Exhibit 10(41)
Assignment Agreement
This Agreement (the "Agreement") is made as of the 10th day of February,
2000, by and between Planet Communications Ltd., a company incorporated under
the laws of the State of Israel with registered offices at 0 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxxxxx ("Assignor") and Cortext Ltd., a company incorporated under the
laws of the State of Israel, with registered offices at Xxxxxxxxx 0, Xxx Xxxx,
Xxxxxx ("Assignee") and Virtual Communities, Inc., a company incorporated under
the laws of Delaware, USA with offices at 000 0xx Xxxxxx, Xxx Xxxx, XX ("VCI").
WHEREAS, Assignee and Assignor entered into a Partnership Agreement (the
"Partnership Agreement"), dated November 2, 1997, with respect to the "Magazine
Software" (as defined below); and
WHEREAS, Assignee has been the active party in the development, marketing,
sale, licensing and support of the Magazine Software; and
WHEREAS, Assignee has "Rights" (as defined below) in and to the Magazine
Software pursuant to the Partnership Agreement; and
WHEREAS, Assignee desires to acquire all Rights of Assignor in and to the
Magazine Software, and Assignor is willing to assign all such Rights, as
provided herein; and
WHEREAS, VCI intends to purchase shares of Assignee, according to the terms
and conditions set forth in the Share Purchase Agreement by and between Assignee
and VCI (the "SPA") entered into simultaneously herewith ("VCI's Investment");
and
WHEREAS, according to the SPA, VCI's Investment is conditioned on Assignor
assigning all "Rights" in the Magazine Software to Assignee; and
WHEREAS, in connection with the SPA, Assignee is entitled to certain
payments from VCI, in accordance with the SPA;
THEREFORE, it is hereby agreed by the parties as follows:
Effectiveas of the date when VCI (on behalf of Assignee) shall pay to
Assignor the payments set forth in sections 9.1 and 9.2 herein (the "Relevant
Date") and subject to such payments,, Assignor hereby irrevocably assigns to
Assignee, and Assignee accepts, free from any encumbrances or other third party
rights, all of Assignor's rights, title and interest in and to a certain
magazine web publishing tool kit software (the "Magazine Software"), and any
related technology or work of any kind related to the Magazine Software
(including without limitation, interfaces and manuals) owned or developed by
Assignor, alone or together with the Assignee, including, inter alia, all rights
pursuant to, or in connection with, the Partnership Agreement and the Software
License Agreement among the parties hereto, dated July 18, 1999 (the "VCI
License"), and the Work Order among Internet Dapei Zahav; Assignee and Assignor
dated August 13, 1998, including all rights to any work developed pursuant to,
or in connection with such agreements and which relate to the Magazine Software,
all subject to Assignor's right to sell up to 10 licences of the Magazine
Software in form and substance as set forth in Exhibit A attached hereto only to
Domain End Users (all of the above, collectively, the "Rights").
The "Rights" shall include without limitation, any and all industrial and
intellectual property rights relating to the Magazine Software and to any other
related technology or work of any kind owned or developed by Assignor, and which
relate to the Magazine Software, including without limitation, if any, patents,
patent applications, patent rights, trademarks, trademark applications, trade
names, service marks,
service xxxx applications, copyrights, moral rights, computer programs,
content and other computer software, source code, object code, technology,
know-how, trade secrets, proprietary processes and formulae information,
data, technology, know-how, inventions, discoveries, designs, models,
technical reports, diagrams, software and hardware, ideas, and trade and
business plans .
The assignment of Rights to Assignee includes, but is not limited to all of
the Rights of Assignor (in partnership with Assignee) as follows:
A. The right to become the sole registered owner of any Rights, whether
or not currently registered.
B. The right to become the sole registered owner of any not yet
registered or non-crystallized (as the case may be) Rights.
C. All rights and powers arising or accrued from the Rights, including
the right to xxx for damages and other remedies in respect of any
infringement of the Rights, or in respect of other acts within the
scope of the claims of any published specification of any patent or
accompanying any application therefor or accompanying any applications
prior to the date hereof.
D. The right to apply for, prosecute and obtain patents, trade names,
intellectual property or similar protection throughout the world in
respect to any right accrued, derived or based on the Rights,
including the right to claim patent priority or other legal priority.
2. If any right assigned to Assignee hereunder is not capable of assignment,
then to the extent required to vest such right in Assignee, Assignor hereby
waives and relinquishes such right in favor of Assignee and/or grants to
Assignee a perpetual, exclusive, royalty free, worldwide license to exploit
and use such right, including a license to assign, transfer and sub-license
such right, in any manner that Assignee deems fit, and further hereby
consents to any exercise whatsoever of such right by Assignee. Assignor
shall promptly cooperate with Assignee, sign all documents and otherwise
take all steps, at the request and expense of the Assignee, necessary to
vest in the Assignee the rights assigned to the Assignee under this
Agreement.
3. Assignor declares and warrants that to the best of its knowledge it does
not possess any software designs, lines of code or and any other tangible
property or physical objects which relate to the Rights (and shall promptly
deliver any of the foregoing if discovered). Assignor shall maintain the
confidentiality of all information relating to the Rights and shall ensure
that all persons which it has afforded access to such information shall not
use or disclose such information.
4. The Partnership Agreement is hereby terminated as of the Relevant Date.
Each of Cortext and Planet irrevocably releases the other as of the
Relevant Date from all claims and obligations arising out of the
Partnership Agreement.
5. The Assignor represents and warrants that, (a) it has not granted rights in
the Rights to any third parties in any manner whatsoever; (b) Assignee,
entirely through the efforts of its employees, has been the active party in
the development, marketing, sale, licensing and support of the Magazine
Software and Assignor was only a passive investor (supplying funds,
equipment and premises) with respect to the development, licensing and
support of the Magazine Software; and (c) to the best of its knowledge, (1)
the Rights being assigned are free and clear of all liens, claims,
encumbrances, rights, or equities whatsoever of any third party other than
the Assignee and VCI; (2) the Rights being assigned have not been forfeited
to the public domain and have been maintained in confidence; (3) no person
has the right to assert any claim regarding the use of, or challenging or
questioning the Assignor's right or title in, any of the Rights; and (4)
there are no claims by or against the Assignor relating to the Rights and
no ground exists that may give rise to such a claim. To eliminate any
doubt, Assignor shall have no liability, in any way whatsoever, if any of
its representations and warranties shall be found to be incorrect if they
were effected by the acts of the Assignee or by any act in which Assignee
was an active party with respect to the Magazine Software.
6. Assignor represents and warrants to the best of its knowledge, information
and belief, that (a) the Magazine Software does not infringe any patent,
copyright, or trade secret of, or the intellectual
property or other rights of, any third party; and (b) upon the effective
date of this Agreement, Assignee will own all of the intellectual property
or other rights relating to the Magazine Software subject to Assignor's
right as set forth in section 1.
In consideration of Assignor's obligations and representations herein,
Assignee hereby authorizes and instructs VCI, on behalf of Assignee and VCI
hereby irrevocably agrres to pay on behalf of Assignee the following
amounts to Assignor
A. Within three (3) business days after the execution of this Agreement,
pay to Assignor an amount of $35,000 plus V.A.T (against Assignor's
duly issued invoice to Assignee) and the V.A.T due on the advanced sum
of $30,000 already paid (against Assignor's duly issued invoice to
Assignee in the amount of $30,000 plus V.A.T.) by wire transfer to
Assignor account number 322100/46 in Bank Leumi Branch Ahad Haam, Tel
Aviv (No. 811) (the "$35,000 Payment").
B. Within ten (10) days after the execution of this Agreement, pay to
Assignor an amount of $285,000 plus V.A.T (against Assignor's duly
issued invoice to Assignee) by wire transfer to the account specified
in section 9.1 above (the "Second Installment").
C. Pay to Assignor an additional aggregate amount of $75,000 plus V.A.T
(against Assignor's duly issued invoice to Assignee) by wire transfer
to the account specified in section 9.1 above in three (3)
installments ($25,000 plus V.A.T [against Assignor's duly issued
invoice to Assignee] each), on April 15, 2000, June 15, 2000 and
August 15, 2000.
D. In any manner whatsoever, unless this Agreement shall be cancelled,
all sums as mentioned in sections 9.1 - 9.3 shall be paid to Assignor
as detailed above. In particular, VCI, on behalf of Assignee shall
have no right to delay or postpone any of such payments and none of
such payments shall be paid in any other method (including, but not
limited to a claim or plea of set-off) than the method detailed above.
E. In the event that any of the sums mentioned in sections 9.1 - 9.3
above or any portion thereof, shall not have been paid on the dates
set forth in such section 9.1 - 9.3, then without derogating from any
of Assignor's rights in such event, such sum(s) shall bear interest at
the rate of one percent (1%) per month (on a daily basis) plus V.A.T ,
which shall be added to such sum and paid by VCI, on behalf of
Assignee to Assignor.
F. In the event that VCI, on behalf of Assignee fails to meet any of its
obligations under sections 9.1 through 9.5 herein, or any portion
thereof, such breach shall be deemed to be a fundamental breach of
this Agreement. In such event, and without derogating from any of
Assignor's rights in the event of such breach, including, but not
limited to, the enforcement of this Agreement, VCI, on behalf of
Assignee, shall pay Assignoras agreed compensation, and without the
need of proof of damages, the sum of $35,000. Without derogating from
Assignor's rights, if in such event, Assignor shall choose its right
to cancel this Agreement after the payment of $35,000 pursuant to
section 9.1 above is paid, than, in such event, Assignor shall be
entitled to retain, this sum. Assignor acknowledges the prior receipt
of $30,000 as an advance payment hereunder. In the event of a
cancellation of this Agreement, Assignor shall not have to return this
advance payment of $30,000 and such sum shall be applied toward VCI's
purchase of additional licenses for Magazine Software pursuant to the
VCI License.
G. To clear all doubts. No matter that VCI's payments and/or obligations,
mentioned in sec 9.1 - 9.6 are on behalf of Assignee, Assignor's
rights to these payments and/or to such rights shall be directly
toward VCI (as well as, jointly and severally toward Assignee) and
nothing in connection with the relationship between VCI and Assignee
and/or the SPA, in any manner whatsoever, shall have any effect nor
shall derogate from VCI direct liabilities toward Assignor.
Nevertheles but without derogating from Assignor's rights, as
mentioned above, all such payments, when paid by VCI, shall be on
behalf of Assignee, shall be considered as paid by
Assignee and consiquently, Assignor shall issue the duly invoices for
such payment to Assignee.
7. Each Party represents that the execution, delivery, and performance by such
Party of this Agreement and all transactions contemplated hereby have been
duly and validly authorized by all necessary actions on the part of such
Party and that neither the execution of this Agreement nor the performance
hereunder by such Party is in violation of such Party's obligations,
contractual or otherwise, to any government, agency or any other party or
parties.
8. This Agreement merges and supersedes all prior and contemporaneous
agreements, assurances, representations, and communications between the
parties hereto regarding the subject matter hereof.
9. This Agreement shall be governed by and construed under the laws of the
State of Israel. Sole jurisdiction is given to the court in Tel Aviv,
Israel.
10. Any notice required or permitted under this Agreement shall be given in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified or upon deposit with the Israeli Post Office, by
registered or certified mail, postage prepaid and addressed to the party to
be notified at the address indicated for such party below, or at such other
address as such party may designate by ten (10) day's advance written
notice to the other parties.
If to Assignor: Planet Communications Ltd.
00 Xxxx Xxxxx Xxxxxx, Xxx Xxxx Xxxxxx
Attn: Xxxxxx Xxxxxx
Fax: 000 0 000 0000
With a copy (which shall not constitute notice) to:
Ami Sadan & Co. - Law Offices
000 Xxxxxxxxx Xx. Xxx Xxxx, Xxxxxx
Attn:Ami Sadan, Adv.
Fax 000 0 000 0000
If to Assignee: Cortext Ltd.
Xxxxxxxxx 0
Xxx Xxxx, Xxxxxx
Attn: Xxxx Xxxx
Fax: 972 3
If to VCI: Virtual Communities Israel Ltd.
Jerusalem Technology Park, Malcha
Jerusalem, Israel
Attn: Xxxxx Xxxx
Fax: 000 0 000 0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed.
Cortext Ltd. Planet Communications Ltd.
By: /s/ Xxxx Xxxx By: /s/ Xxxxxx Ohaoin
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Virtual Communities, Inc.
By: /s/ Avi Xxxxxxxxx
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