Exhibit 10.4


 


EXHIBIT
C 


 


AGREEMENT
FOR THE ASSIGNMENT AND ASSUMPTION OF CONTRACTS, 

INTELLECTUAL PROPERTY, TRADE SECRETS, AND BUSINESS OPPORTUNITIES 


 


This
Assignment and Assumption Agreement (this “Agreement”) is dated as of May 24, 2022, (the “Effective Date”),
by and among JanOne, Inc., and GeoTraq, Inc., each a Nevada corporation (collectively, the “Seller”), and SPYR, Inc. a Nevada
corporation (“Buyer”). Seller and Buyer may be collectively referred to as the “Parties.”


 


RECITALS


 


WHEREAS,
Assigning Party is a Nevada corporation formed and operating in good standing under the laws of the State of Nevada. The Parties entered
into an Asset Purchase Agreement dated May 24, 2022, whereby Seller sold, and Buyer purchased, the Business of Seller as is more fully
described in Section 1.01 of the Asset Purchase Agreement (“Assigned Assets.”).


 


WHEREAS,
Assigning Party desires to assign to Assuming Party the Assigned Assets, and Assuming Party agrees to assume only the Assigned Assets,
with no assumption of any liabilities associated therewith, with respect to the Assigned Assets as of the Effective Date.


 


NOW,
THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


The
Parties incorporate by reference the Recitals above into this Agreement and waive any rule of contract construction or interpretation
that would limit or disallow any court of competent jurisdiction or arbitrator from referring to the Recitals in construing or enforcing
this Agreement.


 


		1.	Assignment
                                            and Assumption.



 


		1.1	Assignment.
                                            Assigning Party irrevocably sells, assigns, grants, conveys, and transfers to Assuming Party
                                            Assigning Party’s right, title, and interest in and to the Assigned Assets.



 


		1.2	Assumption.
                                            Assuming Party unconditionally accepts such assignment of the Assigned Assets, including,
                                            without limitation, the Assigned Assets set forward in Section 1.01 of the Asset Purchase
                                            Agreement, as the date of the Effective Date.



 





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		2.	Release.



 


		2.1	Release.



 


(a)
With the exception of liabilities not assumed by Assuming Party pursuant to Section 1.02 of the Asset Purchase Agreement, which
shall remain the sole responsibility of Assigning Party, Assuming Party releases and forever discharges Assigning Party, as well
as its shareholders, directors, officers, employees, agents, and representatives, from all further obligations arising under the Assigned
Assets, and from all manner of actions, causes of action, suits, debts, damages, expenses, claims, and demands whatsoever arising out
of or in any way connected to performance under the Assigned Assets.


 


		2.2	Substitution.
                                            The parties intend that this Agreement is a novation and that the Assuming Party be substituted
                                            for the Assigning Party in all respects concerning the Assigned Assets. Assigning Party recognizes
                                            Assuming Party as Assigning Party’s successor-in-interest in and to the Assigned Assets.
                                            Assuming Party by this Agreement becomes entitled to all right, title, and interest of Assigning
                                            Party in and to the Assigned Assets in as much as Assuming Party is the substituted party
                                            to the Assigned Assets as of and after the Effective Date. Assuming Party shall be bound
                                            by the terms of the Assigned Assets in every way as if Assuming Party were named in the novated
                                            Assigned Assets in place of Assigning Party as a party thereto. Assigning Party represents
                                            and warrants that there is no payment or other liability of Assigning Party which has accrued
                                            and remains outstanding as of the Effective Date, which on the Effective Date, Assuming Party
                                            and Assigning Party agree becomes the sole responsibility of Assuming Party and not of Assigning
                                            Party.



 


		3.	Consideration.
                                            In exchange for Assuming Party’s assumption of the Assigned Assets, Assigning Party
                                            receives the release in Section 2 hereof.



 


		4.	Representations
                                            and Warranties.



 


		4.1	Assigning
                                            Party’s Representations and Warranties. Assigning Party represents and warrants
                                            as follows:



 


(a)
It is duly organized, validly existing, and in good standing under the laws of Nevada.


 


(b)
It is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required
for purposes of this Agreement.


 


(c)
It has the full right, corporate power, and authority to enter into this Agreement and to perform its obligations hereunder.


 





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(d)    It has taken all necessary corporate action to authorize the execution of this Agreement by its representative whose signature is set
forth at the end hereof.


 


(e)
When executed and delivered by it, this Agreement will constitute the legal, valid, and binding obligation of Assigning Party, enforceable
against it in accordance with its terms and not subject to defenses.


 


(f)
It is the sole legal and beneficial owner of all the rights under the Assigned Assets on the Effective Date, free and clear of any lien,
security interest, charge, or encumbrance.


 


(g)    The Assigned Assets have not been amended or modified as of the Effective Date.


 


(h)
The Assigned Assets are in full force and effect on the Effective Date. No event or condition has occurred that is, or with notice or
passage of time would be, an event of default or termination under any of the Assigned Assets. There are no material disputes pending
or, to its knowledge threatened related to any rights or obligations transferred by this Agreement.


 


(i)
It has performed all of its obligations under the Assigned Assets that are required to be performed on or before the Effective Date.


 


		4.2	Assuming
                                            Party’s Representations and Warranties. Assuming Party represents and warrants
                                            as follows:



 


(a)
It is duly organized, validly existing, and in good standing under the laws of Nevada.


 


(b)
It is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required
for purposes of this Agreement.


 


(c)
It has the full right, corporate power, and authority to enter into this Agreement and to perform its obligations hereunder.


 


(d)
It has taken all necessary corporate action to authorize the execution of this Agreement by its representative whose signature is set
forth at the end hereof.


 


(e)
When executed and delivered by it, this Agreement will constitute the legal, valid, and binding obligation of Assuming Party, enforceable
against it in accordance with its terms.


 





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		5.	Indemnification.



 


		5.1	Assigning
                                            Party/Assuming Party/Mutual Indemnification. Subject to the terms and conditions set
                                            forth in Section 5.2, the Parties (each an “Indemnifying Party”) shall
                                            indemnify, hold harmless, and defend the other Party and its officers, directors, employees,
                                            agents, affiliates, successors, and permitted assigns (collectively, “Indemnified
                                            Party”) against any and all losses, damages, liabilities, deficiencies, claims,
                                            actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of
                                            whatever kind, including reasonable attorney fees, that are incurred by Indemnified Party
                                            in a final non-appealable judgment (collectively, “Losses”), relating
                                            to/arising out of or resulting from any third-party claim, action, cause of action, demand,
                                            lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation,
                                            summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory,
                                            or other, whether at law, in equity, or otherwise (“Claim”) or any direct
                                            Claim against Indemnifying Party alleging:



 


(a)
A material breach or non-fulfillment of any material representation, warranty, or covenant under any representation or warranty set forth
in this Agreement by Indemnifying Party or its representatives;


 


(b)    Any grossly negligent or more culpable act or omission of Indemnifying Party or any of its representatives (including any reckless or
willful misconduct) in connection with the performance of its obligations under this Agreement; or,


 


(c)
Any damage to real or tangible personal property caused by the grossly negligent or more culpable acts or omissions of Indemnifying Party
or its representatives including any reckless or willful misconduct;


 


(d)
Any failure by Indemnifying Party to materially comply with any applicable U.S. federal, state, or local laws, regulations, or codes
in the performance of its obligations under this Agreement; or


 


(e)
Any liability not assumed by Assuming Party pursuant to the Asset Purchase Agreement.


 


		5.2	Exceptions
                                            and Limitations on Indemnification. Despite anything to the contrary in this Agreement,
                                            Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any
                                            Claim if such Claim or corresponding Losses arise out of or result from, in whole or in part,
                                            Indemnified Party’s:



 


(a)
Gross negligence or more culpable act or omission (including recklessness or willful misconduct); or


 


(b)
Bad faith failure to materially comply with any of its material obligations set forth in this Agreement.


 





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		5.3	Sole
                                            Remedy. THIS SECTION 5 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING
                                            PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY LOSSES COVERED
                                            UNDER



 


SECTION
5.


 


		6.	Miscellaneous.



 


		6.1	Further
                                            Assurances. On the other party’s reasonable request, each party shall, at its sole
                                            cost and expense, execute and deliver all such further documents and instruments, and take
                                            all such further acts, necessary to give full effect to this Agreement.



 


		6.2	Survival.
                                            Subject to the limitations and other provisions of this Agreement: (a) the representations
                                            and warranties of the Parties contained herein will survive the expiration or earlier termination
                                            of this Agreement for a period of 12 months after such expiration or termination; and (b)
                                            all sections of this Agreement, as well as any other provision that, in order to give proper
                                            effect to its intent, should survive such expiration or termination, will survive the expiration
                                            or earlier termination of this Agreement for the period specified therein, or if nothing
                                            is specified for a period of 12 months after such expiration or termination.



 


		6.3	Notices.
                                            Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other
                                            communications under this Agreement (each, a “Notice”) in writing and
                                            addressed to the other party at its address set forth below (or to such other address that
                                            the receiving party may designate from time to time in accordance with this section). Each
                                            party shall deliver all Notices by personal delivery, nationally recognized overnight courier
                                            (with all fees prepaid), facsimile [or email] (with confirmation of transmission), or certified
                                            or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise
                                            provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party,
                                            and (b) if the party giving the Notice has complied with the requirements of this Section.



 


	If
    to Assigning Party: 	 	JanOne,
Inc.

    325
E. Warm Springs Road

    Suite
102

    Las
Vegas, NV 89119

    Facsimile:
[FAX NUMBER]

    Email:
T.isaac@isaac.com

    Attention:
Chief Executive Officer




 



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	with
    a mandatory copy (that does not constitute notice) to:

     
	 	Clark
Hill PLC

    555
Flower Street, 24th Floor

    Los
Angeles, CA 90071

    Email:
rkatz@clarkhill.com

    Attention:
Randy Katz

	 	 	 
	If
    to Assuming Party: 	 	SPYR,
Inc.

    6700
Woodlands Parkway

    Ste.
230

    The
Woodlands, TX 77382

    Email:
timmatula@comcast.net

    Attention:
Tim Matula

	 	 	 
	with
    a mandatory copy (that does not constitute notice) to:

     
	 	Mailander
Law Office, Inc.

    4811
49th Street

    San
Diego, CA 92115

    Email:
tad@mailanderlaw.net

    Attention:
Tad Mailander




 

		6.4	Interpretation.
                                            For purposes of this Agreement: (a) the words “include,” “includes,”
                                            and “including” are deemed to be followed by the words “without limitation”;
                                            (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,”
                                            “hereby,” “hereto,” and “hereunder” refer to this Agreement
                                            as a whole. Unless the context otherwise requires, references in this Agreement: (x) to sections,
                                            schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this
                                            Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument,
                                            or other document as amended, supplemented, and modified from time to time to the extent
                                            permitted by the provisions thereof; and (z) to a statute means such statute as amended from
                                            time to time and includes any successor legislation thereto and any regulations promulgated
                                            thereunder. The parties drafted this Agreement without regard to any presumption or rule
                                            requiring construction or interpretation against the party drafting an instrument or causing
                                            any instrument to be drafted. The schedules and exhibits referred to herein are an integral
                                            part of this Agreement to the same extent as if they were set forth verbatim herein.



 





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		6.5	Headings.
                                            The headings in this Agreement are for reference only and do not affect the interpretation
                                            of this Agreement.



 


		6.6	Severability.
                                            If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction,
                                            such invalidity, illegality, or unenforceability does not affect any other term or provision
                                            of this Agreement or invalidate or render unenforceable such term or provision in any other
                                            jurisdiction. On such determination that any term or other provision is invalid, illegal,
                                            or unenforceable, the parties to this Agreement shall negotiate in good faith to modify this
                                            Agreement so as to effect the original intent of the parties as closely as possible in a
                                            mutually acceptable manner in order that the transactions contemplated hereby be consummated
                                            as originally contemplated to the greatest extent possible.



 


		6.7	Entire
                                            Agreement. This Agreement, together with all related exhibits and schedules, is the sole
                                            and entire agreement of the parties to this Agreement regarding the subject matter contained
                                            herein and therein, and supersedes all prior and contemporaneous understandings, agreements,
                                            representations, and warranties, both written and oral, regarding such subject matter.



 


		6.8	Amendment
                                            and Modification. No amendment to or rescission, termination, or discharge of this Agreement
                                            is effective unless it is in writing, identified as an amendment to or rescission, termination,
                                            or discharge of this Agreement and signed by an authorized representative of each party to
                                            this Agreement.



 


		6.9	Waiver.



 


(a)
No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized
representative of the party waiving its right.


 


(b)
Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver
on any future occasion.


 


(c)
None of the following is a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:


 


(i)
any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or


 


(ii)
any act, omission, or course of dealing between the parties.





 






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		6.10	Cumulative
                                            Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive,
                                            and the exercise by either party of any right or remedy does not preclude the exercise of
                                            any other rights or remedies that may now or subsequently be available at law, in equity,
                                            by statute, in any other agreement between the parties, or otherwise. Despite the previous
                                            sentence, the parties intend that Indemnified Party’s rights under Section 6 are its
                                            exclusive remedies for the events specified therein.


 


		6.11	Equitable
                                            Remedies. Each Party acknowledges that a breach or threatened breach by it of any of
                                            its obligations under this Agreement would give rise to irreparable harm to the other Party
                                            for which monetary damages would not be an adequate remedy and hereby agrees that if a breach
                                            or a threatened breach occurs, the other Party will, in addition to any and all other rights
                                            and remedies that may be available to it arising from such breach, be entitled to seek equitable
                                            relief, including a temporary restraining order, an injunction, specific performance, and
                                            any other relief that may be available from a court of competent jurisdiction (without any
                                            requirement to post bond).



 


		6.12	No
                                            Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement
                                            and their respective successors and assigns and nothing in this Agreement, express or implied,
                                            confers on any other Person any legal or equitable right, benefit, or remedy of any nature
                                            whatsoever under or by reason of this Agreement.



 


		6.13	Choice
                                            of Law. This Agreement and all related documents including all schedules and exhibits
                                            attached hereto, and all matters arising out of or relating to this Agreement, whether sounding
                                            in contract, tort, or statute are governed by, and construed in accordance with, the laws
                                            of the State of Nevada, United States of America, without giving effect to the conflict of
                                            laws provisions thereof to the extent such principles or rules would require or permit the
                                            application of the laws of any jurisdiction other than those of the State of Nevada.



 


		6.15	Choice
                                            of Forum. Each party irrevocably and unconditionally agrees that it will not commence
                                            any action, litigation, or proceeding of any kind whatsoever against the other party in any
                                            way arising from or relating to this Agreement, and exhibits and schedules attached hereto,
                                            and all contemplated transactions, including, but not limited to, contract, equity, tort,
                                            fraud, and statutory claims], in any forum other than the state or federal courts of the
                                            State of Nevada sitting in Las Vegas, Nevada, and any appellate court from any thereof. Each
                                            party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts
                                            and agrees to bring any such action, litigation, or proceeding only in the state or federal
                                            courts of the State of Nevada sitting in Las Vegas. Each party agrees that a final judgment
                                            in any such action, litigation, or proceeding is conclusive and may be enforced in other
                                            jurisdictions by suit on the judgment or in any other manner provided by law.



 





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		6.16	WAIVER
                                            OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT



 


ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS AND SCHEDULES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY ABOUT ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS OR SCHEDULES ATTACHED TO
THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. [EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IF OF A
LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D)
SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.]


 


		6.17	Counterparts.
                                            This Agreement may be executed in counterparts, each of which is deemed an original, but
                                            all of which together are deemed to be one and the same agreement. A signed copy of this
                                            Agreement delivered by facsimile, email, or other means of electronic transmission is deemed
                                            to have the same legal effect as delivery of an original signed copy of this Agreement.



 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.


 


JANONE,
INC. 


GEOTRAQ,
INC. 


 


	By	/s/ TONY ISAAC	 
	Name:	TONY ISAAC	 
	Title:	Chief Executive Officer	 







 


	SPYR, INC.	 
	 	 	 
	By	/s/ TIM MATULA	 
	Name:	TIM MATULA	 
	Title:	Chief Executive Officer	 







 



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