EXHIBIT 10.9
ASSIGNMENT AGREEMENT
This Assignment ("Assignment") is made and entered into on the 4th day
of November, 1999, by and among ASA International, Ltd., a Delaware corporation
("Assignor"), SQL Acquisition LLC, a Delaware limited liability company
("Assignee"), and Design Data Systems Corporation, a Florida corporation
("Seller").
RECITALS
A. Assignor and Seller are parties to a certain Asset Purchase
Agreement dated November 4, 1999, (the "Purchase Agreement"). Capitalized terms
used without definition herein shall have the meanings ascribed to them in the
Purchase Agreement.
B. Assignor desires to assign to Assignee the rights of Assignor under
the Purchase Agreement, to acquire certain software and related intellectual
property described in Exhibit A annexed hereto (the "Replacement Property").
AGREEMENT
NOW, THEREFORE, with reference to the foregoing recitals, and in
consideration of mutual covenants and conditions hereinafter set forth and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Purchase Agreement is hereby modified and supplemented
as follows:
1. ASSIGNMENT AND ASSUMPTION; SELLER'S CONSENT. Assignor assigns to
Assignee all of Assignor's right, title and interest under the Purchase
Agreement, to acquire the Replacement Property. The obligation of Assignor to
deposit funds for the purchase of the of the Replacement Property, as required
under the Purchase Agreement, is assigned to Assignee. Assignee accepts the
assignment. Subject to the provisions of this Assignment, Assignee assumes
Assignor's interests and rights to acquire the Replacement Property from Seller
under the Purchase Agreement. Seller consents to the assignment upon the terms
and conditions set forth in this Assignment. Assignor, Assignee and Seller agree
that the purchase price for the Replacement Property shall be $4,300,000, which
represents a portion of the $4,750,000 to be paid by Assignor pursuant to
Section 1.2(a) of the Purchase Agreement.
2. ASSIGNEE AS BUYER; TRANSFER OF REPLACEMENT PROPERTY. Seller,
Assignor and Assignee acknowledge and agree that Assignee will acquire the
Replacement Property from Seller. The Replacement Property will transfer at the
Closing directly from Seller to Assignee. Any and all bills of sale and related
documents of transfer relating to the Replacement Property shall be executed by
Seller for the direct benefit of Assignee in the form annexed hereto as Exhibits
B, C and D. Thereafter, all parties acknowledge that Assignee is, pursuant to
this instrument, the buyer of the Replacement Property.
3. ASSIGNOR'S RELEASE AND INDEMNITY. Assignor releases, discharges,
holds harmless and indemnifies Assignee from and against any claim, demand,
liability, loss, damage, cost, or expense (collectively, "Claim") in connection
with any matter relating to the Replacement Property or any term, condition, or
instrument referred to in this Assignment.
4. SELLER'S RELEASE. Assignee has not made or assumed and will not
make or assume, nor will Assignee be liable for, any covenant, duty or
obligation of Assignor under the Purchase Agreement that may remain in effect
after the close of the transaction. Seller releases, discharges and holds
harmless Assignee from and against any Claim in connection with any matter
relating to the Replacement Property or any term, condition, or instrument
referred to in this Assignment or otherwise relating to the Exchange. The
Seller's release does not apply to any Claim arising from Assignee's breach of
this Assignment, gross negligence, or willful misconduct. Seller's sole recourse
will be against Assignor with respect to any Claim concerning the Replacement
Property or any performance, agreement, or obligation arising under the Purchase
Agreement, and Seller will retain all of its rights under the Purchase Agreement
unaffected by this Assignment.
5. SELLER'S OBLIGATIONS. Seller is and will remain responsible and
liable to Assignor for the performance of every warranty and obligation of
Seller with respect to the Replacement Property. Assignor will look solely to
Seller and Meli relating to those warranties and obligations. The assignment set
forth in Section 1 above does not affect, limit, modify or impair in any way the
representations, warranties, covenants or indemnifications made by Seller or the
obligations of Seller or Meli under the Purchase Agreement, which will continue
to the benefit of Assignor. Nothing set forth in this Assignment in any way
releases Seller or Meli from any of Seller's or Meli's obligations, liabilities,
indemnifications, covenants, representations or warranties (whether express,
implied in fact or implied at law) made under the Purchase Agreement for the
benefit of Assignor, or under any documents signed in connection with the
Purchase Agreement for the benefit of Assignor. Notwithstanding the foregoing,
Seller shall accept the consideration for the purchase of the Replacement
Property from Assignee and convey the Replacement Property in accordance with
the terms of Section 2.
6. ASSIGNOR'S OBLIGATIONS. Assignor is and will remain responsible and
liable to Seller for the performance of every warranty and obligation of
Assignor with respect to the Replacement Property. Seller will look solely to
Assignor relating to those warranties and obligations. The assignment set forth
in Section 1 above does not affect, limit, modify or impair in any way the
representations, warranties, covenants or indemnifications made by Assignor or
the obligations of Assignor under the Purchase Agreement, which will continue to
the benefit of Seller. Nothing set forth in this Assignment in any way releases
Assignor from any of Assignor's obligations, liabilities, indemnifications,
covenants, representations or warranties (whether express, implied in fact or
implied at law) made under the Purchase Agreement for the benefit of Seller, or
under any documents signed in connection with the Purchase Agreement for the
benefit of Seller.
7. SURVIVAL. The acknowledgments and agreements of Seller, Assignor,
and Assignee set forth in this Assignment will survive the closing.
8. COUNTERPARTS. This Assignment may be signed in counterparts or by
facsimile, each of which will be considered an original, but all of which, when
taken together, will constitute one instrument.
9. LITIGATION. If litigation is commenced between the parties
regarding this Assignment, the prevailing party will be entitled, in addition to
such other relief as may be granted, to reasonable attorney's fees and costs at
trial and on appeal.
EXCEPT AS EXPRESSLY MODIFIED OR AMENDED IN THIS ASSIGNMENT, ALL TERMS AND
CONDITIONS IN THE PURCHASE AGREEMENT REMAIN UNCHANGED.
Assignor:
ASA INTERNATIONAL, LTD., a Delaware corporation
By: /S/ XXXXXX X. XXXXXXXX
------------------------------
Printed Name: XXXXXX X. XXXXXXXX
--------------------
Its: CHIEF EXECUTIVE OFFICER
-----------------------------
Assignee:
SQL Acquisition LLC, a Delaware limited liability company
By: Pacific American Property Exchange Corporation, a California
corporation, Manager and Member
By: /S/ E. XXXX XXXXX
--------------------------
E. Xxxx Xxxxx, Vice President
Seller:
Design Data Systems Corporation, a Florida corporation
By: /S/ XXXXXXX X. XXXX, PRESIDENT
----------------------------------
Printed Name: XXXXXXX X. XXXX
------------------------
Its: PRESIDENT
-----------------------------
EXHIBIT A
REPLACEMENT PROPERTY
"Replacement Property" shall mean (a) the software previously
designed, developed, maintained, implemented, supported, licensed or sold by
Design Data Systems Corporation ("DDS") commonly referred to as "SQL*TIME"
("SQL*TIME"), including all released and unreleased source code and object code
versions thereof and all related documentation and development notes (the
"Software"), and (b) all other intellectual property of DDS specifically related
to the Software, including databases, market information, research and
development, patents, patent applications, copyrights, copyright registration
applications, trademarks and service marks and related applications, trade
names, trade secrets, proprietary information, technology rights and licenses,
proprietary rights and processes, know-how, research and development in
progress, and any and all other intellectual property including, without
limitation, all things authored, discovered, developed, made, perfected,
improved, designed, engineered, devised, acquired, produced, conceived or first
reduced to practice by DDS, or that are relevant to an understanding or to the
development of the Software or to the performance by the Software of its
intended functions or purposes, whether tangible or intangible, in any stage of
development, including without limitation enhancements, designs, technology,
improvements, inventions, works of authorship, formulas, processes, routines,
subroutines, techniques, concepts, object code, flow charts, diagrams, coding
sheets, source code, listings and annotations, programmers' notes, information,
work papers, work product and other materials of any types whatsoever, and all
rights of any kind in or to any of the foregoing.
EXHIBIT B
XXXX OF SALE AND GENERAL ASSIGNMENT OF ASSETS
KNOW ALL MEN AND WOMEN BY THESE PRESENTS THAT:
Design Data Systems Corporation, a Florida corporation ("Seller"), pursuant to
that certain Asset Purchase Agreement dated as of November 4, 1999 (the
"Agreement"), by and between the Seller and ASA International Ltd., a Delaware
corporation ("Buyer"), and that certain Assignment dated as of November 4, 1999
(the "Assignment") by and among Seller, Buyer and SQL Acquisition LLC
("Assignee") for and in consideration of good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, does hereby grant,
bargain, sell, convey, transfer, assign, set over and deliver to Buyer, its
successors and assigns, all of Seller's right, title and interest in and to all
of the Replacement Property (as defined in the Assignment). Capitalized terms
used but not otherwise defined herein shall have the meanings set forth in the
Agreement.
TO HAVE AND TO HOLD all of the properties, assets and rights granted and
transferred hereby, with the appurtenances thereof, unto Assignee, its
successors and assigns forever, for their own use and benefit. For the
consideration aforesaid, Seller hereby constitutes and appoints Assignee, its
successors and assigns, the true and lawful attorney or attorneys of Seller,
with full power of substitution, for Seller and in its name and stead, or
otherwise, but on behalf and for the benefit of Assignee, its successors and
assigns, to demand and receive from time to time, any and all properties hereby
given, granted, bargained, sold, assigned, transferred, conveyed, set over,
confirmed and delivered and give receipts and releases for and in respect of the
same and any part thereof, and from time to time to institute and prosecute in
the name of Seller or otherwise, but for the benefit of Assignee, its successors
and assigns, any and all proceedings at law, in equity or otherwise, which
Assignee, its successors or assigns, may deem proper in order to collect, assert
or enforce any claim, right or title of any kind in and to the properties hereby
given, granted, bargained, sold, assigned, transferred, set over, conformed,
delivered or conveyed, and to defend or compromise any or all actions, suits or
proceedings in respect of any said properties and do all such acts and things in
relation thereto as Assignee, its successors and assigns, shall deem advisable,
Seller hereby declaring that the appointment made and the powers hereby granted
are coupled with an interest and are and shall be irrevocable by Seller in any
manner and for any reason.
Seller for itself and its successors and assigns, does hereby covenant with
Assignee, its successors and assigns, that Seller and its successors and assigns
will do, execute, acknowledge and deliver, or will cause to be done, executed,
acknowledged and delivered all such further acts, deeds, bills of sale,
transfers, assignments and conveyances, powers of attorney, conveying and
confirming unto Assignee, successors and assigns, all and singular, the
properties hereby granted, sold, assigned, transferred, conveyed and delivered
as Assignee, its successors or assigns, shall reasonably require, provided,
however, that the Assignee, its successors and assigns shall prepare all
necessary documentation in conformity with the terms and conditions of the
Agreement at Assignee's expense.
This Xxxx of Sale and General Assignment of Assets may be executed in one or
more counterparts, each of which shall be an original, but which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, SQL Acquisition LLC and Design Data Systems Corporation have
each caused this instrument to be signed in its name by its duly authorized
officer to be effective as of the 30th day of September, 1999.
SQL ACQUISITION LLC
By: ________________________________
Name: ________________________________
Title: ________________________________
DESIGN DATA SYSTEMS CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
CERTIFICATION
STATE OF )
) ss.
COUNTY OF _________________ )
On this ____ day of __________ 1999, before me, the undersigned, a Notary Public
for the State of ________________, personally appeared ________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the foregoing instrument as _________________
___________ of the corporation named therein, and acknowledged to me that he
executed the same as his voluntary act on behalf of such corporation with
authority to do so for the purposes therein set forth.
-------------------------------
Notary Public
My Commission expires: ___________________
EXHIBIT C
ASSIGNMENT OF TRADEMARKS
WHEREAS, Design Data Systems Corporation, a Florida corporation, having its
principal place of business at 00000 00xx Xxxxxx X., Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx ("Assignor"), is the owner of the trademarks/service marks as listed on
SCHEDULE A attached hereto, which marks constitute part of the Replacement
Property, as defined in the Assignment dated November 4, 1999 by and among
Seller, Buyer and SQL Acquisition LLC); and
WHEREAS, SQL Acquisition LLC, a Delaware limited liability company, having its
principal place of business at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("Assignee"), is desirous of acquiring said trademarks/service
marks together with the good will of the business with which said
trademark/service marks are used and which are symbolized by said marks and any
and all registrations and applications for registration of said marks;
NOW, THEREFORE, be it known that for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Assignor, Assignor
has, subject to the penultimate paragraph hereof, assigned and by these
presents, does hereby sell, transfer, convey and assign unto Assignee the entire
right, title, and interest in and to said marks, all registrations and all
applications for registration of said marks, including without limitation the
right to recover for past infringement of said marks, and the good will of the
business in connection with which said marks are used and which are symbolized
by said marks.
Assignor hereby covenants and represents that the execution, delivery and
performance of this Trademark Assignment by Assignor has been duly and validly
authorized by all necessary corporate action and this Trademark Assignment has
been duly and validly executed and delivered by Assignor and constitutes a valid
and legally binding agreement of Assignor, enforceable against Assignor in
accordance with its terms. The execution, delivery and performance of this
Trademark Assignment does not conflict with, result in a breach of, or
constitute a default under any applicable law, judgment, order, injunction,
decree, rule or regulation, or ruling of any court or governmental
instrumentality, or the articles of incorporation, bylaws or resolutions of the
Board of Directors of Assignor, or conflict with, constitute grounds for
termination of or result in a breach of or constitute a default under any
agreement, instrument, license or permit to which Assignor is or will be
subject.
Assignor hereby further covenants and agrees that Assignor will communicate to
Assignee, its successors, legal representatives and assignees, any facts known
to Assignor respecting said marks, and at Assignee's sole expense testify in any
legal proceeding, sign all lawful papers, execute all applications for
registration, make all rightful oaths, and generally do everything possible to
aid the said Assignee, its successors, legal representatives and assigns, to
obtain and enforce proper protection for said marks in all countries.
Assignor and Assignee agree that, notwithstanding any other provision of this
Trademark Assignment, this Trademark Assignment shall be effective on and after
September 30, 1999.
IN WITNESS WHEREOF, this Assignment of Trademarks is executed at Boston,
Massachusetts, this 4th day of November, 1999.
DESIGN DATA SYSTEMS CORPORATION
By: ________________________
Name: ________________________
Title: ________________________
ATTEST:
By: ________________________________
Name: ________________________________
Title: ________________________________
CERTIFICATION
COMMONWEALTH OF )
MASSACHUSETTS
) ss.
COUNTY OF _________________ )
On this ____ day of __________ 1999, before me, the undersigned, a Notary Public
for the Commonwealth of Massachusetts, personally appeared _____________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the foregoing instrument as _________________
___________ of the corporation named therein, and acknowledged to me that he
executed the same as his voluntary act on behalf of such corporation with
authority to do so for the purposes therein set forth.
---------------------------
Notary Public
My Commission expires: ___________________
EXHIBIT D
ASSIGNMENT OF COPYRIGHTS
WHEREAS, Design Data Systems Corporation, a Florida corporation, having its
principal place of business at 00000 00xx Xxxxxx X., Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx ("Assignor"), owns all right, title and interest in original works
(whether regarded as literary works or computer programs under applicable law)
relating to certain products designed and manufactured by Assignor, including,
but not limited to, those listed on SCHEDULE A attached hereto (collectively,
the "Work"); and
WHEREAS, SQL Acquisition LLC., a Delaware limited liability company having its
principal place of business at 0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000 ("Assignee"), desires to obtain the entire right, title, and
interest in, to and under the Work including the copyright(s) thereof , but only
Work constituting part of the Replacement Property, as defined in the Assignment
dated November 4, 1999 by and among Seller, Buyer and SQL Acquisition LLC.
NOW, THEREFORE, for good and valuable consideration paid by the Assignee to the
Assignor simultaneously herewith, pursuant to that certain Assignment Agreement
dated as of November 4, 1999 (the "Agreement"), receipt of which is hereby
acknowledged by the Assignor, and for other good and valuable consideration, the
said Assignor, subject to the penultimate paragraph hereof;
Assignor hereby assigns, transfers and sets over unto the Assignee the entire
right, title, and interest in and to the Work, the entire right, title and
interest in and to any and all statutory or common law copyrights or copyright
registrations covering the Work, including: any and all renewals and extensions
of those copyrights that may be secured under the laws now or hereafter in force
in the United States and throughout the world; any and all causes of action
heretofore accrued in the Assignor's favor for infringement of the aforesaid
copyright(s); and any and all rights, including but not limited to, the rights
to reproduce the Work in copies or other embodiment; to prepare derivative works
based upon the Work; to distribute copies or other embodiments of the Work to
the public by sale or other transfer of ownership, or by rental, lease or
lending; to perform the Work publicly; and to display the Work publicly;
To have and to hold the same unto the Assignee, its successors, legal
representatives and assigns, for and during the existence of all copyright(s)
and any and all renewals and extensions thereof absolutely and forever; and
Assignor hereby authorizes and requests the Register of Copyrights of the United
States, and any official of any country or countries foreign to the United
States, and any official of any country or countries foreign to the United
States, whose duty it is to issue copyright registrations or similar indicia of
copyright, to issue such copyright, registrations for said Work to Assignee, its
successors, legal representatives and assigns.
Assignor hereby covenants and represents that the execution, delivery and
performance of this Copyright Assignment by Assignor has been duly and validly
authorized by all necessary corporate action and this Copyright Assignment has
been duly and validly executed and delivered by Assignor and constitutes a valid
and legally binding agreement of Assignor, enforceable against Assignor in
accordance with its terms. The execution, delivery and performance of this
Copyright Assignment does not conflict with, result in a breach of, or
constitute a default under, any applicable law, judgment, order, injunction,
decree, rule or regulation, or ruling of any court or governmental
instrumentality, or the articles of incorporation, bylaws or resolutions of the
Board of Directors of Assignor, or conflict with, constitute grounds for
termination of or result in a breach of or constitute a default under any
agreement, instrument, license or permit to which Assignor is or will be
subject.
Assignor hereby covenants and agrees that Assignor shall forthwith upon
Assignee's written request and at Assignee's sole expense take any and all steps
and execute, acknowledge, and deliver to the Assignee any and all further
instruments and assurances necessary or expedient in order to vest the aforesaid
Work and copyright(s) and causes of action more effectively in the Assignee.
Assignor hereby further covenants and agrees that Assignor will communicate to
the Assignee, its successors, legal representatives and assigns, any facts known
to Assignor respecting said Work and said copyright(s), and at Assignee's sole
expense testify in any legal proceedings, sign all lawful papers, execute all
copyright applications and copyright renewal applications, make all rightful
oaths, and generally do everything possible to aid the said Assignee, its
successors, legal representatives and assigns, to obtain and enforce proper
copyright protection for said Work in all countries.
Assignor hereby constitutes and appoints the Assignee its true and lawful
attorney-in-fact with full power of substitution, in Assignor's name and stead,
but for the Assignee's benefit, to take any and all steps (including proceeding
at law, in equity or otherwise), and to execute, acknowledge and deliver any and
all instruments and assurances necessary or expedient in order to vest the
aforesaid Work and copyright(s) and causes of action more effectively in the
Assignee, or to protect the same, or to enforce any claim or right of any kind
with respect thereto. The Assignor hereby declares that the foregoing power is
coupled with an interest and is irrevocable.
Assignor and assignee agree that, notwithstanding any other provision of this
Copyright Assignment, this Copyright Assignment shall be effective on and after
September 30, 1999.
IN WITNESS WHEREOF, this Assignment of Copyrights is executed at Boston,
Massachusetts, this 4th day of November, 1999.
DESIGN DATA SYSTEMS CORPORATION
By: ________________________________
Name: ________________________________
Title: _________________________________
ATTEST:
By:________________________
Name: _____________________
Title:
CERTIFICATION
COMMONWEALTH OF )
MASSACHUSETTS
) ss.
COUNTY OF _________________ )
On this ____ day of __________ 1999, before me, the undersigned, a Notary Public
for the Commonwealth of Massachusetts, personally appeared _______________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed the foregoing instrument as _________________
___________ of the corporation named therein, and acknowledged to me that he
executed the same as his voluntary act on behalf of such corporation with
authority to do so for the purposes therein set forth.
_____________________________
Notary Public
My Commission expires: ___________________
