ASSIGNMENT
This
Assignment dated November 9, 2006 evidences an assignment by WAA, LLC, a
limited
liability company organized under the laws of the State of Delaware
(“WAA”),
to
Zeros
& Ones, Inc., a corporation organized under the laws of the State of Nevada
(“ZROS”),
and certain related agreements between WAA and ZROS.
BACKGROUND
On
March
15, 1999, Lockheed Xxxxxx Corporation (“Lockheed”) and Centerpoint Broadband
Technologies, Inc. (“Centerpoint”), entered into a Technology License Agreement
with respect to several patents and patent applications owned by Lockheed
or its
wholly owned subsidiary, Loral Aerospace Corp. (the “Technology License
Agreement”). Under the Technology License Agreement, Lockheed granted to
Centerpoint rights under certain patents and patent applications. On or about
April, 2000, the Technology License Agreement was amended (the “First License
Amendment”). On October 8, 2000, the Technology License Agreement was amended
further (the “Second License Amendment”). The Technology License Agreement has
not been amended or modified in any other respect. . The Technology License
Agreement, the First License Amendment and the Second License Amendment may
sometimes be referred to herein as the “License”.
On
August
12, 2002, Centerpoint filed for bankruptcy protection in the United States
Bankruptcy Court, Northern District of California, Bankruptcy Petition #02-54427
(the “Bankruptcy”). On November 24, 2004, WAA filed a motion in the Bankruptcy
seeking approval of sale of the License from Centerpoint to WAA, as well
as sale
of the patent applications and related technologies and materials listed
on the
exhibits to the Motion. On December 15, 2004, the court approved the motion
and
ordered the sale to proceed. In connection therewith, on December 15, 2004,
Centerpoint transferred to WAA its ownership interest under certain patents
and
patent applications listed in an Exhibit A to those documents and attached
to
this Assignment as Exhibit 1, and also its interest as licensee in certain
other
patents that had been licensed from Lockheed under the Technology License
Agreement, also listed in Exhibit 1 to this Assignment.
WAA
has
agreed to assign to ZROS
all
of its right, title and interest to all patent applications purchased from
Centerpoint, including
any reissues, divisionals, continuations, continuations-in-part, renewals,
extensions and foreign counterparts of any of the foregoing (all referred
to
below collectively as the “Patents”), and
all
license interest it holds in the patents licensed from Lockheed pursuant
to the
License, all of which are listed in Exhibit 1 (referred to below as the
“Licensed Patents”), and specifically to transfer and assign to ZROS the
Technology License Agreement, including both amendments.
AGREEMENT
1. Assignment
and Sale.
In
consideration of the purchase price specified below, WAA now assigns to ZROS
all
of its right, title and interest in the Patents and the License, including
any
rights to recover damages or other remedies in respect of all infringements
of
the Patents or the Licensed Patents, whether committed before or after the
date
of this Assignment. WAA further assigns and sells to ZROS any and all designs,
drawings, software, boards, prototypes, hard assets, documents, inventory,
commercial products, physical embodiments and materials in the possession
of WAA
received or purchased from Centerpoint (f/k/a Zaffire) pertaining to the
Patents
or the License. This assignment is intended to be broadly construed to include
all intellectual property WAA purchased from Centerpoint, whether during
the
Bankruptcy, or before or after the Bankruptcy.
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page
1
of
7
2. Price.
Simultaneously with the execution of this Assignment, ZROS is delivering
to WAA
(a) the sum of $150,000 in cash by wire transfer in immediately available
funds
(the “Cash”), (b) a Secured Promissory Note with principal amount of $350,000
(the “Note”) and (c) a warrant to purchase 7,500,000 shares of Common Stock of
ZROS at an exercise price of $0.07 per share (the current fair market value
of
that stock) (the “Warrant”).
3. Further
Assurances.
WAA
will, at the request and cost of ZROS, execute such documents and do such
things
as XXXX may reasonably request to enable ZROS, or its nominee, to enjoy the
benefit of the rights now assigned to it.
4. Representations
and Warranties.
4.1 Seller
Warranties.
WAA
represents and warrants to ZROS that:
(a) WAA
has
not previously transferred or pledged any rights in the Patents or the License
to another party;
(b) The
First
License Amendment has been duly signed by Lockheed and Centerpoint in the
form
previously provided to ZROS;
(c) Centerpoint
paid the $6,000,000 payment to Lockheed pursuant to the Second License
Amendment;
(d) To
the
actual knowledge of WAA, without review or investigation, no dispute with
Lockheed currently exists regarding the validity, enforceability or exclusive
nature of the License;
(e) To
the
actual knowledge of WAA, without review or investigation, no dispute exists
with
Lockheed or any third party regarding any alleged intellectual property
infringement of or by the Patents or the License;
(f)
To
the
actual knowledge of WAA, without review or investigation, neither Centerpoint
nor WAA has granted any material license or other right to any third party
with
respect to the Patents or License;
(g) WAA
has
and will transfer good title to the License and Buyer will acquire good title
to
the License, free and clear of all liens and encumbrances.
(h) WAA
is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite power and
authority to own, lease and operate its properties and assets and to carry
on
its business as it is presently being conducted. WAA is duly qualified and
in
good standing to do business in each jurisdiction in which the nature of
its
business or the ownership or leasing of its properties makes such qualification
necessary, except where the failure to so qualify could not reasonably be
expected, either individually or in the aggregate, to have a material adverse
effect on the Patents, the License, or the ability to enter into this
Assignment. Xxxx Xxxxxxx is the sole owner of WAA.
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 2
of
7
(i) WAA
has
all requisite power and authority, and has taken all action necessary, to
execute and deliver this Assignment and each other agreement, document,
instrument or certificate contemplated by this Assignment and to consummate
the
transactions contemplated hereby. This Assignment has been duly and validly
executed and delivered by WAA and this Assignment shall constitute a valid
and
legally binding obligation of WAA, enforceable against WAA in accordance
with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting
creditors’ rights generally and (b) the general principles of equity, regardless
of whether asserted in a proceeding in equity or at law.
(j) The
execution, delivery and performance of this Assignment shall not, directly
or
indirectly (with or without notice or lapse of time):
(i) contravene,
conflict with or result in a violation of any provision of the Articles of
Organization or Operating Agreement of WAA or any resolution or other action
adopted or taken by the management or members of WAA;
(ii) contravene,
conflict with or result in a violation of any laws or judicial
orders;
(k) No
brokerage fee or commission, or consulting fee, is or will become due and
owing
as a result of this Assignment.
4.2 Buyer
Warranties.
ZROS
hereby represents and warrants to WAA that:
(a) ZROS
is a
corporation duly organized, validly existing and in good standing under the
laws
of the State of Nevada and has all requisite power and authority to own,
lease
and operate its properties and assets and to carry on its business as it
is
presently being conducted. ZROS is duly qualified and in good standing to
do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
except where the failure to so qualify could not reasonably be expected,
either
individually or in the aggregate, to have a material adverse effect on the
ability to enter into this Assignment.
(b) ZROS
has
all requisite power and authority, and has taken all action necessary, to
execute and deliver this Assignment and each other agreement, document,
instrument or certificate contemplated by this Assignment and to consummate
the
transactions contemplated hereby. This Assignment has been duly and validly
executed and delivered by XXXX and this Assignment shall constitute a valid
and
legally binding obligation of ZROS, enforceable against ZROS in accordance
with
its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, moratorium, reorganization and other similar laws affecting
creditors’ rights generally and (b) the general principles of equity, regardless
of whether asserted in a proceeding in equity or at law.
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 3
of
7
(c) The
execution, delivery and performance of this Assignment shall not, directly
or
indirectly (with or without notice or lapse of time):
(i) contravene,
conflict with or result in a violation of any provision of the Articles of
Organization or Bylaws of ZROS or any resolution or other action adopted
or
taken by the management or members of ZROS;
(ii) contravene,
conflict with or result in a violation of any laws or judicial
orders;
4.3 Warranty
Exclusions. Except
as
set forth in this Section 4, WAA makes no representation or warranty regarding
the Patents, the License or this Assignment. XXXX understands that WAA and
Xxxx
Xxxxxxx have not been monitoring or prosecuting the patent portfolio, and
makes
no representation as to whether any patents or patent applications have expired
or lapsed. Furthermore, other than as set forth in this Section 4, WAA makes
no
representation or warranty as to: whether any third party owns or claims
any
rights which would be infringed by practicing the inventions disclosed in
the
Patents or the Licensed Patents; nor as to the efficacy or usefulness of
the
Patents or Licensed Patents; nor as to whether the Patents or Licensed Patents
are or will be valid or subsisting or (in the case of an application) will
proceed to grant.
4.4 Limitation
of Liability. The
liability of either party to the other for any breach of this Assignment,
any
negligence or arising in any other way out of the subject matter of this
Assignment, will not extend to any indirect damages or losses, or any loss
of
profits, loss of revenue, loss of data, loss of contracts or opportunity,
whether direct or indirect, even if the party bringing the claim has advised
the
other of the possibility of those losses, or if they were within the other
party's contemplation.
4.5 Disclaimer
of Implied Warranties.
The
express undertakings and warranties given by the parties in this Assignment
are
in lieu of all other warranties, conditions, terms, undertakings and
obligations, whether express or implied by statute, common law, custom, trade
usage, course of dealing or in any other way (including the implied warranty
of
merchantability). All of these are excluded to the fullest extent permitted
by
law.
5. Related
Transactions.
Following the closing of this assignment, the parties will negotiate in good
faith the terms of a definitive employment agreement under which Xxxx Xxxxxxx
shall become the Chief Executive Officer and a member of the Board of Directors
of ZROS.
6. Governing
Law.
This
Assignment is governed by, and is to be construed in accordance with the
laws of
the State of California. The state and federal courts located within the
State
of California will have exclusive jurisdiction to deal with any dispute which
has arisen or may arise out of or in connection with this
Assignment
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 4
of
7
7. Indemnity.
WAA
will indemnify and hold harmless ZROS and its officers and directors from
any
claims, liabilities, or damages relating to a breach of the representations
and
warranties of WAA provided herein. In the event of any such claims or disputes,
the maturity date of the Note, and vesting of the Warrant, shall be deferred
until such claim or dispute is resolved. The liability of WAA shall be limited
to the consideration actually paid hereunder, and any such liability shall
be
offset against the consideration payable hereunder.
8. Publicity.
No
party to this Assignment shall issue any press release or make any public
announcement regarding the transactions contemplated by this Assignment without
the prior approval of the other party.
9. Confidential
Information.
The
parties acknowledge that the transaction described in this Assignment is
of a
confidential nature and shall not be disclosed except to advisors with a
need to
know, as required by Law, upon mutual agreement, or until such time as the
parties make a public announcement regarding the transaction.
10.
Expenses.
The
parties shall each bear its own expenses, including attorneys’, accountants’ and
other professionals’ fees, incurred in connection with the negotiation and
execution of this Assignment, provided, however, that XXXX will reimburse
the
reasonable legal fees of WAA.
11. Specific
Performance.
XXX and
XXXX acknowledge and agree that the Breach of this Agreement by a party would
cause irreparable damage to the other and that the non breaching party may
not
have an adequate remedy at law. Therefore, the obligations of WAA and ZROS
under
this Agreement, including, without limitation, WAA’s obligation to transfer the
Patents and License to ZROS, and XXXX’s obligation to purchase the Patents and
License from WAA, shall be enforceable by a decree of specific performance
issued by any court of competent jurisdiction, and appropriate injunctive
relief
may be applied for and granted in connection therewith. Such remedies shall,
however, be cumulative and not exclusive and shall be in addition to any
other
remedies which any party may have under this Assignment or
otherwise.
12.
Waiver
of Jury Trial.
Each
party hereto hereby expressly waives any right to trial by jury of any claim,
demand, action or cause of action arising under or in connection with this
Assignment or the transactions contemplated hereby.
13.
Entire
Agreement; Amendments and Waivers.
This
Assignment, including the schedules and exhibits hereto, represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Assignment signed by the party against whom enforcement
of any
such amendment, supplement, modification or waiver is sought.
15. Notices.
All
notices, requests, approvals, consents, demands, claims and other communications
required or permitted to be given under this Agreement shall be in writing
and
shall be served personally, or sent by a national overnight delivery or courier
company, or by fax or email delivery. Such notices shall be deemed given
upon
delivery.
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 5
of
7
16. Severability.
In the
event that any one or more of the provisions contained in this Assignment
or in
any other instrument referred to herein, shall, for any reason, be held to
be
invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability shall not
affect any other provision of this Assignment or any other such
instrument.
17. Binding
Effect; Third Party Beneficiaries; Assignment.
This
Assignment shall be binding upon and inure to the benefit of the parties
hereto
and their respective successors and permitted assigns. Nothing in this
Assignment shall create or be deemed to create any rights as third party
beneficiaries to this Agreement in any person not a party to this Agreement,
except as provided below; provided, however, that any person that is not
a party
to this Assignment but, by the terms hereof is entitled to indemnification,
shall be considered a third party beneficiary of this Agreement, with full
rights of enforcement as though such person was a signatory to this Agreement.
No assignment of this Agreement or of any rights or obligations hereunder
may be
made by either party (by operation of law or otherwise) without the prior
written consent of the other party hereto and any attempted assignment without
the required consent shall be void.
18. Attorneys’
Fees and Costs.
In the
event of any action at law or in equity between the parties hereto to enforce
any of the provisions hereof, the unsuccessful party to such litigation shall
pay to the successful party all costs and expenses, including reasonable
attorneys’ fees, incurred therein by such successful party; and if such
successful party shall recover judgment in any such action or proceeding,
such
costs, expenses and reasonable attorneys’ fees may be included in and as part of
such judgment. The successful party shall be the party who is entitled to
recover its costs of suit, whether or not the suit proceeds to final judgment.
A
party not entitled to recover its costs shall not recover attorneys’
fees.
19. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
20. Representation
by Counsel.
Each
party hereto represents and agrees with each other that it has been represented
by or had the opportunity to be represented by independent counsel of its
own
choosing, and that it has had the full right and opportunity to consult with
its
respective attorney(s) to the extent, if any, that it desired, it availed
itself
of this right and opportunity, that it or its authorized officers (as the
case
may be) have carefully read and fully understand this Assignment in its entirety
and have had it fully explained to them by such party’s respective counsel, that
each is fully aware of the contents thereof and its meaning, intent and legal
effect, and that it or its authorized officer (as the case may be) is competent
to execute this Assignment and has executed this Assignment free from coercion,
duress or undue influence.
21. No
Interpretation Against Drafter.
This
Agreement is the product of negotiations between the parties hereto represented
by counsel and any rules of construction relating to interpretation against
the
drafter of an agreement shall not apply to this Agreement and are expressly
waived.
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 6
of
7
IN
WITNESS whereof
XXX and XXXX
have
executed
this Assignment on November 9, 2006.
WAA,
LLC
|
By:
|
/s/ Xxxx Xxxxxxx | |||
|
Xxxx Xxxxxxx, Manager |
Zeros
& Ones, Inc.
|
By:
|
/s/ Xxxx Xxxxxxx | |||
|
Xxxx Xxxxxxx, President |
____________________________________
Assignment
dated November 9, 2006
WAA,
LLC,
and
Zeros & Ones, Inc.
Page 7
of
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