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Exhibit 10.4
XXXX OF SALE,
ASSIGNMENT AND ASSUMPTION
WHEREAS, MARKETING PROJECTS, INC., a California corporation ("Seller"),
FLORAFAX INTERNATIONAL, INC., a Delaware corporation ("Buyer") have entered into
an Asset Purchase and Sale Agreement ("Agreement") dated to be effective May 1,
1998; and
WHEREAS, Seller is the owner of the Acquired Assets (as such term is
defined in the Agreement); and
WHEREAS, Seller desires to evidence the assignment and conveyance to
Buyer of Seller's entire interest in and to the Acquired Assets as hereinafter
provided.
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS:
1. Seller, for good and valuable consideration to it in hand paid by
Buyer, the receipt of which is hereby acknowledged, has BARGAINED, SOLD,
ASSIGNED and DELIVERED, and by these presents does BARGAIN, SELL, ASSIGN and
DELIVER unto the said Buyer, all of the Seller's interest in the following
described property (collectively, "Property Rights"), to-wit:
(1) the Proprietary System and Know-How (as such term is defined in the
Agreement) and more specifically including creative specifications,
artwork, design concepts, presentation materials, electronic and other
files, historical records and processes, names and numbers of present
and past contacts, historical sales records, previous insert material,
historical insertion records, account creative specifications,
historical client requests, locations of various facilities, message
statement articles, value added offers, statements of future insertion
dates and quantities, sales presentation material, notes of meetings,
records of account file-sizes and other matters, electronic catalogues,
custom-tracking systems, as well as any other right, title and interest
Seller may have to the Business (as such term is defined in the
Agreement) but not described particularly herein; and
(2) the Servicing Agreement (as such term is defined in the Agreement).
2. To the extent that the following is legally required for Buyer to
enforce any of the Property Rights hereby assigned, Seller hereby constitutes
and appoints Buyer its true and lawful attorney with full power and authority,
for the sole benefit of Buyer, its successors and assigns, and, if necessary, in
the name of Seller, to xxx upon and enforce such Property Rights and to
compromise and give full releases of the same.
3. Buyer hereby agrees to assume all duties, obligations and
liabilities imposed upon Seller to service the Property Rights, as described in
the Servicing Agreement (as such term is defined in the Agreement), and Buyer
agrees to be bound by and to perform all of such obligations, duties, covenants
and conditions of Seller,
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from and after the date hereof, but not prior thereto. Buyer agrees to
indemnify, save and hold harmless Seller from and against any and all loss,
liability, claims, causes of action and expenses, including reasonable
attorney's fees, which may be incurred or suffered by Seller, or asserted
against Seller by any party entitled to receive such services, arising out of or
relating to Buyer's failure to perform any of such services, on or after the
date hereof.
4. Seller hereby agrees to indemnify and hold Buyer harmless from and
against any and all loss, liability, claims, causes of action and expenses,
including reasonable attorney's fees, which may be incurred or suffered by
Buyer, or asserted against Buyer, by any party entitled to receive such
services, arising out of or relating to Seller's failure to perform any of such
services prior to the date hereof.
5. Seller and Buyer agree to take or cause to be taken such further
action, and to execute, deliver and file or cause to be executed, delivered and
filed such further documents and instruments as may be necessary or as may be
reasonably requested in order to effectuate fully the purposes, terms and
condition of this Xxxx of Sale, Assignment and Assumption ("Assignment
Agreement").
6. This Assignment Agreement shall be binding upon Seller and shall
inure to the benefit of Buyer and its respective successors and assigns. This
Assignment Agreement shall in no way expand the rights or remedies of any third
party against Buyer or Seller as compared to the rights or remedies which such
third party would have had against Buyer or Seller if this Assignment Agreement
had not been executed by Seller. Without limiting the generality of the
preceding sentence, this Assignment Agreement shall not create any third party
beneficiary rights nor restrain or limit Buyer or Seller from contesting or
asserting defenses against any third parties.
7. This Assignment Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
8. Except as otherwise defined herein, all terms used herein shall have
the same meaning as they have in the Agreement.
9. In the event Buyer exercises its cancellation right described in
Section 7 of the Agreement, then as of June 30, 1998, this Assignment Agreement
automatically will be canceled ab initio and of no further force and effect.
EXECUTED to be effective as of the 29th day of May, 1998.
SELLER:
MARKETING PROJECTS, INC.,
A CALIFORNIA CORPORATION
BY:
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NAME:
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ITS:
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BUYER:
FLORAFAX INTERNATIONAL, INC.
BY:
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NAME:
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ITS:
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