Exhibit 10.9
EXECUTION VERSION
ASSIGNMENT AND ASSUMPTION AGREEMENT AND
BILL OF SALE
This ASSIGNMENT AND ASSUMPTION
AGREEMENT AND BILL OF SALE (this “Agreement”), dated as of November 16, 2022, is entered into by and among ATLAS
FINTECH HOLDINGS CORP., a Delaware corporation (“Atlas Fintech”), Atlas Financial Technologies Corp., a Delaware corporation
(“AFTC”, together with the Atlas Fintech, the “Transferors”, and each a “Transferor”),
and ATLASCLEAR, INC., a Wyoming corporation (“Transferee”) (each of Transferor and Transferee, a “Party”
and collectively, the “Parties”).
RECITALS
WHEREAS, Transferor desires
to assign, transfer, convey and deliver (“Convey”) to Transferee all of Transferor’s right, title and interest
in and to the Software Products (as defined below) and all worldwide intellectual property rights associated therewith, including all
(i) patents, patent applications, patent disclosures, and priority rights, utility models, design registrations, certificates of
invention and other governmental grants for the protection of inventions or industrial designs (including additions, provisional applications,
national, regional, and international applications, substitutions, continuations, continuations-in-part, divisionals, continued prosecution
applications, renewals, extensions, revivals, reissues, and reexaminations), (ii) any registered or common law trademarks, service
marks, trade dress, trade names, logos, network or web site domain names or other universal resource locators (URL), and Facebook, Twitter, Instagram,
Snapchat, LinkedIn, and other social networking names, corporate names, doing business as designations (DBAs), fictitious names, together
with all of the goodwill associated therewith, and any applications for registration of the foregoing, (iii) copyrights (registered
or unregistered), works of authorship and copyright registrations and applications for registration thereof, (iv) rights in any
computer software (including source code, object code, macros, scripts, objects, routines, modules, header files, and other components),
data, databases, and documentation thereof, (v) trade secrets, confidential business information, and proprietary know-how, including
concepts, ideas, designs, plans, research or development information and results, processes, procedures, techniques, technical information,
specifications, operating and maintenance manuals, engineering drawings, methods, data (including business, marketing and technical data
and customer, prospect and supplier lists), inventions (whether or not patentable and whether or not reduced to practice), and modifications,
extensions, and/or improvements of any of the foregoing; and (vi) other intellectual property rights (including inventors’
rights and moral rights) throughout the world, relating to the foregoing (including remedies against infringement thereof and rights
of protection of interest thereunder under the any law, statute, legislation, principle of common law, ordinance, code, edict, decree,
proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, order, or consent of all jurisdictions)
and the rights to sue and collect damages for past, present or future infringements or other violations of any of the foregoing, in each
case owned or purported to be owned by Transferor (collectively, the “Transferred Intellectual Property”), including
the following: (a) software known as RUBICON, which shall include the parts and functionality set forth on Annex A hereto,
in object code and source code form and all related documentation, (b) software known as ATLASFX , which shall include the parts
and functionality set forth on Annex B hereto, in object code and source code form and all related documentation, (c) software
known as BOND QUANTUM, which shall include the parts and functionality set forth on Annex C hereto, in object code and source
code form and all related documentation,(d) software known as THE SURFACE EXCHANGE, which shall include the parts and functionality
set forth on Annex D, in object code and source code form and all related documentation ((a) through (d), collectively, the
“Software Products”), and (e) the other intellectual property set forth on Annex E;
WHEREAS, Transferee desires
to accept and assume from Transferor all of Transferor’s obligations and liabilities arising out of, relating to or otherwise in
respect of, the ownership of the Transferred Intellectual Property;
ACTIVE 682187286v4
WHEREAS, Transferor (i) holds
40 Class A Units in Quantum Ventures (the “Units”) and (ii) desires to Convey to Transferee all of Transferor’s
right, title and interest in and to the Units; and
WHEREAS, Transferees desires
to accept and assume from Transferor all of Transferor’s rights, remedies, obligations and liabilities in the Units and agrees
to become a member of, and to be bound by, the Limited Liability Company Agreement of Quantum Ventures, dated as of September 24,
2020 (the “LLC Agreement”).
NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:
1. Transfer
of Transferred Intellectual Property. Transferor hereby irrevocably Conveys to Transferee and its successors and assigns, and Transferee
hereby acquires and accepts, all of Transferor’s right, title, and interest in, to and under the Transferred Intellectual Property.
2. Assignment
and Assumption of Liabilities. Transferee hereby assumes and agrees to pay, perform, satisfy or otherwise discharge when due, all
of the obligations and liabilities arising out of, relating to or otherwise in respect of, the ownership of the Transferred Intellectual
Property (the “Assumed Liabilities”).
3. Authorization.
Transferor authorizes and requests the Commissioner of Patents and Trademarks of the United States, the Register of Copyrights of the
United States, and the corresponding entities, agencies or registrars in the United States or any applicable foreign jurisdictions, whose
duty is to issue patents, trademarks, copyrights or other evidence or forms of industrial property protection on applications as aforesaid,
to issue the same to Transferee and to record Transferee as owner of the Transferred Intellectual Property, as assignee of the entire
right, title and interest in, to and under the same, for the sole use and enjoyment of Transferee its successors, assigns or other legal
representatives
4. Representations &
Warranties.
| (a) | Transferor. Transferor (a) represents
and warrants that (i) it is the legal and beneficial owner of the Transferred Intellectual
Property, (ii) such Transferred Intellectual Property is free and clear of any lien,
encumbrance or other adverse claim, (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and (iv) the Assumed Liabilities are comprised only of liabilities
that have arisen in the ordinary course of the operation of the business of the Transferor. |
| (b) | Transferee. Transferee represents
and warrants that it has full power and authority, and has taken all action necessary, to
execute and deliver this Agreement and to consummate the transactions contemplated hereby. |
5. Amendments.
This Agreement may be amended, modified or supplemented only by a written mutual agreement executed and delivered by Transferor and Transferee.
6. Successors
and Assigns. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted
assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than Transferor or Transferee, and
their respective successors and permitted assigns, any rights, benefits or remedies under or by reason of this Agreement.
7. Headings
and Interpretation. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the
agreement of the Parties and will not in any way affect the meaning or interpretation of this Agreement. As used herein, the word “including”
or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall
not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
8. Governing
Law; Jurisdiction; Waiver of Jury Trial. The validity, interpretation and enforcement of this Agreement will be governed by the laws
of the State of Delaware without regard to the conflict of laws provisions thereof that would cause the laws of another state to apply.
Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular
matter, the United States District Court for the Southern District of New York located in New York, New York or, if such court declines
to accept jurisdiction, then any court of the State of New York sitting in the borough of Manhattan), and any appellate courts thereof,
in any action or proceeding based hereon, or arising out of, under, or in connection with, or relating to this Agreement. Each Party
hereby knowingly, voluntarily, and intentionally irrevocably waives the right to a trial by jury in respect to any litigation, dispute,
claim, legal action or other legal proceeding based hereon, or arising out of, under, or in connection with, this Agreement.
9. Counterparts.
This Agreement may be executed in counterparts, each of which, including those received via facsimile transmission or email (including
in PDF format), will be deemed an original, and all of which will constitute one and the same Instrument.
10. Further
Assurances. Each of the Parties will execute and deliver such additional documents, instruments, conveyances and assurances and take
such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated
hereby. Transferor shall provide Transferee, its successors and assigns with all such assistance as it may reasonably request for the
full utilization of the rights granted in Section 1, above, including, upon request by Transferee to execute and cause its
current or former employees or contractors to execute, as applicable, all applications and any further assignments or other documents
or instruments, sign all lawful papers, and make all rightful oaths necessary or desirable to carry out the purposes or intent of this
Agreement and to aid Transferee or its successors, assigns or other legal representatives to obtain and enforce proper protection for
the Transferred Intellectual Property in all jurisdictions and to record Transferee as owner of the Transferred Intellectual Property,
as assignee of the entire right, title and interest in, to and under the same, for the sole use and enjoyment of Transferee, its successors,
assigns or other legal representatives. Without limiting the foregoing, Transferor will do all things necessary, proper or advisable
to reasonably assist Transferee in transferring all domain names that are Transferred Intellectual Property, including as applicable,
placing each of the domain names in “unlocked” status and provide Transferee the Internet domain name registrars’ transfer
authorization codes for each of the domain names and any other information required to effectuate the transfer of Transferor’s
right, title and interest in the domain names to Transferee. Transferor shall not assert any right, title or interest in or to any of
the Transferred Intellectual Property and shall not use any of the Transferred Intellectual Property except as may be expressly authorized
by Transferee in writing.
11. Intended
Tax Treatment. The Parties intend that each of the transfer of the Transferred Intellectual Property and the transfer of the
Units will constitute a “contribution to the capital of” Transferee within the meaning of Section 118(a) of the
Internal Revenue Code of 1986, as amended (the “Code”), and hereby agree to report consistently therewith for all
tax purposes unless otherwise required by a “determination” within the meaning of Section 1313 of the Code.
[Signature page follows]
IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the date first above written.
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Transferors: |
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ATLAS FINTECH HOLDINGS CORP. |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Title: Chief Business Development Officer |
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ATLAS FINANCIAL TECHNOLOGIES CORP. |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Title: EVP of Business Development |
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Transferee: |
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ATLASCLEAR, INC. |
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By: |
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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Title: Chief Business Development Officer |
[Signature Page to Assignment and Assumption Agreement and Bill of Sale]
ANNEX A
RUBICON
Description
of RUBICON Parts and Functionality to be used and applied to Transferee’s systems and computers (Please refer to the Rubicon
Manual as a display of this Annex A)
RUBICON Modules:
Terminal Features and Functionalities : Rubicon GUI
| o | Commercial
blotting paper |
| o | Customer
market statistics |
| o | Foreign
exchange market statistics |
| o | Currency
clearing statistics |
| o | Bank
Execution Statistics |
| o | Execution
statistics of THE BUYER |
| o | Mapping
compensation baskets |
| · | Report completed / rejected |
| · | Administration: Rubicon
Users |
| · | Execution
of orders through the quote board |
Admin Console
Runtime
| · | Internalization of the
flow by |
| · | TTL control of orders on
the street |
| · | Limit IOC orders with slide
control |
| · | Real-time system management |
| o | Market
price compensation |
| o | Autofill
new allowed orders |
| o | Automatic
filling override threshold |
| o | Automatic
filling threshold USD |
Rubicon Compensation
| o | Automatic
selection (default) |
Exposure Manager
and Monitor
| · | Monitor the profit and
loss exposure of the internalized flow / B-Book |
| · | Balance the compensation
baskets by generating hedging orders when the parameters of the basket exceed the specified
thresholds. |
| · | Send notifications
and alert operators to abnormal conditions. |
| o | Maximum
open exposure (USD) |
Hermes Communications
Component
| · | Message Handler / Translator |
| · | Changes to runtime settings |
| · | Quick
installation/uninstallation of any existing dialect connector |
| · | FIX connection runtime
control: |
| o | Updating
dialect settings |
Implemented client
FIX dialects:
LP FIX dialects
implemented:
ITCH
dialects implemented:
Email Notifications
| · | Completed/Rejected Operations |
Alerts:
| · | Customer
Order Number Monitor |
User notifications
and registration
Strategy module:
| o | Statistics
updates for selected customers/baskets |
| o | Business
events for selected clients |
| o | Count
of operations per minute |
| o | Total
count of operations |
| o | Custom
metrics provided by strategy |
Institutional Backoffice
which Allows Control of Margin Risk and Institutional Clients by Atlas Bank
| · | Automatic
closing of trades on margin calls |
| · | Automatic
settlement of positions on margin calls |
| · | Account
Routing from the Banking System to the corresponding
FX subsystem: Corporate, Institutional or Individual. |
| · | Foreign
Exchange Transaction Reports |
| · | Notifications of non-compliance
with margin levels |
API for Integration
of the 3rd party NOP Panel that Allows Prime Banking Control of Aggregate Credit Levels and by Liquidity Provider (LP) and
NOP of Liquidity Provider (LP)
| · | API to enable credit control
by PB from an external system |
| · | Closure
of operations by PB |
| · | Report
of transactions to PB for NOP control. |
| · | Notifications
of non-compliance with credit levels |
| · | Automatic
closing of operations when the credit limit is reached |
ANNEX B
ATLASFX
Description of Parts and Functionalities of ATLASFX
to be used and applied to the systems and computers of the Transferee
ATLASFX Modules: Terminal Features & Functionality:
| 1. | Client Management for Corporate and White Label (Master) accounts |
| a. | Reset passwords, update client details, change Class Configuration |
| a. | View all Open and Pending trade orders |
| c. | View Historic Tick Date |
| b. | Symbol (currency pairs) creation/edit |
| f. | Send News (proactive push alert functionality) |
| h. | Pending Changes (Maker/Checker two admin approval process) |
| i. | Liquidity provider administration |
| a. | Over 20 different reports for admins to select |
| 6. | Trading Platform Terminal |
| a. | Ability to trade currencies with available margin |
| b. | View currency pair live charts + historic data |
| d. | Automatic app push updates |
| e. | Trade History/Reports/Reconciliation |
| f. | Trade Window highlighting all open trades |
ANNEX C
BOND QUANTUM
Description of BondQuantum Parts and
Functionality to be used and applied to the Transferee's systems and computers
BondQuantum Features &
Functionality:
| 1. | Muni Ratings Report Generator |
| 2. | Reports Storage and Management |
| 8. | Client Access Management |
ANNEX D
THE SURFACE EXCHANGE
Description of The Surface
Exchange Parts and Functionality to be used and applied to the Transferee's systems and computers
The Surface Exchange
Features & Functionality:
GUI Screens
| a. | Each
window displays Standard Tenor Orders in a selected (via dropdowns) Currency Pair, Tradable
Strategy and Cut. |
| b. | Tradable products on LMV screen are ATM
Straddle, 10Δ BF and RR, 25Δ BF and RR, Forward. |
| c. | Following can be invoked from LMV: |
| ii. | Standard single or 2-way Buy/sell ticket |
| iii. | Standard single or 2-way Order Amend
ticket |
| a. | Tradable products on Surface screen are
ATM Straddle, 10Δ BF and RR, 25Δ BF and RR. |
| b. | Following can be invoked from LMV: |
| ii. | Standard single or 2-way Buy/sell ticket |
| iii. | Standard single or 2-way Order Amend
ticket |
| 6. | Pricer for Options/Strategies: |
| 7. | Expiry Screen with support for 2 cuts. |
| 16. | Waves – Screen Layout Manager |
Modules and Components
ANNEX E
OTHER TRANSFERRED INTELLECTUAL PROPERTY
Copyright Applications and Registrations:
| Title |
Registration
No. |
Registration
Date |
Copyright
Claimant |
| Rubicon |
TX0008254807 |
4/12/2016 |
Atlas Financial
Technologies Corp. |
Unregistered Trademarks:
RUBICON
ATLASFX
| ▇▇▇▇▇▇-▇▇▇▇▇ logo |
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BOND QUANTUM
| Bond Quantum logo |
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SURFACE EXCHANGE
FARMERS STATE BANK
| Farmers State Bank logo |
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Domain Names:
| Domain Name |
Expiration
Date |
| ▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
12/18/2024 |
| ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
03/11/2025 |
| ▇▇▇▇.▇▇▇ |
11/02/2024 |
| ▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇ |
11/02/2023 |
| ▇▇▇▇▇▇▇▇▇.▇▇▇ |
02/14/2023 |