ASSIGNMENT, CONVEYANCE AND BILL OF SALE
ASSIGNMENT,
CONVEYANCE AND XXXX OF SALE
THIS
ASSIGNMENT, CONVEYANCE AND XXXX OF SALE
(the
“Assignment Agreement”) is entered into as of December 13, 2007 (the “Effective
Date”) by and between XXXXXXXX.XXX,
INC.,
a
Delaware corporation (“theglobe”), and TRALLIANCE CORPORATION, a New York
corporation (“Tralliance” and collectively with theglobe, the “Assignors”), and
XXXXXX.XXXXXX, LLC, a Florida limited liability limited company (the
“Assignee”).
RECITALS
Whereas,
the
Assignors have developed, acquired and/or otherwise obtained certain
Intellectual Property Rights (as hereinafter defined) relating to the top
level
domain name and website xxx.xxxxxx.xxxxxx
(“xxxxxx.xxxxxx”); and
Whereas,
Tralliance is a wholly owned subsidiary of theglobe; and
Whereas,
Assignee
desires to acquire from Assignors, and Assignors have agreed to assign and
convey to Assignee, all of Assignors’ right, title and interest in and to any
and all of Assignors’ Intellectual Property Right relating to xxxxxx.xxxxxx on
the terms and conditions hereinafter set forth; and
Now,
Therefore,
in
consideration of the premises and the mutual undertakings of the parties
hereinafter set forth, the parties agree as follows:
ARTICLE
I GENERAL
1.1 Recitals.
All of
the above recitals are true and are hereby incorporated into the terms of
this
Assignment Agreement.
1.2 Definitions.
(a) “Acquired
Assets”
means
the property listed on Schedule
A
attached
hereto, any Assumed Contracts listed on Schedule
B
attached
hereto, any and all Intellectual Property Rights relating to the foregoing,
and
any and all other assets and Intellectual Property Rights owned by or licensed
to Assignors or any of their respective subsidiaries that relate to
xxxxxx.xxxxxx.
(b) “Advertising
Contracts”
means
all agreements pursuant to which third parties place advertising on
xxxxxx.xxxxxx and/or search results pages.
(c) “Assumed
Contracts”
means
the Advertising Contracts and any licenses, agreements and other contracts
listed on Schedule
B
attached
hereto.
(d) “Intellectual
Property Rights”
shall
mean, collectively, any and all of the following rights, property, interests,
items, and assets, whether now existing or arising hereafter, world-wide
in any
jurisdiction (including in the U.S.): (i) patents, patent rights, inventions,
routines, mask rights, and patent applications; (ii) trademarks, service
marks,
trade names, trade dress, logos, business and product names, slogans, all
goodwill in or embodied by any of the foregoing, all registrations of any
of the
foregoing, and all applications for registrations of any of the foregoing;
(iii)
copyrights, copyright registrations, applications for copyright registrations,
renewals and extensions of the copyrights and copyright registrations, and
all
rights to renew and extend the copyrights and copyright registrations; (iv)
know-how, processes, source code, object code, designs, trade secrets and
confidential information, including any and all rights and benefits under
any
confidentiality, non-disclosure or non-compete agreement with any person
or
entity; (v) intellectual property rights and proprietary rights similar to
any
of the foregoing, including any and all moral rights, rights of attribution,
and
rights in and to the “look and feel,” structure, sequence and organization of
any software or computer program; (vi) all rights to xxx for and remedies
against past, present and future infringement of any of the foregoing in
any
jurisdiction; (vii) all rights of priority and protection of interests in
any of
the foregoing in any jurisdiction; (viii) all rights to renew or extend any
of
the foregoing; and (ix) all other rights, title and interests in and to each
of
the foregoing in any jurisdiction.
(e) “Knowledge”
means
the knowledge of a person acting in a prudent manner and after reasonable
inquiry in the course of performing his duties.
(f) “License”
is
defined in Article V.
(g) “Lien”
means,
with respect to any asset or property, any mortgage, title defect or objection,
lien, pledge, charge, security interest, covenant, condition, right-of-way,
easement, encumbrance, hypothecation or adverse claim in respect of such
asset
or property.
(h) “Person”
or
“person”
means
an individual, corporation, partnership, limited liability company, firm,
association, joint venture, trusts, unincorporated organization, government,
governmental body, agency, political subdivision or other entity.
(i) “Transaction
Documents”
is
defined in Section 3.1(a).
(j) “xxxxxx.xxxxxx”
is
defined in the recitals hereto.
ARTICLE
II TRANSFER
2.1 General
Assignment.
Assignors hereby assign, sell, transfer and convey to Assignee all of their
respective right, title and interest in and to the Acquired Assets. Assignee
hereby accepts such assignment and agrees that it assumes, and will pay,
perform
and discharge, all of the liabilities and obligations of Assignors arising
under
the Assumed Contracts. Assignors are entitled to all of the rights and benefits,
and shall bear all of the duties, obligations, and liabilities with respect
to
the Assumed Contracts arising prior to the Effective Date; and Assignee is
entitled to all of the rights and benefits, and shall bear all of the duties,
obligations, and liabilities, with respect to the Assumed Contracts arising
on
or after the Effective Date.
2.2 Purchase
Price.
The
purchase price for the Acquired Assets shall be Three Hundred Eighty Thousand
Dollars ($380,000), payable by wire transfer of immediately available funds
at
Closing. The Purchase Price was determined by an independent third party
appraisal, dated September 30, 2007, which appraisal has
been received, reviewed and approved by Assignors and Assignee.
2.3 No
Assumption of Liabilities.
Except
for the Assumed Contracts, Assignee does not assume, and shall not be
responsible for, any liability or obligation of Assignors with respect to
the
Acquired Assets or otherwise.
2.4 Acknowledgement.
Assignors hereby acknowledge that pursuant to this Assignment Agreement,
Assignee shall accede to and obtain the entire, right, title and interest
in and
to the Acquired Assets, including the sole right and standing to:
(a) Receive
all rights and benefits pertaining to the Acquired Assets;
(b) Institute
and prosecute all suits and proceedings and take all actions that Assignee
in
its sole discretion, may deem necessary or proper to collect, assert, or
enforce
any claim, right, or title of any kind in or to the Acquired Assets, including
infringement of any Intellectual Property Rights; and
(c) Defend
and compromise any and all proceedings, suits, and actions relating to or
arising out of the Acquired Assets, including infringement of any Intellectual
Property Rights.
2.5 No
Warranties - Limited Liability.
(a) THE
ACQUIRED ASSETS ARE PROVIDED “AS IS”, EXCEPT AS SPECIFICALLY SET FORTH BELOW.
ASSIGNORS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED WITH RESPECT
THERETO, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY OR THAT THE ACQUIRED ASSETS WILL OPERATE WITHOUT
INTERRUPTION OR BE ERROR FREE, AND ASSIGNORS HEREBY DISCLAIM ALL SUCH
REPRESENTATIONS AND WARRANTIES.
(b) ASSIGNORS
SHALL NOT BE LIABLE, UNDER ANY THEORY OF LIABILITY, INCLUDING TORT (INCLUDING
NEGLIGENCE AND STRICT LIABILITY) CONTRACT, OR OTHERWISE, FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF THE ASSIGNEE’S USE
OF THE ACQUIRED ASSETS, OR THE USE OF THE ACQUIRED ASSETS BY ANY THIRD PARTY,
OR
IN ANY OTHER WAY ARISING OUT OF THIS ASSIGNMENT AGREEMENT OR THE TRANSACTION
DOCUMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY
LOSS
OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COST OF
COVER.
(c) IN
ADDITION, ASSIGNOR SHALL NOT BE LIABLE TO ASSIGNEE FOR ANY LOSS OR DAMAGES
ARISING OUT OF THE FAILURE TO OBTAIN ANY CONSENTS LISTED ON SCHEDULE
C
ATTACHED
HERETO.
ARTICLE
III REPRESENTATIONS
3.1 Representations
and Warranties of Assignors.
Assignors hereby represent and warrant to Assignee as follows:
(a) Theglobe
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware, Tralliance is a corporation duly organized,
validly existing and in good standing under the laws of the State of New
York,
and each has all corporate power and authority to own its assets and to carry
on
its business as presently conducted. Each Assignor has all requisite power
and
authority to execute and deliver this Assignment Agreement and the documents,
instruments and agreements contemplated hereby (the “Transaction Documents”) and
to perform its obligations hereunder and thereunder. The execution and delivery
of this Assignment Agreement and the Transaction Documents and the consummation
of the transactions contemplated hereby and thereby have been duly authorized
by
all requisite action on the part of each Assignor.
(b) This
Assignment Agreement and each of the Transaction Documents have been duly
and
validly executed and delivered by each Assignor which is a party thereto.
This
Assignment Agreement and the Transaction Documents constitute legal, valid
and
binding obligations of each Assignor which is a party thereto, enforceable
against such Assignor in accordance with their respective terms, subject
to
applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws
affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity.
(c) Except
as
otherwise set forth in Schedule
C
attached
hereto, neither the execution and delivery of this Agreement or the Transaction
Documents nor the carrying out of the transactions contemplated hereby or
thereby will conflict with, or result in any violation of or default (with
or
without notice or lapse of time, or both) under, or give rise to a right
of
termination, cancellation or acceleration of any obligation or to loss of
a
material benefit under, or give rise to any obligation of any Assignor to
make
any payment under, or to the increased, additional, accelerated or guaranteed
rights or entitlements of any Person under, or result in the creation of
any
Liens upon any of the properties or assets of any Assignor under any provision
of (i) any organizational documents of any Assignor; (ii) any order, injunction,
judgment, decree, or arbitration award of a governmental authority; (iii)
any
applicable law; or (iv) any contract, license, agreement or commitment of
any
Assignor.
(d) Except
for the consents set forth on Schedule
C
attached
hereto, no consent, waiver, approval, action, permit or authorization of,
or
declaration or filing with, or notification to, any Person or governmental
authority is required on the part of any Assignor in connection with the
execution and delivery of this Agreement or the Transaction Documents or
the
compliance by any Assignor with any of the provisions hereof or
thereof.
(e) True,
correct and complete copies of the Assumed Contracts (other than the Advertising
Contracts) have been provided to Assignee. To the knowledge of Assignors,
there
are no existing material defaults under any of the Assumed Contracts. Each
of
the Assumed Contracts is in full force and effect.
(f) There
is
no action, suit, proceeding, investigation or claim pending, or to Assignors’
knowledge, threatened in law, equity or otherwise before any court,
administrative agency or arbitrator which (i) questions the validity of this
Assignment Agreement or any of the Transaction Documents, (ii) might adversely
affect the right, title or interest of the Assignee under the Assignment
Agreement or any Transaction Document, or (iii) otherwise could adversely
impact
the Assignee. Assignors are not in default with respect to any order, writ,
injunction, decree, ruling or decision of any court, commission, board, or
other
governmental agency.
(g) Assignors
own and possess all right, title and interest in and to, or have a valid
and
enforceable right to use, each of the Acquired Assets free and clear of all
Liens, and no claim by any third party contesting the validity, enforceability,
use or ownership of any of the Acquired Assets has been made, is currently
outstanding or threatened.
(h) Assignors
have not received any notices of, nor is it aware of any facts which indicate
a
likelihood of, any infringement or misappropriation by, or conflict with,
any
third party with respect to any Acquired Assets including, without limitation,
any demand or request that Assignors license rights from a third
party.
(i)
All of
the material Acquired Assets are or shall be owned by, or licensed to Assignors
on the Effective Date. Assignors have not disclosed, and shall not disclose
to
anyone other than Assignee, any of their trade secrets or confidential
information relating to the Acquired Assets to any third party other than
pursuant to a written confidentiality agreement. Assignors have taken all
other
commercially reasonable actions to maintain and protect the Acquired
Assets.
(j) No
representation or warranty by any Assignor contained in any Transaction
Document, and no statement contained in any instrument, list, certificate,
or
writing furnished to Assignee pursuant to the provisions hereof or in connection
with the transactions contemplated hereby, contains any untrue statement
of a
material fact or omits to state a material fact necessary in order to make
the
statements contained herein or therein not misleading.
ARTICLE
IV CLOSING
4.1 Closing.
The
parties will consummate and close the transactions contemplated by this
Assignment Agreement (the “Closing”) on December 13, 2007 (the “Closing Date”)
at the offices of Assignee located at 000 Xxxx Xxxxxxx Xxxx., 00xx
Xxxxx,
Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
4.2 Deliveries
at Closing.
At the
Closing, the applicable parties shall execute and deliver, or cause to be
executed and delivered, the following items:
(a) To
the
extent required by Assignee, Assignors shall deliver any consents of third
parties required for the consummation of the transactions contemplated hereby,
including the consents listed on Schedule
C
attached
hereto.
(b) Assignors
shall deliver evidence that the transactions contemplated hereby have been
authorized by all necessary action on the part of Assignors.
(c) Assignors
shall deliver to Assignee, in electronic form or, where appropriate, printed
form, full copies of all intangible property included in the Acquired
Assets.
ARTICLE
V TRADEMARK
LICENSE
5.1 Trademark
License.
Tralliance hereby grants to Assignee a royalty-free, perpetual, non-exclusive
and, to the extent provided Section 5.5 below, transferable license (the
“License”) to use the .travel logo in the form attached hereto as Exhibit A
(the
“Xxxx”) solely in connection with the Acquired Assets and subject to the terms
and conditions set forth in this Article V. Assignee acknowledges that (i)
Tralliance has sole and exclusive right, title and interest in and to the
Xxxx
and any registration issued thereon, (ii) Tralliance shall retain such sole
and
exclusive right, title and interest in and to the Xxxx and any registration
issued thereon, (iii) the Xxxx is valid, and (iv) Assignee shall not at any
time
challenge or contest the validity of the Xxxx or the ownership, title or
registration of Tralliance in and to the Xxxx. Tralliance reserves the right
to
license the Xxxx, and any other trademark, service marks or any other
proprietary marks of Tralliance to any other persons at any time in Tralliance’s
sole discretion provided that Tralliance shall not be permitted to license
or
use the Xxxx together with the words “xxxxxx.xxxxxx” or any variation thereof.
The License granted hereunder shall in no way be construed as granting to
Assignee the right to use the Xxxx in any manner not related to or connected
with the Acquired Assets, nor shall it be construed as reflecting Tralliance’s
abandonment or intent to abandon any of its rights of possession or property
in
the Xxxx. Assignee shall, at the expense of Tralliance, enter into such
agreements with Tralliance and shall execute such documents and carry out
such
actions as Tralliance may reasonably deem necessary or advisable to protect
Tralliance’s rights in and to the Xxxx.
5.2 Term;
Territory.
The
License granted hereunder shall commence on the date hereof and shall remain
in
full force and effect in perpetuity, and may be used by Assignee throughout
the
world.
5.3 Goodwill.
Any and
all goodwill arising from Assignee’s use of the Xxxx shall inure solely to the
benefit of Tralliance and its successors and assigns.
5.4 No
Representations or Warranties.
Tralliance makes no representation or warranty as to its right to exclusive
use
of the Xxxx. The license granted by Tralliance pursuant to this Agreement
is
limited to all right, title or interest that Tralliance has in and to the
Xxxx.
5.5 Assignment.
Neither
Tralliance nor Assignee may assign its rights or delegate its duties under
the
License without the prior written consent of the other, except that either
Tralliance or Assignee shall be permitted to assign its rights and delegate
its
duties under the License without the other’s consent, (a) to a parent, affiliate
or subsidiary of such party, or (b) if such assignment is part of a (i) sale
of
a division or all or part of the assigning party’s assets or business, or (ii)
part of a corporate restructuring of the assigning party, provided that the
assignee assumes all of the liabilities and obligations of the assigning
party
pursuant to a written instrument of assumption in form and substance reasonably
satisfactory to the non-assigning party. Upon a permitted assignment under
clause (b) above, the assigning party shall be relieved of further liability
hereunder except for any breach or default that occurred prior to such
assignment.
ARTICLE
VI MISCELLANEOUS
6.1 Notices.
Any
notice required or intended to be given by either party hereto to the other,
pursuant to this Agreement or any provision of law, shall be in writing and
sent
by registered or certified mail, postage paid, or delivered by hand or overnight
courier and acknowledged, or by telecopier and confirmed by registered or
certified mail as follows:
|
If
to Assignors, to them at:
|
xxxxxxxx.xxx,
inc.
000
Xxxx Xxxxxxx Xxxx.
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
President
|
|
Tralliance
Corporation
000
Xxxx Xxxxxxx Xxxx.
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
President
|
|
|
If
to Assignee, to it at:
|
Xxxxxx.Xxxxxx,
LLC
000
Xxxx Xxxxxxx Xxxx.
00xx
Xxxxx
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
President
|
or
to
such other address as may be designated by the respective party by notice
given
to the other in accordance with this Section.
6.2 Binding
on Successors and Assigns.
All of
the covenants and agreements of the parties hereinabove contained shall apply
to
and bind such party and its successors and assigns. Reference to a party
shall
mean and include such party’s successors and assigns.
6.3 Entire
Agreement.
This
Assignment Agreement and the other Transaction Documents constitute the entire
agreement between the parties pertaining to the subject matter hereof and
fully
supersedes any and all prior agreements between the parties hereto respecting
the subject matter hereof. In addition, no amendments or modifications to
this
Assignment Agreement shall be valid unless set forth in writing and signed
by
each of the parties hereto.
6.4 Further
Assurances.
The
parties hereby agree from time to time to execute and deliver such further
and
other assurances, assignments, documents, instruments and agreements and
do all
matters and things which may be convenient or necessary to more effectively
and
completely carry out the intentions of this Assignment Agreement.
6.5 Governing
Law.
This
Assignment Agreement shall be governed by, construed under, and enforced
in
accordance with the laws of the State of Florida. In the event of any dispute
arising in connection with this Assignment Agreement or the Transaction
Documents, the parties irrevocably consent to the exclusive jurisdiction
of the
state or federal courts located in Broward County, Florida.
6.6 Multiple
Counterparts. This
Assignment Agreement may be executed by the parties hereto in multiple
counterparts, each of which shall be deemed to be an original for all purposes,
and all of which together shall constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed as of the day and year first above written.
|
XXXXXXXX.XXX,
INC.
By:
/s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx
X. Xxxxxxxx
Title: President
|
XXXXXX.XXXXXX,
LLC
By:
/s/ Xxxxxx X. Cespedes Name: Xxxxxx
X. XxxxxxxxTitle: President
|
|
TRALLIANCE
CORPORATION
By:
/s/ Xxxxxx X. Cespedes Name: Xxxxxx
X. XxxxxxxxTitle: President
and CEO
|
SCHEDULE
A
ACQUIRED
ASSETS
Xxxxxx.xxxxxx
-
search
algorithms
-
database schema
-
front
end, movie conversion to flash
-
profile
collection and index creation
Xxxxxx.xxxxxx
is a vertical search engine for the travel industry. All of the software
and
applications were in-house designed with the exception of the recent addition
of
the web crawler. Our modules consist of the following, written in Java:
Search
Engine
Profile
Creation
Ad
management
Map
modules
Reporting
Module
All
source code and compiled applications relating to the foregoing.
Four
(4)
production xxxxxx.xxxxxx servers, as follows:
Sun
240 -
Database Server
IBM
Blade
Servers
Blade
1
Blade
2
Blade
3
All
receivables arising under any Advertising Contracts and accruing after
the
Effective Date.
SCHEDULE
B
ASSUMED
CONTRACTS
None
SCHEDULE
C
REQUIRED
CONSENTS
Consent
of the holders under the Security Agreement dated April 22, 2005 relating
to a
loan in the original principal amount of $4,000,000, together with a partial
release of the security interest of such holders in the Acquired
Assets.
Consent
of the holders under the Security Agreement dated May 29, 2007 relating to
a
loan in the original principal amount of $1,250,000, together with a partial
release of the security interest of such holders in the Acquired
Assets.
EXHIBIT
A
.TRAVEL
LOGO
