TRANSACTION AGREEMENT
EXHIBIT
10.27
This
TRANSACTION AGREEMENT (this “Agreement”)
is
made and entered into as of November 28, 2005 by and among Scientigo, Inc.,
a
Delaware corporation (“Scientigo”),
TIGO
Search, Inc., a Delaware corporation (“TIGO
Search”),
and
Find/SVP, Inc., a New York corporation (“Find/SVP”).
RECITALS
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A.
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Find/SVP
has adopted or is the owner of the marks listed on Schedule
1.1(a)
(the “Licensed
Marks”);
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|
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B.
|
Find/SVP
is the owner of the registrations for and applications to register
the
Licensed Marks also listed on Schedule
1.1(a);
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|
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C.
|
Find/SVP
is the owner of the Internet domain names listed on Schedule
1.1(b)
(the “Domain
Names”);
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|
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D.
|
TIGO
Search wishes to acquire the Domain Names from Find/SVP on the
terms and
conditions set forth in this Agreement;
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E.
|
TIGO
Search wishes to license to use the Licensed Marks from Find/SVP
on
the terms and conditions set forth in this
Agreement.
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AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and the mutual covenants
and
obligations set forth herein, the sufficiency of which is hereby acknowledged,
the parties agree as follows:
ARTICLE
I
DEFINITIONS
AND INTERPRETATION
Section
1.1 Certain
Defined Terms.
As used
in this Agreement, the following terms shall have the following
meanings:
“Action”
means
any claim, action, suit, arbitration, inquiry, proceeding or investigation
by or
before any Governmental Authority.
“Affiliate”
means,
with respect to any specified Person, any other Person that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with, such specified Person.
“Ancillary
Agreements”
means
the Note, the Security Agreement, the Stock Repurchase Agreement, and the
Stockholders Agreement.
“Code”
means
the United States Internal Revenue Code of 1986, as amended.
“control”
(including the terms “controlled
by”
and
“under
common control with”),
with
respect to the relationship between or among two or more Persons, means the
possession, directly or indirectly or as trustee, personal representative or
executor, of the power to direct or cause the direction of the affairs or
management of a Person, whether through the ownership of voting securities,
as
trustee, personal representative or executor, by contract or otherwise,
including, without limitation, the ownership, directly or indirectly, of
securities having the power to elect a majority of the board of directors or
similar body governing the affairs of such Person.
“Encumbrance”
means
any security interest, pledge, mortgage, lien (including, without limitation,
environmental and Tax liens), encumbrance, adverse claim, or any agreement,
obligation, understanding or arrangement on title or transfer other than
Permitted Encumbrances.
“Find/SVP
Material Adverse Effect”
means
any circumstance, change in, or effect that, individually or in the aggregate
with any other circumstances, changes in, or effects has or would reasonably
by
expected to have, materially adverse to the Licensed Marks or Domain Names,
whether operated by Find/SVP prior to the Closing or by Scientigo or TIGO Search
after the Closing; provided,
however,
that in
no event shall any of the following, alone or in combination with any of the
others, be deemed to constitute, nor shall any of the following be taken into
account in determining whether there has been or will be, a Find/SVP Material
Adverse Effect: (a) any occurrence or occurrences relating to the industry
in
which Find/SVP operates, or in the economy generally, other than that which
affects Find/SVP disproportionately; or (b) any occurrence or occurrences that
proximately results from the public announcement of this Agreement or the
Transactions.
“Governmental
Authority”
means
any U.S. or foreign, national, federal, state, municipal or local or other
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body.
“Governmental
Order”
means
any order, writ, judgment, injunction, decree, stipulation, determination or
award entered by or with any Governmental Authority.
“Law”
means
any national, federal, state, municipal or local or other statute, law, treaty,
ordinance, regulation, rule, code, order, other requirement or rule of law
of a
Governmental Authority.
“Licensed
Products”
means
the software and other products of TIGO Search.
“Licensed
Services”
means
the services of TIGO Search, including, without limitation, enterprise, desktop
and Internet search services.
“Permitted
Encumbrances” means
such of the following as to which no enforcement, collection, execution, levy
or
foreclosure proceeding has been commenced: (a) liens for Taxes, assessments
and
governmental charges or levies not yet due and payable; (b) pledges or deposits
to secure obligations under workers’ compensation laws or similar legislation or
to secure public or statutory obligations.
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“Person”
means
any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
“Registration
Rights Agreement”
means
that certain Registration Rights Agreement in the form attached to this
Agreement as Exhibit
D
to be
entered into between Find/SVP and Scientigo at the Closing in connection with
the issuance of the shares of Scientigo Common Stock to Find/SVP at the Closing
and that may be issued pursuant to the Stock Repurchase Agreement.
“Scientigo
Common Stock”
means
the common stock of Scientigo, Inc., par value $0.001 per share.
“Scientigo
Material Adverse Effect”
means
any circumstance, change in, or effect on, Scientigo that, individually or
in
the aggregate with any other circumstances, changes in, or effects on, Scientigo
is, or would reasonably by expected to be, materially adverse to the business,
operations, assets or liabilities (including, without limitation, contingent
liabilities), employee relationships, customer or supplier relationships,
results of operations or the condition (financial or otherwise) of Scientigo
and
its subsidiaries, taken as a whole; provided,
however,
that in
no event shall any of the following, alone or in combination with any of the
others, be deemed to constitute, nor shall any of the following be taken into
account in determining whether there has been or will be, a Scientigo Material
Adverse Effect: (a) any change or changes in the price per share of Scientigo
Common Stock or a change in the trading volume of Scientigo Common Stock; (b)
any occurrence or occurrences relating to the industry in which Scientigo
operates, or in the economy generally, other than that which affects Scientigo
and its subsidiaries, taken as a whole, disproportionately; or (c) any
occurrence or occurrences that proximately results from the public announcement
of this Agreement or the Transactions or any or all of the events, circumstances
and information described on Schedule
1.1(a).
“Stockholders
Agreement”
means
that certain Stockholders Agreement in the form attached hereto as Exhibit
E
to be
entered into between Scientigo, TIGO Search and Find/SVP at the Closing in
connection with the issuance of TIGO Common Stock pursuant to this
Agreement.
“subsidiaries”
means
any and all corporations, partnerships, joint ventures, associations and other
entities controlled by the applicable Person directly or indirectly through
one
or more intermediaries.
“Tax”
or
“Taxes”
means
(a) any and all federal, state, local and foreign taxes, assessments and other
governmental charges, duties, impositions and liabilities, including taxes
based
upon or measured by gross receipts, income, profits, sales, use and occupation,
and value added, ad valorem, transfer, franchise, withholding, payroll,
recapture, employment, excise and property taxes, together with all interest,
penalties and additions imposed with respect to such amounts; (b) any liability
for the payment of any amounts of the type described in clause (a) as a result
of being or ceasing to be a member of an affiliated, consolidated, combined
or
unitary group for any period (including, without limitation, any liability
under
Treasury Regulation Section 1.1502-6 or any comparable provision of foreign,
state or local law); and (c) any liability for the payment of any amounts of
the
type described in clause (a) or (b) as a result of any express or implied
obligation to indemnify any other person or as a result of any obligations
under
any agreements or arrangements with any other person with respect to such
amounts and including any liability for taxes of a predecessor
entity.
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“Transactions”
means
the transactions contemplated by this Agreement and the Ancillary
Agreements.
“Unregistered
Xxxx”
means
the common law trademark and service xxxx “Find”.
ARTICLE
II
THE
TRANSACTION
Section
2.1 The
Transaction.
(a) Domain
Name Transfer.
Subject
to and on the terms set forth in this Agreement, at the Closing,
Find/SVP shall transfer and assign to TIGO Search, and TIGO Search shall accept
from Find/SVP, all right, title and interest in the Domain Names (the
“Domain
Name Transfer”).
(b) Common
Law Xxxx.
Subject
to and on the terms set forth in this Agreement, at the Closing, Find/SVP shall
transfer and assign to TIGO Search, and TIGO Search shall accept from Find/SVP,
all right, title and interest in and to the Unregistered Xxxx (the “Unregistered
Xxxx Transfer”).
(c) Trademark
License.
On the
terms and subject to the conditions set forth in this Agreement including,
but
not limited to, those set forth in Article
III,
at the
Closing, (i) Find/SVP shall grant to TIGO Search, and TIGO Search will accept
from Find/SVP, the Trademark License (as defined in Section
3.1).
Section
2.2 Transaction
Consideration.
On the
terms and subject to the conditions set forth in this Agreement, in
consideration of the Domain Name Transfer, the Unregistered Xxxx Transfer and
the Trademark License, TIGO Search shall deliver, or cause to be delivered,
to
Find/SVP at the Closing:
(a) Two
Hundred and Fifty Thousand Dollars ($250,000.00) in cash by wire transfer of
immediately available funds to an account or accounts specified by Find/SVP
(the
“Cash
Closing Payment”);
(b) Four
Hundred and Ninety (490) shares (the “Closing
Consideration TIGO Shares”)
of
Common Stock of TIGO Search, par value $0.001 per share (“TIGO
Common Stock”),
which
Closing Consideration Shares shall be subject to a stock repurchase agreement
in
the form attached to this Agreement as Exhibit
A
(the
“Stock
Repurchase Agreement”);
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(c) a
secured
promissory note in principal amount of One Hundred Thousand Dollars
($100,000.00) in favor of Find/SVP in the form attached to this Agreement as
Exhibit
B
(the
“Note”),
which
Note shall be secured pursuant to a security agreement in the form attached
to
this Agreement as Exhibit
C
(the
“Security
Agreement”);
and
(d) One
Hundred Twelve Thousand Five Hundred and Seventy (112,570) shares (the
“Closing
Consideration Scientigo Shares”) of
Scientigo Common Stock;
(the
consideration described in (a)-(d) above, the “Transaction
Consideration”).
Section
2.3 Closing.
The
closing of the Transactions (the “Closing”)
shall
take place at the offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional
Corporation, Two Fountain Square, Reston Town Center, 00000 Xxxxxxx Xxxxx,
Xxxxx
000, Xxxxxx, Xxxxxxxx 00000, on the date hereof at 10:00 A.M., Virginia time,
or
at such other place, time and as mutually agreed by Scientigo, TIGO Search
and
Find/SVP (the “Closing
Date”).
ARTICLE
III
TRADEMARK
LICENSE
Section
3.1 Grant
and Scope of Trademark License.
Subject
to and on the terms set forth in this Agreement, at the Closing, Find/SVP shall
grant to TIGO Search, and TIGO Search shall accept from Find/SVP, an exclusive,
worldwide, perpetual, irrevocable, non-transferable (except as otherwise
provided in Section
9.7)
license, with the right to sublicense after the repayment of the Note (provided
that any sublicense of the Company shall be for fair market value and the
proceeds thereof will be paid to the Company) to use the Licensed Marks (the
“Trademark
License”),
for
the purposes set forth below (the “Licensed
Uses”):
(a) as
an
element of a corporate name, business division or other business unit, and
Internet domain names;
(b) on
Licensed Products, and in connection with the advertising, marketing, licensing,
sale, promotion and distribution of Licensed Products, and in connection with
the advertising, marketing, promotion, sale and rendering of Licensed Services
(collectively, “Promotional
Materials”);
and
(c) for
any
such other purposes as TIGO Search may reasonably deem necessary or appropriate
in connection with the advertising, marketing, licensing, sale, promotion and
distribution of Licensed Products or Licensed Services.
Section
3.2 Limited
Reservation.
Find/SVP
shall
retain the non-exclusive, non-transferable, non-sublicensable, perpetual,
worldwide right to use the Licensed Marks as currently being used or in
connection with future acquisitions or business activities in business
information, research or consulting. Find/SVP shall not use or register any
Internet domain names that contain the word “FIND” other than
XXXXXXX.xxx.
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Section
3.3 Quality
Standards.
The
nature and quality of all Licensed Products bearing any of the Licensed Marks
or
Licensed Services rendered by TIGO Search in connection with any of the Licensed
Marks must conform to the level of quality historically associated with
Find/SVP. In the event that Find/SVP reasonably determines that TIGO Search’s
goods and services offered in connection with the Licensed Marks are below
these
quality standards, then Find/SVP shall so notify TIGO Search in writing. TIGO
Search will then have thirty (30) days after the date of notice to correct
any
such deficiency. In the event that the deficiency is not corrected within such
time frame, then the parties will have sixty (60) days to mediate the dispute
before an impartial mediator in such a manner that the mediation is concluded
within such sixty (60) day period. If the matter is not resolved through
mediation and the deficiency continues, then Find/SVP shall have the right
to
bring an action in accordance with Section 6.9.
Section
3.4 Ownership
of Licensed Marks.
TIGO
Search acknowledges that it has no interest in the Licensed Marks other than
the
licenses granted under this Agreement and that Find/SVP shall remain the sole
and exclusive owner of all right, title and interest in the Licensed Marks.
Section
3.5 Term
of Trademark License.
The
term of the Trademark License shall begin on the Closing Date and shall remain
in full force and effect in perpetuity. Find/SVP’s exclusive remedy upon any
breach by TIGO Search of its obligations hereunder shall be to seek recovery
of
monetary damages and to seek injunctive relief or specific performance
hereunder.
Section
3.6 Registration
and Enforcement.
(a) Registration
of the FIND Trademark.
If
requested by TIGO Search, Find/SVP shall, at its own cost and expense, file
a
trademark application in the United States Patent and Trademark Office and
endeavor in good faith to obtain registration of the FIND xxxx in International
Class 42, and when registered, thereafter maintain the applicable registration
at its own expense. Find/SVP shall keep TIGO Search informed of progress with
regard to the prosecution, maintenance, enforcement and defense of the
application by providing TIGO Search copies of official actions, amendments
and
responses with respect to such prosecution. TIGO Search shall cooperate with
Find/SVP in providing information and samples of use of the FIND xxxx for
Find/SVP’s use as needed in obtaining and maintaining a registration in Class
42.
(b) Registration
of XXXX.XXX Trademark.
TIGO
Search in its discretion may file applications to register XXXX.XXX as a
trademark and all rights relating thereto shall be owned by TIGO
Search.
(c) Enforcement
of Rights.
(i) TIGO
Search shall provide Find/SVP with prompt notice of any unauthorized use of
the
Licensed Marks by a third party in connection with products or services of
which
TIGO Search becomes aware. In the event of any unauthorized use of the Licensed
Marks or marks confusingly similar thereto by a third party in connection with
products or services substantially similar to the Licensed Products or Licensed
Services during the license period, TIGO Search shall have the right at its
own
expense, but not the obligation, after providing reasonable notice to Find/SVP,
to take such action as TIGO Search may deem necessary or desirable to enforce
TIGO Search’s rights in the Licensed Xxxx. Enforcement hereunder shall include,
but shall not be limited to, issuing cease and desist demands and bringing
suit
against third parties for such unauthorized use of the Licensed Marks. All
such
actions on the part of TIGO Search shall be at its sole cost and expense, with
counsel of its choice and TIGO Search shall be entitled to retain all recoveries
therein. TIGO Search shall have the right to join Find/SVP as plaintiff, and
Find/SVP shall so join as plaintiff at the cost and expense of TIGO Search,
in
any action where joinder is needed to afford TIGO Search the full relief
provided by applicable law, and Find/SVP shall reasonably cooperate with TIGO
Search at the cost and expense of TIGO Search in connection with any such
action, but Find/SVP shall not control such an action and shall not share in
any
recovery therefrom. This provision shall not create any obligation on the part
of TIGO Search to police infringements of the Licensed Marks.
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(ii) If
TIGO
Search elects not to act with respect to unauthorized use of the Licensed Marks
and determines that enforcement or action is necessary or desirable, then
Find/SVP may, at Find/SVP’s expense with counsel of its choice, take any such
action as Find/SVP deems necessary or desirable to enforce the Licensed Marks
and Find/SVP shall be entitled to retain all recoveries therefrom. TIGO Search
shall cooperate with Find/SVP at the cost and expense of Find/SVP in providing
information and samples of use of the FIND xxxx for Find/SVP’s use as needed in
connection with pursuing any such action.
(d) Assistance.
Each of
the parties hereto shall assist the other, at its own expense, in complying
with
any formalities to protect the Licensed Marks under U.S. or foreign law, such
as
registering the Licensed Marks, registering this Agreement, recording TIGO
Search as a registered user or filing additional applications for trademark
registrations. Each of the parties hereto shall execute any documents reasonably
requested by the other, including, but not limited to, applications for
recordation of TIGO Search as a registered user and additional licenses for
recording with the appropriate authorities. TIGO Search may propose to Find/SVP
in writing that additional applications for trademark registrations be filed.
If
Find/SVP does not undertake to initiate any such application proposed by TIGO
Search within thirty (30) days after receiving TIGO Search’s request for such
action, to the extent allowable under applicable law, TIGO Search may initiate
the requested application at TIGO Search’s expense.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF FIND/SVP
Find/SVP
represents and warrants to Scientigo and TIGO Search, except as set forth in
the
“Find/SVP
Disclosure Schedules”
provided to Scientigo and TIGO Search in connection with this Agreement, which
schedule makes explicit reference to the applicable sections herein to which
each exception relates (including, but not limited to, those specific schedules
referred to in this Article
IV),
provided
that any
facts or items which are disclosed in the Find/SVP Disclosure Schedules in
such
a way as to make its relevance reasonably apparent to particular representations
or warranties made in the Agreement or to information set forth in the Find/SVP
Disclosure Schedules shall be deemed to update the disclosures and information
set forth therein), that the statements contained in this Article
IV
are true
and correct:
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Section
4.1 Organization.
Find/SVP is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York and has all requisite power and
authority and all necessary governmental approvals to own, lease and operate
its
properties and to carry on its business as now being conducted, except where
the
failure to be so organized, existing and in good standing or to have such power,
authority and government approvals could not reasonably be expected to have
a
Find/SVP Material Adverse Effect.
Section
4.2 Authorization.
Find/SVP has all necessary corporate power and authority to enter into and
deliver this Agreement and the Ancillary Agreements, to carry out its
obligations hereunder and thereunder and to consummate the Transactions. The
execution, delivery and performance by Find/SVP of this Agreement and the
consummation of the Transactions by Find/SVP have been duly authorized by the
Board of Directors of Find/SVP. No other corporate or similar action on the
part
of Find/SVP is necessary to authorize the execution and delivery of this
Agreement and the Ancillary Agreements by Find/SVP or the consummation by
Find/SVP of the Transactions.
Section
4.3 Execution;
Validity of Agreement.
This
Agreement has been, and upon their execution the Ancillary Agreements will
be,
duly executed and delivered by Find/SVP and, assuming due authorization,
execution and delivery by Scientigo and TIGO Search, this Agreement constitutes,
and upon their execution the Ancillary Agreements will constitute, the legal,
valid and binding obligations of Find/SVP enforceable against Find/SVP in
accordance with their respective terms, except as the enforceability thereof
may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
and
other laws of general application affecting creditors’ rights generally and laws
relating to the availability of specific performance, injunctive relief or
other
equitable remedies.
Section
4.4 No
Conflict.
Except
as set forth on Schedule 3.5, none of the execution, delivery and performance
of
this Agreement or the Ancillary Agreements, the consummation by Find/SVP of
the
Transactions nor compliance by Find/SVP with any of the provisions hereof or
thereof (a) violate, conflict with or result in the breach of any provision
of
its Certificate of Incorporation or Bylaws or (b) conflict with or violate
any
Law or Governmental Order applicable to Find/SVP or the Domain Names, Licensed
Marks or the Unregistered Xxxx, or (c) conflict with, result in any breach
of,
constitute a default (or event which with the giving of notice or lapse of
time,
or both, would become a default) under, require any consent under, or give
to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, any Find/SVP Contract, or result in the creation
of any Encumbrance on, any of the Domain Names, Licensed Marks or the
Unregistered Xxxx, except, in the case of (b) and (c), as would not reasonably
be expected to result in a Find/SVP Material Adverse Effect.
Section
4.5 Governmental
Consents and Approvals.
Except
as set forth on Schedule 4.5, the execution, delivery and performance of this
Agreement and the Ancillary Agreements by Find/SVP do not and will not require
any consent, approval, authorization or other order of, action by, filing with
or notification to, any Governmental Authority by Find/SVP or, to the knowledge
of Find/SVP, by Scientigo or TIGO Search.
-8-
Section
4.6 Litigation.
Except
as set forth on Schedule
4.6,
there
are no Actions pending by or against Find/SVP or, to the knowledge of Find/SVP,
threatened against Find/SVP, or otherwise relating to any of the Domain Names,
Licensed Marks or Unregistered Xxxx. Neither Find/SVP nor any of the Domain
Names, Licensed Marks or Unregistered Xxxx is subject to any Governmental Order
in respect of the Domain Names or Licensed Marks and, to the knowledge of
Find/SVP, no Governmental Orders are threatened to be imposed by any
Governmental Authority against Find/SVP in respect of any of the Domain Names,
Licensed Marks or Unregistered Marks.
Section
4.7 Compliance
with Laws.
Find/SVP has, in all material respects, maintained the Domain Names and Licensed
Marks in compliance with all Laws and Governmental Orders applicable to
Find/SVP, including the United State Foreign Corrupt Practices Act.
Section
4.8 Taxes.
(a) Find/SVP
does not have and knows of no basis for the assertion of any liabilities for
unpaid Taxes related to the Domain Names or Licensed Marks for which TIGO Search
could become liable as a result of the Transactions.
(b) There
are
(and immediately following the Closing there will be) no Encumbrances on any
of
the Domain Names or Licensed Marks relating to or attributable to Taxes. There
is no basis for the assertion of any claim relating to or attributable to Taxes
which, if adversely determined, would result in any Encumbrance on any of the
Domain Names or Licensed Marks.
Section
4.9 Domain
Names and Licensed Marks.
(a) Validity.
(i) Find/SVP
owns and has all necessary rights to use the Domain Names, Licensed Marks and
Unregistered Xxxx in its business as currently conducted and proposed to be
conducted as of the date of this Agreement. Each of the Domain Names, Licensed
Marks and Unregistered Xxxx are valid and subsisting.
(ii) No
registration, maintenance or renewal fees are currently due in connection with
such Domain Names and Licensed Marks. All material documents, recordations
and
certificates in connection with such Domain Names and Licensed Marks have been
filed with all relevant domain name registrars and Governmental Authorities
for
the purposes of prosecuting, perfecting and maintaining such Domain Names and
Licensed Marks. No information, facts or circumstances exist that would render
any of the Domain Names, Licensed Marks or Unregistered Xxxx invalid or
unenforceable or would adversely affect any application for or registration
therefor. Find/SVP has not claimed any status in the application for or
registration of any Domain Names or Licensed Marks, including without limitation
“small business status,” that would not be applicable to TIGO Search. Find/SVP
has not misrepresented, or failed to disclose, any facts or circumstances in
any
application for any Domain Names, Licensed Marks or Unregistered Xxxx that
would
constitute fraud or a misrepresentation with respect to such application or
that
would otherwise affect the validity or enforceability of any Domain Names,
Licensed Marks or Unregistered Xxxx. In each case in which Find/SVP has acquired
any of the Domain Names, Licensed Marks or Unregistered Xxxx from any Person,
Find/SVP has obtained a valid and enforceable written assignment sufficient
to
irrevocably transfer all right, title and interest in such Domain Names,
Licensed Marks or Unregistered Xxxx (including without limitation the right
to
seek past and future damages with respect thereto) to Find/SVP, and to the
maximum extent provided for by, and in accordance with, applicable laws and
regulations, Find/SVP has recorded each such assignment with all relevant domain
name registrars and Government Authorities.
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(iii) Schedule
4.9(a)(ii)
contains
a complete and accurate list of any and all actions that, as of the date hereof
and without giving effect to the Transactions, are required to be taken within
one hundred eighty (180) days after the Closing Date for the purposes of
obtaining, maintaining, perfecting, preserving or renewing any of the
Domain
Names or Licensed Marks,
including without limitation the payment of any registration, maintenance or
renewal fees or the filing of any responses to PTO office actions, documents,
applications or certificates.
(b) Ownership.
Except as set forth on Schedule 4.9(b):
(i) Find/SVP
is the exclusive owner of all right, title and interest in and to each of the
Domain Names, Licensed Marks or Unregistered Xxxx, free of any lien or
Encumbrance.
(ii) Find/SVP
has not (A) transferred ownership of, or granted any option, license or
right to use, authorized the retention of rights to use, or entered into any
agreement regarding, any of the Domain Names, Licensed Marks or Unregistered
Xxxx, or (B) permitted or caused any rights in any of the Domain Names,
Licensed Marks or Unregistered Xxxx to lapse or enter the public
domain.
(iii) The
Domain Names and Unregistered Xxxx are fully transferable, subject to payment
of
applicable registration fees, alienable and licensable by TIGO Search without
restriction and without payment of any kind to any Person.
(iv) None
of
the Domain Names, Licensed Marks or Unregistered Xxxx is subject to any
proceeding or outstanding decree, order, judgment, or stipulation or contract
restricting in any manner, the use, transfer, or licensing thereof, or which
may
affect the validity, use, value or enforceability of such Domain Names, Licensed
Marks or Unregistered Xxxx.
(v) All
of
the Domain Names, Licensed Marks or Unregistered Xxxx were developed solely
by
either (A) employees of Find/SVP acting solely within the scope of their
employment or (B) by Persons who by written agreement have validly and
irrevocably assigned to Find/SVP all of their rights therein to Find/SVP and,
waived all non-assignable rights, including but not limited to, all moral
rights.
(vi) No
Person
other than Find/SVP has ownership rights or license rights granted by Find/SVP
to improvements made by or for Find/SVP in any of the Domain Names, Licensed
Marks or Unregistered Xxxx.
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(c) Non-Infringement.
(i) None
of
the Domain Names, Licensed Marks or Unregistered Xxxx infringe, dilute or
misappropriate any intellectual property or other right of any Person or
constitute unfair competition or improper trade practices under the laws of
any
jurisdiction. Find/SVP has not received notice from any third party alleging
any
such infringement, dilution, misappropriation, unfair competition or improper
trade practice.
(ii) Except
as
set forth on Schedule 4.9(c), no Person has infringed, diluted or
misappropriated, or is infringing, diluting or misappropriating, any of the
Domain Names, Licensed Marks or Unregistered Xxxx.
(iii) Find/SVP
has not taken any action or failed to take any action that has impaired or
damaged, and in the future will not take any action or fail to take any action
that will impair or damage, the reputation or value of the Domain Names,
Licensed Marks or Unregistered Xxxx.
(iv) Use
of
the Domain Names, Licensed Marks or Unregistered Xxxx by TIGO Search or its
Affiliates will not violate the rights of any Person or constitute unfair
competition or trade practices under the laws of any jurisdiction.
(d) Privacy
Policies.
(i) Find/SVP:
(A) complies in all material respects with all applicable privacy laws and
regulations regarding the collection, retention, use, transfer and disclosure
of
personal information; and (B) takes all appropriate and industry standard
measures to protect and maintain the confidential nature of the personal
information provided by individuals, in accordance with the terms of the
applicable privacy statements on its websites (the “Privacy
Statements”).
(ii) No
claims
or controversies have arisen regarding the Privacy Statements or the
implementation thereof, nor does Find/SVP know of any facts or circumstances
that would give rise to any such claim or controversy.
Section
4.10 Brokers.
No
broker, finder or investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the Transactions.
Section
4.11 Full
Disclosure.
Find/SVP is not aware of any facts pertaining to any of the Domain Names or
Licensed Marks which could materially and adversely affect such Domain Names
or
Licensed Marks or which are likely in the future to materially and adversely
affect such Domain Names or Licensed Marks and which have not been disclosed
in
this Agreement and the Find/SVP Disclosure Schedules.
Section
4.12 Investment
Representations.
Find/SVP understands, acknowledges and agrees that it is acquiring the TIGO
Search Common Stock, the Note and the Scientigo Common Stock that will be issued
at Closing and that may be issued pursuant to the Stock Repurchase Agreement
(collectively, the “Transaction
Securities”)
for
investment for Find/SVP’s own account, not as a nominee or agent, and not with a
view to the public resale or distribution thereof within the meaning of the
Securities Act of 1933, as amended, (the “Securities
Act”),
and
Find/SVP has no present intention of selling, granting any participation in,
or
otherwise distributing the same. Find/SVP also represents that it is an
“accredited investor” within the meaning of Regulation D of the Securities Act
and that Find/SVP has not been formed for the specific purpose of acquiring
the
Transaction Securities.
-11-
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF SCIENTIGO AND TIGO SEARCH
Scientigo
and TIGO Search represent and warrant to Find/SVP, except as set forth in the
“Scientigo/TIGO
Search Disclosure Schedules”
provided to Find/SVP in connection with this Agreement (which schedule makes
explicit reference to the applicable sections herein to which each exception
relates (including, but not limited to, those specific schedules referred to
in
this Article
V),
provided
that any
facts or items which are disclosed in the Scientigo/TIGO Search Disclosure
Schedules in such a way as to make its relevance reasonably apparent to
particular representations or warranties made in the Agreement or to information
set forth in the Scientigo/TIGO Search Disclosure Schedules shall be deemed
to
update the disclosures and information set forth therein) that the statements
contained in this Article
V
are true
and correct:
Section
5.1 Organization.
Each of
Scientigo and TIGO Search are corporations duly organized, validly existing
and
in good standing under the laws of the State of Delaware. Each of Scientigo
and
TIGO Search has all requisite corporate or other power and authority and all
necessary governmental approvals to own, lease and operate its properties and
to
carry on its business as now being conducted, except where the failure to be
so
organized, existing and in good standing or to have such power, authority and
government approvals would not have a Scientigo Material Adverse
Effect.
Section
5.2 Authorization.
Each of
Scientigo and TIGO Search has all necessary corporate power and authority to
enter into and deliver this Agreement and the Ancillary Agreements (to the
extent a party thereto), to carry out its obligations hereunder and thereunder
and to consummate the Transactions. The execution, delivery and performance
by
Scientigo and TIGO Search of this Agreement and the Ancillary Agreements (to
the
extent a party thereto) and the consummation of the Transactions by Scientigo
and TIGO Search have been duly authorized by the respective Boards of Directors
of Scientigo and TIGO Search. No other corporate or similar action on the part
of Scientigo or TIGO Search is necessary to authorize the execution and delivery
of this Agreement and the Ancillary Agreements by Scientigo and TIGO Search
or
the consummation by Scientigo and TIGO Search of the Transactions.
Section
5.3 Execution;
Validity of Agreement.
This
Agreement has been, and upon their execution the Ancillary Agreements will
be,
duly executed and delivered by Scientigo and TIGO Search (to the extent a party
thereto) and, assuming due authorization, execution and delivery by Find/SVP,
this Agreement constitutes, and upon their execution the Ancillary Agreements
(to the extent a party thereto) will constitute, legal, valid and binding
obligations of Scientigo and TIGO Search enforceable against Scientigo and
TIGO
Search in accordance with their respective terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting creditors’ rights
generally and laws relating to the availability of specific performance,
injunctive relief or other equitable remedies.
-12-
Section
5.4 Financing.
TIGO
Search has and will have at the Closing sufficient funds or available borrowing
capacity to permit TIGO Search to consummate the Transactions, including the
Cash Closing Payment.
Section
5.5 No
Conflict.
None of
the execution, delivery and performance of this Agreement or the Ancillary
Agreements, the consummation by Scientigo and TIGO Search of the Transactions
nor compliance by Scientigo and TIGO Search with any of the provisions hereof
or
thereof (a) violate, conflict with or result in the breach of any provision
of
their respective Certificate of Incorporation or Bylaws, (b) conflict with
or
violate any Law or Governmental Order applicable to TIGO Search and Scientigo,
or (c) conflict with, result in any breach of, constitute a default (or event
which with the giving of notice or lapse of time, or both, would become a
default) under, require any consent under, or give to others any rights of
termination, amendment, acceleration, suspension, revocation or cancellation
of,
any contract, agreement or understanding to which TIGO Search or Scientigo
is a
party to or otherwise bound or result in the creation of any Encumbrance on,
any
of the assets of TIGO Search or Scientigo, except, in the case of (b) and (c),
as would not reasonably be expected to constitute a Scientigo Material Adverse
Effect.
Section
5.6 TIGO
Capitalization and Issuance.
As of
the date of this Agreement, the authorized capital stock of TIGO Search consists
of One Thousand (1,000) shares of TIGO Common Stock. After giving effect to
the
Transactions, all outstanding shares of TIGO Search Common Stock shall have
been
duly and validly authorized and issued as follows: Five Hundred and Ten (510)
shares of TIGO Common Stock to Scientigo and Four Hundred Ninety (490) shares
of
TIGO Common Stock to Find/SVP. Upon issuance, all such shares of TIGO Common
Stock shall be free and clear of Encumbrances, fully paid and
non-assessable.
Section
5.7 SEC
Reports.
Scientigo has timely filed all forms, reports, and documents required to be
filed by Parent with the Securities and Exchange Commission (the “SEC”)
since
January 1, 2003 (collectively, as amended, the “Scientigo
SEC Reports”).
The
Scientigo SEC Reports (a) at the time they were filed (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date
of
such filing) complied in all material respects with the requirements of the
Securities Act or the Exchange Act, as the case may be, and the rules and
regulations of the SEC thereunder applicable to such Scientigo SEC Reports
and
(b) did not at the time they were filed (or if amended or superseded by a filing
prior to the date of this Agreement, then on the date of such filing) contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Section
5.8 Absence
of Certain Changes or Events.
Since
November 11, 2005, except as contemplated by this Agreement, no change has
occurred which has had or would reasonably be expected to have a Scientigo
Material Adverse Effect.
-13-
Section
5.9 Full
Disclosure.
No
representation or warranty of Scientigo or TIGO Search in this Agreement, any
of
the Ancillary Agreements, any statement or certificate furnished or to be
furnished to Find/SVP pursuant to this Agreement or any of the Ancillary
Agreements, or in connection with the Transactions, contains or will contain
any
untrue statement of a material fact, or omit to state a material fact necessary
to make the statements contained herein or therein not misleading.
ARTICLE
VI
ADDITIONAL
AGREEMENTS
Section
6.1 Further
Action.
Each of
the parties hereto shall use commercially reasonable efforts to (i) take, or
cause to be taken, all appropriate action, (ii) do or cause to be done all
things necessary, proper or advisable under applicable Laws, and (iii) execute
and deliver such documents and other papers, in each instance as may be
necessary or advisable to carry out the provisions of this Agreement and the
Ancillary Agreements and consummate and make effective the Transactions
including, without limitation, to use all commercially reasonable efforts in
obtaining all authorizations, consents, orders and approvals by any third party
including, without limitation, all Governmental Authorities, deemed reasonably
necessary or advisable by TIGO Search, and if any such authorizations, consents,
orders and approvals cannot be obtained, providing the rights and benefits
to
Scientigo and TIGO Search that such authorizations, consents, orders and
approvals would have provided Scientigo and TIGO Search.
ARTICLE
VII
CLOSING
Section
7.1 Scientigo
and TIGO Search Closing Deliveries.
At or
prior to the Closing:
(a) Ancillary
Agreements.
Scientigo and TIGO Search shall deliver duly executed copies of each of the
Ancillary Agreements to which they are a party, including, but not limited
to,
the Note.
(b) Cash
Closing Payment.
TIGO
Search shall pay the Cash Closing Payment to Find/SVP.
(c) Closing
Consideration TIGO Shares.
TIGO
Search shall deliver the Closing Consideration TIGO Shares to
Find/SVP.
(d) Closing
Consideration Scientigo Shares.
Scientigo shall deliver the Closing Consideration Scientigo Shares to
Find/SVP.
Section
7.2 Find/SVP
Closing Deliveries.
At or
prior to the Closing:
(a) Ancillary
Agreements.
Find/SVP shall deliver to Scientigo and TIGO Search duly executed copies of
each
of the Ancillary Agreements to which it is a party.
-14-
(b) Consents
and Approvals.
Find/SVP shall deliver to Scientigo and TIGO Search, each in form and substance
satisfactory to Scientigo and TIGO Search in their absolute discretion, all
authorizations, consents, orders and approvals of all Governmental Authorities
and officials and all third party consents and estoppel certificates which
Scientigo and TIGO Search in their absolute discretion deems necessary or
desirable for the consummation of the Transactions.
ARTICLE
VIII
INDEMNIFICATION
Section
8.1 Survival
of Representations and Warranties.
(a) The
representations and warranties of Find/SVP contained in this Agreement and
the
Ancillary Agreements, as well as any certificates delivered pursuant to the
terms hereof or thereof, shall survive the Closing until the twelve (12) month
anniversary thereof; provided,
however,
that
(i) the representations and warranties set forth in Section
4.8
and (ii)
the representations and warranties set forth in Section
4.9,
together, the “Find/SVP
Fundamental Representations and Warranties”)
shall
survive until thirty (30) calendar days following the expiration of the
applicable statute of limitations with respect to the matter in question (giving
effect to any waiver, mitigation, or extension thereof).
(b) The
representations and warranties of TIGO Search and Scientigo contained in this
Agreement and the Ancillary Agreements shall survive the Closing until the
twelve (12) month anniversary thereof; provided, however, that the
representations and warranties set forth in Section
5.6 and Section 5.8
(the
“TIGO
Search Fundamental Representation and Warranties”)
shall
survive for the applicable statute of limitations (giving effect to any waiver,
mitigation or extension thereof).
(c) Neither
the period of survival nor the liability of any party hereto with respect to
its
representations and warranties shall be reduced by any investigation made at
any
time by or on behalf of any other party hereto; provided,
that
each party hereto represents that it has no actual knowledge of breaches or
inaccuracies in any of such representations and warranties of any other party
hereto. If a written notice has been given prior to the expiration of the
applicable survival period by the indemnified party to the indemnifying party,
then the relevant representations and warranties shall survive as to such claim
until the claim has been finally resolved.
Section
8.2 Indemnification
by Find/SVP.
Scientigo and TIGO Search, and each of their respective Affiliates, officers,
directors, employees, agents, successors and assigns (each a “Scientigo
Indemnified Party”)
shall
be indemnified and held harmless by Find/SVP for any and all liabilities,
losses, damages, claims, costs and expenses, interest, awards, judgments and
penalties (including, without limitation, reasonable attorneys’ and consultants’
fees and expenses) actually suffered or incurred by them (including, without
limitation, any Action brought or otherwise initiated by any of them) (a
“Loss”),
by
Find/SVP for Losses arising out of or resulting from (a) the breach or
inaccuracy of any representation or warranty made by Find/SVP contained in
the
Agreement or any of the Ancillary Agreements, (b) the breach of any covenant
or
agreement by Find/SVP contained in the Agreement or any of the Ancillary
Agreements, and (c) liabilities of Find/SVP, whether arising before or after
the
Closing Date, that are not expressly assumed by TIGO Search pursuant to this
Agreement; provided,
that,
to the
extent that Find/SVP’s’ undertakings set forth in this Section
8.2
may be
unenforceable, Find/SVP shall contribute the maximum amount that it is permitted
to contribute under applicable Law to the payment and satisfaction of all Losses
incurred by Scientigo Indemnified Parties. For the avoidance of doubt, Find/SVP
shall indemnify and hold TIGO Search harmless against any and all Taxes of
Find/SVP for any taxable period, and any and all Taxes relating or attributable
to the Domain Names or Licensed Xxxx for any taxable period or portion thereof
ending on or prior to the Closing Date, including any and all transfer, sales,
use, value-added, excise, stamp documentary recording or other similar Taxes
or
fees assessed upon or with respect to the transactions contemplated by this
Agreement.
-15-
Section
8.3 Indemnification
by Scientigo and TIGO Search.
Find/SVP and its Affiliates, officers, directors, employees, agents, successors
and assigns (each a “Find/SVP
Indemnified Party”)
shall
be indemnified and held harmless by Scientigo for any and all Losses arising
out
of or resulting from (i) the breach or inaccuracy of any representation or
warranty made by Scientigo or TIGO Search contained in the Agreement or any
of
the Ancillary Agreements and (ii) the breach of any covenant or agreement by
Scientigo or TIGO Search contained in the Agreement or any of the Ancillary
Agreements; provided,
that,
to the extent that the Scientigo’s undertakings set forth in this Section
8.3
may be
unenforceable, Scientigo shall contribute the maximum amount that it is
permitted to contribute under applicable Law to the payment and satisfaction
of
all Losses incurred by Find/SVP Indemnified Parties.
Section
8.4 Limitations
on Indemnification.
(a) Limitations
on Indemnification by Find/SVP.
(i) No
indemnification payment shall be made to the Scientigo Indemnified Parties
pursuant to this Article
VIII
until
the amounts that the Scientigo Indemnified Parties would otherwise be entitled
to receive as indemnification under this Agreement aggregate at least
twenty-five thousand dollars ($25,000) (the “Indemnification
Threshold”),
at
which time the Scientigo Indemnified Parties shall be indemnified for the full
amount of such Losses that are in excess of such Indemnified Threshold;
provided,
however,
that
such Indemnification Threshold shall not limit recovery for Losses paid,
incurred or sustained by the Scientigo Indemnified Parties to the extent (x)
related to any breach or inaccuracy of the Find/SVP Fundamental Representations
and Warranties, (y) any breach of any representation or warranty made by
Find/SVP constitutes fraud or intentional misrepresentation or (z) related
to
liabilities that are not expressly assumed by TIGO Search pursuant to this
Agreement.
(ii) The
maximum aggregate amount of Losses or other damages for which indemnity may
be
recovered from Find/SVP shall be an amount equal to fifty percent (50%) of
the
Transaction Consideration, as may be adjusted pursuant hereto (the “Indemnification
Cap”);
provided,
however,
that
the maximum aggregate amount of Losses or other damages for which indemnity
may
be recovered from Find/SVP related to (x) any breach or inaccuracy of the
Find/SVP Fundamental Representations and Warranties or (y) related to
Liabilities that are not expressly assumed by TIGO Search pursuant to this
Agreement shall be an amount equal to one hundred percent (100%) of the
Transaction Consideration, as may be adjusted pursuant hereto; provided
further, however,
that
there shall be no such maximum to the extent related to fraud or intentional
misrepresentation.
-16-
(b) Limitations
on Indemnification by Scientigo Indemnitors.
(i) No
indemnification payment shall be made to the Find/SVP Indemnified Parties
pursuant to this Article
VIII
until
the amounts that the Find/SVP Indemnified Parties would otherwise be entitled
to
receive as indemnification under this Agreement aggregate at least the
Indemnification Threshold, at which time the Find/SVP Indemnified Parties shall
be indemnified for the full amount of such Losses that are in excess of such
Indemnification Threshold; provided,
however,
that
such Indemnification Threshold shall not limit recovery for Losses paid,
incurred or sustained by the Find/SVP Indemnified Parties to the extent (x)
related to any breach or inaccuracy of the Scientigo Fundamental Representation
and Warranty or (y) any breach or inaccuracy of any representation or warranty
made by Scientigo or TIGO Search constitutes fraud.
(ii) The
maximum aggregate amount of Losses or other damages for which indemnity may
be
recovered from the TIGO Search Indemnitors shall be an amount equal to the
Indemnification Cap; provided,
however,
that
the Indemnification Cap shall not limit recovery for Losses paid, incurred
or
sustained by the Find/SVP Indemnified Parties to the extent (x) related to
any
breach or inaccuracy of the Scientigo Fundamental Representation and Warranty
or
(y) any breach or inaccuracy of any representation or warranty made
by
Scientigo or TIGO Search constitutes
fraud.
(iii) For
purposes of determining the extent of and limitations on indemnification under
this Article
VIII,
the
amount of any Losses that may be subject to indemnification hereunder will
be
determined net of (A) the sum of any amounts recoverable by the applicable
Scientigo Indemnified Parties or Find/SVP Indemnified Parties (in either case,
an “Indemnified
Party”)
under
insurance policies with respect to such Loss (after taking into account any
increase in the premiums payable for such insurance policy reasonably
attributable to the suffering of such Losses), and (B) any Tax benefit actually
recognized by the applicable Indemnified Party (or any consolidated, combined
or
unitary group of which the Indemnified Party is also a member) in the year
of
payment arising as a result of (x) the incurrence or payment of such Loss or
(y)
a correlative adjustment that makes allowable to the Indemnified Party or its
consolidated, combined or unitary group any deduction, amortization, exclusion
from income or other allowance that would not have been recognized but for
the
Loss.
(c) Each
Indemnified Party will take all commercially reasonable steps to mitigate all
Losses upon and after becoming aware of any event or circumstance that could
reasonably be expected to give rise to any Losses with respect to which
indemnification may be required hereunder.
(d) NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, NO PARTY HERETO SHALL
BE
REQUIRED TO INDEMNIFY OR HOLD HARMLESS ANY OTHER PARTY HERETO OR OTHERWISE
COMPENSATE ANY OTHER PARTY HERETO FOR DAMAGE WITH RESPECT TO EXEMPLARY,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES.
-17-
Section
8.5 Notification
of Claims.
(a) With
respect to any claim for indemnification hereunder, each Indemnified Party
shall
give to Find/SVP or to each Scientigo Indemnitor, as the case may be (in either
case, the “Indemnitor”),
notice of any matter which such Indemnified Party has determined has given
or
could give rise to a right of indemnification under this Agreement, within
sixty
(60) days of such determination, stating the amount of the Loss, if known,
and
method of computation thereof, and containing a reference to the provisions
of
this Agreement in respect of which such right of indemnification is claimed
or
arises; provided,
however,
that no
delay on the part of the Indemnified Party in notifying the Indemnitors shall
relieve the Indemnitors of any liability or obligations hereunder, except to
the
extent that the Indemnitors have been prejudiced thereby, and then only to
such
extent.
(b) The
obligations of each Indemnitor under this Article
VIII
with
respect to Losses arising from claims of any third party which are subject
to
the indemnification provided for in this Article
VIII
(“Third
Party Claims”)
shall
be governed by and contingent upon the following additional terms and
conditions:
(i) if
an
Indemnified Party shall receive notice of any Third Party Claim, the Indemnified
Party shall give the Indemnitors notice of such Third Party Claim at the earlier
to occur of (A) within thirty (30) days of the receipt by the Indemnified Party
of such notice or (B) within ten (10) days of the date that a responsive
pleading or similar action is due; provided,
however,
that
the failure to provide such notice shall not release the Indemnitors from any
of
its obligations under this Article VII except to the extent the Indemnitors
are
materially prejudiced by such failure and shall not relieve the Indemnitors
from
any other obligation or liability that it may have to any Indemnified Party
otherwise than under this Article
VIII;
(ii) if
the
Indemnitors acknowledge in writing its obligation to indemnify the Indemnified
Party hereunder pursuant to the terms of this Agreement against any Losses
that
may result from such Third Party Claim, then the Indemnitors shall be entitled
to assume and control the defense of such Third Party Claim at its expense
and
through counsel of its choice if it gives notice of its intention to do so
to
the Indemnified Party within five (5) days of the receipt of such notice from
the Indemnified Party; provided,
however,
that if
there exists or is reasonably likely to exist a conflict of interest that would
make it inappropriate in the reasonable judgment of the Indemnified Party for
the same counsel to represent both the Indemnified Party and the Indemnitors,
then the Indemnified Party shall be entitled to retain its own counsel, in
each
jurisdiction for which the Indemnified Party determines counsel is required,
at
the expense of such Indemnitors;
(iii) in
the
event the Indemnitors exercise the right to undertake any such defense against
any such Third Party Claim as provided above, the Indemnified Party shall
cooperate with the Indemnitors in such defense and shall make available to
the
Indemnitors, at the Indemnitors’ expense, all witnesses, pertinent records,
materials and information in the Indemnified Party’s possession or under the
Indemnified Party’s control relating thereto as is reasonably required by the
Indemnitors and otherwise reasonably cooperate with the Indemnitors in
connection with such Third Party Claim;
-18-
(iv) in
the
event the Indemnified Party is, directly or indirectly, conducting the defense
against any such Third Party Claim, the Indemnitors shall cooperate with the
Indemnified Party in such defense and make available to the Indemnified Party,
at the Indemnitors’ expense, all such witnesses, records, materials and
information in the Indemnitors’ possession or under the Indemnitors’ control
relating thereto as is reasonably required by the Indemnified Party;
and
(v) no
such
Third Party Claim may be settled by the Indemnitors without the written consent
of the Indemnified Party, which consent shall not be unreasonably withheld
or
delayed; provided,
however,
if any
such Third Party Claim is settled with the prior written consent of the
Indemnified Party, or if there be a final judgment for the plaintiff in any
such
action, the Indemnified Party shall be entitled to indemnification for the
amount of any Loss relating thereto.
Section
8.6 Offset;
Payment in Scientigo Common Stock.
In the
event that a Scientigo Indemnified Party has suffered a Loss for which it is
entitled to indemnification from Find/SVP, TIGO Search shall have the right,
in
its absolute discretion, to offset any Losses by deducting the aggregate amount
of such Losses from any amounts payable pursuant to the Note up to a maximum
of
100% of the face value of the Note for Losses related to the breach by Find/SVP
of Fundamental Representations and Warranties, and up to a maximum of 50% of
the
face value of the Note for all other Losses; provided,
however,
that
any offset from the amount of the Note payable in Scientigo Common Stock shall
be valued at $1.3325 per share, as adjusted for any stock splits,
recapitalization or other capital events of Scientigo occurring after the date
hereof. Find/SVP may, in its sole discretion, pay any amount of indemnification
to a Scientigo Indemnified Party in shares of Scientigo Common Stock received
as
Transaction Consideration or consideration under the Stock Repurchase Agreement.
The value ascribed to such Scientigo Common Stock at the time of the
indemnification payment shall equal $1.3325 per share, as adjusted for any
stock
splits, recapitalization or other capital events of Scientigo occurring after
the date hereof.
Section
8.7 Exclusive
Remedy.
The
sole and exclusive remedy of the Indemnified Parties with respect to any and
all
claims arising out of, in connection with or relating to the subject matter
of
this Agreement or any of the Ancillary Agreements will be pursuant to the
indemnification provisions set forth in this Article
VIII.
TIGO
Search and Scientigo, on behalf of themselves and all other Scientigo
Indemnified Parties, and Find/SVP, on behalf of itself and all other Find/SVP
Indemnified Parties, hereby waive, to the fullest extent permitted under
applicable law, and agrees not to assert in any action or proceeding of any
kind, any and all rights, claims and causes of action it may now or hereafter
have other than claims for indemnification asserted as permitted by and in
accordance with the provisions set forth in this Article
VIII.
Notwithstanding anything in this Article
VIII
to the
contrary, nothing in this Agreement shall limit (a) any right or remedy for
fraud or (b) any equitable remedy, including a preliminary or permanent
injunction or specific performance.
Section
8.8 Reduction
in Transaction Consideration.
Any
amounts paid for indemnification under Article
VIII
by
Find/SVP shall be deemed to be an adjustment to the Transaction
Consideration.
-19-
ARTICLE
IX
Section
9.1 Expenses.
Except
as otherwise specified in this Agreement, all costs and expenses, including,
without limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the Transactions
shall be paid by the party incurring such costs and expenses, whether or not
the
Closing shall have occurred; provided
that all
such costs and expenses of TIGO Search shall be paid by Scientigo.
Section
9.2 Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be deemed given or made if delivered personally or by
commercial delivery service, or sent via telecopy (receipt confirmed) to the
parties at the following addresses or telecopy numbers to the respective parties
hereto at their addresses set forth below (or at such other address for a party
hereto as shall be specified in a notice given in accordance with this
Section
9.2).
(a) If
to
Find/SVP:
Find/SVP,
Inc.
000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Fax:
(000) 000-0000
Attention:
Xxxxx
Xxxxx, Chief Executive Officer
Xxxxx
Xxxxx, Chief Financial Officer
with
a
copy to:
Xxxx
Xxxxxxx, P.C.
1350
Avenue of the Xxxxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Attention:
Xxxxxxxx
X. Xxxxxxxxx, Esq.
(b) If
to
Scientigo or TIGO Search:
Scientigo,
Inc.
0000
Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Fax:
(000) 000-0000
Attention: Xxxxx
Xxxxxx, Chief Executive Officer
with
a
copy to:
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
Two
Fountain Square, Reston Town Center
00000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx Xxxxxxxx, Esq.
-20-
Section
9.3 Public
Announcements.
Unless
otherwise required by Law (including, without limitation, applicable securities
Laws) or by regulatory authority, prior to the Closing, no disclosure (whether
or not in response to an inquiry) of the subject matter of this Agreement shall
be made by any party hereto (other than as contemplated by this Agreement and
other than a press release and Form 8-K filed by Scientigo in connection with
the execution of this Agreement) unless approved by Scientigo, TIGO Search
and
Find/SVP prior to release; provided,
that
such approval shall not be unreasonably withheld or delayed. Notwithstanding
the
immediately preceding sentence, in the event that Scientigo or TIGO Search
are
required by law to make any such disclosure, Scientigo or TIGO Search, as the
case may be, shall notify Find/SVP prior to making such disclosure and shall
use
commercially reasonable efforts to give Find/SVP an opportunity to comment
on
such disclosure.
Section
9.4 Headings.
The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning, construction or
interpretation of this Agreement.
Section
9.5 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any Law or public policy, all other terms and provisions
of
this Agreement shall nevertheless remain in full force and effect so long as
the
economic or legal substance of the Transactions is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner
in
order that the Transactions are consummated as originally contemplated to the
greatest extent possible.
Section
9.6 Entire
Agreement.
This
Agreement and the Ancillary Agreements constitute the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements, representations, undertakings and understandings, both written
and oral, between Find/SVP and TIGO Search with respect to the subject matter
hereof.
Section
9.7 Assignment.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of each of the parties hereto and their respective successors and
permitted assigns. Neither this Agreement nor any rights, benefits or
obligations set forth herein may be assigned by any of the parties hereto
without the express written consent of the other parties hereto.
Section
9.8 No
Third Party Beneficiaries.
This
Agreement shall be binding upon and inure solely to the benefit of the parties
hereto and their permitted assigns and nothing herein, express or implied,
is
intended to or shall confer upon any other Person, including, without
limitation, any union or any employee or former employee of Find/SVP, any legal
or equitable right, benefit or remedy of any nature whatsoever, including,
without limitation, any rights of employment for any specified period, under
or
by reason of this Agreement.
-21-
Section
9.9 Amendment.
This
Agreement may not be amended, modified or supplemented except by an instrument
in writing signed by, or on behalf of, Find/SVP, Scientigo and TIGO
Search.
Section
9.10 Governing
Law.
THIS
AGREEMENT AND THE OBLIGATIONS OF EACH PARTY ARISING HEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS,
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
Section
9.11 Jurisdiction
and Venue.
Each of
the parties hereto irrevocably consents to the exclusive jurisdiction and venue
of any court within the State of Delaware in connection with any matter based
upon or arising out of this Agreement or the matters contemplated herein, agrees
that process may be served upon them in any manner authorized by the laws of
the
State of Delaware for such persons and waives and covenants not to assert or
plead any objection which they might otherwise have to such jurisdiction, venue
and such process.
Section
9.12 Waiver
of Jury Trial.
EACH OF
THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AND
ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY
PARTY HERETO IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
Section
9.13 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but which, upon execution, shall constitute one and
the same agreement.
Section
9.14 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at Law or equity, without the
necessity of demonstrating the inadequacy of money damages.
Section
9.15 Rules
of Construction.
The
parties hereto agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against
the
party drafting such agreement or document. As used in this Agreement, the words
“include” and “including,” and variations thereof, shall not be deemed to be
terms of limitation, but rather shall be deemed to be followed by the words
“without limitation.”
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-22-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first written above.
| SCIENTIGO, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| TIGO SEARCH, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| FIND/SVP, INC. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
[SIGNATURE
PAGE TO TRANSACTION AGREEMENT]
