EXHIBIT 10.40
INTELLECTUAL PROPERTY ASSIGNMENT
This Intellectual Property Assignment is entered into this 6th day of
November, 1998, by and between REALBID LLC, a California limited liability
company, ("Assignor"), and COMPS InfoSystems, Inc., a Delaware corporation
("Assignee").
WHEREAS, Assignee and Assignor are parties to that certain Asset
Purchase Agreement dated as of even date herewith (the "Purchase Agreement")
(initially capitalized terms used herein and not otherwise defined herein shall
have the meanings given to such terms in the Purchase Agreement);
WHEREAS, the execution and delivery of this Intellectual Property
Assignment is a condition precedent to Assignee's obligations under the Purchase
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignor assigns to Assignee, and Assignee hereby accepts such
assignment of, Assignor's entire right, title and interest in and to all of the
REALBID Intellectual Property (as such intellectual property is defined and
described in the Purchase Agreement and the schedules relating thereto),
including, without limitation, the service mark "REALBID," and all variations
thereof, the domain name on the World Wide Web known as "realbid.com" and any
successor name thereto, and all rights to damages and payments for past, present
or future infringements or misappropriations thereof in all countries and the
goodwill of the business and operations of REALBID associated with the
Intellectual Property.
2. The rights, title and interest assigned under Section 1 above shall be
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for Assignee's own use and enjoyment, and for the use and enjoyment of
Assignee's successors, assigns or other legal representatives, as fully and
entirely as the same would have been held and enjoyed by the Assignor if this
assignment and sale had not been made.
3. Assignor authorizes and requests the Commissioner of Patents and
Trademarks of the United States, and an official of any country or countries
foreign to the United States, whose duty it is to register patents, trademarks
or copyrights, to record Assignee as the assignee and owner of the Intellectual
Property.
4. Concurrently with the execution of this Intellectual Property
Assignment, Assignor shall deliver the original papers, applications, and other
official documents relating to all patents and trademarks, and other
Intellectual Property, assigned under Section 1 above.
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5. Assignor hereby represents and warrants that all rights, title, and
interest assigned under Section 1 above are free and clear of Encumbrances and
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that Assignor has not executed and will not execute any agreement or other
instrument in conflict herewith.
6. Assignor hereby covenants and agrees that it shall cease and refrain
from all use of all rights, title, and interests assigned under Section 1 above
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in all countries of the world as of the date hereof.
7. With respect to the REALBID Intellectual Property, Assignor will, from
and after the Closing (i) use its best efforts to keep such REALBID Intellectual
Property confidential, including continuing to protect the confidential nature
of such REALBID Intellectual Property as if the sale provided for in the
Purchase Agreement had not occurred, (ii) not disclose the REALBID Intellectual
Property to any third party and (iii) not use the REALBID Intellectual Property.
8. From time to time after the date hereof, Assignor will execute and
deliver, or cause its affiliates to execute and deliver, to Assignee such
instruments of sale, transfer, conveyance, assignment and delivery, and such
consents, assurances, powers of attorney and other instruments as may be
reasonably requested by Assignee or its counsel in order to vest in Assignee all
right, title and interest of Assignors in and to the Purchased Assets and
otherwise in order to carry out the purpose and intent of this Intellectual
Property Assignment.
9. This Intellectual Property Assignment, together with the Purchase
Agreement and all documents executed in connection with the Purchase Agreement,
constitutes the entire agreement and understanding between and among the parties
hereto with respect to the matters set forth herein, and supersedes and replaces
any prior agreements and understandings, whether oral or written, between and
among them with respect to such matters. Notwithstanding any other provisions of
this Intellectual Property Assignment to the contrary, nothing contained in this
Intellectual Property Assignment shall in any way superseded, modify, replace,
amend, change, rescind, waive, exceed, expand, enlarge or in any way affect the
provisions, including warranties, covenants, agreements, conditions,
representations, or in general any of the rights and remedies, and any of the
obligations and indemnifications of Assignors or Assignee set forth in the
Purchase Agreement nor shall this Intellectual Property Assignment expand or
enlarge any remedies under the Purchase Agreement including without limitation
any limits on indemnification specified therein. This Intellectual Property
Assignment is intended only to effect the transfer of certain property
transferred pursuant to the Purchase Agreement and shall be governed entirely in
accordance with the terms and conditions of the Purchase Agreement.
10. This Intellectual Property Assignment shall in all respects be
construed in accordance with and governed by the laws of the State of California
without giving effect to its conflicts-of-laws principles (other than any
provisions thereof validating the choice of the laws of the State of California
in the governing law).
11. This Intellectual Property Assignment may be executed by the parties
herein in separate counterparts and by facsimile, each of which when so executed
and delivered shall be an original, but all such counterparts and facsimile
shall together shall constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
COMPS InfoSystems, Inc., REALBID LLC,
a Delaware corporation a California limited liability company
By: /s/ CHRISTOPHER A. CRANE By: /s/ ROBERT A. POTTER
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Christopher A. Crane Robert A. Potter, Manager
President and Chief Executive Officer
By: /s/ EMMETT DeMOSS
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Emmett DeMoss, Manager
[SIGNATURE PAGE TO THE INTELLECTUAL PROPERTY ASSIGNMENT]
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ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF Marin )
On this 5th day of November, in the year 1998, before me, the
undersigned Notary Public, duly commissioned and sworn, personally appeared
Emmett DeMoss and Robert Potter, personally known to me (or proved to me on the
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basis of satisfactory evidence) to be the persons whose names are subscribed to
the within instrument and acknowledged to me that they respectively executed the
same in their authorized capacities, and that by their signature on the
instrument the persons executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate above written.
[SEAL]
/s/ TROY L. SWANN
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Notary Public in and for the
aforesaid County and State
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On this 13th day of November, in the year 1998, before me, the
undersigned Notary Public, duly commissioned and sworn, personally appeared
Christopher A. Crane, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person executed the
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate above written.
[SEAL]
/s/ CANDICE L. JENKINS
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Notary Public in and for the
aforesaid County and State