EXHIBIT 10.28
TRANSFER AND ASSIGNMENT AGREEMENT
THIS TRANSFER AND ASSIGNMENT AGREEMENT (this "Agreement") is made and
entered into this 14th day of May 2003 by and between Xxxxxxx Partners, LLC
(hereinafter referred to as the "Assignor") and Xxxxxxx International Ltd.
(hereinafter referred to as the "Assignee").
RECITALS:
A. On or about May 14th, 2003, the Assignor succeeded to the
rights of the original parties designated as Recipients under the Royalty
Agreements listed in Exhibit A attached hereto (collectively, as amended, the
"Royalty Agreements").
B. The Royalty Agreements require the Company to make royalty
payments based on the total annual sales of the Company.
C. The Assignor desires to transfer, assign and convey to the
Assignee, and the Assignee desires to acquire from the Assignor, all of the
Assignor's right, title and interest in and to the Royalty Agreements.
NOW, THEREFORE, in consideration of the premises, and of the mutual
promises and covenants hereinafter set forth, each of the parties to this
Agreement, intending to be legally bound, hereby agrees as follows:
1. Assignment of Royalty Agreements. The Assignor hereby sells,
transfers, conveys and assigns to the Assignee all of the Assignor's right,
title and interest in and to the Royalty Agreements, including, without
limitation, (a) all rights of the Assignor to receive any and all royalty
payments due and to become due to the Assignor under or pursuant to the Royalty
Agreements, (ii) all rights of the Assignor to receive the benefit of any
provision of the Royalty Agreements, and (iii) all rights of the Assignor to
compel performance and otherwise exercise all remedies under the Royalty
Agreements. The Assignee hereby accepts the Royalty Agreements from the
Assignor.
2. Consideration. In consideration of the transfer and assignment
of the Assignor's interest in and to the Royalty Agreements, the Assignee shall
pay the Assignor an aggregate of $405,620.62 by delivering a promissory note
(the "Note") substantially in the form of Exhibit B attached hereto. The
Assignor hereby acknowledges receipt of the Note.
3. Effect of Assignment. Effective as of the date hereof, the
Royalty Agreements shall be terminated and shall be of no further force or
effect. From and after the date hereof, the Assignor shall have no rights under
the Royalty Agreements whatsoever.
4. Representations and Warranties of Assignor. The Assignor
hereby represents and warrants to the Assignee, as follows:
(a) This Agreement has been duly executed and delivered
by the Assignor, and is the valid and binding obligation of the Assignor,
enforceable in accordance with its terms.
(b) True and correct copies of the Royalty Agreements, as
amended through the date of this Agreement, previously have been provided to the
Assignee. Except for the Modification Agreements, each dated as of March 31,
1997, the Royalty Agreements have not been modified or amended and remain in
full force and effect as of the date hereof.
(c) The Assignor has not transferred, assigned or
conveyed any interest in or to the Royalty Agreements to any other person or
entity.
(d) The combined Pro Rata Share of the Assignor under the
Royalty Agreements is 47.8000%.
6. Future Cooperation. The Assignor and the Assignee mutually
agree to cooperate at all times from and after the date hereof with respect to
any of the matters described herein, and to execute such further deeds, bills of
sale, assignments, releases, assumptions, notifications, or other documents as
may be reasonably requested for the purpose of giving effect to, evidencing or
giving notice of the transaction evidenced by this Agreement.
7. Binding Effect. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
8. Modification and Waiver. No supplement, modification, waiver
or termination of this Agreement or any provisions hereof shall be binding
unless executed in writing by all parties hereto. No waiver of any of the
provisions of this Assignment shall constitute a waiver of any other provision
(whether or not similar), nor shall such waiver constitute a continuing waiver
unless otherwise expressly provided.
9. Counterparts. Any number of counterparts of this Agreement may
be executed. Each counterpart will be deemed to be an original instrument and
all counterparts taken together will constitute one agreement.
10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Connecticut, without
giving effect to principles of conflicts of laws of that State.
11. Survival. All of the representations and warranties of the
Assignor set forth in this Agreement shall survive the consummation of the
transactions contemplated hereby.
12. Certain Interpretative Matters. All pronouns used herein shall
include the neuter, masculine, or feminine. Each term appearing in this
Agreement with initial capitalization and not defined herein shall have the
meaning ascribed to it in the Royalty Agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be duly executed on its behalf, as of the day and year
first above written.
ASSIGNOR:
Xxxxxxx Partners, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
ASSIGNEE:
XXXXXXX INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: President
EXHIBIT A
THE ROYALTY AGREEMENTS
1.Royalty Agreement by and between Xxxxxxx International Ltd.
and Xxxxxxx X. Xxxxxxx, Xx., originally dated as of September 3, 1992 and
amended by a separate Modification Agreement, dated as of March 31, 1997.
2.Royalty Agreement by and between Xxxxxxx International Ltd.
and Xxxxxxxxx X. Xxxxxxx, originally dated as of September 3, 1992 and amended
by a separate Modification Agreement, dated as of March 31, 1997.
