EXHIBIT 2.2
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ASSIGNMENT OF ROYALTY STREAM
This Assignment of Royalty Stream (this "Assignment"), is made and dated as
of September 30, 2002, by and between XXXXXX, INC., a Delaware corporation, with
its principal office at 000 Xxxxxxxxx Xxx., Xxxxx 000, Xxxx Xxxxxxxxxx, XX 00000
(the "Assignor") and XXXXXXXXX XXXX ASSOCIATES, LLC, a Delaware limited
liability company (the "Assignee").
WHEREAS, the Assignor has entered into a license agreement dated February
1, 2001 with ACI Worldwide, Inc., a Nebraska corporation, with its principal
office at 000 Xxxxx 000xx Xxxxxx, Xxxxx, XX 00000-0000 ("ACI") (as amended on
June 24, 2002 and September 2, 2002, the "License Agreement"); and
WHEREAS, the Assignor desires to transfer to the Assignee, and the Assignee
desires to purchase from the Assignor, all right, title and interest of the
Assignor, now existing or hereafter arising, to that certain payment intangible
arising to the benefit of the Assignor under the License Agreement, including
all monies due and to become due under the License Agreement, including without
limitation pursuant to Attachment A to the License Agreement and Section 9.3 of
the License Agreement, and all cash and noncash proceeds of the foregoing
(hereinafter collectively referred to as the "Royalties"), on the terms and
subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the foregoing premises, the Assignor
and the Assignee agree as follows:
1. As of the Effective Date (as defined below), the Assignor irrevocably
sells, transfers, conveys and assigns, without recourse,
representation or warranty (except as expressly set forth herein), to
the Assignee, and the Assignee irrevocably purchases from the
Assignor, all Royalties. Other than the Royalties and except as
otherwise specifically provided herein, the Assignor shall not be
deemed to have transferred any other rights of the Assignor under the
License Agreement to the Assignee.
2. The Assignee shall not be deemed to have assumed any of the Assignor's
obligations under the License Agreement.
3. The Assignor represents and warrants to the Assignee on the date
hereof as follows:
(a) The Assignor is the lawful owner of all Royalties, and all
Royalties are free from any security interest, lien or other
encumbrance.
(b) The License Agreement is in full force and effect. Other than
Amendment No. 2 dated as of September 2, 2002 between the
Assignor and ACI, the License Agreement has not been modified or
amended since June 24, 2002.
(c) The execution and delivery by the Assignor of this Assignment and
the performance by the Assignor of its agreements and obligations
under this Assignment are within its corporate authority and have
been duly authorized by all necessary corporate action. Such
execution, delivery, and performance by the Assignor do not and
will not contravene any provision of the Assignor's
organizational documents.
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(d) The Assignor is not in breach of, and is not aware of any breach
or anticipatory breach of, the License Agreement.
4. The Assignee represents and warrants to the Assignor on the date
hereof as follows:
(a) The execution and delivery by the Assignee of this Assignment and
the performance by the Assignee of its agreements and obligations
under this Assignment are within its limited liability company
authority and have been duly authorized by all necessary limited
liability company action. Such execution, delivery, and
performance by the Assignee do not and will not contravene any
provision of the Assignee's organizational documents.
(b) The Assignee has received a copy of the License Agreement and
such other documents and information as it has deemed appropriate
to make its own analysis and decision to enter into this
Assignment.
(c) The Assignee's decision to purchase the Royalties has been and
will be made without recourse to, or representation or warranty
(except as set forth herein) by, the Assignor.
5. The Assignor shall pay to the Assignee, on the date hereof, all
Royalties that it has received for the period from (but excluding) the
Effective Date (as defined below) to (but excluding) the date hereof;
provided, that the Assignor shall only be obligated to make such
payments to the extent that such payments have not been applied
against any deposit due from the Assignee in accordance with the
Memorandum of Understanding, dated as of July 15, 2002, between the
Assignor and the Assignee ("MOU").
6. In addition, the Assignor acknowledges and agrees that, commencing on
the date hereof and pursuant to the notice delivered by the Assignor
to ACI pursuant to Section 8(g) of this Assignment, ACI shall pay the
Royalties due to the Assignor under the License Agreement directly to
the Assignee. In the event the Assignor shall receive any such payment
from ACI or on its behalf, the Assignor shall (1) segregate such
payments from its other properties, (2) immediately turn over such
payments to the Assignee, in the form received but with any necessary
endorsement to the Assignee, and (3) during any time that the Assignor
has possession of such payments, hold the same in trust for the
Assignee.
7. All payments made by the Assignor to the Assignee pursuant to this
Assignment shall be payable by check made to the order of the Assignee
and mailed to the Assignee at the following address: Xxxxxxxxx Xxxx
Associates, LLC, c/o Xxxx Xxxxxx, 0000 Xxxxxxx Xxxxxx, Xxxxxx, XX
00000.
8. Upon satisfaction of the following conditions precedent, this
Assignment shall be deemed to be effective as of July 1, 2002 (the
"Effective Date"):
(a) ASSIGNMENT. This Assignment shall have been duly authorized,
executed and delivered (i) to the Assignor by the Assignee and
(ii) to the Assignee by the Assignor.
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(b) PURCHASE PRICE. The Assignee shall have paid to the Assignor on
or prior to 5:00 p.m. Eastern time, on the date hereof, which
date shall in no event be later than September 30, 2002, a
non-refundable purchase price equal to $3,100,000 (the "Purchase
Price") for the Royalties, it being understood that the Purchase
Price shall be reduced by the amount of cash deposits actually
made by the Assignee to the Assignor in accordance with the MOU,
which deposits have not been repaid or otherwise reduced by the
Assignor as of the date hereof.
(c) SHAREHOLDER CONSENT. Shareholders of the Assignor representing at
least 51% of the outstanding voting shares of the stock of the
Assignor shall have consented to this Assignment.
(d) DIRECTORS' CONSENT. Each of the Directors of the Assignor who are
not members of, or otherwise affiliated with, the Assignee shall
have consented to this Assignment.
(e) FILING WITH SEC. The Assignor shall have filed an Information
Statement with the Securities Exchange Commission in respect of
this Assignment.
(f) ACI CONSENT. The Assignor and the Assignee shall have complied in
all respects with Section 11.7 of the License Agreement.
(g) WRITTEN INSTRUCTION TO ACI. The Assignor shall have delivered to
ACI written notice of its assignment of the Royalties to the
Assignee. Such written notice shall state that the Assignor
irrevocably instructs ACI to pay the Royalties to the Assignee
unless otherwise agreed to in writing by the Assignee.
9. In so much as pursuant to Section 9-408 of the UCC (as hereinafter
defined) a sale of a payment intangible creates a security interest in
such payment intangible, and the sale of the Royalties is a sale of a
payment intangible, the Assignor hereby pledges and assigns to the
Assignee and grants the Assignee a continuing security interest in, a
lien upon, and right of set-off against, all of the Assignor's now
owned and/or hereafter acquired or arising right, title and interest
in, to and under the Royalties. The Assignor authorizes the Assignee
to file financing or continuation statements, and amendments thereto,
covering the Royalties and containing such legends as the Assignee
shall deem necessary or desirable to protect the Assignee's interest
in the Royalties, and to take such other steps as the Assignee may
request to perfect the Assignee's security interest in the Royalties
under applicable law. As used herein, "UCC" means the Uniform
Commercial Code enacted in the State of Delaware, as the same may be
amended from time to time.
10. No amendment, modification or cancellation of this Assignment or any
part hereof shall be enforceable without the Assignor's and the
Assignee's prior written consent.
11. This Assignment contains the complete agreement of the Assignee and
the Assignor, and supercedes all prior agreements (written or oral),
relating to the subject matter herein, including, without limitation,
the MOU.
12. This Assignment shall be binding upon and inure to the benefit of each
of the Assignor and the Assignee, and each of the respective
successors and assigns of the Assignor and the Assignee, and shall be
construed in accordance with the laws of the State of Delaware
(without regard to those pertaining to choice of law).
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13. This Assignment may be executed by the Assignor and the Assignee in
separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, each of the Assignor and the Assignee has caused this
Assignment to be duly executed this 30th day of September, 2002.
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President and CEO
XXXXXXXXX XXXX ASSOCIATES, LLC
Xxxxx X. Xxxxxxx TTEE of
the Xxxxx X. Xxxxxxx Revocable Trust
DTD 07-09-93, Member
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Trustee
Xxxx Xxxxxx TTEE of
the Xxxx & Xxxxx Xxxxxx Trust
DTD 06-19-86, Member
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Trustee
Xxxxxx Xxxxxxx TTEE of
The Xxxxxx Xxxxxxx Family Trust
DTD 03-11-86, Member
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Trustee
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