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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.

 

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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 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 ”);

 

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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 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.

 

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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 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 th


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