TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT is made as of the 23rd day of June, 2004, with the Effective
Date of February 24, 2004, by and between MULTITRADE TECHNOLOGIES LLC, a limited
liability company organized under the laws of Delaware ("MTT"), THE XXXXXXX
XXXXXX COMPANY, a Florida corporation ("JRC") and XXXXXXX RIVERS TECHNOLOGIES,
INC., a Nevada corporation ("JRT"). MTT is herein sometimes referred to as the
"Licensor." JRT is sometimes referred to as "Licensee."
WHEREAS, Licensor owns certain distribution rights to STEPS(C), an
Enterprise Management System (EMS) software development platform, as described
in the Kisnet-MTT exclusive distribution agreement, attached hereto as an
exhibit and made part hereof for all purposes; and
WHEREAS, Licensee desires to license these distribution rights from the
Licensor and the Licensor is willing to grant such an exclusive license to
Licensee in exchange for consideration as hereinafter provided; and
NOW, THEREFORE, in consideration of the foregoing and the following mutual
covenants and agreements, the parties hereto agree as follows:
I
DEFINITIONS
1.1 "Affiliate" means any business entity more than 50 percent owned by
the Licensee, or any business entity that is more than 50 percent owned by a
business entity that owns more than 50 percent of the Licensee.
1.2 "Confidential Information" means the proprietary or confidential
information of a party (each, a "Discloser") which is disclosed to the other
party (each, a "Recipient") before or after the Closing and (i) is identified as
"confidential" by Discloser in writing prior to disclosure and (ii) relates to
products, plans, designs, costs, prices, finances, marketing plans, business
opportunities, personnel, research, development, know-how, trade secrets,
inventions, blueprints, techniques, algorithms, software programs, designs,
contracts, customer lists, procedures, patent applications and other information
relating to Discloser's business, services, processes or technology.
Confidential Information shall not include information that Recipient proves:
(i) was known by Recipient, or was publicly available, prior to disclosure by
Discloser to Recipient; (ii) became publicly available after disclosure by
Discloser to Recipient through no act of Recipient; (iii) is hereafter
rightfully furnished to Recipient by a third party without confidentiality
restriction; or (iv) is disclosed with the prior written consent of Discloser or
as expressly authorized under this Agreement.
1.3 "Licensed Technology" means the STEPS(C) Enterprise Management
System (EMS) software development platform, which is described in Exhibit A of
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this Agreement. Notwithstanding anything to the contrary contained in this
Agreement, the scope of the license granted by this Agreement to JRT and JRC is
limited to the rights of MTT to license the STEPS(C) technology, contained in
the STEPS(C) Distribution Agreement between Kisnet Corporation and MTT,
contained in Exhibit A of this Agreement.
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1.4 "Know-How" means any and all information, processes, procedures,
documents and materials relating to the deployment of Licensed Products known to
Licensor as of the Closing.
1.5 "Licensed Products" means any EMS systems developed using STEPS(C).
1.6 "Licensed Technical Information" means Licensor's rights in any
technical information, Know-How, processes, procedures, compositions, devices,
methods, protocols, techniques, software, designs, drawings or data which are
necessary or useful for using the Licensed Products.
1.7 "Term" has the meaning set forth in Section III.
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1.8 "Closing" shall occur 30 days after the parties to this Agreement
provide each other with written notice of their intent to close this Agreement.
1.9 "Effective Date" means February 24, 2004.
II
LICENSE, TECHNOLOGY TRANSFER
2.1 License. Subject to the terms and conditions of this Agreement,
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Licensor hereby grants to Licensee, a worldwide, (excluding the territories as
defined in Schedule E of the Kisnet-MTT Agreement), exclusive (even as to
Licensor) license, with the right to sublicense, the distribution rights therein
to make, have made, use, import, reproduce, offer to sell and/or sell Licensed
Products. The transfer of the license has occurred on the Effective Date of
this Agreement.
2.2 Sublicenses. Licensee may grant sublicenses under Licensed
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Technology consistent with the terms of Section 2.1 and this Agreement.
2.3 Technology Transfer. No later than 30 days following the Closing,
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Licensor shall deliver to Licensee all Licensed Technology.
III
CONSIDERATION, TERM
3.1 Consideration. The consideration for the rights granted by
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Licensor to Licensee under this Agreement shall be paid in the form of a
one-time non-refundable cash payment in the amount of $200,000.00 to be
delivered by the Licensee to the Licensor at the Closing. At Licensor's option,
the $200,000.00 can be paid in the common stock of JRC with a conversion rate
not to exceed 4.99 percent of JRC's issued and outstanding common stock at any
one time, with the conversion price equal to the lower of $0.10 or 80 percent of
the average of the three lowest closing bid prices from the 20 trading days
immediately preceding the date of the conversion. In addition, the Licensee
will pay to the Licensor the fees as set forth in Section VIII of the Kisnet-MTT
Exclusive Distribution Agreement for STEPS(C), attached hereto as Exhibit A and
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made a part hereof for all purposes.
.2 Term. The initial term of this Agreement shall be one year from the
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Effective Date. Thereafter this Agreement will automatically renew each year
for a total term of five years unless terminated as specified in the Termination
section XI of the Kisnet-MTT Exclusive Distribution agreement for STEPS(C).
IV
OWNERSHIP
4.1 Ownership. Except for the licenses granted herein and as set forth
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in Paragraph 2.1, Licensor shall retain all of its rights, title and interests,
which it may have, in the underlying Licensed Technology.
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V
CONFIDENTIAL INFORMATION
5.1 Nondisclosure. Recipient shall not, except as otherwise expressly
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provided herein, disclose, disseminate or otherwise allow access to the
Confidential Information of Discloser to anyone other than Recipient's employees
that have a need to know such Confidential Information to implement this
Agreement and who are bound by written confidentiality obligations. Recipient
shall prevent unauthorized disclosure or use of the Confidential Information of
Discloser. Recipient shall be responsible for any breach of this Section V by
Recipient's employees, contractors or agents.
5.2 Ownership. Except as set forth herein, Recipient acknowledges and
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agrees that Discloser (or its licensors) owns all rights, title and interests,
in and to Discloser's Confidential Information.
5.3 Notification. If Recipient learns or believes that any person who
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has had access to the Confidential Information of Discloser has violated or
intends to violate this Agreement, Recipient shall immediately notify Discloser
and shall cooperate with Discloser in seeking injunctive or other equitable
relief against any such person.
5.4 Reproduction of Confidential Information. Confidential Information
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shall not be reproduced except as required to implement this Agreement. Any
reproduction or derivative of any Confidential Information of Discloser by
Recipient shall remain the property of Discloser and shall contain all
confidential or proprietary notices or legends which appear on the original.
VI
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of the Licensor. Where a
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representation contained in this Agreement is qualified by the phrase "to the
best of the Licensor's knowledge" (or words of similar import), such expression
means that, after having conducted a due diligence review, the Licensor believes
the statement to be true, accurate, and complete in all material respects.
Knowledge shall not be imputed nor shall it include any matters which such
person should have known or should have been reasonably expected to have known.
The Licensor represents and warrants to Licensee as follows:
(a) Power and Authority. The Licensor has full power and
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authority to execute, deliver, and perform this Agreement and all other
agreements, certificates or documents to be delivered in connection herewith,
including, without limitation, the other agreements, certificates and documents
contemplated hereby (collectively the "Other Agreements").
(b) Binding Effect. Upon execution and delivery by the Licensor,
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this Agreement and the Other Agreements shall be and constitute the valid,
binding and legal obligations of the Licensor, enforceable against the Licensor
in accordance with the terms hereof and thereof, except as the enforceability
hereof or thereof may be subject to the effect of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, and (ii) general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).
(c) Effect. Neither the execution and delivery of this Agreement
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or the Other Agreements nor full performance by the Licensor of its obligations
hereunder or thereunder will violate or breach, or otherwise constitute or give
rise to a default under, the terms or provisions of the Certificate of
Formation, or the Limited Liability Company Agreement of MTT or, subject to
obtaining any and all necessary consents, of any contract, commitment or other
obligation of MTT or necessary for the operation of MTT's business (the
"Business") following the Closing or any other material contract, commitment, or
other obligation to which MTT is a party, or create or result in the creation of
any encumbrance on any of the property of MTT. MTT is not in violation of its
Certificate of Formation, or the Limited Liability Company Agreement, or of any
indebtedness, mortgage, contract, lease, or other agreement or commitment.
(d) No Consents. No consent, approval or authorization of, or
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registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or
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made by the Licensor prior to the Closing to authorize the execution, delivery
and performance by the Licensor of this Agreement or the Other Agreements.
(e) The Licensor's Representations and Warranties True and
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Complete. All representations and warranties of the Licensor in this Agreement
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and the Other Agreements are true, accurate and complete in all material
respects as of the Closing.
(f) No Knowledge of JRT's Default. The Licensor has no knowledge
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that any of JRT's representations and warranties contained in this Agreement or
the Other Agreements are untrue, inaccurate or incomplete or that JRT is in
default under any term or provision of this Agreement or the Other Agreements.
(g) No Untrue Statements. No representation or warranty by the
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Licensor in this Agreement or in any writing furnished or to be furnished
pursuant hereto, contains or will contain any untrue statement of a material
fact, or omits, or will omit to state any material fact required to make the
statements herein or therein contained not misleading.
(h) Reliance. The foregoing representations and warranties are
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made by the Licensor with the knowledge and expectation that JRT is placing
complete reliance thereon.
6.2 Representations and Warranties of JRT. Where a representation
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contained in this Agreement is qualified by the phrase "to the best of JRT's
knowledge" (or words of similar import), such expression means that, after
having conducted a due diligence review, the principals of JRT believe the
statement to be true, accurate, and complete in all material respects.
Knowledge shall not be imputed nor shall it include any matters which such
person should have known or should have been reasonably expected to have known.
JRT hereby represents and warrants to the Licensee as follows:
(a) Power and Authority. JRT has full power and authority to
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execute, deliver and perform this Agreement and the Other Agreements.
(b) Binding Effect. Upon execution and delivery by JRT, this
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Agreement and the Other Agreements shall be and constitute the valid, binding
and legal obligations of JRT, enforceable against JRT in accordance with the
terms hereof or thereof, except as the enforceability hereof and thereof may be
subject to the effect of (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally, and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) No Consents. No consent, approval or authorization of, or
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registration, declaration or filing with any third party, including, but not
limited to, any governmental department, agency, commission or other
instrumentality, will, except such consents, if any, delivered or obtained on or
prior to the Closing, be obtained or made by JRT prior to the Closing to
authorize the execution, delivery and performance by JRT of this Agreement or
the Other Agreements.
(d) JRT's Representations and Warranties True and Complete. All
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representations and warranties of JRT in this Agreement and the Other Agreements
are true, accurate and complete in all material respects as of the Closing.
(e) No Knowledge of the Licensor's Default. JRT has no knowledge
---------------------------------------
that any of the Licensor's representations and warranties contained in this
Agreement is untrue, inaccurate or incomplete in any respect or that the
Licensor is in default under any term or provision of this Agreement or the
Other Agreements.
(f) No Untrue Statements. No representation or warranty by JRT in
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this Agreement or in any writing furnished or to be furnished pursuant hereto,
contains or will contain any untrue statement of a material fact, or omits, or
will omit to state any material fact required to make the statements herein or
therein contained not misleading.
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(g) Reliance. The foregoing representations and warranties are
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made by JRT with the knowledge and expectation that the Licensor is placing
complete reliance thereon.
VII
CONDITIONS PRECEDENT
7.1 Conditions Precedent to Obligations of JRT and JRC. All obligations
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of JRT and JRC under this Agreement are subject to the fulfillment, prior to or
at the Closing, of the following conditions:
(a) Representations and Warranties True at the Closing. The
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representations and warranties of the Licensor herein shall be deemed to have
been made again as of the Closing, and then be true and correct, subject to any
changes contemplated by this Agreement. The Licensor shall have performed all
of the obligations to be performed by them hereunder on or prior to the Closing.
(b) Proof of Authority. JRT's counsel shall have received
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evidence reasonably sufficient to such counsel that the Licensor has all
requisite authorizations necessary for consummation by the Licensor of the
transactions contemplated hereby, and there has not been issued, and there is
not in effect, any injunction or similar legal order prohibiting or restraining
consummation of any of the transactions herein contemplated, and no legal or
governmental action, proceeding or investigation which might reasonably be
expected to result in any such injunction or order is pending.
(c) Deliveries at the Closing. The Licensor shall have delivered
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to JRT and JRC at the Closing all of the documents required to be delivered
hereunder.
(d) MTT-Kisnet Agreement. All necessary actions have been taken
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and all necessary approvals have been obtained by MTT prior to the Closing in
order to ensure that all of the rights and obligations of MTT and Kisnet
Corporation, Inc. under the KISNET-MTT STEPS(C) Distribution Agreement continue
without any modification or interruption immediately following the Closing. The
valid and binding agreement of Kisnet to assign the KISNET-MTT STEPS(C)
Distribution Agreement in favor of JRT is attached hereto as Exhibit B and made
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part hereof for all purposes.
(e) Certificate. Licensor shall have delivered to JRT and JRC at
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the Closing a certificate dated as of the Closing executed by the Licensor,
certifying that the conditions specified in subparagraphs (a), (c), and (d) of
this Paragraph 7.1 have been fulfilled.
(f) Other Matters. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to JRT and their counsel, whose approval shall not be unreasonably withheld.
7.2 Conditions Precedent to Obligations of the Licensor. All
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obligations of the Licensor under this Agreement are subject to the fulfillment,
prior to or at the Closing, of the following conditions:
(a) Representations and Warranties True at Closing. The
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representations and warranties of JRT herein shall be deemed to have been made
again at the Closing, and then be true and correct, subject to any changes
contemplated by this Agreement. JRT shall have performed all of the obligations
to be performed by JRT hereunder on or prior to the Closing.
(b) Proof of Authority. The Licensor's counsel shall have
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received evidence reasonably sufficient to such counsel that JRT has all
requisite authorizations necessary for consummation by JRT of the transactions
contemplated hereby, and there has not been issued, and there is not in effect,
any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation that might reasonably be expected to result
in any such injunction or order is pending.
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(c) Certificate. JRT shall have delivered to the Licensor at the
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Closing a certificate dated as of the applicable closing, executed by the
President and Secretary of JRT, certifying that the conditions specified in
subparagraphs (a) and (b) of this Paragraph 7.2 have been fulfilled.
(d) Order. There has not been issued, and there is not in effect,
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any injunction or similar legal order prohibiting or restraining consummation of
any of the transactions herein contemplated, and no legal or governmental
action, proceeding or investigation which might reasonably be expected to result
in any such injunction or order is pending.
(e) Other Matters. All corporate and other proceedings and
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actions taken in connection with the transactions contemplated hereby and all
certificates, opinions, agreements, instruments and documents mentioned herein
or incident to any such transaction shall be satisfactory in form and substance
to the Licensor and its counsel, whose approval shall not be unreasonably
withheld.
7.3 The Nature and Survival of Representations, Covenants and
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Warranties. All statements and facts contained in any memorandum, certificate,
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instrument, or other document delivered by or on behalf of the parties hereto
for information or reliance pursuant to this Agreement, shall be deemed
representations, covenants and warranties by the parties hereto under this
Agreement. All representations, covenants and warranties of the parties shall
survive the Closing and all inspections, examinations, or audits on behalf of
the parties, shall expire one year following the Closing.
VIII
INDEMNIFICATION BY THE LICENSOR
8.1 Indemnification by the Licensor. The Licensor agrees to indemnify
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and hold harmless JRT and JRC against and in respect to all damages (as
hereinafter defined) in excess of $500.00. Damages, as used herein shall
include any claim, salary, wage, action, tax, demand, loss, cost, expense,
liability (joint or several), penalty, and other damage, including, without
limitation, counsel fees and other costs and expenses reasonably incurred in
investigating or attempting to avoid same or in opposition to the imposition
thereof, or in enforcing this indemnity, resulting to JRT and JRC from any
inaccurate representation made by or on behalf of the Licensor in or pursuant to
this Agreement, breach of any of the warranties made by or on behalf of the
Licensor in or pursuant to this Agreement, or breach or default in the
performance by the Licensor of any of the obligations to be performed by them
hereunder. Hereunder, JRC shall determine whether JRT or JRC is entitled to be
indemnified and such determination shall be binding on the Licensor.
Notwithstanding anything contained in this Agreement to the contrary, the
right to indemnification described in this paragraph shall expire one year after
the Closing hereunder, except in the case of the proven fraud by the Licensor
hereunder as determined by a court of competent jurisdiction in connection with
any such claim for indemnification, in which event such right to indemnification
shall expire one year after the discovery of such fraud.
IX
INDEMNIFICATION BY THE LICENSEE
9.1 Indemnification by JRT and JRC. JRT and JRC agree to indemnify
---------------------------------
and hold harmless the Licensor against and in respect to all damages (as
hereinafter defined) in excess of $500.00. Damages, as used herein shall
include any claim, salary, wage, action, tax, demand, loss, cost, expense,
liability (joint or several), penalty, and other damage, including, without
limitation, counsel fees and other costs and expenses reasonably incurred in
investigating or attempting to avoid same or in opposition to the imposition
thereof, or in enforcing this indemnity, resulting to the Licensor from any
inaccurate representation made by or on behalf of JRT and JRC in or pursuant to
this Agreement, breach of any of the warranties made by or on behalf of JRT and
JRC in or pursuant to this Agreement, or breach or default in the performance by
JRT and JRC of any of the obligations to be performed by them hereunder.
JRT and JRC shall reimburse and/or pay on behalf of Licensor on demand for
any payment made or required to be made by MTT at any time after the
Closing based upon the judgment of any court of competent
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jurisdiction or pursuant to a bona fide compromise or settlement of claims,
demands or actions, in respect to the damages to which the foregoing indemnity
relates.
Notwithstanding anything contained in this Agreement to the contrary, the
right to indemnification described in this paragraph shall expire one year after
the Closing hereunder, except in the case of the proven fraud by JRT and JRC
hereunder as determined by a court of competent jurisdiction in connection with
any such claim for indemnification, in which event such right to indemnification
shall expire one year after the discovery of such fraud.
X
DEFAULT
10.1 Default by JRT and JRC. If the Licensor does not default hereunder
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and JRT and JRC default hereunder and fail to pay to the Licensor any portion of
the consideration for the Licensed Technology interest as described herein, the
Licensor may assert any remedy, including specific performance, which the
Licensor may have by reason of any such default. From and after the Closing,
subject to the terms and provisions hereof, in the event of a breach by any
party of the terms of this Agreement or any obligation of a party which survives
the Closing hereunder, the non-defaulting party may assert any remedy, either at
law or in equity to which such non-defaulting party may be entitled.
10.2 Default by the Licensor. If JRT and JRC do not default hereunder
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and the Licensor defaults hereunder, JRT may elect to terminate this Agreement
as well as any other agreement executed by JRT and JRC in connection with the
transactions contemplated by this Agreement, including but not limited to any
independent nondisclosure agreement or any other independent agreements,
whereupon no party shall be liable to the others hereunder, or JRT and JRC may
assert any remedy, including specific performance, which JRT and JRC may have by
reason of any such default of the Licensor. From and after the Closing, subject
to the terms and provisions hereof, in the event of a breach by any party of the
terms of this Agreement or any obligation of a party which survives the Closing
hereunder, the non-defaulting party may assert any remedy, either at law or in
equity, to which such non-defaulting party may be entitled.
XI
DELIVERIES AT CLOSING
11.1 The Closing. The Closing hereunder shall be February 24, 2004.
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11.2 Deliveries at the Closing by the Licensor. At the Closing:
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(a) The Licensor shall deliver the proof of authority described in
Paragraph 7.1(b) hereof.
(b) The Licensor shall deliver the certification described in
Paragraph 7.1(e) hereof.
(c) The Licensor shall deliver the agreement to assign the
KISNET-MTT STEPS(C) Distribution Agreement described in Paragraph 7.1(d) hereof.
(d) The Licensor shall deliver any other document which may be
necessary to carry out the intent of this Agreement.
All documents reflecting any actions taken, received or delivered by the
Licensor pursuant to this Paragraph 11.2 shall be reasonably satisfactory in
form and substance to JRT and JRC and their counsel.
11.3 Deliveries at the Closing by JRT. At the Closing:
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(a) The proof of authority described in Paragraph 7.2(b) hereof.
(b) The certification described in Paragraph 7.2(c) hereof.
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(c) JRT shall deliver any other document which may be necessary to
carry out the intent of this Agreement.
All documents reflecting any actions taken, received or delivered by JRT
pursuant to this Paragraph 11.3 shall be reasonably satisfactory in form and
substance to the Licensor and its counsel.
XII
MISCELLANEOUS PROVISIONS
12.1 Termination. In the event of the termination of this Agreement
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prior to the Closing, no party shall have any obligation to any other in
connection herewith or in connection with any other documents which may have
been executed by any party with respect to the transactions contemplated by this
Agreement whether or not such documents are described herein.
12.2 Cooperation. JRT and the Licensor will each cooperate with the
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other, at the other's request and expense, in furnishing information, testimony,
and other assistance in connection with any actions, proceedings, arrangements,
disputes with other persons or governmental inquiries or investigations
involving the Licensor or JRT's conduct of the Business or the transactions
contemplated hereby.
12.3 Further Conveyances and Assurances. After the Closing, MTT and
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JRT, each, will, without further cost or expense to, or consideration of any
nature from the other, execute and deliver, or cause to be executed and
delivered, to the other, such additional documentation and instruments of
transfer and conveyance, and will take such other and further actions, as the
other may reasonably request as more completely to license to JRT the Licensed
Products and to consummate the transactions contemplated hereby.
12.4 No Assignment. This Agreement shall not be assignable by any
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party without the prior written consent of the other parties, which consent
shall be subject to such parties' sole, absolute and unfettered discretion.
12.5 Additional Agreement. Following the Closing, Xxxxxx Xxxxxx will
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be elected the Chairman of the Board of JRT, responsible for sales and
marketing, and Xxxxxx Xxxx will be elected as a member of the board and
President and Chief Executive Officer of JRT, responsible for product delivery
and strategic alliances.
12.6 Attorney's Fees. In the event that it should become necessary for
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any party entitled hereunder to bring suit against any other party to this
Agreement for enforcement of the covenants contained in this Agreement, the
parties hereby covenant and agree that the party or parties who are found to be
in violation of said covenants shall also be liable for all reasonable
attorney's fees and costs of court incurred by the other party or parties that
bring suit.
12.7 Benefit. All the terms and provisions of this Agreement shall be
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binding upon and inure to the benefit of and be enforceable by the parties
hereto, and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
12.8 Construction. Words of any gender used in this Agreement shall be
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held and construed to include any other gender, and words in the singular number
shall be held to include the plural, and vice versa, unless the context requires
otherwise.
12.9 Waiver. No course of dealing on the part of any party hereto or
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its agents, or any failure or delay by any such party with respect to exercising
any right, power or privilege of such party under this Agreement or any
instrument referred to herein shall operate as a waiver thereof, and any single
or partial exercise of any such right, power or privilege shall not preclude any
later exercise thereof or any exercise of any other right, power or privilege
hereunder or thereunder.
12.10 Cumulative Rights. The rights and remedies of any party under
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this Agreement and the instruments executed or to be executed in connection
herewith, or any of them, shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
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12.11 Invalidity. In the event any one or more of the provisions
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contained in this Agreement or in any instrument referred to herein or executed
in connection herewith shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect the other provisions of this Agreement or any such other
instrument.
12.12 Time of the Essence. Time is of the essence of this Agreement.
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12.13 Multiple Counterparts. This Agreement may be executed in one or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.14 Controlling Agreement. In the event of any conflict between the
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terms of this Agreement or exhibits referred to herein, the terms of this
Agreement shall control. This Agreement supercedes that certain Amended LLC
Interest Purchase Agreement dated February 24, 2004 by and between the parties.
12.15 Law Governing. This Agreement shall be construed and governed by
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the laws of the State of New York, and all obligations hereunder shall be deemed
performable in Mount Kisco, New York.
12.16 Entire Agreement. This instrument and the attachments hereto
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contain the entire understanding of the parties and may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification, extension, or discharge is
sought.
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts on the date first written above.
MULTITRADE TECHNOLOGIES LLC
By
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Xxx Xxxx, Managing Partner
XXXXXXX RIVERS TECHNOLOGIES, INC.
By
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Xxxxxx Xxxxxx, President
THE XXXXXXX RIVERS COMPANY
By
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Xxxxxx Xxxxxx, President
Exhibits:
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Exhibit A Licensed Technology
Exhibit B Agreement of Kisnet to the Assignment of the STEPS(C) Agreement
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KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR STEPS
KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR STEPS
This is an agreement, hereafter also referred to as Partnership, between Kisnet
Corporation Inc, (KCI) of 00 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX, 00000, and
MultiTrade Technologies LLC(MTT) of 000 Xxxx Xxxxxx, XX, 00000
---------- ----------------- ------------------ --
KCI) is a software development company and has developed an Enterprise
Management System (EMS) software development platform called STEPS (Straight
Through Enterprise Processing Solution) described in STEPS_ProductSheet.doc.
MTT is a limited liability corporation registered in NY, established to market
and distribute various Enterprise Resource Planning (ERP) systems and related
technologies for different companies involved in trading of a variety of goods
and services.
I. SCOPE:
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This agreement addresses the creation of a commercial relationship, which grants
MTT a license to distribute ERP systems built on KCI's Information Technology
(STEPS platform.
II. PURPOSE:
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To service Specified Target Markets and generate revenues from:
1. Providing STEPS based EMS solutions to various Enterprises within the
Specified Target Market on a licensed fee basis.
------------------------
2. Providing maintenance, customization and enhancement services to
support the above solutions.
III. TERM:
-----
This agreement is effective 1st of January, 2004 for a term of five years,
---------------------- ----------
unless terminated under the termination clauses _XI_& XII__ of this agreement.
It may be renewed thereafter by mutual written agreement of both parties.
IV. TERRITORIES:
------------
Exclusive: USA, The existing agreement for Mexico and Canada to be included as
---
Distributors under the terms and conditions of the distributors agreement to be
drawn by the mutual consent of both parties.
Other regions may be subsequently added as exclusive territories upon mutual
written consent of both Kisnet and MTT. Prior Kisnet agreements as listed in
SCHEDULE E are excluded from this agreement.
-
V. EXCLUSIVITY & NON-COMPETE:
----------------------------
This is an exclusive agreement during the above-specified term. And during the
term of this agreement, each Party agrees for adherence to its
expertise/activities, while executing the purpose of this Partnership. With
respect to this paragraph, non-adherence by a party hereto encompasses offering
the Services and Technologies that the other party hereto is entitled to provide
to the Customers in the Territories, under this Partnership.
VI. KCI'S OBLIGATIONS:
-------------------
KCI will be responsible for:
1. Delivery of STEPS versions on time as per the schedule in each client
agreement, agreed by KC in writing.
2. Providing the design, specification and the requirements for deploying
STEPS at MTT.
3. Maintenance and support for STEPS to MTT during the terms of this
agreement.
Page 1 of 4
KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR STEPS
4. Sales support to MTT's staff, clients and prospects on a fee basis (Sales
Support Fees) - included as a part of the compensation package described
below.
VII. MTT'S OBLIGATIONS:
-------------------
MTT will be responsible for the day-to-day-management and support of the
---
customers and as will:
1. Identify & provide client requirements as well as ongoing changes.
2. Provide the infrastructure (including organization) needed for
deploying STEPS based solutions to its' customers.
3. Provide sales, marketing & promotional services & first tier clients &
prospects support, including administration for timely compensation of
KCI.
4. Work with KC team to develop & implement project plans.
5. All IT related services needed by MTT for itself or any of its'
clients will be provided exclusively by Kisnet during the terms of
this agreement at the preferred development rates specified in
SCHEDULE R.
VIII. COMPENSATION:
-------------
MTT will compensate KCI for as follows:
1. MTT will pay
a. KCI $10,000/month as a fixed amount of royalty during the first
year of this agreement;
b. In addition, MTT will pay KCI $10,000/month as Sales Support Fees
during the first year of this agreement for the exclusive
distribution rights.
2. Special Enhancements, outside the scope of the initial agreement, requested
by MTT will be made at the preferred development rates specified in
SCHEDULE R and will become part of the MTT_STEPS platform.
-
3. MTT will pay KCI an additional 10% royalty on all STEP related revenues
generated by MTT from its clients for the systems and services to be
delivered "Revenue". The out of pocket expenses charged to the clients are
not considered as Revenue.
4. MTT will pay KCI 45% of Revenue; in exchange, KCI is obligated to deliver
all the systems and services on time and on budget.
5. After the initial term of first year, a minimum Kisnet revenue of $
20,000/month is needed to retain the exclusive distribution rights.
IX. PAYMENT SCHEDULE:
------------------
MTT will pay KCI's compensation as specified in items 3 & 4 above, within 45
days of collection of its accounts receivables. REVENUE is defined as the amount
invoiced to clients less any normal discounts or refunds in addition to the out
of pocket expenses.
The payments will be due and made based upon on following.
1a in section VIII is payable on the first day of each month starting 01/01/04;
the first payment may however be made upon signing of the agreement.
1b in section VIII is payable on the 15th of each month starting 01/15/04; the
first payment may however be made upon signing of the agreement.
Page 2 of 4
KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR STEPS
X. NON-SOLICITATION:
-----------------
During the term of this Partnership, no employee of either Party shall solicit
for the purpose of hiring any employee of the other. For the purposes of the
preceding sentence, the following does not constitute solicitation under this
Partnership: (i) use of an independent employment agency, so long as such agency
is not directed to contact a specific employee of the other party, and (ii)
general advertisements not targeted at a specific employee of the other party.
XI. TERMINATION:
------------
Notwithstanding anything herein contained, either party shall have the right to
terminate this Partnership forthwith upon the happening of all or any of the
following events, namely:
1. Upon the other making any arrangement or composition with the general
body of its creditors or having a winding-up order passed against it
or going into liquidation, voluntary or otherwise than for the
purposes of reconstruction or amalgamation;
2. Upon any breach or default by the other of or in any of the terms,
conditions or stipulations herein contained and its failure for a
period of not less than sixty days to remedy the same after the
receipt by it of written notice from the other in that behalf
requiring it so to do.
3. The termination of this Partnership whenever and however it shall
occur shall only relate to the termination of the Partnership and
shall not affect any of the rights or obligations of either party
which have accrued before termination or which are intended or
expressed to survive termination except for items listed in SCHEDULE
E.
XII. EFFECTS OF TERMINATION:
-------------------------
1. This agreement shall no longer be exclusive.
2. Within 30 days after the termination or expiry of this Partnership,
each party shall return to the other all Confidential Information and
all other materials and data of the Disclosing Party (related to the
exclusive distribution right) and shall not retain any copies of the
same.
3. Upon the termination or expiry of this Partnership, the Parties shall
continue to comply with the terms of this Partnership so far as is
necessary to comply with the terms and conditions of any then existing
agreements with mutual clients.
4. All obligations of confidentiality, non-solicitation, all terms
relating to the ownership of intellectual property rights, all
limitations and exclusions of liability, and all indemnities shall
survive the expiry or termination of this Partnership.
XIII. ASSIGNMENT:
-----------
This agreement may not be assigned to another party without the written express
permission of KCI.
In witness whereof, the parties have hereunto executed this Agreement.
MULTITRADE TECHNOLOGY LLC (MTT). KISNET CORPORATION, INC(KCI).
------------------------------- ----------------------------
By: By:
-------------------------- --------------------------
Name: Xxx Xxxx Name: Xxxxxx Xxxx
Title: Managing Partner Title: CEO
Date: Date:
-------------------------- --------------------------
Page 3 of 4
KISNET - MTT / EXCLUSIVE DISTRIBUTION AGREEMENT FOR STEPS
APPENDIX
--------
SCHEDULE E
----------
EXCLUDED TERRITORIES AND PRIOR AGREEMENTS
-----------------------------------------
1. STEPS Mexico - Exclusive Distribution Agreement for Mexico.
2. BEST Canada - Exclusive Distribution Agreement for Canada.
3. RPG Systems Inc. - Exclusive Distribution Agreement for Automobile
Repair Shops
4.
SCHEDULE R
----------
PREFERRED RATES SCHEDULE
------------------------
Rates per hour:
Development Support staff $50
Programmers $75
Systems Analyst $100
Senior Consultant $125
Page 4 of 4
CONSENT OF ASSIGNMENT OF
KISNET-MTT EXCLUSIVE DISTRIBUTION AGREEMENT
For good and sufficient consideration, paid by
MULTITRADE TECHNOLOGIES LLC,
the receipt of which is hereby acknowledged, the undersigned
KISNET CORPORATION INC.,
a party with consent rights to
KISNET-MTT EXCLUSIVE DISTRIBUTION AGREEMENT,
hereby consent to the assignment of Kisnet-MTT exclusive distribution agreement
to
XXXXXXX XXXXXX TECHNOLOGIES, INC.
provided that Xxxxxxx Rivers Technologies, Inc shall continue to adhere to all
the terms and conditions of the Kisnet-MTT exclusive distribution agreement and
shall be liable for the full and faithful performance of all obligations,
conditions, terms and provisions of the terms and conditions of the Kisnet-MTT
exclusive distribution agreement.
KISNET CORPORATION, INC (KCI).
--------------------------------
By:
-----------------------
Name: Xxxxxx X. Xxxx
Title: President
Date: June 23, 2004
---------------------------- --------------------------
Witness
