EXHIBIT 99.1
TERMINATION AND ASSIGNMENT
This Termination and Assignment (the "Agreement") is made and effective
as of April 2, 2007 (the "Effective Date") by and between Zingerang, Inc., a
Nevada corporation ("ZI"), and Warp 9, Inc., a Nevada corporation (the
"Company"). For purposes of this Termination and Assignment, ZI shall be
referred to as "Assignor" and the Company shall be referred to as "Assignee".
RECITALS
A. The Company licensed rights to ZI to certain technology commercially
known as Roaming Messenger(R), which provides a comprehensive
development and deployment platform for adding secure, interactive,
intelligent mobile messaging capabilities to any application (the "RM
Technology"), pursuant to an Exclusive Technology License Agreement,
dated September 18, 2006 (the "License Agreement").
B. According to Section 4.1 of the License Agreement, ZI agreed to pay to
the Company One Hundred Thousand Dollars ($100,000) as advance payment
against future royalties upon execution of the License Agreement. As of
the date of this Agreement, ZI has only paid Fifty Thousand Dollars
($50,000) to the Company with a remaining balance of Fifty Thousand
Dollars ($50,000.)
C. ZI has enhanced the RM Technology, and created the Zingerang(TM)
trademark, tradename, domain name, website, brand name, literature,
software and related proprietary rights based on and around the RM
Technology and its potential commercialization (collectively, the "ZI
Property").
D. The RM Technology and ZI Property are collectively referred to herein
as the "Work".
E. The parties desire to terminate the License Agreement and have ZI
assign all of its right, title and interest in and to the Work to the
Company, free and clear of any liens, claims or encumbrances, pursuant
to this Agreement.
AGREEMENT
1. TERMINATION AND ASSIGNMENT. The License Agreement is hereby terminated for
all intents and purposes, effective on the Effective Date, and the parties shall
have no further obligation or duties thereunder, except as expressly provided in
this Agreement. Effective on the Effective Date, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged by
both parties, ZI hereby assigns all of its rights, title and interest in and to
the Work to the Company in perpetuity.
2. TRANSFER OF COPYRIGHT. As consideration for the execution of the Agreement by
the Company, and in consideration of the Company waiving the Fifty Thousand
-1-
Dollar ($50,000) owed by ZI, as specified in Recital B, Assignor does hereby
irrevocably transfer and assign to Assignee, his successors and assigns, all of
its right, title, and interest in and to the Works (including moral rights), the
copyrights thereto in the United States and throughout the world, together with
all rights to secure renewals, reissues and extensions of the copyright, and any
license agreement(s) associated with the Work. Assignee hereby accepts such
assignment.
3. ASSIGNOR'S WARRANTIES. Each of the parties comprising Assignor represents and
warrants to Assignee as follows:
3.1 Assignor is the sole owner of and has the exclusive right to use
and convey the Work and the related copyright, free and clear of any
liens, encumbrances, licenses, or claims of any nature, and has made no
agreement with respect to the Work or the copyright that is in conflict
with this Agreement.
3.2 Except as specified in Recital A of this Agreement, no other
copyright has been effected, nor has any registration relating to the
copyright protection been made with respect to the Work, and there is
no dispute or pending dispute over the existence, ownership, or right
to assign any rights in and to the Work.
3.3 Assignor agrees to authorize and direct its respective heirs,
personal representatives and successors in interest to execute any
instrument and perform any legal act that Assignee may deem necessary
to secure the copyright, or any renewal or extension of the copyright.
3.4 Assignor has not executed and will not execute any instrument or
assignment in conflict with this Agreement.
3.5 Each of the representations and warranties contained in this
Section 3 will be deemed to be a separate covenant.
4. TANGIBLE EMBODIMENTS. As soon as practicable after the Effective Date, but in
no event later than April 30, 2007, Assignor shall deliver to Assignee any
tangible embodiments (existing as of the Effective Date) of the Work. Such
disclosure and delivery may be provided in writing or in other tangible or
intangible form, as appropriate to the subject matter thereof, and shall include
without limitation the appropriate software (in Object Code and Source Code) and
all documentation.
5. MISCELLANEOUS PROVISIONS. This Agreement shall be governed by and constructed
in accordance with the laws of the State of California, without reference to the
choice of law provisions therein. Venue for any dispute arising under this
Assignment shall be in the courts for and in Santa Barbara, California. This
Agreement may be executed in any number of counterparts and delivered by
facsimile transmission, each of which shall be considered an original hereof. If
any of the provisions of this Agreement are determined to be invalid or
unenforceable, those provisions shall be deemed severable from the remainder of
this Agreement and shall not cause the invalidity or unenforceability of the
remainder of this Agreement. If any legal proceeding or other action is brought
-2-
or threatened for the enforcement or interpretation of this Agreement, or
because of an alleged dispute, breach, default or misrepresentation in
connection with any of the provisions of this Agreement, the prevailing party in
any such action(s) shall be entitled to recover its costs and legal fees
incurred, including, but not limited to, attorneys' fees, paralegal fees, expert
witness fees and other similar costs, together with any other relief to which
they may otherwise be entitled, as determined by a judge at trial, or upon
appeal or petition. Each individual executing this Agreement represents or
warrants that he is duly authorized to execute and deliver this Agreement and
that this Agreement is binding upon said entity in accordance with its terms and
in no way stands in contravention of any prior agreement to which said entity is
a party. The representations, warranties, covenants and agreements of Assignor
and Assignee contained in or made pursuant to this Agreement shall survive the
Effective Date without time limit. This Agreement expresses the full and
complete understanding of the parties with respect to the subject matter hereof
and supersedes all prior or contemporaneous proposals, agreements,
representations and understandings, whether written or oral, with respect to the
subject matter hereof. This Agreement may be amended only in writing signed by
the party against whom, or against whose successors and assigns, enforcement of
the change is sought. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
In Witness Whereof, the parties have executed this Termination and
Assignment as of the last date set forth below to be effective on the Effective
Date.
- ---------------------------------------- -------------------------------------
"ASSIGNOR" "ASSIGNEE"
Zingerang, Inc., a Nevada corporation Warp 9, Inc., a Nevada corporation
By: /s/ Derek Mcleish By: /s/ Louie Ucciferri
----------------------------------- ---------------------
Derek McLeish, President Louie Ucciferri, Chairman
ADDRESS: ADDRESS:
-------- --------
3375 Wild Oak Road 50 Castilian Drive, Suite 101
Santa Rita Hills, California 93436 Santa Barbara, California 93117
- ---------------------------------------- -------------------------------------
-3-