TRANSACTION AGREEMENTDomain Name Transfer Agreement |
|
|
You are currently viewing: This Domain Name Transfer Agreement involves
GUIDELINE, INC. | Find/SVP, Inc., | Scientigo, Inc., | TIGO Search, Inc.,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Domain Name Transfer Agreement by:
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
|
|
A. |
Find/SVP has adopted or is the owner of the marks listed on Schedule 1.1(a) (the “Licensed Marks”); |
|
|
|
|
|
|
B. |
Find/SVP is the owner of the registrations for and applications to register the Licensed Marks also listed on Schedule 1.1(a); |
|
|
|
|
|
|
C. |
Find/SVP is the owner of the Internet domain names listed on Schedule 1.1(b) (the “Domain Names”); |
|
|
|
|
|
|
D. |
TIGO Search wishes to acquire the Domain Names from Find/SVP on the terms and conditions set forth in this Agreement; |
|
|
|
|
|
|
E. |
TIGO Search wishes to license to use the Licensed Marks from Find/SVP on the terms and conditions set forth in this Agreement. |
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.
-2-
“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.
-3-
“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”);
-4-
(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.
-5-
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.
-6-
(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:
-7-
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.
-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 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.
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 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 &#
