EXHIBIT 10.31
ASSIGNMENT AND CONSENT AGREEMENT
THIS ASSIGNMENT AND CONSENT AGREEMENT (this "Agreement") is made and
entered into this 11th day of June 2003 by and between Xxxxx X. Xxxxxxxxx
(hereinafter referred to as the "Assignor") and Xxxxxxx Partners, LLC
(hereinafter referred to as the "Assignee"). Xxxxxxx International Ltd. (the
"Company") is executing this Agreement for the sole purpose of acknowledging and
consenting to the assignment provided hereby.
RECITALS:
A. The Company and the Assignor are parties to a certain Royalty
Agreement, originally dated as of September 3, 1992 and amended by a
Modification Agreement dated as of March 31, 1997 (as amended, the "Royalty
Agreement").
B. The Royalty Agreement requires the Company to make royalty
payments to the Assignor 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 Agreement.
D. The Company desires to consent to the transfer, assignment and
conveyance to the Assignee of the Assignor's right, title and interest in and to
the Royalty Agreement.
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 Agreement. 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 Agreement, 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
Agreement, (ii) all rights of the Assignor to receive the benefit of any
provision of the Royalty Agreement, and (iii) all rights of the Assignor to
compel performance and otherwise exercise all remedies under the Royalty
Agreement. The Assignee hereby accepts the Royalty Agreement from the Assignor.
2. Consideration. In consideration of the transfer and assignment
of the Assignor's interest in and to the Royalty Agreement, the Assignee shall
pay the Assignor a cash payment in the aggregate amount of $82,878.14, the
receipt and sufficiency of which is hereby acknowledged by the Assignor.
3. Consent to Assignment. The Company hereby acknowledges and
consents to the transfer and assignment of the Royalty Agreement.
4. Effect of Assignment. From and after the date hereof, any and
all royalty payments due and payable under the Royalty Agreement (including any
and all royalty payments due and payable in respect of the fiscal year ended
March 31, 2003) shall be paid to the Assignee and not to the Assignor. The
Assignee shall be entitled to all payments and distributions made under the
Royalty Agreement on or after the date hereof regardless of the fiscal period in
respect of which the payments and distributions were earned. From and after the
date hereof, the Assignor shall have no rights under the Royalty Agreement
whatsoever.
5. 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) A true and correct copy of the Royalty Agreement, as
amended through the date of this Agreement, is attached hereto. Except for the
Modification Agreement, dated as of March 31, 1997, the Royalty Agreement has
not been modified or amended and remains 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 Agreement to any other person or
entity.
(d) The Pro Rata Share of the Assignor under the Royalty
Agreement is 9.7667%.
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 Agreement.
[Rest of Page Intentionally Left Blank]
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:
/s/ Xxxxx X. Xxxxxxxxx
-----------------------------
XXXXX X. XXXXXXXXX
ASSIGNEE:
XXXXXXX PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
THE COMPANY:
XXXXXXX INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: President
