Affected Conversion Prices (each an "Affected Conversion Price") shall refer to: (i) the Conversion
Price, and (ii) each reported lowest closing bid price occurring on any Trading Day included in the period used for determining
the Conversion Price, which Trading Day occurred before the record date in the case of events referred to in clause (A) of this
subparagraph 3(c)(i) and before the effective date in the case of the events referred to in clauses (B) and (C) of this subparagraph
3(c)(i).
(ii) Distributions.
lf the Company or any of its subsidiaries, at any time while the Notes are outstanding, shall distribute to al! holders of
Common Stock evidences of its indebtedness or assets or cash or rights or warrants to subscribe for or purchase any security of
the Company or any of its subsidiaries (excluding those referred to in Section 3(c)(i) above), then concurrently with such distributions
to holders of Common Stock, the Company shall distribute to holders of the Notes the amount of such indebtedness, assets, cash
or rights or warrants which the holders of Notes would have received had all their Notes been converted into Common Stock at the
Conversion Price immediately prior to the record date for such distribution.
(iii) Rounding
of Adjustments. All calculations under this Section 3 or Section I shall be made to 4 decimal places for dollar amounts or
the nearest 1/1OOth of a share, as the case may be.
(iv) Notice
of Adjustments. Whenever any Affected Conversion Price is adjusted pursuant to Section 3(c)(i), (ii) or (iii) above, the Company
shall promptly deliver to each holder of the Notes, a notice setting forth the Affected Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment, provided that any failure to so provide such notice
shall not affect the automatic adjustment hereunder.
(v) Change
in Control Transactions. In case of any Change in Control Transaction,
the Holder shall have the right thereafter to, at its option , convert this Note, in whole or in part, at the Conversion Price
into the shares of stock and other securities, cash and/or property receivable upon or deemed to be held by holders of Common
Stock following such Change in Control Transaction, and the Holder shall be entitled upon such event to receive such amount of
securities, cash or property as the shares of the Common Stock of the Company into which this Note could have been converted immediately
prior to such Change in Control Transaction would have been entitled if such conversion were permitted, subject to such further
applicable adjustments set forth in this Section 3. The terms of any such Change in Control Transaction shall include such terms
so as to continue to give to the Holders the right to receive the amount of securities, cash and/or property upon any conversion
or redemption following such Change in Control Transaction to which a holder of the number of shares of Common Stock deliverable
upon such conversion would have been entitled in such Change in Control Transaction, and interest payable hereunder shall be in
cash or such new securities and/or property, at the Holder's option. This provision shall similarly apply to successive reclassifications,
consolidations, mergers, sales, transfers or share exchanges.
(vi) Notice
of Certain Events. lf:
| A. | the
Company shall declare a dividend (or any other distribution) on its Common Stock; or |
| B. | the
Company shall declare a special nonrecurring cash dividend on or a redemption of its
Common Stock; or |
| C. | the
Company shall authorize the granting to all holders of the Common Stock rights or warrants
to subscribe for or purchase any shares of capital stock of any class or of any rights;
or |
| D. | the
approval of any stockholders of the Company shall be required in connection with any
reclassification of the Common Stock of the Company, any consolidation or merger to which
the Con1pany is a party, any sale or transfer of all or substantially all of the assets
of the Company, of any compulsory share of exchange whereby the Common Stock is converted
into other securities, cash or property; or |
| E. | the
Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company; |
then
the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall
cause to be mailed to the Holder at its last address as it shall appear upon the books of the Company, on or prior to the date
notice w the Company's stockholders generally is given, a notice stating (x) the date cm which a record is to be taken
for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants
are to be determined or (y) the date on which such reclassification, consolidation, merger. sale, transfer or share exchange is
expected to become effective or close, and the date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange.
(d) Reservation
and Issuance of Underlying Securities. The Company covenants that it will at all times reserve and keep available out of its
authorized and unissued Common Stock solely for the purpose of issuance upon conversion of this Note (including repayments in
stock), free from preemptive rights or any other actual contingent purchase rights of persons other than the holders of the Notes,
not less than such number of shares of Common Stock as shall (subject to any additional requirements of the Company as to reservation
of such shares set forth in the Exchange Agreement) be issuable (taking into account the adjustments under this Section 3 but
without regard to any ownership limitation s contained herein) upon the conversion of this Note hereunder in Common Stock (including
repayments in stock). The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly
authorized, validly issued, fully paid, nonassessable, and freely tradable (provided the shares are registered or an exemption
from registration is available and restricted if the shares are not registered or an exemption from registration is unavailable).
(e) No
Fractions. Upon a conversion hereunder the Company shall not be required to issue stock certificates representing fractions
of shares of Common Stock, but may if otherwise permitted, make a cash payment in respect of any final fraction of a share based
on the closing price of a share of Common Stock at such time. If the Company elects not, or is unable, to make such a cash payment
, the Holder shall be entitled to receive, in lieu of the final fraction of a share, one whole share of Common Stock, rounded
to the nearest whole share of common stock.
(f) Charges,
Taxes and Expenses. Issuance of certificates for shares of Common Stock upon the conversion of this Note (including repayment
in stock) shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the
issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued
in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event certificates
for shares of Common Stock are to be issued in a name other than the name of the Holder, this Note when surrender for conversion
shall be accompanied by an assignment form; and provided further, that the Company shall not be required to pay any tax or taxes
which may be payable in respect of any such transfer.
(g) Cancellation.
After all of the Principal Amount (including accrued but unpaid interest and default payments at any time owed on this Note) have
been paid in full or converted into Common Stock, this Note shall automatically be deemed canceled and the Holder shall promptly
surrender the Note to the Company at the Company's principal executive offices.
(h) Notices
Procedures. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without
limitation, any Con version Notice, shall be in writing and delivered personally, by facsimile, by email, or by a nationally recognized
overnight courier service to the Company at the facsimile telephone number or address of the principal place of business of the
Company as set forth in the Exchange Agreement. Any and all notices or other communications or deliveries to be provided by the
Company hereunder shall be in writing and delivered personally, by facsimile, or by a nationally recognized overnight courier
service addressed to the Holder at the facsimile telephone number or address of the Holder appearing on the books of the Company,
or if no such facsimile telephone number or address appears, at the principal place of business of the Holder. Any notice or other
communication or deliveries hereunder shall be deemed delivered (i) upon receipt, when delivered personally, (ii) when sent by
facsimile or email, upon receipt if received on a Business Day prior to 5:00 p.m. (Eastern Time), or on the first Business Day
following such receipt if received on a Business Day after 5:00 p.m. (Eastern Time) or (iii) upon receipt, when deposited with
a nationally recognized overnight courier service.
(i) Conversion
Limitation. Notwithstanding anything to the contrary contained herein, the number of shares of Common Stock that may be acquired
by the Holder upon conversion pursuant to the terms hereof shall not exceed a number that, when added to the total number of shares
of Common Stock deemed beneficially owned by such Holder (other than by virtue of the ownership of securities or rights to acquire
securities (including the Notes) that have limitations on the Holder's right to convert, exercise or purchase similar to the limitation
set forth herein), together with all shares of Common Stock deemed beneficially owned at such time (other than by virtue of the
ownership of securities or rights to acquire securities that have limitations on the right to convert, exercise or purchase similar
to the limitation set forth herein) by the holder's "affiliates" at such time (as defined in Rule 144 of the Act) ("Aggregation
Parties") that would be aggregated for purposes of determining whether a group under Section l3(d) of the Securities Exchange
Act of 1934 as amended, exists, would exceed 9.9% of the total issued and outstanding shares of the Common Stock (the "Restricted
Ownership Percentage").
Section
3. Defaults and Remedies.
(a) Events
of Default. An "Event of Default" is: (i) a default in payment of any amount due hereunder which default continues
for more than 5 business days after the due date thereof; (ii) a default in the timely issuance of Underlying Shares upon and
in accordance with terms hereof, which default continues for five Business Days after the Company has received written notice
informing the Company that it has failed to issue shares or deliver stock certificates within the fifth day following the Conversion
Date; (iii) failure by the Company for fifteen (l5) days after written notice has been received by the Company to comply with
any material provision of any of the Notes or the Exchange Agreement (including without limitation the failure to issue the requisite
number of shares of Common Stock upon conversion hereof and the failure to redeem Notes upon the Holder's request following a
Change .in Control Transaction pursuant to Section 3(c)(v); (iv) a material breach by the Company of its representations or warranties
in the Exchange Agreement; (v) any default after any cure period under, or acceleration prior to maturity of any mortgage, indenture
or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed
by the Company for in excess of $500,000 or for money borrowed the repayment of which is guaranteed by the Company for in excess
of $500,000, whether such indebtedness or guarantee now exists or shall be created hereafter (also excepted from this provision
is any indebtedness related to the Medient Studioplex project); or (vi) if the Company is subject to any Bankruptcy Event.
(b) Remedies.
If an Event of Default occurs and is continuing with respect to any of the Notes, the Holder may declare all of the then outstanding
Principal Amount of this Note and all other Notes held by the Holder, including any interest due thereon, to be due and payable
immediately, except that in the case of an Event of Default arising from events described in clauses (v) and (vi) of Section 4(a)
this Note shall become due and payable without further action or notice. In the event of such acceleration, the amount due and
owing to the Holder shall be the greater of: (l) l00% of the outstanding Principal Amount of the Notes held by the Holder (plus
all accrued and unpaid interest, if any); (2) the product of (A) the average of the 20 highest closing prices at any time up to
the date a judgment is entered by the Court times the number of shares that would be delivered on the date of the default if the
entire note were converted using the thirty days preceding the date of the default as the Pricing Period. The remedies under this
Note shall be cumulative.
Section
4. General.
(a) Payment
of Expenses. The Company agrees to pay all reasonable charges and expenses, including attorneys' fees and expenses, which
may be incurred by the Holder in successfully enforcing this Note and/or collecting any amount due under this Note.
(b) Savings
Clause. In case any provision of this Note is held by a court of competent jurisdiction to be excessive in scope or otherwise
invalid or unenforceable, such provision shall be adjusted rather than voided, if possible, so that it is enforceable to the maximum
extent possible, and the validity and enforceability of the remaining provisions of this Note will not in any way be affected
or impaired thereby. In no event shall the amount of interest paid hereunder exceed the maximum rate of interest on the unpaid
principal balance hereof allowable by applicable law. If any sum is collected in excess of the applicable maximum rate, the excess
collected shall be applied to reduce the principal debt. lf the interest actually collected hereunder is still in excess of the
applicable maximum rate, the interest rate shall be reduced so as not to exceed the maximum allowable under law.
(c) Amendment.
Neither this Note nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed
by the Company and the Holder.
(d) Assignment,
Etc. The Holder may assign or transfer this Note. The Holder shall notify the Company of any such assignment or transfer promptly.
This Note shall be binding upon the Company and its successors and shall inure to the benefit of the folder and its successors
and pem1itted assigns.
(e) No
Waiver. No failure on the part of the Holder to exercise, and no delay in exercising any right remedy or power hereunder shall
not operate as a waiver thereof, nor shall any single or partial exercise by the Holder of any right, remedy or power hereunder
preclude any other or future exercise of any other right, remedy or power. Each and every right, remedy or power hereby granted
to the Holder or allowed it by law or other agreement shall be cumulative and not exclusive of any other, and may be exercised
by the Holder from time to time.
(f) Governing
Law; Jurisdiction.
(i) Governing
Law. THIS NOTE WILL BE GOVERNED BY AND CONSTRUED !N ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PROVISIONS THEREOF THAT WOULD OTHERWISE REQUIRE THE Application OF THE LAW OF ANY OTHER JURISDICTION.
(ii) Jurisdiction.
This Note shall be deemed to have been executed in Lake County, Illinois, the State and County where Holder executes this
Note and the County from where funds are being sent and to where funds are to be repaid. The Company expressly agrees and consents
that the Nineteenth Judicial Circuit in Lake County Illinois or the United States District Court for the Northern District of
Illinois shall have sole jurisdiction of any action pertaining to this note.
The
Company agrees that the service of process upon it mailed by ce11ified or registered mail (and service so made shall be deemed
complete three days after the same has been posted as aforesaid) or by personal service shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. Nothing herein shall affect Holder's right to serve process in any
other manner permitted by law. The Company agrees that a final non-appealable judgment in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on such judgment or in any other lawful manner.
(iii)
NO JURY TRIAL. THE COMPANY AND THE LIMITED GUARANTOR HERETO KNOWINGLY AND VOLUNTARILY WAIVE ANY AND ALL RIGHTS EACH MAY
HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, OR IN ANY WAY
RELATING OR REFERRING TO THIS NOTE.
(g) Replacement
Notes. This Note may be exchanged by Holder at any time and from time to time for a Note or Notes with different
denominations representing an equal aggregate outstanding Principal Amount, as reasonably requested by Holder, upon
surrendering the same. No service charge will be made for such registration or exchange. In the event that Holder notifies
the Company that this Note has been lost, stolen or destroyed, a replacement Note identical in all respects to The original
Note (except for registration number and Principal Amount, if different than that shown on the original Note), shall be
issued to the Holder, provided that the Holder executes and delivers to the Company an agreement reasonably satisfactory to
the Company to indemnify the Company from any loss incurred by it in connection with the Note.
(h) Waiver.
The Company hereby waives any and all demands of any nature whatsoever, any and all notices of any nature whatsoever, dishonor,
presentment of any kind whatsoever, and protest of or in connection with the Note or any Indebtedness.
(i) Piggyback
Registration. At the option of the Holder, if at any time the Company proposes or is required to register any of its equity
securities under the Securities Act or file an amendment to any registration statement covering any of its securities,
(other than registrations on Form S-4 or Form S-8 or any similar successor forms thereto), the Company shall notify holder of
its intention to register its securities and will use its commercially reasonable efforts to cause all shares issuable pursuant
to conversions of this note, to be registered under the Securities Act with the securities which the Company at the rime proposes
to register to permit the sale or other disposition by the, unless within five (5) Business Days after the Issuer sending notice
of its intention to register securities, Holder elects that this note and the shares underlying it not be included in that registration
. Any registration shall include, if necessary, the filing with the SEC a post-effective amendment or a supplement to the registration
statement filed by the Company or the prospectus related thereto. There is no limitation on the number of such piggyback registrations
pursuant to the preceding sentence which the Company is obligated to effect.
[signature
page follows]
IN
WITNESS WHEREOF, the Company has caused this Note to be duly executed on the day and in the year first above written.
The Company:
FONU2
INC.
By: |
|
|
Name: |
Roger Miguel |
|
Title: |
CEO |
|
The Holder:
By: |
|
|
Name: |
Brad Hare |
|
Title: |
President |
|
EXHIBIT
A
NOTICE
OF CONVERSION
(To
be executed by the Holder in order to convert the Debenture)
TO: FONU2
INC.
RE: FONU
MAMMOTH NOTE NUMBER 002
The
undersigned hereby Irrevocably elects 10 convert a portion of the of the principal amoun1 of the above Debenture into Shares of
Common Stock of FONU2 Inc. according to the conditions stated therein, as of the Conversion Date written below. Please note that
should the Conversion Price in effect for this conversion be less than the Par Value ($0.0001) of the Company's Common Stock,
the principal reduction resulting from this conversion will be less than the dollar amount of the conversion as set forth below.
Conversion
Date: |
|
|
|
Amount to be converted: |
$ |
|
|
Market Price |
$ |
|
|
Conversion Price per share: |
$ |
|
|
Number
of shares of Common Stock to be issued: |
|
|
|
Amount of Principal
Reduced: |
$ |
|
|
Amount of
Debenture unconverted : |
|
|
|
Please issue
the shares of Common Stock in the
following name and to the following address: |
Mammoth Corporation DELIVERY INSTRUCTIONS |
|
|
Issue to: |
Mammoth Corporation |
|
|
Name: |
Brad Hare |
|
|
Authorized
Signature: |
|
|
|
Title: |
President |
|
|
Phone Number: |
(847) 540-5044 |
|
|
Broker
DTC Participant Code: |
|
|
|
Account
Number: |
|
Exhibit 10.2
SETTLEMENT
AGREEMENT AND MUTUAL RELEASE
This
Settlement and Mutual Release Agreement
(the
"Agreement") is entered into
as of
this
23 day
of October 2015 between
and
among Plaintiff Mammoth West Corporation
d/b/a Mammoth Corporation ("Mammoth")
and Defendants Moon River Studios,
Inc. F/K/A
Medient Studios, Inc. ("MDNT"),
Joel Shapiro a/k/a
Jake Shapiro
("Shapiro"),
and FONU2,
Inc.
("FONU2") ("collectively the "Defendants").
Mammoth and each of
the Defendants may be referred to
as a
"Party" and collectively
they may be referred to
as
the "Parties".
WHEREAS,
Mammoth filed
a lawsuit against Defendants entitled Mammoth Corporation
v. Moon
River
Studios, et al., No.
15 L 616
in the Circuit Court
for the Nineteenth
Judicial Circuit
Lake County Illinois,
which
suit is
pending (the
"Lawsuit");
WHEREAS,
to avoid
protracted
litigation,
expense and inconvenience and to settle, compromise
and fully and finally resolve all outstanding
and potential matters between them,
Plaintiff
and Defendants
wish
enter into
this Agreement;
NOW,
THEREFORE,
in consideration
of the
mutual
promises
and covenants
set forth herein,
the receipt
and
sufficiency of which are
hereby acknowledged, the Parties
agree as
follows:
| 1. | The
foregoing recitals
are incorporated
into this
Agreement
for all purposes. |
2. In
full and complete
settlement and satisfaction
of the Lawsuit and
any and all
actual and/or potential
claims relating thereto,
FONU2 shall:
| a. | Issue
to Mammoth
Corporation
at the
same time
as this
Settlement
Agreement,
the
Convertible
Promissory Note (FONU Mammoth
Note Number
00l ) ("the
Note"); |
| b. | The
Note will
be held
by Mammoth
and will
be returned
marked
Paid, upon
Mammoth
receiving
all payments
indicated
in this
Section
2 or, upon
receipt of the
Discounted
Payment in the
event Defendants
prepay
and receive
a discount
as described
in Section
4 of this
Agreement. |
| c. | FONlJ2
will enter into
a production
agreement
which shall
be disclosed
by FONU2,
in a
Form
8-K filed
with the SEC or
in a
press
release,
by October
30, 2015; |
| d. | Pay
$15,000
to Mammoth within 10 days of
FONU2 entering
into
the pre
production, but in
no event
later than
December I,
2015; |
| e. | Pay
$25,000
to Mammoth
one month
after the
Payment
described
in Section
2(d)
of this
agreement,
which
shall be
in no
event
later than
January
1,
2016. In
the event
the payment
is not
made by
January
1,
2016, a
l0 day
grace
period shall
apply before action
is taken
to enforce this
Agreement; |
| f. | Pay
$25,000 to Mammoth
one month
after the
Payment
described
in Section 2(e) of
this agreement.
which
shall
be in no event
later
than February 1,
2016.
In the
event the payment
is not
made by February l, 20l6,
a l0 day
grace period shall
apply
before
action
is
taken to
enforce this Agreement |
| g. | Pay
$25,000
to Mammoth
one month
after the
Payment
described
in Section
2(f)
of this
agreement which
shall be in
no event later than
March
1, 2016.
In the
event the
payment
is not
made
by March
1, 2016,
a l 0
day grace
period
shall apply
before
action
is
taken to enforce
th.is
Agreement. |
| h. | Pay
$25,000
to Mammoth
one month
after the
Payment
described
in Section
2(g) of
this agreement,
which
shall
be in
no event later
than April
1, 2016.
In the
event
the
payment
is not
made
by April
l,
20l
6,
a l 0 day
grace
period
shall apply
before
action is
taken to
enforce
this Agreement. |
| i. | Pay
the
balance
of FONU
Mammoth
Note Number
001 one
month after the
Payment described
in Section
2(h)
of this
agreement,
which shall
be in
no event
later
than May
1, 2016.
ln
the event
the payment
is not
made
by May
l, 20l6,
a 10 day
grace
period
shall
apply
before action
is
taken to
enforce
this
Agreement. |
| | |
| j. | In
the
event any
of
the listed
actions
in this
Section
2 of
the Settlement
Agreement
do
not occur
when due,
then
Section
3 of this
Agreement
shall apply. |
3. The
Parties agree to have the Court retain jurisdiction for the sole purpose of enforcing the tem1s of this Agreement by entering
a judgment against Defendants in the amount of $140,000, less any payments received, plus interest and the costs of enforcing
this Agreement, including reasonable attorney fees in the event the terms of this Agreement are not followed.
4. Prepayment
Incentive ("Discounted Payment"): Provided none of the payments described in Section 2 have been missed, Defendants
may prepay at any time and receive the following discount, with the number of days being measured from the date of the first payment
described in Section 2(d) of this Agreement:
Discount: |
If
Paid within: |
50% |
45
Days |
40% |
90
Days |
30% |
120
Days |
5. Upon
receipt of all payments contemplated by this Settlement Agreement, in exchange for the promises, covenants and undertakings made
in this Agreement, Mammoth does hereby, forever, fully and finally release and discharge, Defendants and all their respective
officers, directors, employees, agents, attorneys, heirs, successors and assigns, if any, of and from any and all liabilities,
rights, claims, causes of action, agreements, bills, bonds, controversies, counterclaims, covenants, cross-claims, damages, debts,
demands, executions, indemnities, judgments, liens, notes, obligations, promises, suits, third- party actions, filed or untiled,
and sums of money whatsoever, and any and all claims arising from any one or more of the foregoing, whether in law or in equity,
known or unknown, liquidated or unliquidated, mature or contingent, including any matters that arise pursuant to any law, act,
statute or ordinance and including any claims, liabilities or damages relating to or arising from the Note, or any claims made
in or relating to the claims made in the Lawsuit.
6. In
exchange for the promises, covenants and undertakings made in this Agreement, Defendants do hereby, forever, fully and finally
release and discharge Mammoth and its officers, directors. employees, agents, attorneys, heirs, successors and assigns, if any,
of and from any and all liabilities, rights, claims, causes of action, agreements, bills, bonds, controversies, counterclaims,
covenants, cross-claims, damages, debts, demands, executions, indemnities, judgments, liens, notes, obligations, promises, suits,
third- party actions, filed or unfiled, and sums of money whatsoever, and any and all claims arising from any one or more of the
foregoing, whether in law or in equity, known or unknown, liquidated or unliquidated , mature or contingent, including any such
matters that arise pursuant to any law, act, statute or ordinance and including any claims, liabilities or damages relating to
or arising from the Note, or any claims made in or relating to the claims made in the Lawsuit.
7. The
acknowledgments, covenants, promises, recitals and releases made in this Agreement are made solely to compromise disputed claims
and are not ton be construed as an admission of liability on the part of any Party.
8. Each
Party shall promptly take any and all action necessary, proper, or convenient and to promptly execute and deliver any and all
documents necessary, proper, and convenient to carry out and perform all of the provisions of this Agreement.
9. This
Agreement may not be assigned without the express written consent of each Party, and any unauthorized assignment shall be null
and void, however nothing in this Section shall prohibit Mammoth from being able to assign the Note describe in Section 2(a) of
this Agreement.
10. This
Agreement contains the entire agreement of the Parties, any and all prior agreements between the Parties are hereby superseded
and revoked, and no Party has relied on any agreement, statement or promise that is nor set forth in this Agreement.
11. Each
Party has had the benefit of professional legal advice from the attorneys of his or its own choosing, is fully satisfied with
that advice, and has relied solely and completely upon his or its own judgment together with the independent professional advice
of his or its counsel in executing this Agreement, and has fully informed himself or itself of the contents, terms, conditions
and effects of this Agreement and has read and fully understands this Agreement.
12. This
Agreement is to be governed by, construed, and enforced in accordance with the laws of the State of Illinois.
13. Wherever
and whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under
the laws of the State of Illinois and any other applicable law.
14. If
any provision of this Agreement is prohibited by or determined to be void or invalid under applicable law, such provision shall
be ineffective to the extent it is prohibited, void or invalid, without impacting the remainder of such provision or the remaining
provisions of this Agreement and shall not exclude or preclude the Parties from exercising any other rights or remedies provided
in this Agreement or by law.
15. This
Agreement may be executed and transmitted by the Parties in counterparts, by email and/or by facsimile, each of which, for all
purposes, shall be considered an original.
16. Any
notices, demands or other legal documents required, permitted or contemplated by this Agreement shall be in writing and may be
sent either to the street address or the email address listed below:
if
to Mammoth
, then
by email to:
Mammoth
Corporation
One
First Bank Plaza,
Suite 205
Lake
Zurich,
IL 60047
Email:
mammothcorp@hotmail.com
and
if to
Defendants:
Roger
Miguel,
CEO
Jake
Shapiro
FONU2,
Inc.
135
Goshen Road Ext. Suite
205
Rincon,
GA 31326
Email:
rogermiguel@fonu2.com
17. Each
person signing this Agreement on behalf of a Party warrants and represents by his or her signature that he or she has the authority
to execute this Agreement on that Party's behalf.
18. This
Agreement shall be binding on the heirs, successors, and assigns of each Party hereto.
19. Each
Party shall cooperate fully and in good faith in carrying out the terms of this Agreement and effecting its purpose.
20. This
Agreement is to be construed according to the fair import of its language as a whole, and not to be construed in favor of or against
any of the Parties hereto.
21. This
Agreement may be executed in counterparts which counterparts together shall have the same force and effect as a single original
executed by all the panics. A counterpart signed and sent electronically including, but not limited to, by facsimile or email,
and any reproduction of that counterpart including printing or photocopying the counterpart, shall be an original and binding
document.
IN
WITNESS W HEREOF, the Parties hereto, have caused this Agreement to be duly executed as of October 23, 2015.
MAMMOTH WEST CORPORATION d/b/a |
|
MAMMOTH CORPORATION |
|
|
|
By: |
|
|
|
Brad Hare, President |
|
|
|
|
FONU2, INC. |
|
|
|
|
By: |
|
|
|
Roger Miguel, CEO |
|
|
|
|
JOEL (a/k/a JAKE) SHAPIRO, individually |
|
and MOON RIVER STUDIOS, INC. |
|
f/k/a Medient Studios, Inc. |
|
|
|
By: |
|
|
|
Joel (a/k/a Jake) Shapiro, Individually and as a |
|
|
former Officer of MOON RIVER STUDIOS, |
|
|
INC. f/k/a Medient Studios, Inc. |
|
- 5 -
Exhibit 10.3
DISTRIBUTION
AGREEMENT
This
Agreement and the attached Standard Terms (collectively, the “Agreement”) are dated as of September 30, 2015 and set
forth the terms of the Agreement between FONU2, Inc. doing business as Moon River Studios, Inc. (“Owner” or a “Party”)
of 135 Goshen Road Ext., Suite 205, Rincon, Georgia 31326 and Magna Entertainment (“Magna” or a “Party”)
(and together with the Owner, collectively, “Parties”) with respect to Owner’s engagement of Magna as agent
in connection with the distribution and exploitation of the motion picture “Yellow.” The motion picture (written by
Nick Cassavetes and Heather Wahlquist, directed by Nick Cassavetes and starring Heather Wahlquist, Sienna Miller, Melanie Griffith,
Lucy Punch, Ray Liotta, Gena Rowlands…), currently titled Yellow (“Picture”) shall be distributed
on the following terms and conditions:
1)
Engagement |
Magna
will be exclusive Owner’s agent for all sales, licensing, distribution, and other exploitation of the Picture in the Territory
(as defined below) across all Licensed Media (as defined below). Magna will also have the right to advertise and promote, and
arrange for the advertising and promotion of, the Picture. |
|
|
2)
Territory |
Worldwide. |
|
|
3)
Term |
The
period beginning on execution of the Agreement and continuing for two (2) years from completion of materials delivery, with
successive one (1) year extensions unless either Party ceases such extensions on sixty (60) days advance written notice to
the other Party. For clarity, after expiration or termination of the Term, Magna will continue to receive its fee in connection
with all exploitation of the Picture arranged by Magna during the Term for any agreements mutually agreed upon. |
|
|
4)
Licensed Media |
All
forms of exploitation, whether on a free, paid or subscription basis, or otherwise, including without limitation:
(a)
theatrical
(b)
via all forms of Internet Protocol delivery to all IP-capable devices;
(c)
via all forms of video-on-demand and pay-per-view;
(d)
via all modes of television exhibition;
(e)
via traditional distribution of home video devices;
(f)
via so called “disc on demand,” “manufacture on demand,” and similar fulfillment services;
(g)
to hotels, educational institutions, libraries, hospitals and corporate locations;
(h)
to airlines, ships, oil rigs and military bases registered in and/or flying the flag of any part of the Territory. |
|
|
5)
Gross Receipts |
All
sums received by Magna in connection with all sales, licensing, distribution and exploitation of the Picture hereunder. |
6)
Magna Fee |
As
partial consideration for Magna entering into this Distribution Agreement, the Owner shall have assumed and hereby fully guarantees
$696,128.73 of indebtedness of Medient Studios, a predecessor to the Owner, to an entity that may be deemed an affiliate of
Magna (which the Owner represents such funds were used by Medient Studios in connection with production expenses of the film
“Yellow”) and the Owner shall immediately exchange such $696,128.73 of indebtedness for an 8% Senior Convertible
Exchange Note of the Owner in the aggregate principal amount of $696,128.73 made payable to Magna, the form of which is annexed
hereto as Exhibit 1. Upon the Owner’s recoupment and receipt of all distribution fees owed to it from the release of
the film “Yellow”, and the payment of all obligations of the Owner to Magna pursuant to the Exchange Note, the
balance of all remaining funds received by the Owner as a result of the distribution of the film Yellow, shall be paid to
Medient and/or its debtors. |
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7)
Print & Advertising Spend |
For
clarity, the budget for the Print & Advertising spend of the Picture, including without limitation the theatrical exhibition,
and all promotion of the Picture, shall be mutually determined and agreed in advance by Owner and Magna. Owner
hereby approves Magna’s theatrical distribution of the Picture via Screen Media. |
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8)
Additional Owner Representations |
Owner
hereby represents and warrants that the claims of breach of contract, breach of covenant and fair dealing, fraudulent misrepresentation,
and negligent misrepresentation that were filed against Nick Cassavetes, a producer of the Picture, in Los Angeles Superior Court
on December 18, 2012 by plaintiffs John Thomas and Twinspin Music, naming Owner as a defendant, have been fully and adequately
resolved and that no further action is, or will be, taken by any party in connection with any such claims. Further, Owner represents
that it is the exclusive owner of the worldwide distribution rights for the Picture. The foregoing representations shall be in
addition to any other representations made by Owner in this Agreement and any addendum hereto. |
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9)
Allocation of Receipts |
1. Except as otherwise agreed, first, Magna will deduct and retain from Gross Receipts all funds until all obligations to
Magna under the Note and is paid in full:.
2. After item 9.1 is fully satisfied, from Gross Receipts, Owner shall receive One Hundred Percent (100%) of further remaining
sums pursuant to the payment terms as per the Agreement (“Net Receipts”).
All
payments of Net Receipts to the Owner shall be made within thirty (30) days of actual receipt by Magna. |
STANDARD
TERMS
10)
Appointment |
Owner
appoints Magna to act as Owner’s agent in connection with all sales, licensing, distribution and other exploitation
of the Picture throughout the Territory and for the Term in the Licensed Media, in all formats and versions (including, without
limitation, versions formatted for television as well as segments or episodes derived from the Picture), as further set forth
in this Agreement and these Standard Terms. Magna shall additionally have the right to advertise and promote the Picture,
and arrange for the advertising and promotion of the Picture, in all media now known or hereafter devised (the “Advertising
Rights”). For clarity, capitalized terms used herein that are not defined shall have the meaning assigned to them in
the Cover Sheet. |
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11)
Accounting, Reporting & Payment |
Magna
will make available accounting statements to Owner’s account via email, and will deliver to Owner payment of Net
Receipts (if any) to the reporting and payment contact in accordance with paragraph 9 of the Agreement. All statements
submitted to Owner shall include, at a minimum, transactional data and revenues generated by the Picture as reported to
Magna by each such licensee of the Picture, and all expenses incurred hereunder.
Owner
shall have the right, upon at least thirty (30) days prior written notice, to audit Magna’s books and records solely
related to the Picture, at Magna’s regular place of business and during Magna’s regular business hours. Such
right to audit is limited to the Picture, and under no circumstances shall Owner have the right to examine records relating
to Magna’s business generally, or with respect to any other titles or content. Such audit shall be conducted by
an independent certified accountant at Owner’s sole cost and expense, and not more frequently than once per year.
No statement may be audited more than once and no such audit shall be conducted in a manner that unreasonably interferes
with Magna’s business. |
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12)
Residuals & Third Party Participations |
Owner
is responsible for any and all residual and other additional or supplemental payments payable to any union, guild or other
entity (e.g., SAG, DGA, WGA) required to be made by reason of the exploitation of the Picture and the advertising rights as
set forth herein. Owner is responsible for paying all third party participations granted by Owner in connection with the Picture.
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13)
Delivery |
All
necessary clearance, preparation, and delivery to Magna of such materials necessary for the reasonable and efficient distribution
and exploitation of the Picture (“Materials”) shall be at Owner’s sole cost and expense. Owner acknowledges
and agrees that Owner’s failure to timely deliver Materials may prevent Magna from making the Picture available for
distribution, and any delayed performance or non-performance by Magna arising from (i) Owner’s failure to meet its delivery
obligations of the Materials hereunder, or (ii) the failure of the video elements of the Picture or any trailers for the Picture
to meet quality control standards of any licensee shall not be a breach hereof by Magna. |
14)
Source Copy Loss or Damage |
Owner
is solely responsible for creating and retaining copies of the Picture or other Materials prior to submitting them to Magna.
Magna shall not be responsible for any loss of or damage to physical elements of the Picture or other Materials submitted
to Magna under any circumstances or for any reason whatsoever, provided such loss or damage is not the result of Magna’s
negligence or willful misconduct. |
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15)
Editing |
Magna
will not edit, and will not permit third parties to edit the Picture except for the following purposes: (i) to prepare closed
captioned, subtitled and/or dubbed versions the Picture; (ii) to avoid legal liability or conform the Picture to applicable
laws, standards and practices; (iii) if applicable, to insert interstitial advertisements; (iv) if applicable, to compress
the Picture and/or the credits as required by any third party licensee in connection with time limitations in a manner customary
in the television industry; (v) to create clips, excerpts and segments for promotional use or in connection with
serialized exhibition of the Picture; and, (vi) if necessary, to create advertising and publicity materials for the Picture,
including without limitation trailers, still photos and customized metadata. |
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16)
Magna Logo |
Magna
shall be entitled to insert its trade names and/or logos before the main titles of the Picture and after the end titles of
the Picture, and to insert such trade names and/or logos in all commercialization thereof and/or paid advertising related
thereto. At Magna’s option, it shall have the right to one additional logo to be added to the end titles.
In addition, Magna shall have the right to assume two (2) executive producer credits on the Picture. |
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17)
Publicity |
Other
than as required by law, Owner shall not, without Magna’s prior written consent, issue any press release or other publicity
relating to the Agreement or reference any trade name, trademark, logo, or commercial symbol of Magna or its affiliated entities
in brochures, websites, advertisements, email communications, client lists or any other promotional materials, and/or otherwise
except as provided in these Standard Terms. The foregoing shall not prevent Owner from making incidental, non-derogatory references
to the existence of the relationship between the Parties hereunder in general interviews, provided that such references do
not violate the Confidentiality provision set forth below. |
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18)
Confidentiality |
Other
than as required by law, governmental authority, or to enforce its rights hereunder, neither Party will, without the express
written consent of the other Party, disclose the terms of the Agreement or any other business information shared by the other
Party which should reasonably be understood to be confidential, except to its attorneys, agents, accountants, investors, lenders,
or directors on a “need-to-know” basis, provided that such persons are similarly required to keep such information
confidential. |
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19)
Waiver |
No
waiver by either Party of any provision of the Agreement, or of any breach or default by the other Party shall constitute
a continuing waiver, and no waiver shall be effective unless made in a signed writing. |
20)
Representations & Warranties |
Each
of the Parties represents and warrants the following: (i) that it is a duly organized, validly existing corporation or other
legally recognized business organization in good standing under the laws of its jurisdiction of incorporation or formation,
and (ii) that it has the full legal right, power, and authority to execute this Agreement and to perform its obligations hereunder,
and the consent of no other person or entity is necessary in connection with the foregoing. Owner further represents and warrants
that it has obtained all rights and clearances necessary to exploit the Picture and all elements contained therein (as further
set forth in the attached Schedule 1 and incorporated by reference herein) and that Owner has not entered into and
will not enter into any agreement in conflict with Magna’s rights hereunder. |
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21)
Disclaimer |
Magna
agrees to use good faith efforts to generate exposure for the Picture and to maximize revenue from the sales, licensing, distribution
and other exploitation of the Picture. However, Magna makes no representations or warranties that it will obtain opportunities
to exploit the Picture or generate any minimum amount of revenue. |
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22)
Insurance |
Owner
shall obtain, or cause to be obtained, a standard producer’s and distributor’s errors and omissions liability
insurance policy in connection with the Picture, with minimum coverage limits in the amount of One Million Dollars ($1,000,000)
per claim and Three Million Dollars ($3,000,000) in the aggregate. Upon request, Owner shall provide Magna with proof of such
coverage, and a certificate naming Magna or sub-distributor as additional insured, in a form acceptable to Magna. |
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23)
Indemnification |
Each
Party (an “Indemnifying Party”) agrees to defend, indemnify and hold harmless the other Party and such other Parties,
control persons (as defined under the Federal Securities Laws), affiliates, officers, attorneys, members, directors, equity
and/or debt holders, employees, agents, representatives and the other related persons (an “Indemnified Party”)
from and against any third party claim, action, judgment or liability of any kind arising out of or in connection with any
breach of any representation, warranty or agreement made by the Indemnifying Party in the Agreement or these Standard Terms
or any addenda thereto. By way of example, any cost or liability that results from Owner’s failure to clear
the Picture or to own or control the applicable rights will be Owner’s sole responsibility. |
24)
Governing Law |
This
Agreement and the terms and conditions set forth herein, shall be governed by and construed solely and exclusively in accordance
with the internal laws of the State of New York without regard to the conflicts of laws principles thereof. The parties hereto
hereby expressly and irrevocably agree that any suit or proceeding arising directly and/or indirectly pursuant to or under
this Agreement shall be brought solely in a federal or state court located in the City, County and State of New York. By its
execution hereof, the parties hereto covenant and irrevocably submit to the in personam jurisdiction of the federal and state
courts located in the City, County and State of New York and agree that any process in any such action may be served upon
any of them personally, or by certified mail or registered mail upon them or their agent, return receipt requested, with the
same full force and effect as if personally served upon them in New York, New York. The parties hereto expressly and irrevocably
waive any claim that any such jurisdiction is not a convenient forum for any such suit or proceeding and any defense or lack
of in personam jurisdiction with respect thereto. In the event of any such action or proceeding, the party prevailing therein
shall be entitled to payment from the other parties hereto of all of its reasonable counsel fees and disbursements. |
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25)
Severability |
If
any provision of the Agreement shall be determined by any court of competent jurisdiction to be void and unenforceable, all
other provisions of the Agreement shall nevertheless continue in full force and effect. |
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26)
Complete Agreement: |
This
Agreement contains the full and complete understanding between the Parties and supersedes all prior agreements and understandings,
and cannot be modified except in a writing signed by both Parties.
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SIGNATURE
PAGE TO FOLLOW
By
signing below, the Parties agree to the terms set forth in this Agreement including the Standard Terms that are incorporated herein
by this reference. In the event of a conflict between the Agreement and the Standard Terms, the terms of the Agreement shall prevail:
Magna
Entertainment |
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Fonu2,
Inc. |
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Name: |
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Name: |
Roger Miguel |
Title: |
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Title: |
Chief Executive
Officer |
Exhibit 10.4
Confidential
Memorandum of Understanding
PURPOSE
This Memorandum of Understanding (“MOU”)
between Effingham County Industrial Development Authority (“ECIDA”) and FONU2, a publicly traded company, that operates
under the name of Moon River Studios (“Moon River”). Moon River is currently in default under a Bond Lease and MOU
(with associated agreements) with the ECIDA that it wishes to terminate and renegotiate a new movie studio project. The planned
movie studio site is located in Effingham County, Georgia on property commonly known as the “North Tract”.
It is the common intention of the Parties to
develop an approximate 51-acre portion of the property for the purpose of making motion pictures and the development of studios
and sound stages. It is the stated goal of the ECIDA to attract businesses that will ultimately provide jobs and careers for the
citizens of Effingham County and beyond. It is the stated goal of Moon River to develop and construct movie studios to film and
edit motion pictures.
The Parties hereby seek to terminate any existing
obligations of either Party with respect to the former project on approximately 1,550-acres and commonly known as the “Studioplex”.
In its place, the Parties hereto seek to agree
on a revised film studio project that would be built on approximately 51-acres anticipating a minimum of $10M in direct capital
expenditures and the creation of 250 full time jobs within five (5) years by Moon River.
Initial Terms:
| 1. | The scale of the revised project is to essentially reflect Phase 1 of former “Studioplex”
Master plan, approximately 51+/- acres. |
| 2. | 10 Years of 100% ad valorem tax abatement with a PILT at a rate of $51,000 per year. ($10,000 per
acre “Freeze”.) First payment due at closing. Subsequent payments due 12 months from closing. |
| 3. | Will allow for use via lease on unencumbered property from time to time as long as there is no
impact on other tenants. |
| 4. | IDA to fund and complete access road and water line to site. |
| 5. | Moon River to utilize on-site septic system (with no further obligation by IDA for wastewater treatment). |
| 6. | IDA to control all acreage outside of lease agreement. |
| 7. | 250 Job minimum to be created within five (5) years. Annual minimums will be required such that;
by the end of Year 1, 95 full time, permanent jobs are created and maintained, by the end of Year 2 a minimum of 100 full time,
permanent jobs have been created and maintained, by the end of Year 3 a minimum of 150 full time, permanent jobs have been created
and maintained, by the end of Year 4 a minimum of 200 full time, permanent jobs have been created and maintained and by the end
of Year 5 a minimum of 250 full time, permanent jobs have been created and maintained. See requirements table in attached Exhibit
“A”. |
| 8. | $10M Capital Investment minimum within five (5) years. Annual minimums will be required such that:
by the end of Year 1, $2,000,000 in building and/or equipment will have been invested directly by the company, by the end of Year
2, an additional $2,000,000 in building and/or equipment will have been invested directly by the company, by the end of Year 3,
an additional $2,000,000 in building and/or equipment will have been invested directly by the company, by the end of Year 4, an
additional $2,000,000 in building and/or equipment will have been invested directly by the company, by the end of Year 5, an additional
$2,000,000 in building and/or equipment will have been invested directly by the company. See requirements table in attached Exhibit
“A”. |
| 9. | Buy out at FMV by a mutually agreed appraiser after Year 2 cumulative targets have been met (i.e.
total capital investment of at least $4,000,000 and at least 100 full time jobs). |
DEFINITIVE AGREEMENT
The parties agree that this document shall
be superseded by a definitive agreement that is mutually acceptable, which agreement will contain, among other things (1) the termination
of the MOU, Economic Development Agreement, Bond Purchase Loan Agreement, Lease Agreement, as well as other documents and agreements
generally dated July 1, 2013, all of which pertain to the 1,550-acres (Studioplex”) project; and (2) the terms and conditions
referenced herein pertaining to the “new” 51-acre project and other acceptable terms and conditions for the definitive
agreement. This MOU is an expression of interest only and is not a commitment of Moon River or ECIDA to enter into a binding agreement.
Each party acknowledges and agrees that except for the Confidentiality portion of this MOU, which provisions shall be binding upon
the parties, this MOU is not intended to be a contract or evidence of any contract or other binding obligation, and neither party
shall have any liability or legal obligation until such time as a mutually agreeable and more comprehensive agreement can be prepared,
executed and delivered by the parties. This MOU shall be governed in all respects by the laws of the State of Georgia.
IN WITNESS WHEROF,
the parties have signed this MOU as of the _____ day of October, 2015.
FONU2, INC. “Moon River Studios”
By: ________________________________
Name: _____________________________
Title: ______________________________
Date: ______________________________
EFFINGHAM COUNTY INDUSTRIAL DEVELOPMENT
AUTHORITY
By: ________________________________
Name: ______________________________
Title: _______________________________
Date: ______________________________
Exhibit “A”
Rules for satisfying job and investment requirements
will be the same as under Schedules 4.2 and 4.4 of previous agreement.
The Jobs and investment requirements applicable
to the Company are set forth in the table below:
PERFORMANCE PERIOD (INCLUDES ALL CALENDAR YEARS SCHEDULED BELOW, AND ANY YEAR THROUGH WHICH THE PERFORMANCE PERIOD IS EXTENDED) |
COMMUNITY JOBS GOAL (CUMULATIVE) |
CAPITAL INVESTMENT GOAL (CUMULATIVE) BY FONU2 (MOON RIVER) |
Year 1 (2016) |
95 |
$2 million |
Year 2 (2017) |
100 |
$4 million |
Year 3 (2018) |
150 |
$6 million |
Year 4 (2019) |
200 |
$8 million |
Year 5 – Year 20 (2020 & on) |
250 |
$10 million |
3
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