EXHIBIT 10.8
ASSIGNMENT OF COMMERCIAL EXPLOITATION RIGHTS
This is an assignment (the "Assignment"), effective as of July
25, 1997, of the rights and obligations of PointCast Japan,
L.L.C. (the "Assignor"), a Delaware limited liability
corporation, arising under the Commercial Exploitation Rights
Agreement, dated May 30, 1997 (the "Agreement") between PointCast
Incorporated, a California corporation ("PCI") and TransCosmos,
Incorporated ("TCI"), a Japanese corporation, as assigned to
Assignor by TCI in the assignment dated May 30, 1997 (the
"Original Assignment"), to PointCast K.K. (the "Assignee"), a
Japanese corporation.
Recitals
WHEREAS, PCI granted certain rights and licenses to TCI under the
Agreement; and
WHEREAS, TCI has assigned such rights and licenses to LLC in the
Original Assignment; and
WHEREAS, LLC wishes to assign its rights and licenses under the
Agreement and the Original Assignment together with its
obligations under the Agreement and the Original Assignment to KK
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 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, 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 July 25, 1997.
b. Assumption of Obligations under the Agreement. The
Assignee hereby 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.
2. Representations and Warranties.
a. Representations and Warranties of the Assignor. The
Assignor represents and warrants to the Assignee as follows:
(i) The Assignor 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 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 as follows:
(i) The Assignee 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 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 (including the
obligations thereunder assumed by the Assignee hereby)
constitutes legal, valid and binding obligations of the Assignee,
enforceable against it in accordance with its 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:
PointCast Japan, L.L.C.
Sumitomoseimei Akasaka Bldg.
3-3-3, Akasaka, Minato-ku
Tokyo, Japan 107
Attention: Hiroshi Kaizuka
Telephone: 011 81 3 3586 2880
Facsimile: 011 81 3 3584 6079
(ii) If to the Assignee:
PointCast K.K.
Toshin Aoyama Building
3F, Shibuya 2-10-13, Shibuya-ku
Tokyo 150, Japan
Attention: Douglas W.C. Boake
Telephone: 011 81 3 5468 1260
Facsimile: 011 81 3 5468 1275
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:
PointCast Japan, L.L.C.
By: /s/ Douglas Boake
Name: Douglas Boake
Title: Manager
ASSIGNEE:
PointCast K.K.
By: /s/ Douglas Boake
Name: Douglas Boake
Title: President