EXHIBIT 10.7
ASSIGNMENT OF COMMERCIAL EXPLOITATION RIGHTS AGREEMENT
This is an irrevocable Assignment (the "Assignment"), effective
as of May 30, 1997, of the rights and obligations of TransCosmos,
Incorporated, a Japanese corporation (the "Assignor"), arising
under the Commercial Exploitation Rights Agreement, dated May 30,
1997 (the "Agreement") between PointCast Incorporated, a
California corporation ("PCI") and Assignor, to PointCast Japan,
L.L.C., a Delaware limited liability company (the "Assignee").
Recitals
WHEREAS, PCI granted certain rights and licenses to the Assignor
under the Agreement; and
WHEREAS, the Assignor wishes to assign its rights and licenses
under the Agreement together with its obligations under the
Agreement to the Assignee in accordance with the terms set forth
herein.
NOW THEREFORE, the parties hereby agree as follows:
1. Assignment.
a. Assignment of the Rights and Obligations under the
Agreement. The Assignor hereby irrevocably assigns and transfers
unto Assignee and unto Assignee's successors and assigns for good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the Assignor, forever, all right,
title and interest in and to the Agreement and to all rights and
licenses thereunder (the "Assigned Rights") and all obligations
under the Agreement effective from May 30, 1997.
b. Assumption of Obligations under the Agreement. The
Assignee hereby irrevocably assumes all obligations of Assignor
under the Agreement. Assignor and Assignee shall be jointly and
severally liable for any obligation or liability of the Assignor
under the Agreement arising before the date hereof.
c. Consent. PCI hereby irrevocably consents to this
Assignment and agrees to continue to comply with the terms and
conditions of the Agreement.
2. Representations and Warranties.
a. Representations and Warranties of the Assignor. The
Assignor represents and warrants to the Assignee and to PCI as
follows:
(i) The Assignor is a company duly organized and validly
existing under the laws of Japan and has full power, authority
and legal right to execute and deliver this Assignment, and to
perform and observe the terms and conditions hereof;
(ii) The execution and delivery of this Assignment and the
consummation of the transaction contemplated herein does not and
will not result in any breach of any applicable law, regulation,
order, writ, injunction or decree of any court or governmental
authority (domestic or foreign) or of any of the terms,
conditions or provisions of, or constitute a default under, or,
with notice or lapse of time, or both, constitute a default
under, or result in the creation of any lien upon any property or
assets of the Assignor pursuant to (a) the charter documents of
the Assignor, (b) any laws, regulations or instruments governing
the operations or activities of the Assignor or (c) any
indenture, agreement or other instrument to which the Assignor is
a party or by which it or its assets are bound;
(iii) No authorization, approval, filing or consent, other than
that provided for in Section 1(c) hereof, and no license,
exemption, order, notice, registration or other action of any
governmental agency or commission or public or quasi-public body
or authority is necessary for the due execution and delivery by
the Assignor of this Assignment;
(iv) The Agreement and this Assignment have been duly
authorized, executed and delivered by the Assignor and constitute
legal, valid and binding obligations of the Assignor, enforceable
against it in accordance with their respective terms;
(v) The Assigned Rights are free from all security interests,
liens, pledges, encumbrances and claims;
(vi) Since May 30, 1997, the Assignor has not terminated,
replaced, amended or waived any provision of the Agreement;
(vii) The Assignor has not assigned the Agreement or any of the
Assigned Rights to any third party;
(viii) No judicial or administrative proceedings are pending to
the knowledge of the Assignor which would adversely affect its
rights, obligations or licenses under this Assignment or under
the Agreement; and
(ix) The Assignor has paid all amounts due under Section 3 of
the Agreement.
b. Representations and Warranties of the Assignee. Assignee
represents and warrants to the Assignor and to PCI as follows:
(i) The Assignee is a limited liability company duly
organized and validly existing under the laws of the State of
Delaware and has full power, authority and legal right to execute
and deliver this Assignment, and to perform and observe the terms
and conditions hereof;
(ii) The execution and delivery of this Assignment and the
consummation of the transaction contemplated herein does not and
will not result in any breach of any applicable law, regulation,
order, writ, injunction or decree of any court or governmental
authority (domestic or foreign) or of any of the terms,
conditions or provisions of, or constitute a default under, or,
with notice or lapse of time, or both, constitute a default
under, or, result in the creation of any lien upon any property
or assets of the Assignee pursuant to (a) the charter documents
of the Assignee, (b) any laws, regulations or instruments
governing the operations or activities of the Assignee or (c) any
indenture, agreement or other instrument to which the Assignee is
a party or by which it or its assets are bound;
(iii) No authorization, approval, filing or consent, and no
license, exemption, order, notice, registration or other action
of any governmental agency or commission or public or
quasi-public body or authority is necessary for the due execution
and delivery by the Assignee of this Assignment; and
(iv) This Assignment has been duly authorized, executed and
delivered by the Assignee and this Assignment and the Agreement
(including the obligations thereunder assumed by the Assignee
hereby) constitute legal, valid and binding obligations of the
Assignee, enforceable against it in accordance with their
respective terms.
3. Miscellaneous.
a. Counterparts. This Assignment may be executed in any
number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
b. Notices. Any and all notices, requests, demands
and other communications required or otherwise contemplated to be
made under this Assignment shall be in writing and in English and
shall be deemed to have been duly given (a) if delivered
personally, when received, (b) if transmitted by facsimile, upon
receipt of a transmittal confirmation, (c) if sent by registered
airmail, return receipt requested, postage prepaid, on the sixth
business day following the date of deposit in the mail or (d) if
by international courier service, on the second business day
following the date of deposit with such courier service, or such
earlier delivery date as may be confirmed to the sender by such
courier service. All such notices, requests, demands and other
communications shall be addressed as follows:
(i) If to the Assignor:
TransCosmos, Incorporated
Sumitomoseimei Akasaka Bldg.
3-3-3, Akasaka, Minato-ku
Tokyo, Japan 107
Attention: Hiroshi Kaizuka
Telephone:
Facsimile: 011 81 3 3584 6079
(ii) If to the Assignee:
PointCast Japan, L.L.C.
Sumitomoseimei Akasaka Bldg.
3-3-3, Akasaka, Minato-ku
Tokyo, Japan 107
Attention: Douglas W.C. Boake
Telephone:
Facsimile: 011 81 3 3584 6079
(iii) If to PCI:
PointCast Incorporated
2475 Augustine Drive, Suite 101
Santa Clara, California 95054
Attention: Jim Wickett, SVP
Telephone: (408) 253-0894
Facsimile: (408) 253-8590
or in each case to such other address or facsimile number as the
party may have furnished to the other party in writing.
c. Governing Law. This Assignment shall in all respects be
governed by the laws of the State of California without reference
to its principles of conflicts of laws. The parties hereby
agree that all disputes arising out of this Agreement shall be
subject to the exclusive jurisdiction of and venue in the federal
and state courts within Santa Clara County, California. The
Assignor and the Assignee hereby consent to the personal and
exclusive jurisdiction and venue of these courts.
IN WITNESS WHEREOF, the parties have executed this
Assignment effective as of the date first set forth above.
ASSIGNOR:
TransCosmos, Incorporated
By: /s/ Koki Okuda
Name: Koki Okuda
Title: President and C.E.O
ASSIGNEE:
PointCast Japan, L.L.C.
By: /s/ Douglas W.C. Boake
Name: Douglas W.C. Boake
Title: Douglas W.C. Boake
Manager
PCI
PointCast Incorporated
By: /s/ Jim Wickett
Name: Jim Wickett
Title: Senior Vice President