EXHIBIT 2.3
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (the "License Agreement") is effective as of
June 23, 2004 (the "Effective Date") by and among Encompass Group Affiliates,
Inc., a Delaware corporation, located at ____________________ ("Licensee"), and
Hy-Tech Technology Group, Inc. and Hy-Tech Computer Systems, Inc., each a
Delaware Corporation, located at 0000 Xxx Xxxxx Xxxxx, Xx. Xxxxx, XX 00000
(together, "Licensors"). Licensee and each Licensor are individually referred to
as a "Party" and collectively referred to as the "Parties."
RECITALS
WHEREAS, Licensee desires to license certain assets of Licensors and
Licensors desire to grant to Licensee a license in those assets on the terms and
condition contained herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. DEFINITIONS. The following terms shall have the following meaning as used in
this License Agreement:
"Affiliate" means, with respect to any legally recognizable entity, any
other such entity directly or indirectly Controlling, Controlled by, or under
common Control with such entity. "Control," as used in this definition, means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a legally recognizable entity,
whether through the ownership of voting shares or other voting interests, by
contract, or otherwise. Where such entity is a partnership, limited liability
company, corporation, or similar entity and has partners, members, or
shareholders with equal ownership interests or equal control interests, by
contract or otherwise, then each such partner, member, or shareholder will be
deemed to possess, directly or indirectly, the power to direct or cause the
direction of the management and policies of that entity.
"Convertible Debenture" shall mean the 10% Senior Secured Convertible
Debentures described on Schedule I hereto.
"Customer Lists" shall mean those customers lists of Licensor delivered
to Licensee, on the date hereof, on CD ROM media in a file format that is
compatible with Microsoft Excel, which constitute true and accurate lists of all
of each Licensor's customers, and all rights related to the Customer Lists.
Other Terms. All other terms defined in the text of this Technology
License Agreement shall have the meanings set forth in such text.
2. LICENSE GRANTS, RIGHTS, AND OWNERSHIP.
2.1 Customer Lists License. Each Licensor on behalf of itself and its
respective Affiliates hereby grants Licensee and its Affiliates an exclusive,
worldwide, royalty free, fully paid up, perpetual, non-terminable and
irrevocable right and license to: (1) use, copy and modify the Customer Lists;
and (2) sublicense to third parties the foregoing rights in (1) above, including
the right to sublicense to further third parties (the "License").
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2.2 Ownership. Subject to the License, each Licensor shall retain all
right, title, and interest in and to its Customer List.
2.3 Covenant Not to Xxx. In addition to the License, each Licensor on
behalf of itself and its Affiliates hereby covenant that neither it nor any of
its Affiliates will xxx Licensee or any of its Affiliates or any of their
respective licensees, distributors, customers, or end users for infringement
based on such party's use of the Customer Lists.
3. FEES AND PAYMENT. In full and complete consideration for the License and
covenant not to xxx set forth in Section 2, Licensee will assume and agree to
perform, pay or discharge a total of Three Hundred Thousand Dollars
(US$300,000.00) due and owing by Licensors under the Convertible Debenture.
4. WARRANTIES. Each Licensor represents and warrants that:
(i) Each Licensor owns all right, title, and interest in and to its
Customer List and has the sole, full unencumbered and clear title
to and is the true and lawful exclusive owner of its Customer
List and associated good will;
(ii) This License Agreement is a legal, valid and binding obligation
of each Licensor and the execution, delivery and performance of
this License Agreement by each Licensor does not and will not
conflict with any agreement, instrument or understanding, oral or
written, to which either Licensor is a party or by which either
Licensor may be bound, nor violate any laws, rules or regulations
of any court, governmental authority or administrative or other
agency having authority over either Licensor, the Customer Lists
or the associated good will;
(iii) Neither Licensor has granted and neither will grant any rights in
its Customer List that are inconsistent with this License
Agreement and the rights granted to Licensee herein;
(iv) Each Licensor has all right, power and authority necessary to
execute this License Agreement and to grant Licensee the license
rights set forth herein;
(v) Neither Licensor has knowledge nor has either received any
notices or claims that the use or licensing of the Customer Lists
infringe upon the rights of any third party; and
(vi) Neither Licensor has pledged, hypothecated, or otherwise
encumbered its Customer List; and the Customer Lists are not
subject to any pledge, security interest, or other encumbrance.
5. CONFIDENTIALITY. Each Licensor agrees that it will hold in strictest
confidence, and will not use or disclose to any third party, the existence,
terms and conditions of this License Agreement until such time as Licensee may
choose, in its sole discretion, to publicly disclose such information. Nothing
herein shall prevent or prohibit either Licensor from making any disclosure to
its legal counsel under obligations of confidentiality as necessary to
consummate the transactions contemplated herein or to its financial and tax
advisors under obligations of confidentiality as necessary to file either
Licensor's tax returns.
6. NOTICES. All notices and requests in connection with this License Agreement
shall be deemed given as of the day they are received by the intended recipient
via messenger, delivery service, or in the United States of America mails,
postage prepaid, certified or registered, return receipt requested, and
addressed as follows, or to such other address as the Party to receive the
notice or request so designates by written notice to the other:
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To Licensee: To Licensors:
----------- ------------
Encompass : c/o HY-TECH Technology Group, Inc.
c/o Advanced Communications 1840 Boy Scout Drive
Technologies, Inc. Xxxx Xxxxx, Xxxxxxx 00000
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000 Attention: _____________________
Xxx Xxxx, Xxx Xxxx 00000 Phone: _________________________
Attention: Xxxxx X. Xxxxxx Fax: _________________________
Facsimile No.: 000-000-0000
Copy to: Copy to:
------- -------
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx LLC Gottbetter & Partners, LLP
0000 Xxxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esquire Attention: Xxxx X. Xxxxxxxxxx, Esquire
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
8. AMENDMENTS/WAIVER. No amendment, waiver, or forbearance of any provision of
this License Agreement shall be effective unless the same shall be in a writing
signed by the Parties. Any such waiver or forbearance shall only be effective
for the specific purpose and in the specific instance given and not for other or
subsequent purposes or instances and no forbearance or waiver shall affect the
Parties' rights to refuse further forbearances or waivers.
9. INTERPRETATION. This License Agreement has been generated pursuant to the
equal negotiations and advice of the Parties and their counsel. Accordingly,
this License Agreement should not be construed or interpreted more favorably or
unfavorably as to any Party hereto.
10. GOVERNING LAW AND VENUE. This License Agreement shall be construed and
controlled by the laws of the State of Delaware, and the Parties consent to
exclusive jurisdiction and venue in the federal and state courts sitting in
Delaware. The Parties waive all defenses of lack of personal jurisdiction and
forum non conveniens. Process may be served on any Party in the manner
authorized by applicable law or court rule. In any action to enforce any right
or remedy under this License Agreement or to interpret any provision of this
License Agreement, the prevailing Party shall be entitled to recover its
reasonable attorneys' fees, costs and other expenses.
11. SEVERABILITY. If any provision, or portion thereof, of this License
Agreement is held by a court of competent jurisdiction to be invalid under any
applicable statute or rule of law, the Parties agree that such invalidity shall
not affect the validity of the remaining portions of this License Agreement and
further agree to substitute for the invalid provision a valid provision which
most closely approximates the intent and economic effect of the invalid
provision.
12. COUNTERPARTS. The signature pages of this License Agreement may be executed
in counterparts and by facsimile and all such pages shall constitute original
signature page(s) hereof and taken together all such counterparts shall be one
and the same instrument.
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13. AUTHORITY. Licensee or each Licensor represents and warrants that it has the
authority and power to execute and deliver this License Agreement.
14. INDEPENDENT CONTRACTORS. The Parties hereunder are operating as independent
contractors, and nothing in this License Agreement shall be construed as
creating a partnership, franchise, joint venture, employer-employee or agency
relationship.
15. HEADINGS/CONSTRUCTION. The Section headings used in this License Agreement
are for convenience only and shall not be given substantive effect.
16. BINDING EFFECT; ASSIGNMENT. This License Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each party hereto, and
their Affiliates, divisions, parents and subsidiaries. "Successors" shall
include, but not be limited to, heirs, executors, administrators and receivers,
and shall also include any new entity to which any substantial part of the
assets of a party are transferred in any manner, including, but not limited to
transfers by merger, consolidation, reorganization, or otherwise.
17. PROHIBITION ON ASSIGNMENT. Neither Licensor may assign this License
Agreement, or any rights or obligations hereunder, whether by operation of
contract, law or otherwise, except with the prior, express written consent of
Licensee, and any attempted assignment by either Licensor in violation of this
Section 17 shall be void.
18. TERM. The term of this License Agreement shall commence as of the Effective
Date and shall continue in perpetuity.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
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IN WITNESS WHEREOF, the Parties have caused this License Agreement to
be executed by their duly authorized Representatives as of the Effective Date
first written above.
ENCOMPASS GROUP AFFILIATES, INC. HY-TECH TECHNOLOGY GROUP, INC.
By: By:
------------------------------------ -----------------------------
Name: Name:
Title: Title:
HY-TECH COMPUTER SYSTEMS, INC.
By:
-----------------------------
Name:
Title:
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EXECUTION COPY
EXHIBIT C
Schedule I
Convertible Debenture
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Name and Address Principal amount of Debenture
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KT Capital, LP $ 60,000
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxx, Managing Partner
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Xxxxx X. Xxxxxxx & Xxxxxxxxx X. Xxxxxxx $ 60,000
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx & $ 60,000
Xxxxxxx Xxxxx-Hoagsberg
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Xxxxx X. Xxxxxxx $ 60,000
0000 Xxxxxxx Xxxx Xxxxxx, Xx. 00
Xxxx Xxxxx, XX 00000
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Maximum Ventures, Inc. $ 60,000
0000 Xxxx Xxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
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Total $300,000
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