Exhibit 10.9
ASSIGNMENT AGREEMENT
In consideration of the execution and delivery of the Promissory Notes to
NEON Systems, Inc., a Delaware corporation ("Assignor"), by Peregrine/Bridge
Transfer Corporation, a Delaware corporation ("Assignee"), pursuant to the terms
of that certain Termination and Support Agreement dated effective as of August
1, 2002 between the parties hereto (the "Termination Agreement"), and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Assignor does hereby grant, convey, bargain, sell, assign,
transfer and deliver unto Assignee, its successors and assigns, all Assignor's
right, title and interest in and to the License Agreements, Maintenance
Contracts, Accounts Receivable and Purchase Orders (the "Material Contracts"),
the Documentation, and the Marketing Information (as those terms are defined
herein) described in Exhibit A attached hereto (the "Acquired Assets"), to have
and to hold unto Assignee, its successors and assigns, forever. The Material
Agreements, Documentation, and Marketing Information are referred to hereinafter
as the "Acquired Assets."
Except as otherwise provided in the Termination Agreement, Assignee assumes
all and any liabilities associated with the Acquired Assets and hereby agrees to
indemnify and hold harmless the Assignor from the financial liabilities and
obligations of the Assignee, whether such liabilities or obligations relate to
the Acquired Assets or not.
For the purposes of this Assignment Agreement, the following terms shall
have the meanings indicated:
"PBTC Software" means the software described in the attached Product List
and all versions and releases thereof, technical documentation and similar
information necessary for the practical utilization thereof.
"Documentation" means all user and technical manuals, brochures,
specifications and other documentation or written information describing any
aspect of the PBTC Software or designed to facilitate the use or modification or
enhancement of the PBTC Software.
"Material Contracts" means all agreements between Assignor and any existing
or former customer, prospect, or supplier of the PBTC Software or any other
party relating in any way to the distribution of the Software or services
supplied or to be supplied by or through Assignor or its sub-distributors to
customers or prospects listed on Exhibit B attached hereto.
"Marketing Information" means all customer and marketing information
relating to the Acquired Assets, including without limitation customer lists,
prospect lists, marketing plans, forecasts and assumptions, brochures and
advertising materials, price lists and lists of distributors and subcontractors.
The Marketing Information related to customer lists and prospect lists shall be
considered Confidential Information and governed by the Confidentiality
covenants below.
Assignor warrants to Assignee, its successors and assigns, that on the date
hereof Assignor is the lawful owner of good and marketable title in and to all
of the Acquired Assets and has the full legal right to assign the same to
Assignee. Assignor further warrants to Assignee, its successors and assigns,
that (i) the Acquired Assets do not infringe any patent, copyright, or to
Assignor's knowledge any trade secret or other intellectual property rights of
any third party; and (ii) Assignor is not aware of any claims of any such
infringement or the existence of any facts upon which such a claim could be
based. Assignor further covenants and agrees to sign, do, execute, acknowledge
and deliver all such further acts, deeds, instruments, transfers and assurances
as Assignee may request in order to vest fully in Assignee good and valid title
to the Acquired Assets. Assignor hereby releases and waives any and all claims
it has or may have in the future in and to the Acquired Assets.
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Assignor and Assignee acknowledge that the consideration for this
Assignment Agreement has been agreed to following arms length negotiations
between the parties and constitutes substantially equivalent value for the
Acquired Assets.
This Assignment Agreement, together with the Termination Agreement and each
of the collateral agreements attached to the Termination Agreement as exhibits,
constitute the entire agreement of the parties with regard to the subject matter
hereof, and contain all of the covenants, promises, representations, warranties
and agreements between the parties with respect to the subject matter hereof.
Assignor and Assignee each acknowledge that no representation, inducement,
promise or agreement, oral or written, with regard to the subject matter hereof,
has been made by either party, or by anyone acting on behalf of either party,
which is not embodied herein, and that no agreement, statement or promise
relating to the subject matter hereof, which is not contained in this Assignment
Agreement or in the Asset Purchase Agreement between the parties shall be valid
or binding.
This Assignment Agreement shall be governed by the internal laws of the
State of Texas without regard to conflict of laws provisions.
This Agreement may be executed in multiple counterparts.
IN WITNESS WHEREOF, the Assignor and Assignee have caused this instrument
to be executed by their duly authorized officers, effective as of the 1st day of
August 2002.
ASSIGNOR:
NEON Systems, Inc.
By:
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Name:
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Title:
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Date:
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ASSIGNEE:
Peregrine/Bridge Transfer Corporation
By:
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Name:
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Title:
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Date:
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