Exhibit 2.1
ASSET PURCHASE AND PATENT ASSIGNMENT AGREEMENT
by and between
DEGREES OF CONNECTION LLC
and
YOUTHSTREAM MEDIA NETWORKS, INC.
September 22, 2003
TABLE OF CONTENTS Page
ARTICLE 1. Purchase and Sale of Assets..............................2
1.1 Certain Definitions............................................2
1.2 Assets Purchased...............................................3
1.3 Assets Excluded................................................3
1.4 Assignment of All Patent Rights................................4
1.5 Assignor Estoppel..............................................4
1.6 No Assumption of Liabilities...................................4
1.7 Purchase Price and Payment.....................................4
ARTICLE 2. Closing..................................................4
2.1 Closing Date...................................................4
2.2 Execution of Documents.........................................5
2.3 Post-Closing Obligations.......................................5
ARTICLE 3. Representations and Warranties; Indemnification..........6
3.1 YouthStream's Representations and Warranties...................6
3.2 Indemnification................................................8
3.3 Claims for Indemnification.....................................8
ARTICLE 4. Miscellaneous............................................9
4.1 Further Acts...................................................9
4.2 Confidentiality...............................................10
4.3 Survival......................................................12
4.4 Transfer; Successors and Assigns..............................12
4.5 Assignment....................................................12
4.6 Notices.......................................................12
4.7 No Waiver.....................................................13
4.8 Severability..................................................13
4.9 Delays or Omissions...........................................13
4.10 Agreement Is Entire Contract..................................14
4.11 Governing Law.................................................14
4.12 Counterparts..................................................14
4.13 Each Party to Bear Own Costs..................................14
ASSET PURCHASE AND PATENT ASSIGNMENT AGREEMENT
This ASSET PURCHASE AND PATENT ASSIGNMENT AGREEMENT (this "Agreement") is
made as of the 22nd day of September, 2003 (the "Effective Date"), by and
between (i) Degrees of Connection LLC, a Delaware limited liability company
("Purchaser"), and (ii) YouthStream Media Networks, Inc. ("YouthStream"), a
Delaware corporation (with the Purchaser and YouthStream a "Party" and together
the "Parties") with reference to the following:
RECITALS
--------
WHEREAS, on January 17, 1997 Andrew P. Weinreich ("Weinreich") and twelve
other inventors (collectively, the "Inventors") filed with the United States
Patent and Trademark Office a patent application entitled "Method and apparatus
for constructing a network database and system," which was granted as of January
16, 2001 as United States patent number 6,175,831 (the "Six Degrees Patent");
WHEREAS, the Six Degrees Patent was assigned by the Inventors to Macroview
Communications Corp, which later changed its name to "six degrees, inc." ("Six
Degrees");
WHEREAS, Six Degrees and the Inventors developed the Technology (as such
term is defined hereafter) in order to provide an online service that, among
other things, allowed users to build relationship networks;
WHEREAS, Six Degrees was acquired by and became a wholly owned subsidiary
of YouthStream; and
WHEREAS, the Purchaser desires to purchase from YouthStream and Six
Degrees, and YouthStream desires that it and Six Degrees assign and sell to the
Purchaser, the Technology and certain intellectual property rights therein and
thereto, including without limitation the Six Degrees Patent and Other Patents,
as set forth more specifically herein
TERMS OF AGREEMENT
------------------
Page 1
NOW THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
ARTICLE 1. Purchase and Sale of Assets
---------------------------
1.1 Certain Definitions
-------------------
As used in this Agreement the following definitions shall apply.
(a) The "Technology" shall mean any or all of the following:
(i) All computer source and object code and files, software
assets and other digital assets, documentation, user
manuals, instruction manuals, designs, files, lists,
records, configuration settings, specifications, bug fixes,
problem reports, workarounds, and works of authorship,
whether embodied in software, firmware, or otherwise,
belonging to Six Degrees that implement or relate to the
Patent and Other Patents, or that were used by Six Degrees
for its online service, with the exception of any such
materials that YouthStream does not possess and with the
further exception of any such materials that are licensed
from third parties and that YouthStream is not entitled to
assign to the Purchaser (collectively, the "Code Base"); and
(ii) inventions (whether or not patentable), devices (whether or
not protected by a utility model right), tools, methods,
processes, industrial design, improvements, and technology,
and all instantiations of the foregoing in any form and
embodied in any media, related to the Six Degrees Patent and
Other Patents.
(b) "Intellectual Property Rights" shall mean any or all of the
following and all rights in, arising out of, or associated
therewith, but only such rights as are owned by YouthStream or
Six Degrees or in which YouthStream or Six Degrees has a right or
interest of any type or description, confirmed or contingent.
(i) The Six Degree Patent;
(ii) The Other Patents as such term is hereinafter defined;
(iii) All rights assigned by operation of the assignment document
attached hereto as exhibit "A" (the terms of which are
hereby incorporated herein by reference);
Page 2
(iv) All trade secrets and other rights in know-how and
confidential or proprietary information, associated with the
Technology;
(v) All copyrights (including moral rights), copyright
applications and registrations throughout the world, in and
to the Technology; and
(vi) Any similar, corresponding or equivalent rights to any of
the foregoing anywhere in the world.
(c) "Other Patents" shall mean United States and foreign patents,
patent applications, patentable inventions, reissues, extensions,
renewals, re-examinations, divisions, continuations,
continuations-in-part, and equivalent or similar rights owned by
YouthStream or Six Degrees, if any, other than the Six Degrees
Patent itself, that are: (i) based in whole or in part upon the
Six Degrees Patent and technology, (ii) blocking of or
improvements on the Six Degrees Patent; or (iii) apply to related
inventions contained in the Six Degrees technology (collectively,
the "Other Patents").
1.2 Assets Purchased
----------------
Upon the terms and subject to the conditions set forth in this Agreement,
as of the Closing YouthStream and Six Degrees hereby transfer to the Purchaser,
free and clear of all claims, charges, liens, contracts, rights, options,
security interests, mortgages, encumbrances and restrictions whatsoever, the
Technology and the Intellectual Property Rights.
1.3 Assets Excluded
---------------
Notwithstanding anything herein to the Contrary, the assets purchased
herein shall not include, nor shall purchase thereof entitle the Purchaser to
practice, the following:
(a) Any domain names, trademarks, service marks, trade dress, or the
like;
(b) Any customer lists, accounts, user lists, or the like;
(c) Any off-the-shelf third party software, or any third party
software that is not necessary or useful for operation of the
Technology;
(d) Any computer or networking equipment, or any other personal
property except as may be incidental to the assignment and
delivery of the Technology and the Intellectual Property Rights.
Page 3
1.4 Assignment of All Patent Rights
-------------------------------
This Agreement is for the assignment of all rights for the Six Degrees
Patent and the Other Patents. The Parties acknowledge that under United States
law a patent is, more specifically, a right to exclude others from making,
using, offering for sale, or selling the invention throughout the United States
or importing the invention into the United States. The assignor, Six Degrees,
relinquishes in perpetuity all rights inherent and appurtenant to the Six
Degrees Patent and Other Patents. As the assignee, Purchaser assumes all rights,
including the right to assign or license the patent further. Because this is an
assignment of all rights under the patent and not a license of any kind, Six
Degrees as the assignor does not retain the right to terminate this Agreement
after Closing, as set forth below.
1.5 Assignor Estoppel
-----------------
As assignor, YouthStream and Six Degrees agree and acknowledge that they
are estopped by this Agreement from challenging the validity of the Six Degrees
Patent or the Other Patents. Furthermore they shall not, directly or indirectly,
claim, challenge, or testify against the validity of such patents, for
themselves or on behalf of others. Purchaser has paid valuable consideration for
the patent and has a reasonable expectation of freedom from challenges from
YouthStream and Six Degrees which would diminish such patents' certainty and
value.
1.6 No Assumption of Liabilities
----------------------------
The Purchaser shall not assume, in whole or in part, any liabilities
arising before the Effective Date associated with the Technology or the
Intellectual Property Rights thereto.
1.7 Purchase Price and Payment
--------------------------
Subject to the terms and conditions of this Agreement, and in consideration
with the sale, assignment, and transfer of the Technology and associated
Intellectual Property Rights thereto, the Purchaser shall pay to YouthStream the
aggregate amount of seven hundred thousand dollars (US$700,000) (the "Purchase
Consideration")..
ARTICLE 2. Closing
-------
2.1 Closing Date.
-------------
The closing of the purchase of assets described herein (the "Closing")
shall be deemed to occur as of the date of mutual execution of this Agreement by
the Parties, which shall be September 22, 2003 unless a different date is
mutually agreed by the Parties. Closing shall take place via facsimile and
express delivery service of certain documents, and payment of funds, as set
forth in this ARTICLE 2.
Page 4
2.2 Execution of Documents
----------------------
(a) At Closing each Party shall execute and notarize where indicated, an
original counterpart of this Agreement, as well as the patent assignment
document attached hereto as Exhibit "A," and then transmit to counsel for the
other Party a facsimile copy of such executed counterpart document.
(b) The Purchaser shall, upon receipt by their counsel of the foregoing
facsimile, issue wire transfer instructions to pay the Purchase Consideration
set forth in Section 1.7 to an account designated by YouthStream, and shall
transmit to counsel for YouthStream a confirmation of the wire transfer or
similar acknowledgement from the Purchaser's financial institution. The
Purchaser shall use all reasonable efforts to ensure that the wired funds are in
fact transferred to such account within one business day.
(c) Upon confirmation by the Parties that their respective counsel have
received the facsimile documents described in Sections 2.2(a) and 2.2(b), each
Party shall send to the other by recognized overnight courier service that
copy's original, executed (and notarized, as applicable) counterpart of this
Agreement, including its Exhibits.
(d) Following Closing the purchasers shall be entitled transmit the
aforementioned patent assignment document, completed as may be necessary or
useful, together with a recordation form, to the United States Patent Office for
recordation. The Parties recognize that time is of the essence because according
to United States law (35 USC ss. 261) failure to promptly record patent
assignment documents makes such assignments void as against subsequent parties
who purchase the applicable patent without notice of the assignment. YouthStream
agrees to cooperate in facilitating the recordation of assignment of the Six
Degrees Patent and the Other Patents, and shall not, directly or indirectly,
assist any other Party in asserting that it owns such patents.
2.3 Post-Closing Obligations
------------------------
Within ten business days after the Effective Date YouthStream shall deliver
the following to the Purchaser:
(a) Substantially all of the Code Base at such time, in such format
(electronic if available), and at such facilities as the Purchaser may
reasonably designate.
(b) A statement describing with reasonable specificity, any portion of the
Code Base that to the best of YouthStream's knowledge: (i) is not owned by
YouthStream, or (ii) that YouthStream may not fully assign to the Purchaser.
(c) A copy of all documents and agreements in YouthStream's possession,
that either document or effect the acquisition by YouthStream of the Technology
and the Intellectual Property Rights, including without limitation: (i) all
proprietary information agreements, invention assignments, or other assignment
documents between the Inventors on the one hand, and Six Degrees or YouthStream
on the other; (ii) the agreement of merger or similar agreement, or portion
thereof pertaining to assignment of the Technology and related Intellectual
Property Rights, between Six Degrees and YouthStream; and (iii) any software
Page 5
development agreement, web design agreement, or similar agreements, and any
proprietary information, invention assignment, or other assignment agreements,
pertaining to the development and acquisition of the Code Base.
(d) A copy of any resolutions enacted by the Board of Directors or
shareholders of YouthStream and Six Degrees, authorizing and approving this
Agreement and the transactions contemplated hereby, certified by the Secretary
of the applicable company.
ARTICLE 3. Representations and Warranties; Indemnification
-----------------------------------------------
3.1 YouthStream's Representations and Warranties.
---------------------------------------------
YouthStream represents and warrants the following as of the Effective Date.
YouthStream's representation and warranty with respect to Sections 3.1(f)
through 3.1(m) shall be limited to matters within the knowledge or awareness of
YouthStream's Board of Directors, and YouthStream's senior managers as of the
Effective Date.
(a) YouthStream and Six Degrees are corporations duly organized, validly
existing and in good standing under the laws of the State of Delaware. There is
no pending or threatened proceeding for the dissolution, liquidation,
insolvency, reorganization, or rehabilitation of either company.
(b) YouthStream has the corporate power and authority to execute and
deliver this Agreement on behalf of itself and Six Degrees, to perform its
obligations hereunder, and to consummate the transactions contemplated hereby.
YouthStream and Six Degrees have taken all corporate action necessary to
authorize the execution and delivery of this Agreement, the performance of its
obligations hereunder, and the consummation of the transactions contemplated
hereby.
(c) The execution and delivery of this Agreement by YouthStream, the
performance by YouthStream and Six Degrees of their respective obligations
hereunder and the consummation by them of the transactions contemplated by this
Agreement will not contravene any provision of either company's Certificate of
Incorporation, Bylaws, or other organizational or governing document,
(d) This Agreement has been duly executed and delivered by or on behalf of
both YouthStream and Six Degrees and constitutes the legal, valid and binding
obligation of both companies, enforceable against both companies in accordance
with its terms.
(e) As of Closing there is no action, suit or proceeding against
YouthStream, Six Degrees, the Technology, or any of the Intellectual Property
Rights before any court or quasi-judicial or administrative agency of any
federal, state, local or foreign jurisdiction or before any arbitrator, pending
or threatened, including without limitation actions to limit, cancel, or
challenge the validity of the Six Degrees Patent (collectively, "Proceedings")
wherein an unfavorable injunction, judgment, order, decree, ruling, or charge
Page 6
would restrain, prohibit or invalidate the transactions contemplated by this
Agreement, questions the legality of such transactions, or adversely affect the
Purchaser's right to own the Technology or the Intellectual Property Rights.
(f) Neither YouthStream nor Six Degrees have adjudicated, settled, or
otherwise resolved any threatened or actual Proceedings.
(g) There is no specific information to suggest that a Proceeding will
occur.
(h) There are no undisclosed co-inventors of the Six Degrees Patent, and no
undisclosed co-authors or other rights holders with respect to the Code Base.
(i) None of the Technology or the Intellectual Property Rights have been
licensed or assigned to any third party.
(j) Execution of this Agreement, performance by YouthStream and Six Degrees
of their obligations hereunder, and completion of the contemplated transactions,
will not (A) violate or conflict with any law, statute, ordinance, rule,
regulation, decree, writ, injunction, judgment or order of any governmental
authority or of any arbitration award which is either applicable to, binding
upon or enforceable against YouthStream or Six Degrees, (B) conflict with,
result in any breach of, or constitute a default (or an event which would, with
the passage of time or the giving of notice or both, constitute a default)
under, or give rise to a right of payment under or the right to terminate,
amend, modify, abandon or accelerate, any contract to which YouthStream or Six
Degrees are a party, (C) result in or require the creation or imposition of any
lien or other encumbrance upon or with respect to any of the Technology or the
Intellectual Property Assets; (D) give to any person a right or claim against
YouthStream or Six Degrees, or (E) require the consent, approval, authorization
or permit of, or filing with or notification to, any governmental authority, any
court or tribunal or any other person, except for recordation of assignment
documents with various patent and copyright offices.
(k) There is no specific information to suggest that the Six Degrees Patent
is invalid, or that there is prior art that would invalidate the Six Degrees
Patent. The foregoing shall not be deemed to apply to assertion by any third
party to YouthStream without providing specific details that such party
considers the patent weak, unenforceable or difficult to uphold.
(l) Upon the consummation of the transactions contemplated hereby,
Purchaser will have acquired and will own all of the Technology and the
Intellectual Property Rights. YouthStream and Six Degree have good and
marketable title to the Technology and the Intellectual Property Assets free and
clear of any and all claims, charges, liens, contracts, rights, options,
security interests, mortgages, encumbrances and restrictions whatsoever.
Page 7
(m) YouthStream and Six Degrees have been in compliance with all laws,
regulations and orders applicable to the Technology and the Intellectual
Property Assets.
3.2 Indemnification
---------------
(a) YouthStream shall indemnify, defend and hold harmless the Purchaser
from and against, and shall reimburse the Purchaser against and in respect of,
any and all claims, charges, suit, demands, losses, costs, expenses,
obligations, liabilities, damages, remedies, interest, penalties and reasonable
attorneys' fees and expenses (collectively, "Losses"), that Purchaser or its
agents, employees, or successors shall incur or suffer and that arise from (i)
any breach or inaccuracy of any of YouthStream's representations and warranties;
and (ii) any failure by YouthStream to perform or comply with any covenant or
agreement contained in Exhibit "A."
(b) The Purchaser shall indemnify, defend, and hold harmless YouthStream
against, and shall reimburse YouthStream against and in respect of, any and all
Losses that YouthStream or its agents, employees, or successors shall incur or
suffer and that arise any failure by the Purchaser to perform or comply with any
covenant or agreement contained in this Agreement or Exhibit "A."
(c) No due diligence or other investigation made by or on behalf of the
Purchaser with respect to the Technology or the Intellectual Property Rights
shall be deemed to affect the Purchaser's reliance on the representations,
warranties, covenants and agreements made by YouthStream herein, and shall not
be deemed to be a waiver of the Purchaser's rights to indemnity or reimbursement
as herein provided.
3.3 Claims for Indemnification
--------------------------
(a) A Party seeking indemnification from the other hereunder (the
"Indemnitee") shall give to the party from which indemnification is sought (the
"Indemnitor") written notice (a "Claim Notice") of any claim which is subject to
the indemnity obligations set forth in Section 3.2 with sufficient promptness so
as not to prejudice the Indemnitor's interests in respect of such claim and any
obligation of indemnity arising therefrom. The Claim Notice shall set forth, to
the best of the Indemnitee's knowledge, all facts and other information with
respect to the claim, including without limitation the anticipated amount of
Losses or reasonable estimate thereof. The failure to give prompt notice shall
not affect the rights of the Indemnitee to indemnity hereunder, except to the
extent that such failure either shall have materially prejudiced the Indemnitor
in the defense of such claim or shall have materially increased the amount of
the obligation of the Indemnitor.
(b) The Indemnitor receiving a Claim Notice may object to such Claim Notice
by delivering written notice of such objection to the Indemnitee within fifteen
(15) days after receipt of the applicable Claim Notice. If the Indemnitor does
not timely object to a Claim Notice in accordance with this Section 3.3, the
Indemnitor shall, within thirty (30) days after receipt of the Claim Notice,
either (i) pay the amount of the claim set forth in the Claim Notice, if a
Page 8
monetary amount is involved, or (ii) if a claim of a third party is involved,
have the right to assume the defense of such claim.
(c) Indemnitor shall have the right to conduct and control, through counsel
of its own choosing which counsel shall be reasonably satisfactory to
Indemnitee, the defense of any such claim or any action arising therefrom;
provided, that in conducting the defense of any such claim or action, Indemnitor
shall, and shall cause its counsel to, consult with Indemnitee and its counsel,
if any, selected by it, and shall keep such counsel, if any, and Indemnitee
fully advised of the progress thereof. Indemnitee shall notify in writing
Indemnitor promptly after the assertion of any claim, which may be the basis for
indemnification hereunder and Indemnitor shall promptly arrange for counsel
reasonably satisfactory to Indemnitee to defend such action. If Indemnitor does
not or is unable to provide counsel acceptable to Indemnitee within 15 days
after notification of such claim, Indemnitee may within reason select counsel of
its own choosing to defend such claim. Moreover, in the event Indemnitee
reasonably determines that it must retain counsel to respond to a third party
proceeding before such 15-day period or in the event Indemnitee has hired
counsel in connection with a third party proceeding before Indemnitee becomes
aware of the likely existence of a claim against Indemnitor, Indemnitee may
continue to employ such counsel to conduct and control the applicable proceeding
until substitute counsel chosen by Indemnitor, if any, is reasonably able to
assume control of the matter. Nothing herein contained shall prevent Indemnitee
from retaining its own counsel at its own cost and expense under other
circumstances.
(d) No settlement of any claim for which indemnification is sought
hereunder shall be made without the prior written consent of both the Indemnitor
and the Indemnitee, which consent shall not be unreasonably withheld or delayed.
(e) No claim for indemnification shall be made by an Indemnitee under this
Section 3.3, unless and until the aggregate of all Losses subject to
indemnification exceeds $5,000, and then only for Losses in excess of such
amount, which amount shall be treated as a one-time deductible against the
aggregate of all claims by the Indemnitee.
ARTICLE 4. Miscellaneous
-------------
4.1 Further Acts
------------
Each Party shall at its own expense take any and all actions, and shall
execute, notarize, and deliver any and all documents and instruments, that shall
be necessary or appropriate to give full force and effect to this Agreement and
the transactions contemplated hereby and thereby. Without limiting the foregoing
YouthStream shall, upon the request of the Purchaser or its assignee(s),
communicate any facts known to YouthStream and Six Degrees relating to the
Intellectual Property Rights, testify in any legal proceeding relating thereto,
and execute all lawful papers including without limitation any copyright or
patent registrations and filings.
Page 9
4.2 Confidentiality
---------------
(a) The following shall be deemed "Confidential Information" with respect
to this Agreement, whether in oral, written, graphic, electronic or any other
form. (i) The content and substance of this Agreement, and of that certain
"Letter of Intent" and "Term Sheet" entered into by the Parties or related
parties on or about September 19, 2003, including without limitation the amount
of Purchase Consideration.
(ii) Any matters discussed or negotiated between the Parties (or their
agents or affiliates), and all nonpublic information obtained by
YouthStream concerning the Purchasers and related parties, in the
course of negotiating this Agreement, the Letter of Intent, or
the Term Sheet, or in the course of conducting the transactions
that are the subject of this Agreement.
(iii) The Code Base;
(iv) The Technology;
(v) The Intellectual Property, except to the extent embodied in the
form of a patent or published patent application;
(vi) All information disclosed by YouthStream to Purchaser as set
forth in Sections 2.3(a), 2.3(b), and 2.3(d).
(b) As of the Effective Date YouthStream may use all Confidential
Information only for purposes of furthering the transactions contemplated
herein, for its own recordkeeping and accounting purposes, and for no other
purpose whatsoever. YouthStream shall not otherwise use any Confidential
Information nor shall it disclose any Confidential Information to any third
party, except with the advance written consent of the Purchaser. YouthStream
shall strictly maintain the confidentiality of the Confidential Information
using at least the same degree of care customarily used by Recipient to protect
its own most important confidential information, but under no circumstances less
than a high degree of care.
(c) As a condition precedent to YouthStream's right to disclose
Confidential Information to any employee, agent, contractor, consultant, service
professional (including without limitation attorney, accountant, bookkeeper, or
business consultant), board member, advisor, or other person associated with
YouthStream (collectively, "Other Party"), YouthStream shall ensure that such
Other Party is either under a statutory duty of confidentiality or has executed
a written agreement containing a duty of confidentiality to YouthStream
equivalent to YouthStream's duty of confidentiality hereunder. YouthStream shall
disclose Confidential Information to Other Parties solely on a "need to know"
basis. As between YouthStream and the Purchaser any breach by Other Parties of
Page 10
such duty with respect to the Confidential Information shall be deemed a breach
by YouthStream hereunder, as if YouthStream itself had made such breach.
YouthStream hereby assigns to the Purchaser, on a nonexclusive basis, now and in
the future, any and all rights of YouthStream with respect to such breaches,
including without limitation the right to make and prosecute legal and equitable
claims against Other Parties for breach thereof.
(d) Notwithstanding the applicable duties and restrictions of this Section
4.2(b) and 4.2(c), YouthStream shall bear no liability to Purchaser with respect
to use or disclosure of a portion of the Confidential Information to the extent
that YouthStream may demonstrate by written evidence that through no breach of
any duty of confidentiality owed by YouthStream to Purchaser or to any other
party, such portion:
(i) is at the time of its disclosure to YouthStream by Purchaser
already in YouthStream's lawful possession;
(ii) is or becomes lawfully received by YouthStream, without
restriction on its use or disclosure, from a third party having
no duty of confidentiality to Purchaser or to any third party
with respect to such portion, but only as of the time of such
lawful receipt by YouthStream;
(iii) lawfully is or becomes part of the public domain, but only as of
the time such portion so becomes a part of the public domain; or
(iv) is lawfully, independently developed by YouthStream without
reference to or use of the Confidential Information, but only as
of the time of such independent development.
(e) YouthStream may make such disclosure of Confidential Information as
shall be required to comply with the order of a Court of competent jurisdiction
or with a mandatory requirement of a governing regulatory body, provided that
YouthStream shall, upon first becoming aware of any requirement for disclosure,
first notify Purchaser in writing of such requirement, and shall take such steps
as Purchaser may reasonably require in order to enable the Purchaser to
challenge, avoid, obtain a protective order concerning, or mitigate the effects
of any such disclosure. YouthStream agrees that it shall not, directly or
indirectly, challenge or oppose the Purchaser's efforts with respect thereto.
(f) Notwithstanding the foregoing, YouthStream may make such disclosure
concerning the transaction as required by applicable securities laws and
regulations, and to the extent practicable will provide Purchaser with such
proposed release in advance of release.
Page 11
4.3 Survival
--------
The representations, warranties and covenants set forth in ARTICLE 3 and
this ARTICLE 4 shall survive Closing. The obligations set forth in ARTICLE 2
shall survive by their own terms for as long as necessary to complete the
transactions contemplated herein.
4.4 Transfer; Successors and Assigns
--------------------------------
The terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
4.5 Assignment
----------
YouthStream may not assign this Agreement or any rights or obligations
hereunder without the express written consent of the Purchaser, and any attempt
to do so otherwise shall be void and without effect. The Purchaser may assign
this Agreement, may further assign or license any or all of the Technology or
the Intellectual Property Rights, and may cause any assignments and assignment
recordations with respect to the Intellectual Property Rights to be made in the
name of their assignee(s).
4.6 Notices.
--------
Any notice required in connection with this Agreement shall be given in
writing and shall be deemed effective upon personal delivery, five days after
deposit in the United States mail, first class postage prepaid, or immediately
if sent by electronic mail or confirmed facsimile followed by another permitted
delivery method, in each case addressed to the party entitled to such notice at
the following or at such other address as such party may designate by written
notice under this Section 4.6 to the other Party.
If to Purchaser
Reid Hoffman
C/O LinkedIn
1804 N. Shoreline Blvd, Suite 210
Mountain View, CA 94043
Facsimile: (650) 968-8618
Email: rhoffman@linkedin.com
---------------------
Page 12
With a courtesy copy to:
Gil Silberman
Genesis LLP
725 Florida Street #18
San Francisco, CA 94110
Facsimile: (415) 285-7405
Email: gsilberman@genesisllp.com
-------------------------
If to YouthStream:
Jonathan V. Diamond, CEO
YouthStream Media Networks, Inc.
Facsimile:
Email: jvd@aol.com
-----------
With a courtesy copy to:
Howard Weinreich
Morris Zelnick Rose & Lander
405 Park Avenue, Suite 1401
New York, NY 10022
Facsimile: (212) 838-9190
Email: hweinreich@mzrl.com
-------------------
4.7 No Waiver
---------
No waiver of any breach or condition of this Agreement shall be deemed to
be a waiver of any other or subsequent breach or condition, whether of like or
different nature.
4.8 Severability
------------
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the Parties agree to renegotiate such provision in good
faith. In the event that the Parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such provision shall be
excluded from this Agreement, (b) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (c) the balance of the
Agreement shall be enforceable in accordance with its terms.
4.9 Delays or Omissions
-------------------
No delay or omission to exercise any right, power or remedy accruing to any
Party under this Agreement, upon any breach or default of any other Party under
Page 13
this Agreement, shall impair any such right, power or remedy of such
non-breaching or non-defaulting Party nor shall it be construed to be a waiver
of any such breach or default, or an acquiescence therein, or of or in any
similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Party of any breach or default under
this Agreement, or any waiver on the part of any Party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any Party, shall be cumulative
and not alternative.
4.10 Agreement Is Entire Contract
----------------------------
This Agreement, together with all exhibits hereto, constitutes the entire
contract between the parties hereto with regard to the subject matter hereof,
and supersedes all prior or contemporaneous negotiations, agreements or
representations between the Parties in respect thereof. This Agreement may not
be amended, modified or supplemented with respect to any given Purchaser except
in a writing duly executed by the Parties.
4.11 Governing Law
-------------
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California, as such laws are applied to contracts entered
into and performed in such State.
4.12 Counterparts
------------
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
4.13 Each Party to Bear Own Costs.
-----------------------------
Each of the parties shall pay all costs and expenses incurred or to be
incurred by it in negotiating and preparing this Agreement and in closing and
carrying out the transactions contemplated hereby.
Page 14
[signature page follows]
IN WITNESS WHEREOF, the Parties by their duly authorized representatives
have caused this Agreement to be executed as of the Purchase Date first set
forth above.
DEGREES OF CONNECTION LLC
By: /s/ REID HOFFMAN Date: September 22, 2003
------------------------------ ---------------------
Reid Hoffman, Member
By: /s/ MARCUS PINCUS Date: September 22, 2003
------------------------------ ---------------------
Mark Pincus, Member
YOUTHSTREAM MEDIA NETWORKS, INC.
By: /s/ JONATHAN V. DIAMOND Date: September 22, 2003
------------------------------ ---------------------
Jonathan V. Diamond, CEO
SCHEDULE A
to
ASSET PURCHASE AND PATENT ASSIGNMENT AGREEMENT
ADDIGNMENT OF U.S. PATENT NO. 6,175,831
[rest of page intentionally omitted]
ASSIGNMENT OF
-------------
U.S. PATENT NO. 6,175,831
-------------------------
six degrees, inc., a Delaware Corporation, is the Assignor (owner) of U.S.
Patent No. 6,175,831 (hereinafter "the `831 patent") titled "Method and
Apparatus for Constructing a Networking Database and System," as recorded in the
Assignment Division of the United States Patent and Trademark Office.
Degrees of Connection LLC the Assignees (buyers), are desirous of obtaining
all rights, title and interest in, to and under the `831 patent. The address for
the Assignees is 1804 North Shoreline, Boulevard, Suite 210, Mountain View, CA
94043.
Therefore, for good and valuable consideration, the receipt and sufficiency
of which we, the Assignor, hereby acknowledge, we have sold, assigned,
transferred and set over, and hereby sell, assign, transfer and set over to the
Assignees all right, title and interest in, to and under the `831 patent
including all reissues, extensions, renewals, divisions, continuations or
continuations-in-part based in whole or in part upon the `831 patent, the same
to be held and enjoyed by the Assignees for their own use and benefit fully and
entirely as if the same would have been held and enjoyed by the Assignor had
this Assignment not been made.
We hereby authorize the Commissioner of Patents and Trademarks of the
United States, and any official of any other country empowered to issue patents,
to record this Assignment, and to transfer the `831 patent to the Assignees as
owners of all rights, title and interest therein, or otherwise as the Assignee
may direct, in accordance with the terms of this Assignment.
We hereby represent and warrant that we have the full right to convey the
entire right and interest herein assigned, that there are no rights or interests
outstanding inconsistent with the rights and interests granted herein, and that
we will not execute any instrument or grant or transfer any rights or interests
inconsistent with the rights and interests granted herein.
We hereby covenant and agree that we will, upon request of the Assignee,
communicate to the Assignee any facts known to us relating to the `831 patent
and the history thereof, testify in any legal proceeding, execute all lawful
papers, including without limitation all divisional, continuing and reissue
applications and all rightful oaths and declarations, and generally do all
further acts which may be deemed necessary by the Assignee to obtain and enforce
proper protection for the `831 patent.
The Assignor has executed this document on the date indicated below.
By: /s/ JONATHAN V. DIAMOND
------------------------------ Date: September 22, 2003
Name: Jonathan V. Diamond
Title: President and Chief Executive Officer
At: New York, New York
State of: New York
County of: New York
Before me personally appeared said Jonathan V. Diamond and acknowledge the
foregoing instrument to be his free act and deed this 22nd day of September,
2003.
/s/ DINAH STOLLER
Seal ------------------------------
(notary public)
DINAH STOLLER
Notary Public, State of New York
No. 01ST3858740
Qualified in Kings County
Commission Expires September 30, 2005