EXHIBIT
10.27
TRANSACTION
AGREEMENT
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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B.
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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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C.
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Find/SVP is the
owner of the Internet domain names listed on Schedule 1.1(b)
(the “ Domain Names
”);
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D.
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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.
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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.
“ 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.
“Transactions”
means the transactions contemplated
by this Agreement and the Ancillary Agreements.
“ Unregistered Mark
” means the common law trademark and service mark
“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 Mark
. 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
Mark (the “ Unregistered Mark 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 Mark
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
”);
(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 Wilson Sonsini Goodrich & Rosati, Professional Corporation,
Two Fountain Square, Reston Town Center, 11921 Freedom Drive, Suite
600, Reston, Virginia 20190, 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 FINDSVP.com.
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 mark 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 mark for Find/SVP’s use as needed
in obtaining and maintaining a registration in Class 42.
(b)
Registration of FIND.COM
Trademark . TIGO Search
in its discretion may file applications to register FIND.COM 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 Mark.
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.
(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 mark 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:
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 Mark, 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
Mark, 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.
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 Mark. Neither Find/SVP nor any of the Domain Names,
Licensed Marks or Unregistered Mark 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.
(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 .
(i) Find/SVP owns and has all necessary rights to
use the Domain Names, Licensed Marks and Unregistered Mark 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 Mark 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 Mark 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 Mark that would constitute fraud or a
misrepresentation with respect to such application or
