EXHIBIT 10.9
ASSIGNMENT AND TRANSFER AGREEMENT
THIS AGREEMENT is entered into as of September 25, 1998 ("Effective
Date") by and between AROME Publishing U.S. Inc., a California corporation
("Assignor"), and XxxxxxxXxxxxx.xxx, a California corporation ("Assignee").
WITNESSETH
WHEREAS, Assignor desires to assign, transfer and sell to Assignee all
of Assignor's right, title, and interest in certain assets and other
intellectual property rights of Assignor, and the Assignee desires to accept
such sale and assignment.
NOW THEREFORE, in consideration for good and valuable consideration,
the receipt of which is hereby mutually acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section I
DEFINITIONS
The following capitalized terms shall have the following meaning in
this Agreement:
1.1 Copyright Interests means the interests Assignor may own, or have
the right to sublicense hereunder, in copyrights in the United States in and to
the Wine Program, and any renewal or extension thereof, together with all other
copyright interests accruing by reason of international copyright conventions
and any moral rights pertaining thereto, including the right to xxx for,
settle, or release any past, present, or future infringement thereof.
1.2 Derivative Work means a work that is based upon one or more
preexisting works, such as a revision, modification, translation, abridgement,
condensation, expansion, or any other form in which such preexisting works may
be recast, transformed, or adapted, and which, if prepared without
authorization of the owner of the copyright in such preexisting work, would
constitute a copyright infringement. For purposes of this Agreement, a
Derivative Work shall also include any compilation that incorporates such a
preexisting work.
1.3 Other Interests means the interests, other than the Copyright
Interests and the Trademark Interests, that Assignor may own or have the right
to sublicense hereunder in (1) any idea, design, concept, technique, invention,
discovery, or improvement, whether or not patentable, but including patents,
patent applications, trade secrets, and know-how, that are embodied in or
evidenced by the Wine Program, and (2) pictorial, graphic, or audio/visual
works, including icons, screens, characters, data formats, and reports or
compilations and data bases evidenced by the Wine Program.
1.4 Wine Program means the all the general information, contract,
licenses, and content owned by Assignor, and all intellectual property rights
and Derivative Works thereto, set forth on Exhibit A attached hereto.
1.5 Trademark Interests means the interests Assignor may own, or have
the right to sublicense hereunder, in the United States and foreign registered
and commonlaw trademarks and service marks set forth in Exhibit A, together with
all other trademark or service xxxx interests accruing by reason of
international trademark conventions, accompanied by the goodwill of all business
connected with the use of and symbolized by such marks including the right to
xxx for, settle, or release any past, present, or future infringement thereof or
unfair competition involving the same.
Section 2
CONVEYANCE OF RIGHTS
2.1 Copyright Interests. As of the Effective Date, Assignor sells,
transfers, grants, conveys, assigns, and relinquishes exclusively to Assignee,
in perpetuity (or for the longest period of time otherwise permitted by law),
all of Assignor's right, title, and interest in and to the Copyright Interests.
2.2 Trademark Interests. As of the Effective Date, Assignor sells
transfers, grants, conveys, assigns, and relinquishes exclusively to Assignee,
in perpetuity (or for the longest period of time otherwise permitted by law),
all of Assignor's right, title, and interest in and to the Trademark Interests.
Assignor further transfers and assigns the right to file for and obtain
registrations of the Trademark Interests anywhere in the world with the right to
base priority on Assignor's first date of use or on any application and/or
registration being assigned herein. Assignor covenants not to use or display the
Trademark Interests, or any xxxx confusingly similar thereto, anywhere in the
world except by authorization of Assignee, and further covenants not to contest
or challenge the validity of the Trademark Interests, any applicable
registrations thereof or the ownership of the Trademark Interests by Assignee.
2.3 All Other Interests. As of the Effective Date, to the extent not
otherwise granted above, Assignor hereby sells, transfers, grants, conveys,
assigns, and relinquishes exclusively to the Assignee all of Assignor's right,
title, interest, and benefit (including to make, use, or sell under patent law;
to copy, adapt, distribute, display, and perform under copyright law; and to use
and disclose under trade secret law) of Assignor in and to all United States and
foreign patents and patent applications, patent license rights, patentable
inventions, trade secrets, trademarks, service marks, trade names (including, in
the case of trademarks, service marks and trade names, all goodwill appertaining
thereto), copyrights, technology licenses, know-how, confidential information,
shop rights, and all other intellectual property rights owned or claimed by
Assignor embodied in the Wine Program.
Section 3
DELIVERY AND ASSISTANCE
3.1 Wine Program. On or before September 25, 1998, Assignor shall
deliver to Assignee, at Assignee's office in San Francisco, California, or at
Assignee's discretion, to Xxxxxx Xxxxxx-Xxxxxx, as director of Assignee in
Israel, complete copies, of the Wine Program, including all content,
information, contract assignments, wine reviews, articles, and all other
materials necessary to operate and maintain the Wine Program.
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3.2 Reference Materials for Trademark Interests. To effect the transfer
of ownership of the Trademark Interests to Assignee, including the goodwill of
all business connected with the use of and symbolized by the Trademark
Interests, Assignor shall
1. Provide Assignee with information and documentation regarding
the standards and specifications applicable to the Wine
Program;
2. Assist Assignee, at its request, in adopting such standards
and specifications; and
3. Furnish Assignee with the files evidencing all proceedings
involving the Trademark Interests and consent to Assignee's
communication with Assignor's counsel familiar with such
proceedings.
3.3 Further Assurances. Assignor agrees at Assignee's reasonable
request to execute and deliver such further conveyance agreements, and to take
such further action, as may be necessary or desirable to evidence more fully the
transactions described in this Agreement. Without limiting the generality of
such undertaking, Assignor agrees
1. To execute, acknowledge and deliver any affidavits or
documents of assignment and conveyance regarding the Copyright
Interests and the Trademark Interests;
2. To provide testimony and other evidence in connection with any
proceeding affecting the right, title, or interest of Assignee
in the Copyright Interests and the Trademark Interests; and
3. To perform any other acts deemed necessary to carry out the
intent of this Agreement.
Section 4
PRICE AND PAYMENT
4.1 Transfer of Common Stock. In consideration for the transfer of all
right title and interest in the Wine Program as contemplated hereunder, Assignee
shall issue to Assignor Sixty Three Thousand Five Hundred (63,500) shares of
Common Stock of Assignee pursuant to the terms of a Restricted Stock Purchase
Agreement.
Section 5
REPRESENTATION AND WARRANTIES; LIMITATIONS
5.1 Representations and Warranties. Assignor represents and warrants
that (1) Assignor is the sole and exclusive owner of the entire right, title,
and interest in and to the Wine Program, Copyright Interests, the Trademark
Interests, and the Other Interests, free and clear of any liens or claims; (2)
to the knowledge of Assignor, the Wine Program, Copyright Interests, the
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Trademark Interests, and the Other Interests, as heretofore exercised in
connection with Assignor's business, do not infringe the rights of any other
person or entity; (3) to the knowledge of Assignor, no claim of any such
infringement or violation has been threatened or asserted, and no such claim is
pending against Assignor with respect to the Wine Program, Copyright Interests,
the Trademark Interests, and the Other Interests; (4) Assignor has not entered
into any agreement, license, release, or order that restricts the right of
Assignor or Assignee to exploit the Wine Program, Copyright Interests, the
Trademark Interests, and the Other Interests in any way; and (5) the execution,
delivery, and performance of this Agreement by Assignor do not and will not
violate any security agreement, indenture, order, or other instrument to which
Assignor is a party or by which it or any of its assets is bound.
5.2 Disclaimer. EXCEPT AS PROVIDED IN THIS AGREEMENT, ASSIGNOR MAKES
NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.3 Indemnification. Assignor agrees to indemnify and hold harmless
Assignee, its successors and assigns, including any officer, director,
employee, agent, contractor, licensee, or customer, from and against any loss,
liability, claim, or damage (including court costs and reasonable attorney
fees) sustained by it or them as a result of a claim or allegation that the
Wine Program, Copyright Interests, the Trademark Interests, and the Other
Interests, and any intellectual property right thereto, infringe any patent,
copyright, trade secret, trademark, or other intellectual property right of any
third party.
Section 6
GENERAL
6.1 Successors and Assigns. This agreement shall inure to the benefit
of and be binding on the parties hereto, together with their respective legal
representatives, successors, and assigns.
6.2 Governing Laws. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA AS THEY PERTAIN TO
AGREEMENTS EXECUTED IN, AND FULLY PERFORMED WITHIN, THE STATE OF CALIFORNIA.
6.3 Headings. The headings of the Sections hereof are for convenience
of reference only and shall not modify, define, or limit any of the terms or
provisions hereof.
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IN WITNESS WHEREOF the parties have executed this Agreement
as of the date first above written.
AROME Publishing U.S. Inc.
a California corporation
By /s/
---------------------------
Title President
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XxxxxxxXxxxxx.xxx
a California corporation
By /s/
-------------------------
Title President
----------------------
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EXHIBIT A
Wine Program
The Wine Program includes the following:
1. The wine store on the internet
2. The wine club
3. Contract between Xxxxxxx Xxxx Blue and Assignor
4. Content
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AMENDMENT TO
ASSIGNMENT AND TRANSFER AGREEMENT
THIS AMENDMENT to that certain Assignment and Transfer Agreement (the
"Assignment Agreement") dated September 25, 1998 by and between AROME Ltd., a
corporation formed under the laws of Israel ("Assignor"), and XxxxxxxXxxxxx.xxx,
a California corporation ("Assignee") is entered into as of December 1, 1998.
WITNESSETH
WHEREAS, the Assignment Agreement provided for the issuance of certain
shares of Common Stock to Assignor in exchange for the Properties transferred to
Assignee under the Assignment Agreement, and Assignor and Assignee now wish to
amend the Assignment Agreement to provide for the exact number of shares of
Common Stock which shall be issued by Assignee to Assignor under the Assignment
Agreement.
NOW THEREFORE, in consideration for good and valuable consideration,
the receipt of which is hereby mutually acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Amendment to Section 4.1. Section 4.1 of the Assignment Agreement is hereby
amended in its entirety as follows:
4.1 Purchase Price. The aggregate purchase price for the Properties
(the "Purchase Price") shall be Three Hundred Thousand Dollars (US$300,000.00).
In addition to the payment of the Purchase Price, Assignee shall issue to
Assignor 60,000 shares of Common Stock of Assignee as of December 1, 1998.
IN WITNESS WHEREOF the parties have executed this Amendment as of
December 1, 1998.
AROME Ltd.
a Company formed under the laws of Israel
By /s/
-----------------------------------------
Title President
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XxxxxxxXxxxxx.xxx
a California corporation
By /s/
-----------------------------------------
Title President
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