Assignment and Assumption Agreement and Bill of Sale, dated November 16, 2022, by and among AtlasClear, Atlas FinTech, and Atlas Financial Technologies, Corp

Contract Categories: Business Finance - Assignment Agreements
EX-10.9 12 tm246237d1_ex10-9.htm EXHIBIT 10.9

 

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.

 

2

 

 

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]

 

3

 

 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

 

  Transferors:
   
  ATLAS FINTECH HOLDINGS CORP.
   
   
  By: /s/ Craig Ridenhour
    Name: Craig Ridenhour
    Title: Chief Business Development Officer
   
   
  ATLAS FINANCIAL TECHNOLOGIES CORP.
   
   
  By: /s/ Craig Ridenhour
    Name: Craig Ridenhour
    Title: EVP of Business Development
   
  Transferee:
   
  ATLASCLEAR, INC.
   
   
  By: /s/ Craig Ridenhour
    Name: Craig Ridenhour
    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

 

·Panel
oComponents
oQuotes
oCompensation
oStp
oCommercial blotting paper
oNotifications
·Reports
oHome page
oSTP Requests
oCO Orders
oOrders settled
oExternally administered
oOrders rejected by PE
oMistaken executions
oCustomer Statistics
oConsistency check
oVolume Report
oAccount Transactions
oStreet exposure
oCompensation
oState of the market
oCustomer market statistics
oForeign exchange market statistics
oCurrency clearing statistics
oCustomer Subscriptions
oState Guards
oBank Execution Statistics
oExecution statistics of THE BUYER
oMapping compensation baskets
oImplementation report
·Commercial customers
·Client Connectors
·Liquidity providers
·Strategies
·Execution statistics
oGraphics
oBanks
oClients
oInstruments
·Compensation
·Compensation control
·Customer Subscriptions
·Report completed / rejected
·State of guards
·State of the market
·Street exposure

 

 

 

·Disseminate statistics
oSymbols
oSuppliers
·Administration: Rubicon Users
·Links
·Manual execution
oRun Template
oManage templates
oUpload risk settings
oImplementation report

 

·Execution of orders through the quote board
·Order templates

 

Admin Console

 

·Clients
·Subscription
·Hubs
·Users
·Roles
·Interchange fees
·Manual negotiation

 

Runtime

 

·Internalization of the flow by
oClient ID
oInstrument
oOrder size
oAlpha Customer Group
oDestination basket
·Autocompletar
·Late response
·Execution TTL control
·TTL control of orders on the street
·Forward order support
·Supported order types
oMarket
oLimit FOK
oLimitar IOC
·Limit IOC orders with slide control
·Fast mode processing
oFast market
oNews mode
·Manual controls
·Real-time system management
·Execution policies:
oClearance allowed
oExecution TTL
oStreet Order TTL
oClear the threshold
oMinimum order size
oReprogramación interval
oMaximum attempts
oExecution delay
oLimit swipe control
oMax requests

 

 

 

oExternally administered
oPartial fill enabled
oMarket price compensation
oAutofill new allowed orders
oAutomatic filling override threshold
oAutomatic filling threshold USD

 

Rubicon Compensation

 

·Book B
·Autocompletar
oPreferred autocomplete
oPreferred rejection
oAutomatic 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.
·Hedging orders by:
oInstrument
oMaximum profit
oMaximum loss
oMaximum open exposure (USD)
oOverflow limit

 

Hermes Communications Component

 

·Connectors
oFIX
oITCH
·Message Handler / Translator
·Correct dialect
·Changes to runtime settings
oComp tags
oFIX parameters
oNetwork Properties
·Quick installation/uninstallation of any existing dialect connector
·FIX connection runtime control:
oConnect / Disconnect
oChanging sequences
oChanging comp ids
oUpdating dialect settings

 

Implemented client FIX dialects:

 

·Common Alpha
·Fastmatch
·Currenex
·Bloomberg
·Flex
·First derivatives
·FXAll
·Win
·Hotspot
·Integral
·IOWorks

 

 

 

LP FIX dialects implemented:

 

·Barclays
·Bloomberg
·Broadway
·Citadel
·Citi
·Agricultural Credit
·Credit Suisse
·Currenex
·German bank
·EBS
·Fastmatch
·First derivatives
·Flextrade
·FXAll
·FXCM
·Hotspot
·HSBC
·Integral
·IOWorks
·LMAX
·Morgan Stanley
·Oanda
·Prime XM
·RBS
·Solid FX
·Tower research
·UBS

 

ITCH dialects implemented:

 

·Hotspot

 

Email Notifications

 

·Completed/Rejected Operations
·Execution issues
·Execution recovery
·Quick mode on/off
·Flattening baskets

 

Alerts:

 

·Rejection Monitor
·Exposure Monitor
·Component Monitor
·Customer Order Number Monitor

 

User notifications and registration

 

·Informative
·Warning
·Errors
·Fatal

 

 

 

Strategy module:

 

·Strategy Server
·Strategy Broker
·BUYER'S Strategy
oTarifas Top of the Book
oLP Rates
oStatistics updates for selected customers/baskets
oBusiness events for selected clients
·Commercial strategy
oCount of operations per minute
oTotal count of operations
oMaximum exposure
oMaximum profit / loss
oCustom metrics provided by strategy

 

Institutional Backoffice which Allows Control of Margin Risk and Institutional Clients by Atlas Bank

 

·Margin limit control
·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.
·Customer Reports
·Foreign Exchange Transaction Reports
·SWAP Rate Editor
·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

 

2.Trade Management

 

a.View all Open and Pending trade orders
b.View End of Date Rates
c.View Historic Tick Date

 

3.Credit/Risk Management

 

a.Account Statement
b.Margin Warning
c.Mark-to-Market Summary
d.Risk Hub
e.Margin Monitoring
f.Client Exposure

 

4.System Management

 

a.Class Configuration
b.Symbol (currency pairs) creation/edit
c.Edit Symbols Rollover
d.User Administration
e.Access Groups
f.Send News (proactive push alert functionality)
g.FX Server Info
h.Pending Changes (Maker/Checker two admin approval process)
i.Liquidity provider administration

 

5.Reports

 

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
c.Depth of Market
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
3.Data Extraction

 

a.Historical Data
b.Demographics Data
c.Financial Data
d.Reference Data
e.Issuer Information

 

4.Data Management

 

a.Reference Data
b.Historical Data

 

5.Remote Data Access
6.Bloomberg Integration
7.Web GUI for Whitelabel
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

 

1.Liquid Market View

 

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:

 

i.Market depth

 

ii.Standard single or 2-way Buy/sell ticket

 

iii.Standard single or 2-way Order Amend ticket

 

iv.LMV Economic Details

 

v.Pricer

 

2.Surface

 

a.Tradable products on Surface screen are ATM Straddle, 10Δ BF and RR, 25Δ BF and RR.

 

b.Following can be invoked from LMV:

 

i.Market depth

 

ii.Standard single or 2-way Buy/sell ticket

 

iii.Standard single or 2-way Order Amend ticket

 

iv.Economic Details

 

v.New Surface

 

vi.Amend Surface

 

 

 

vii.Cancel Surface

 

viii.Pricer

 

3.Order Book

 

4.Trade Blotter

 

5.Market Blotter

 

6.Pricer for Options/Strategies:

 

a.Call

 

b.Put

 

c.Strangle

 

d.Straddle

 

e.Risk Reversal

 

f.Calendar Spread

 

7.Expiry Screen with support for 2 cuts.

 

8.Reports

 

9.Spot Quotes/Trading

 

10.Credit Management

 

11.Audit Log

 

12.Chat

 

13.Company Management

 

14.Interest Rates

 

15.User Activity

 

16.Waves – Screen Layout Manager

 

Modules and Components

 

1.Order Management

 

2.Trade Management

 

 

 

3.Matching

 

4.Market View

 

5.Expirations Processing

 

6.User Messaging

 

7.Security Management

 

8.Credit Management

 

9.Trading Calendar

 

10.Static Data

 

11.Market Data

 

12.Pricer

 

13.Web GUI

 

 

 

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

Wilson-Davis logo  

BOND QUANTUM

Bond Quantum logo  

SURFACE EXCHANGE

FARMERS STATE BANK

Farmers State Bank logo   

  

Domain Names:

 

Domain Name Expiration Date
Atlasclear.com 12/18/2024
Bondquantum.com 03/11/2025
Wdco.com 11/02/2024
Wilson-davis.com 11/02/2023
Bankinwyo.com 02/14/2023