0001104659-05-028992.txt : 20050620 0001104659-05-028992.hdr.sgml : 20050617 20050620172403 ACCESSION NUMBER: 0001104659-05-028992 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20050620 DATE AS OF CHANGE: 20050620 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TOIBB HARRIS CENTRAL INDEX KEY: 0001108250 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 307 21ST ST CITY: SANTA MONICA STATE: CA ZIP: 90402 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BRILLIANT DIGITAL ENTERTAINMENT INC CENTRAL INDEX KEY: 0001022844 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 954592204 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48929 FILM NUMBER: 05906579 BUSINESS ADDRESS: STREET 1: 14011 VENTURA BLVD STE 501 CITY: SHERMAN OAKS STATE: CA ZIP: 91423 BUSINESS PHONE: 8186151500 MAIL ADDRESS: STREET 1: 14011 VENTURA BLVD STE 501 CITY: SHERMAN OAKS STATE: CA ZIP: 91423 SC 13D/A 1 a05-11006_1sc13da.htm SC 13D/A

	UNITED STATES	OMB APPROVAL
	SECURITIES AND EXCHANGE COMMISSION	OMB Number: 3235-0145
	Washington, D.C. 20549	Expires: December 31, 2005
	SCHEDULE 13D	Estimated average burden hours per response. . 11

Under the Securities Exchange Act of 1934
(Amendment No. Nine )*

Brilliant Digital Entertainment, Inc.

(Name of Issuer)

Common Stock, par value $0.001

(Title of Class of Securities)

10952 10 4

(CUSIP Number)

Ronald L. Fein, Esq.
Stutman, Treister & Glatt
1901 Avenue of the Stars, 12th Flr.
Los Angeles, California 90067
310-228-5600

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

June 16, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

^* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No. 109502 10 4

	1.	Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only) Harris Toibb, ###-##-####

	2.	Check the Appropriate Box if a Member of a Group (See Instructions)
		(a)			o
		(b)			o

	3.	SEC Use Only

	4.	Source of Funds (See Instructions) PF

	5.	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o

	6.	Citizenship or Place of Organization United States

Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 121,320,923 (See Response to Item 5)

			8.	Shared Voting Power -0-

			9.	Sole Dispositive Power 121,320,923 (See Response to Item 5)

			10.	Shared Dispositive Power -0-

	11.	Aggregate Amount Beneficially Owned by Each Reporting Person 121,320,923 (See Response to Item 5)

	12.	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o

	13.	Percent of Class Represented by Amount in Row (11) 73.2%

	14.	Type of Reporting Person (See Instructions) IN

Item 1.	Security and Issuer
This statement on Schedule 13D is filed in respect of Shares of common stock, $0.001 par value per share (“Common Stock”) of Brilliant Digital Entertainment, Inc., a Delaware corporation (“BDE” or “Issuer”), the principal executive offices of which are located at 14011 Ventura Blvd., Suite 501, Sherman Oaks, California 91423.

Item 2.	Identity and Background
a. The name of the person filing this statement on Schedule 13D is Harris Toibb.
b. Mr. Toibb’s residence address is 307 21st Street, Santa Monica, California 90402.
c. Mr. Toibb principal occupation is real estate development and personal investments.
d. Mr. Toibb has not, during the last five (5) years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
e. Mr. Toibb has not, during the last five (5) years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which he would have been subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
f. Mr. Toibb is a United States citizen.

Item 3.	Source and Amount of Funds or Other Consideration
On June 16, 2005, Mr. Toibb acquired from BDE 6,666,667 shares of Common Stock (the “Escrowed Shares”) in a transaction not involving a public offering. The Escrowed Shares had been held in escrow since June 2004 in accordance with the terms of a certain Settlement Agreement and Mutual Release, dated as of June 16, 2004 (the “Settlement Agreement”), by and among BDE, Michael Toibb and certain other parties. Michael Toibb is the adult son of Mr. Toibb and is independent. Pursuant to the terms of the Settlement Agreement, BDE agreed to acquire from Michael Toibb, on or before the first anniversary of the date of the Settlement Agreement, all of Michael Toibb’s interest in Big Seven Entertainment, LLC for the purchase price (the “Settlement Consideration”) of either 6,666,667 shares of Common Stock of BDE or the cash amount of $1,000,000, at the election of BDE. Certain mutual releases of claims were also part of the consideration given by the parties as part of the Settlement Agreement.
Pursuant to a certain Assignment of Rights Agreement, dated as of June 15, 2005, by and among Mr. Toibb, Michael Toibb and certain other parties (the “Assignment Agreement”) Mr. Toibb acquired from Michael Toibb, for the purchase price of $66,667 (consisting of personal funds of Mr. Toibb), the right to receive the Settlement Consideration. On June 16, 2005, BDE elected to pay the Settlement Consideration with the 6,666,667 shares of Common Stock held in escrow and thus, the Escrowed Shares were delivered to Mr. Toibb.
During 2004 and the first part of 2005, Mr. Toibb was, from time to time, engaged in preliminary discussions with BDE about a restructuring of his debt and that of others. This restructuring concept ultimately may involve a recapitalization of BDE, including the conversion of such debt and outstanding warrants, as well as that which is owned by others, into a form of equity of BDE. However, the preliminary discussions presently are sporadic and have not sufficiently advanced to take the form of definitive proposals by BDE or others. Mr. Toibb presently anticipates that such discussions will continue, from time to time, during 2005.
Mr. Toibb entered into letter agreements dated as of March 30 and September 26, 2004 (the “2004 Letter Agreements”), respectively, wherein the maturity date of the Notes (as defined below) were extended from March 1, 2004 to September 26, 2004 and ultimately, to September 26, 2005. In consideration for the extension of the maturity date of the defaulted Notes from March 1, 2004 to September 26, 2004, Mr. Toibb received an immediately exercisable Warrant to purchase 3,133,333 shares of Common Stock at a price of $0.15 per share (the “March 2004 Warrants”) and the expiration date of the April 2001 Warrants (as defined below) and the December 2001 Warrants (as defined below) were extended to October 4, 2005. Mr. Toibb will utilize personal funds to exercise the March 2004 Warrants and it was acquired by him directly from the Issuer in a transaction not involving a public offering. Also, in May 2004, the March 2002 Warrants (as defined below) for the purchase of 5,042,864 shares of Common Stock expired.
In September 2004, in consideration for the extension of the maturity date of the Notes from September 26, 2004 to September 26, 2005, Mr. Toibb and the Issuer agreed to fix the Conversion Price of the Notes at $0.07 subject to certain protective contractual provisions and to fix the exercise price of the April 2001 Warrants, the December 2001 Warrants, the October 2002 Warrants (as defined below) and the March 2004 Warrants at $0.07 per share subject to certain protective contractual provisions and to extend their respective exercise dates to October 5, 2008.
Mr. Toibb entered into a letter agreement dated as of December 31, 2003 wherein the maturity date of the Notes were extended from December 31, 2003 to March 1, 2004 (since extended further by the 2004 Letter Agreements described above).
On December 23, 2002, Mr. Toibb sold 1,000,000 shares of Common Stock at a price of $0.15 per share in a private transaction. Mr. Toibb received cash in the transaction.
Mr. Toibb entered into a letter agreement (the “Letter Agreement”) dated as of October 2, 2002 wherein the maturity date of the Notes was extended to December 31, 2003 (since extended further by the 2004 Letter Agreements described above). In connection with the extension, Mr. Toibb acquired warrants to purchase 19,667,623 shares of Common Stock at an exercise price of $0.2091 per share (the “October 2002 Warrants”). The October Warrants were originally exercisable any time after January 4, 2003 until October 4, 2005. The October 2002 Warrants are now exercisable to until October 5, 2008 and the exercise price is $0.07 per share. Mr. Toibb will utilize personal funds to exercise the October 2002 Warrants and they were acquired directly from the Issuer in a transaction not involving a public offering.
Mr. Toibb entered into that certain Common Stock and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser (the “September 2002 Purchase Agreement”) dated as of August 26, 2002 pursuant to which on September 4, 2002 Mr. Toibb purchased 2,663,116 shares of Common Stock at a price of $0.1502 per share and acquired warrants (the “September 2002 Warrants”) to purchase 4,734,428 shares of Common Stock at an exercise price of $0.16898 per share. The September 2002 Warrants are exercisable any time after December 4, 2002 until September 4, 2005.
Mr. Toibb has utilized personal funds for the purchase of the Common Stock and will utilize personal funds to exercise the September 2002 Warrants. The Common Stock and September 2002 Warrants were purchased directly from the Issuer in a transaction not involving a public offering.
In March, 2002 Mr. Toibb entered into a Common Stock and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser (the “March 2002 Purchase Agreement”) dated as of March 7, 2002 pursuant to which Mr. Toibb purchased 2,836,611 shares of Common Stock at a price of $0.1322 per share and acquired warrants (the “March 2002 Warrants”) to purchase 5,042,864 shares of Common Stock at an exercise price of $0.1487 per share. The March 2002 Warrants were exercisable any time after June 7, 2002 until May 23, 2004. On May 23, 2004, the March 2002 Warrants expired.
Mr. Toibb utilized personal funds for the purchase of the Common Stock. The Common Stock and March 2002 Warrants were purchased directly from the Issuer in a transaction not involving a public offering.
Previously, Mr. Toibb entered into that certain Note and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser (the “April 2001 Purchase Agreement”) dated April 19, 2001, as amended on May 23, 2001 and December 19, 2001, which contemplated the purchase of a secured convertible promissory note in the amount of $2,000,000 convertible, at any time, initially into 2,832,861 shares of Common Stock, due November 10, 2002 (subsequently amended, as described above, to be due September 26, 2005) bearing interest at the rate of 10% per

annum (the “April 2001 Secured Convertible Promissory Note”) together with warrants initially to purchase 2,522,068 shares of Common Stock at an aggregate exercise price of approximately $2,000,000 which warrants are immediately exercisable for an initial term of three (3) years (the “April 2001 Warrants”). The April 2001 Warrants are now exercisable until October 5, 2008.
The April 2001 Purchase Agreement required funding of the Secured Convertible Promissory Note as follows: 5% of the principal amount on May 23, 2001, 10% of the principal amount on June 12, 2001, and 85% of the principal amount on June 29, 2001. Mr. Toibb has funded such amounts and utilized personal funds in connection therewith. Pursuant to the April 2001 Purchase Agreement, the April 2001 Secured Convertible Promissory Note and the April 2001 Warrants were purchased directly from the Issuer in a transaction not involving a public offering.
The April 2001 Purchase Agreement and the April 2001 Warrants were amended on December 19, 2001 (the “Amendments”). The parties agreed to amend certain terms of the April 2001 Purchase Agreement and the April 2001 Warrants, including the conversion and exercise price. Pursuant to the terms of the Amendments, the investment amount and April 2001 Warrants would be convertible at a price per share equal to the lesser of (i) $0.20 and (ii) the volume weighted average price of a share over any 5 consecutive trading days during a limited period (the “Old Conversion Price”). The Conversion Price is now $0.07.
Also, previously, Mr. Toibb entered into that certain Note and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser (the “December 2001 Purchase Agreement”) dated December 19, 2001, which contemplated the purchase of a secured convertible promissory note in the amount of $350,000 convertible, at any time, initially into 1,750,000 shares of Common Stock, due November 10, 2002 (subsequently amended, as described above, to be due September 26, 2005) bearing interest at the rate of 10% per annum (the “December 2001 Secured Convertible Promissory Note”) together with warrants (the “December 2001 Warrants”) initially to purchase 3,111,111 shares of Common Stock which were exercisable beginning in March, 2002 for a term of approximately two (2) years. The Conversion Price for the December 2001 Secured Convertible Promissory Note was the Conversion Price and the exercise price for the December 2001 Warrants was 112.5% multiplied by the Old Conversion Price. The Conversion Price is now $0.07 and the December 2001 Warrants are exercisable until October 5, 2008.
The December 2001 Purchase Agreement required funding of the December 2001 Secured Convertible Promissory Note as follows: $166,333.33 on or about December 20, 2001, $93,333.33 on or about January 2, 2002 and $93,333.34 on or about February 1, 2002. Mr. Toibb has funded such amounts and utilized personal funds in connection therewith. Pursuant to the December 2001 Purchase Agreement, the December 2001 Secured Convertible Promissory Note and the December 2001 Warrants were purchased directly from the Issuer in a transaction not involving a public offering.
As of December 19, 2001, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the April 2001 Secured Convertible Promissory Note and the December 2001 Secured Convertible Promissory Note (collectively, the “Notes”) and the exercise of the April 2001 Warrants and December 2001 Warrants (collectively, the “2001 Warrants”) was 33,128,889. As of March 8, 2002, because of changes in the Old Conversion Price resulting from changes in the weighted average share price and the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the Notes and the exercise of the 2001 Warrants was 50,627,942. As of September 4, 2002, because of changes in the Old Conversion Price resulting from changes in the weighted average share price and the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the Notes and the exercise of the 2001 Warrants was 56,482,251. As of October 8, 2002, because of changes in the Old Conversion Price resulting from changes in the weighted average share price and the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the Notes and the exercise of the 2001 Warrants was 56,667,013. As of December 23, 2002, because of changes in the Old Conversion Price resulting from changes in the weighted average share price and the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the Notes and the exercise of the 2001 Warrants was 57,079,408. As of December 17, 2003, because of changes in the Old Conversion Price resulting from changes in the weighted average share price and the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon the conversion of the Notes and the exercise of the 2001 Warrants was 59,027,432. As of December 31, 2004 because of the changes in the Conversion Price resulting from fixing the Conversion Price at $0.07, the accumulation of unpaid interest on the Notes and the issuance of the March 2004 Warrants, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon conversion of the Notes and exercise of the 2001 Warrants, the October 2002 Warrants, the March 2004 Warrants, and the September 2002 Warrants was 107,567,347.
As of June 16, 2005, because of the accumulation of unpaid interest on the Notes, the total number of shares of Common Stock which may be issuable to Mr. Toibb upon conversion of the Notes and exercise of the 2001 Warrants, the September 2002 Warrants, the October 2002 Warrants and the March 2004 Warrants is now 109,124,689.

Item 4.	Purpose of Transaction
On June 16, 2005, Mr. Toibb acquired from BDE 6,666,667 shares of Common Stock (the “Escrowed Shares”) in a transaction not involving a public offering. The Escrowed Shares had been held in escrow since June 2004 in accordance with the terms of the Settlement Agreement (as defined above). Pursuant to the terms of the Settlement Agreement, BDE agreed to acquire from Michael Toibb, on or before the first anniversary of the date of the Settlement Agreement, all of Michael Toibb’s interest in Big Seven Entertainment, LLC for the purchase price (the “Settlement Consideration”) of either 6,666,667 shares of Common Stock of BDE or the cash amount of $1,000,000, at the election of BDE. Certain mutual releases of claims were also given by the parties as part of the Settlement Agreement. Michael Toibb is the adult son of Mr. Toibb and is independent.
Pursuant to the Assignment Agreement (as defined above) Mr. Toibb acquired from Michael Toibb, for the purchase price of $66,667(consisting of personal funds of Mr. Toibb), the right to receive the Settlement Consideration. On June 16, 2005, BDE elected to pay the Settlement Consideration with the 6,666,667 shares of Common Stock held in escrow and thus, the Escrowed Shares were delivered to Mr. Toibb. Mr. Toibb acquired the Escrowed Shares for investment purposes.
Mr. Toibb entered into the 2004 Letter Agreements, wherein the maturity date of the Notes were extended from March 1, 2004 to September 26, 2004 and ultimately, to September 26, 2005. In consideration for the extension of the maturity date of the defaulted Notes from March 1, 2004 to September 26, 2004, Mr. Toibb received the immediately exercisable March 2004 Warrants to purchase 3,133,333 shares of Common Stock at a price of $0.15 and the expiration date of the April 2001 Warrants and the December 2001 Warrants were extended to October 4, 2005. Mr. Toibb will utilize personal funds to exercise the March 2004 Warrants and they were acquired by him directly from the Issuer in a transaction not involving a public offering. Also, in May 2004, the March 2002 Warrants for the purchase of 5,042,864 shares of Common Stock expired.
In September 2004, in consideration for the extension of the maturity date of the Notes from September 26, 2004 to September 26, 2005, Mr. Toibb and the Issuer agreed to fix the Conversion Price of the Notes at $0.07 subject to certain protective contractual provisions and to fix the exercise price of the 2001 Warrants, the October 2002 Warrants and the March 2004 Warrants at $0.07 subject to certain protective contractual provisions and to extend their respective exercise dates to October 5, 2008.

Mr. Toibb acquired the October 2002 Warrants and the March 2004 Warrants for investment purposes and if the October 2002 Warrants and the March 2004 Warrants are exercised in whole or in part, Mr. Toibb presently intends the Common Stock acquired thereby to be for investment purposes.
Mr. Toibb purchased the Common Stock and September 2002 Warrants in September 2002 for investment purposes and if the September 2002 Warrants are exercised in whole or in part, Mr. Toibb presently intends the Common Stock acquired thereby to be for investment purposes.
Mr. Toibb purchased the Common Stock and March 2002 Warrants in March 2002 for investment purposes. The March 2002 Warrants expired in May 2004.
Mr. Toibb purchased the Notes and the 2001 Warrants for investment purposes and, if the Notes are converted into Common Stock, in whole or in part, and/or if the 2001 Warrants are exercised in whole or in part, Mr. Toibb presently intends the Common Stock acquired thereby to be for investment purposes.
Mr. Toibb may continue to acquire shares of Common Stock for investment purposes over a period of time and, although he has no present intention to do so, he may sell some or all of his holdings at such times and in such amounts as he determines to be consistent with his investment objectives.
Mr. Toibb does not have any plans or proposals that would relate to, or result in, any of the actions set forth in the instruction for Item 4, subparts (a) through (j) other than those embodied in the preliminary discussions described above.

Item 5.	Interest in Securities of the Issuer
a. The change in the number of shares beneficially owned by Mr. Toibb from the date of the filing of Mr. Toibb’s most recent Schedule 13D/A (February 18, 2005) is the result of (i) the accumulation of unpaid interest on the Notes which may be converted into shares of Common Stock of BDE; and (ii) the acquisition of the 6,666,667 shares of Common Stock on June 16, 2005. As of June 16, 2005, Mr. Toibb beneficially owned 121,320,923 shares of the Common Stock, consisting of 12,196,234 shares of Common Stock issued and held by Mr. Toibb. Also included within the 121,320,923 shares of Common Stock beneficially owned by Mr. Toibb are (a) 34,727,995 shares that may be acquired upon the exercise of 2001 Warrants held by Mr. Toibb, (b) 46,861,310 shares that may be acquired upon the conversion of all unpaid interest and principal amount presently outstanding under the Notes, (c) 3,133,333 shares that may be acquired by Mr. Toibb upon exercise of the March 2004 Warrants, (d) 4,734,428 shares that may be acquired by Mr. Toibb upon exercise of the September 2002 Warrants, and (e) 19,667,623 shares that may be acquired by Mr. Toibb upon the exercise of the October 2002 Warrants. Mr. Toibb’s ownership will represent 73.2% of the Common Stock that will be issued and outstanding upon conversion of the Notes and the exercise of the 2001 Warrants, the March 2004 Warrants, the September 2002 Warrants and the October 2002 Warrants as of June 16, 2005 (assuming no conversions or exercises into shares of Common Stock by other holders of outstanding derivative securities of BDE). Any exercise of derivative securities or conversion of notes by persons other than Mr. Toibb will have the effect of decreasing the percentage ownership of Mr. Toibb.
The exercise price on the 2001 Warrants and Conversion Price on the Notes originally fluctuated based upon the five day weighted average share price of BDE’s common stock but now has been fixed at $0.07 subject to certain contractual provisions. Thus, the amount of shares that Mr. Toibb may ultimately be entitled to own will increase to the extent that shares are issued by BDE, or other dilutive events occur, at prices lower than $0.07 per share of Common Stock.
b. Mr. Toibb has sole voting and dispositive power with respect to 121,320,923 shares of the Common Stock.
c. Mr. Toibb and BDE entered into the April 2001 Purchase Agreement. The April 2001 Purchase Agreement required funding of the April 2001 Secured Convertible Promissory Note as follows: 5% of the principal amount on May 23, 2001, 10% of the principal amount on June 12, 2001, and 85% of the principal amount on June 29, 2001. All of the $2,000,000 funding has been made. The April 2001 Secured Convertible Promissory Note was initially convertible into 2,832,861 shares of Common Stock. As part of the April 2001 Purchase Agreement, Mr. Toibb also acquired warrants to initially purchase 2,522,068 shares of Common Stock at an aggregate exercise price of approximately $2,000,000 which warrants were immediately exercisable for a term of three (3) years. These warrants are now exercisable until October 5, 2008 and the exercise price is $0.07.
The parties entered into the December 2001 Purchase Agreement. The December 2001 Purchase Agreement required funding of the December 2001 Secured Convertible Promissory Note as follows: $166,333.33 on or about December 20, 2001, $93,333.33 on or about January 2, 2002 and $93,333.34 on or about February 1, 2002. All of the $350,000 funding has been made. The December 2001 Secured Promissory Note was initially convertible into 1,750,000 shares of Common Stock. As part of the December 2001 Purchase Agreement, Mr. Toibb also acquired warrants to initially purchase 3,111,111 shares of Common Stock which were exercisable beginning in March, 2002 for a term of approximately two (2) years. The Conversion Price for the December 2001 Secured Convertible Promissory Note was initially the Old Conversion Price and the exercise price for the December 2001 Warrants was initially 112.5% multiplied by the Old Conversion Price. In addition, in connection with the December 2001 Purchase Agreement, the Conversion Price of the April 2001 Secured Promissory Note and the exercise price of the April 2001 Warrants were amended to be the same as the December 2001 Secured Convertible Promissory Note and December 2001 Warrants, respectively. These warrants are now exercisable until October 5, 2008 and the exercise price is $0.07. The Notes are now convertible at a price of $0.07 per share.
Mr. Toibb entered into that certain Common Stock and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser (the “Purchase Agreement”) dated as of March 7, 2002

pursuant to which Mr. Toibb purchased 2,836,611 shares of Common Stock at a price of $0.1322 per share and acquired warrants (the “March 2002 Warrants”) to purchase 5,042,864 shares of Common Stock at an exercise price of $0.1487 per share. The Warrants expired on May 23, 2004.
Mr. Toibb entered in a subsequent Common Stock and Warrant Purchase Agreement by and between BDE and Mr. Toibb as purchaser dated as of August 26, 2002 pursuant to which on September 4, 2002 Mr. Toibb purchased 2,663,116 shares of Common Stock at a price per share of $0.1502 and acquired warrants (the “September 2002 Warrants”) to purchase 4,734,428 shares of Common Stock at an exercise price of $0.16898 per share. The September 2002 Warrants are exercisable any time after December 4, 2002 until September 5, 2005.
On October 4, 2002, Mr. Toibb entered into the Letter Agreement pursuant to which the maturity dates of the Notes was extended to December 31, 2003 and Mr. Toibb acquired the October 2002 Warrants enabling him to purchase 19,667,623 shares of Common Stock at an exercise price of $0.2091 per share. The October 2002 Warrants were initially exercisable any time after January 4, 2003 until October 4, 2005. The October 2002 Warrants are now exercisable until October 5, 2008 at an exercise price of $0.07 per share.
On December 23, 2002, Mr. Toibb sold for cash in a private transaction 1,000,000 shares of Common Stock at a price per share of $0.15.
Mr. Toibb entered into the 2004 Letter Agreements, wherein the maturity date of the Notes were extended from March 1, 2004 to September 26, 2004 and ultimately, to September 26, 2005. In consideration for the extension of the maturity date of the defaulted Notes from March 1, 2004 to September 26, 2004, Mr. Toibb received the immediately exercisable March 2004 Warrants to purchase 3,133,333 shares of Common Stock at a price of $0.15 and the expiration date of the April 2001 Warrants and the December 2001 Warrants were extended to October 4, 2005. Mr. Toibb will utilize personal funds to exercise the March 2004 Warrants and they were acquired by him directly from the Issuer in a transaction not involving a public offering. Also, in May 2004, the March 2002 Warrants for the purchase of 5,042,864 shares of Common Stock expired. In September 2004, in consideration for the extension of the maturity date of the Notes from September 26, 2004 to September 26, 2005, Mr. Toibb and the Issuer agreed to fix the Conversion Price of the Notes at $0.07 subject to certain protective contractual provisions and to fix the exercise price of the 2001 Warrants, the October 2002 Warrants and the March 2004 Warrants at $0.07 subject to certain protective contractual provisions and to extend their respective exercise dates to October 5, 2008.
On June 16, 2005, Mr. Toibb acquired from BDE 6,666,667 shares of Common Stock in a transaction not involving a public offering. The Escrowed Shares had been held in escrow since June 2004 in accordance with the terms of the Settlement Agreement (as defined above). Pursuant to the terms of the Settlement Agreement, BDE agreed to acquire from Michael Toibb, on or before the first anniversary of the date of the Settlement Agreement, all of Michael Toibb’s interest in Big Seven Entertainment, LLC for the purchase price (the “Settlement Consideration”) of either 6,666,667 shares of Common Stock of BDE or the cash amount of $1,000,000, at the election of BDE. Certain mutual releases of claims were also given by the parties as part of the Settlement Agreement. Michael Toibb is the adult son of Mr. Toibb and is independent.
Pursuant to the Assignment Agreement (as defined above) Mr. Toibb acquired from Michael Toibb, for the purchase price of $66,667 (consisting of personal funds of Mr. Toibb), the right to receive the Settlement Consideration. On June 16, 2005, BDE elected to pay the Settlement Consideration with the 6,666,667 shares of Common Stock held in escrow and thus, the Escrowed Shares were delivered to Mr. Toibb. Mr. Toibb acquired the Escrowed Shares for investment purposes.
d. None
e. Not Applicable

Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
The response to Item 6 contained in Mr. Toibb’s initial filing on this Schedule 13D and all prior amendments thereto are incorporated herein by this reference. Pursuant to the terms of the Assignment Agreement, Mr. Toibb acquired from Michael Toibb the right to receive the Settlement Consideration due from BDE under the terms of the Settlement Agreement. Mr. Toibb paid, utilizing personal funds, Michael Toibb the sum of $66,667 for this right. The Settlement Consideration was paid by BDE on June 16, 2005 in the form of 6,666,667 shares of Common Stock of BDE.

Item 7.	Material to Be Filed as Exhibits
Assignment of Rights Agreement, dated as of June 15, 2005, between Harris Toibb, Michael Toibb and Omni Management Group, LLC f/k/a Robert L. Berger & Associates LLC, as escrow agent.

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

	June 20, 2005
	Date

	/s/ HARRIS TOIBB
	Signature

	Harris Toibb, an Individual
	Name/Title

EX-99.1 2 a05-11006_1ex99d1.htm EX-99.1

Exhibit 99.1

ASSIGNMENT OF RIGHTS AGREEMENT

THIS AGREEMENT (this “Agreement”) is entered into as of June 15, 2005, between Harris Toibb, an individual (the “Purchaser”), Michael Toibb, an individual (the “Seller), and Omni Management Group, LLC f/k/a Robert L. Berger & Associates LLC as escrow agent (the “Escrow Agent”) under that certain Escrow Agreement dated as of June 16, 2004 by and among, Seller, Brilliant Digital Entertainment, Inc. (“BDE”) and the Escrow Agent.

RECITALS

A. The Seller desires to sell to the Purchaser, and the Purchaser desires to buy from the Seller, all of the Seller’s economic interests in and arising from that certain Settlement Agreement and Mutual Release dated as of June 16, 2004 by and among BDE, Altnet, Inc. (“Altnet”), Detershan Pty. Ltd. (“Detershan”) and Michael Toibb (the “Settlement Agreement”), consisting of Seller’s right to receive from the Escrow Agent on June 16, 2005, or earlier, at the election of BDE, cash in the amount of One Million Dollars (the “Cash”) or 6,666,667 shares of Common Stock (the “Shares”) of BDE, a Delaware corporation.

B. The Seller and the Purchaser desire to use the Escrow Agent to facilitate the delivery of the Cash or Shares directly to Purchaser in accordance with this Agreement, the Settlement Agreement and the Escrow Agreement.

NOW, THEREFORE, in consideration of and subject to the mutual agreements, terms and conditions herein contained, the receipt and sufficiency of which are hereby acknowledged, the Seller and the Purchaser agree as follows:

1. Purchase and Sale of Shares.

1.1 Purchase of Shares. The Purchaser hereby and agrees to purchase from the Seller, and the Seller hereby agrees to sell, assign, transfer and deliver to the Purchaser, the rights of the Seller to the Cash or Shares (at the election of BDE in accordance with the Settlement Agreement) for an aggregate consideration of $66,667 (the “Purchase Price”).

1.2 Delivery; Termination. As soon as practicable on or before the execution and delivery of this Agreement, (a) the Seller shall confirm the prior delivery by BDE to the Escrow Agent, of a certificate representing the Shares, registered in the name of BDE with there being attached thereto, an executed stock assignment in blank (the “Share Delivery”), and (b) the Purchaser shall deliver the Purchase Price to the Seller, by delivery of one or more checks made payable to the Seller (the “Purchase Price Delivery”). If either of the Share Delivery or the Purchase Price Delivery has not occurred on or before 11:59 p.m. Pacific Time on September 16, 2005, unless extended by agreement of Purchaser and Seller (such date referred to herein as the “Termination Date”), this Agreement shall terminate and be of no further force or effect, other than with respect to the Escrow Agent’s responsibilities under Section 4 below.

1.3 Further Assurances. The Seller agrees to take such further actions, and will execute and deliver such further documents, as the Purchaser shall reasonably request in connection with the transactions contemplated hereby.

2. Representations and Warranties of the Seller. The Seller hereby represents and warrants to the Purchaser as follows:

2.1 Authorization; Binding Effect. The Seller has the full legal right, authorization, and capacity to execute and deliver, and to perform its obligations under, this Agreement and the sale, transfer and delivery of the rights to the Cash or the Shares, subject to the election by BDE. Seller has taken all action necessary to execute, deliver and perform its obligations under this Agreement. This Agreement constitutes the valid obligation of Seller and is legally binding on and enforceable against Seller in accordance with its respective terms except as such enforceability may be limited by (i) bankruptcy, insolvency, moratorium or other similar laws affecting creditors’ rights, and (ii) general principles of equity relating to the availability of equitable remedies (regardless of whether any applicable agreements are sought to be enforced in a proceeding at law or in equity).

2.2 No Conflict. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated hereby will not, (i) conflict with, or result in any violation of, or default under (with or without notice or lapse of time, or both), or give rise to a right of termination, cancellation or acceleration of any obligation or to a loss of a material benefit under any provision of any mortgage, indenture, lease or other agreement or instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to the Seller or its properties or assets, or (ii) violate any provision of law, or any order, judgment or decree of any court or other governmental authority applicable to the Seller. No consent, waiver, approval or authorization of any third party is required to be obtained on the part of the Seller in connection with the sale and transfer of the Shares pursuant to this Agreement.

2.3 Title to Cash or Shares. The Seller has full, good, valid and marketable right, title and interest to the economic interests which represent the right to receive, at the election of BDE, the Cash or the Shares, owned by the Seller free and clear of any charge, equitable interest, lien, pledge, security interest, or other similar interest or right (collectively, “Lien”). The Seller has the full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver the rights to the Cash or the Shares under this Agreement and to make the representations, warranties, covenants and agreements made by the Seller under this Agreement. At the time of the delivery of the Shares by the Escrow Agent in accordance with this Agreement, the Settlement Agreement and the Escrow Agreement, the Purchaser will acquire good and valid title to the Cash or the Shares being sold and transferred by the Seller hereunder, free and clear of all Liens. The Seller has not entered into any agreements, understandings or undertakings with respect to the Shares being sold and transferred by the Seller under this Agreement pursuant to which the Seller is or may become obligated, directly or indirectly, to transfer, dispose of, or assign the Cash or the Shares, or which would result in any person placing a Lien upon the Cash or the Shares.

2.4 Compliance With Securities Laws. Subject to and in reliance on the truth and accuracy of the Purchaser’s representations and warranties set forth in this Agreement, the offer, sale and delivery of the Shares by the Escrow Agent on behalf of the Seller (if such an election is made by BDE) to the Purchaser is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”) and any applicable state securities laws and neither the Seller nor any authorized agent acting on its behalf will take any action hereafter

that would cause the loss of such exemption. The Seller is not an officer or director of the Company or an “affiliate” of the Company, as such term is defined in Rule 144 promulgated by the Securities and Exchange Commission.

3. Representations and Warranties of Purchaser. The Purchaser hereby represents and warrants to the Seller as follows:

3.1 Organization. The Purchaser is an individual resident in California, with all requisite power and authority to own, lease and operate his properties and to conduct his business as presently conducted.

3.2 Authority. The Purchaser has taken all action necessary for the authorization, execution, delivery and performance of this Agreement. This Agreement has been duly executed and delivered by the Purchaser and constitutes the legal, valid and binding obligation of the Purchaser, enforceable in accordance with its terms, except to the extent limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of general application related to the enforcement of creditors’ rights generally and (b) general principles of equity, and except that enforcement of rights to indemnification contained herein may be limited by applicable federal or state laws or the public policy underlying such laws, regardless of whether enforcement is considered in a proceeding in equity or at law.

3.3 Investment. The Purchaser is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof except in compliance with applicable securities laws. The Purchaser understands that the Shares have not been registered under the Securities Act and are being sold pursuant to an exemption from the registration requirements of the Securities Act. The Purchaser is an “accredited investor” as defined in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act.

3.4 Restricted Securities. The Purchaser understands that the Shares are restricted securities under the Securities Act insofar as they are being acquired from the Seller and, indirectly from BDE, the issuer, in a transaction not involving a public offering and that under the Securities Act and applicable regulations promulgated thereunder the Shares may be resold without registration under the Securities Act only in certain limited circumstances. The Purchaser is familiar with Rule 144 promulgated by the Securities and Exchange Commission, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. The certificate representing the Shares may bear a legend in substantially the following form:

THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED, HYPOTHECATED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR

PURSUANT TO A TRANSACTION THAT IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.

4. Escrow Agent.

4.1 Escrow Instructions. The Purchaser and the Seller hereby agree that the Escrow Agent shall deliver the Cash or the Share Delivery to the Purchaser at the address of the Purchaser set forth on the Signature Page, in accordance with this Agreement, the Settlement Agreement and the Escrow Agreement.

4.2 Escrow Agent Terms.

4.2.1 If a dispute arises between the Seller and the Purchaser with respect to the transactions described in this Agreement, the Escrow Agent shall be entitled to deliver the Cash or the Share Delivery to a court with appropriate jurisdiction, thereby relieving the Escrow Agent from all further duties or responsibilities with respect thereto.

4.2.2 The Escrow Agent shall have and may exercise the powers specifically delegated to it hereunder, together with such powers as are reasonably incidental thereto, but the Escrow Agent shall not have any implied duties or obligations to take any action hereunder except an action specifically provided by this Agreement to be taken by the Escrow Agent. The Escrow Agent shall not be liable to the Seller, the Purchaser or any other party for any action taken or omitted to be taken by the Escrow Agent hereunder or in connection herewith (except for gross negligence, willful misconduct or fraud). The Escrow Agent may execute any of its duties hereunder by or through its officers, employees, agents and attorneys-in-fact.

4.2.3 The Escrow Agent shall in all cases be entitled to rely upon, and be fully protected in acting or in refraining from acting under, this Agreement or in accordance with any and all written notices, demands, objections, directions and orders or other documents received by it in accordance with this Agreement (together with this Agreement, collectively, the “Documents”); provided that the Escrow Agent is of the belief that the Documents are genuine, correct in all material respects, and have been executed or delivered by the proper person or entity.

4.2.4 The Seller and the Purchaser agree that: (i) the Escrow Agent assumes no responsibility for, and shall not be liable for, the performance of the obligations of either the Seller or the Purchaser as contained in this Agreement or the other Documents; (ii) the Escrow Agent is only obligated as set forth in the Escrow Agreement, the Settlement Agreement and this Agreement, including but limited to holding the Cash or the Share Delivery in escrow and delivering it in the manner described herein and therein; and (iii) except for actions or claims made by the Seller or the Purchaser arising out of the Escrow Agent’s gross negligence, willful misconduct or fraud in connection with the Escrow Agent’s duties hereunder, the Seller and the Purchaser, jointly and severally, agree to indemnify and hold harmless the Escrow Agent from and against all other actions and claims, including but not limited to costs and attorneys’ fees, arising out of or in connection with this Agreement.

5. Miscellaneous.

5.1 Waiver, Amendment. Neither this Agreement nor any provisions hereof shall be waived, modified, changed, discharged or terminated except by an instrument in writing signed by the party against whom any waiver, modification, change, discharge or termination is sought.

5.2 Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either the Seller or the Purchaser, without the prior written consent of each other party.

5.3 Section and Other Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

5.4 Governing Law; Consent to Exclusive Jurisdiction. This Agreement and the performance of the obligations of the parties hereunder will be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law principles. THE PARTIES HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF A FEDERAL COURT LOCATED WITHIN THE CITY AND COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, (OR IF THERE SHALL NOT BE FEDERAL JURISDICTION IN SUCH COURT, A STATE COURT LOCATED WITHIN THE CITY AND COUNTY OF LOS ANGELES, STATE OF CALIFORNIA) AND IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY AGREEMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN SUCH COURT. EACH OF THEM HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, SUIT, OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT IT IS IMMUNE FROM EXTRATERRITORIAL INJUNCTIVE RELIEF OR OTHER INJUNCTIVE RELIEF, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH ACTION, SUIT, OR PROCEEDING MAY NOT BE BROUGHT OR MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS, THAT ANY SUCH ACTION, SUIT OR PROCEEDING BROUGHT OR MAINTAINED IN ONE OF THE ABOVE-NAMED COURTS SHOULD BE DISMISSED ON THE GROUNDS OF FORUM NON CONVENIENS, SHOULD BE TRANSFERRED TO ANY COURT OTHER THAN ONE OF THE ABOVE-NAMED COURTS, OR THAT THIS PLEDGE AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY ANY OF THE ABOVE-NAMED COURTS. EACH OF THEM HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH ACTION, SUIT, OR PROCEEDING IN ANY MANNER PERMITTED BY THE LAWS OF THE STATE OF CALIFORNIA, AGREES THAT SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE PERSONS AND AT THE ADDRESSES SET FORTH HEREIN, IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE, AND WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY CLAIM THAT SUCH

SERVICE OF PROCESS DOES NOT CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS.

5.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement binding on all parties hereto, notwithstanding that all parties are not signatory to the original or the same counterpart. This Agreement may be executed by facsimile.

5.6 Notices. All notices, communications and deliveries required or permitted hereunder shall be made in writing signed by the party giving the same, shall specify the section herein pursuant to which the same is given or being made, and shall be delivered personally, by overnight delivery (with evidence of delivery and postage and other fees prepaid), by registered or certified mail or by facsimile to the address set forth on the signature page hereto, or to such other representative or at such other address of a party of which such party may hereafter give notice to the other parties as provided above. Any such notice, communication or delivery will be deemed given or made (i) on the date of delivery if delivered in person, (ii) on the first (1^st) business day after delivery to a national overnight courier service, (iii) on the fifth (5^th) business day after it is mailed by registered or certified mail, or (iv) upon receipt of confirmation if sent via facsimile.

5.7 Binding Effect. The provisions of this Agreement shall be binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, permitted successors and assigns.

5.8 Attorneys. The law firm of Stutman Treister & Glatt Professional Corporation has and continues to provide legal services to Purchaser and Seller and their affiliates. Purchaser and Seller expressly waive and all conflicts of interest or other ethical constraints which may be imposed upon such firm and its professionals as a direct or indirect result of representing, historically, currently or in the future, both or either of Purchaser and/ or Seller and their respective affiliates in this or unrelated matters. Each of Seller and Purchaser has been informed of the consequences of the law firm representing both such parties to this transaction or in any other transaction, have been offered the opportunity to seek the advice of other counsel and have chosen to not so do and, instead, have chosen to proceed with this transaction, recognizing that this Agreement has been drafted by such law firm and advice as to legal matters relating thereto has been rendered to both parties for their benefit. All economic terms have been negotiated by the Purchaser and the Seller without the involvement of such counsel.

[Signature page follows]

IN WITNESS WHEREOF, the undersigned have executed this Assignment of Rights Agreement as of the date first above written.

	SELLER:

	MICHAEL TOIBB

	/s/ Michael Toibb
	Name: Michael Toibb


	Address:	1044 4^th Street, Unit #115
		Santa Monica, CA 90403
		Fax: (818) 883-5636

	PURCHASER:

	HARRIS TOIBB


	/s/ Harris Toibb
	Name: Harris Toibb


	Address:	c/o Harris Toibb
		307 21^st Street
		Santa Monica, CA 90402
		Fax: (310) 395-8325

	ESCROW AGENT:

	/s/ Robert Berger
	By: Robert Berger

	Address:	Omni Management Group, LLC f/k/a
		Robert L. Berger & Associates
		16501 Ventura Boulevard, Suite 440
		Encino, CA 91436-2007
		Fax: (818) 783-2737

ACKNOWLEDGED AND AGREED:

BRILLIANT DIGITAL ENTERTAINMENT, INC.


/s/ Anthony Neumann
By: Anthony Neumann

Under the Securities Exchange Act of 1934 (Amendment No. Nine )*