TRANSITION AGREEMENT
This
TRANSITION AGREEMENT (the “Agreement”),
is
made as of December 15, 2006, by and between Das Family Holdings, a California
corporation (“Licensor”),
and
BPOMS/HRO, Inc., a Delaware corporation (“Licensee”).
R
E C I T A L S:
A. Immediately
prior hereto, Licensor purchased BPO Management Services, Inc.’s interest in
Research Engineers, Ltd. and certain other assets including, without limitation,
the Internet domain name set forth on Exhibit
A
hereto
(the “Domain
Name”)
and
trademark set forth on Exhibit
A
hereto
(the “Xxxx”
and
collectively with the Domain Name, the “Marks”)
pursuant to the terms and conditions of that certain Purchase Agreement dated
August 29, 2006, as amended (the “Purchase
Agreement”),
between Licensor and BPO Management Services, Inc. (formerly netGuru, Inc.),
a
Delaware corporation (“Parent”).
B. Licensee
is a wholly-owned subsidiary of Parent.
C. Licensee
intends to continue to market and sell (i) certain engineering business process
outsourcing services for the architecture, engineering, and construction (A/E/C)
industry, (ii) document/project collaboration software/solutions for A/E/C
companies, enterprise software providers, software integrators, and other
businesses engaged in document/project-centric operations, and (iii) technical
services and support (collectively, the “Business”).
D. Licensee
desires to obtain from Licensor and Licensor desires to grant to Licensee a
temporary license to use the Marks in connection with the Business during the
Term (as defined in Section 7 below), on the terms and subject to the conditions
set forth herein.
A
G R E E M E N T:
NOW,
THEREFORE, in consideration of the mutual covenants herein and for other good
and valuable consideration, the receipt and sufficiency of each of which are
hereby acknowledged, the parties hereby agree as follows:
1. Grant
of License.
Licensor hereby grants to Licensee, and Licensee hereby accepts, an exclusive,
non-transferable, royalty-free license (the “License”)
to use
and display the Marks, and to use the Domain Name for the purpose of promoting
the Business and directing customers or potential customers to an Internet
web
site or other computer server accessible via the Internet in connection with
the
Business, during the Term and subject to the restrictions on use set forth
in
Section 2 below. Licensee shall have no right to grant sublicenses of the Marks
or to assign its rights hereunder to any other party except as expressly
provided in Section 11(d) hereof.
2. Restrictions
on License of Marks; Likelihood of Confusion.
(a) Licensee
shall only use the Marks in connection with the operation and promotion of
the
Business in a manner consistent with its usage prior to the date hereof and
for
no other purpose whatsoever.
(b) Licensee
shall not adopt or use any word, name, xxxx or other designation that is likely
to cause confusion with the Marks and shall not make any unlicensed use or
file
any application for registration of the Marks or any xxxx confusingly similar
thereto anywhere in the world. Licensee shall not use or advertise the Marks
in
a manner which is likely to cause third parties to believe that Licensee is
related to Licensor in any way other than as a holder of a license to the Marks.
In the event that Licensor reasonably believes an action or practice undertaken
by Licensee is likely to be confusing to third parties, Licensor may, in its
sole discretion, require Licensee to cease and desist use of the Licensee in
that manner, and Licensor and Licensee shall work together in good faith to
modify such action or practice so as to comply with this Agreement.
3. Consideration.
The
grant of the License hereunder is a requirement and inducement for Parent to
consummate the transactions contemplated by the Purchase Agreement and, as
such,
the parties agree that this constitutes adequate consideration. Accordingly,
Licensee shall not be required to pay a separate royalty or other charge for
the
License.
4. Title
in Licensor.
Licensee acknowledges Licensor’s use of the Marks and agrees that Licensee shall
not acquire any right, title or interest in or to the Marks by virtue of the
License or through Licensee’s use of the Marks other than the right to use such
Marks to the extent expressly provided under this Agreement. Licensee agrees
that it shall not (a) assert any claim to the Marks other than as a licensee
as
expressly provided herein, (b) contest in any way Licensor’s ownership of or
right to use such Marks, or (c) take any action or any position inconsistent
with such ownership.
5. Quality
Control.
Licensee agrees to use the Marks only in connection with the purpose for which
they are intended, which purpose shall not reflect adversely upon the good
name
of Licensor or the goodwill and reputation associated with the
Marks.
6. Infringement
by Third Parties.
If
Licensee learns of any infringement of the Marks or of the existence, use or
promotion of any xxxx or design that is confusingly similar to the Marks by
any
third party, or believes that any third party may be so infringing the Marks
or
using or promoting any such confusingly similar xxxx or trade name, Licensee
shall promptly give Licensor notice in accordance with Section 11(c). If
Licensor elects to take action against any infringement, Licensee shall, at
Licensor’s cost, render all reasonable assistance to Licensor in connection
therewith.
7. Term.
The
term of this Agreement (the “Term”)
shall
be for a period commencing on the date hereof and expiring on March 31, 2007,
except in the event that (a) the parties hereto mutually agree to terminate
this
Agreement in which event the Term shall terminate at such agreed upon time,
(b)
Licensee materially breaches this Agreement in which case the Agreement shall
terminate immediately, (c) Licensor materially breaches this Agreement in which
case the Agreement may be terminated at the election of Licensee, (d) an Event
of Default occurs under that certain secured promissory note in principal amount
of $125,000 made in favor of Licensor dated the same date hereof, in which
case
the Agreement shall terminate immediately, or (e) Licensee is no longer a
wholly-owned subsidiary of Parent, Licensee discontinues its business, makes
an
assignment for the benefit of creditors, files a petition under Section 11
of
the United States Bankruptcy Code (or any successor thereto), is adjudicated
bankrupt or insolvent, a petition in bankruptcy is filed against Licensee that
is not dismissed within sixty (60) days, a receiver or trustee is appointed
for
Licensee’s business or property or there is a permanent cessation of business by
Licensee, in which case the Agreement shall terminate immediately. For purposes
of this Agreement, a material breach shall be deemed to have occurred, among
other things, if Licensee fails to comply with its obligations under Section
8(b) hereof. Upon termination of this Agreement (or the Term with respect to
the
Xxxx or Domain Name individually), the License to use such Xxxx or Domain Name
shall automatically terminate and Licensee shall immediately cease and forever
refrain from usage of such Xxxx or Domain Name, as applicable, and any other
name or xxxx (whether or not violative of Section 2(b)) so similar to the Marks
as to be likely to cause confusion with the Marks. The provisions of Sections
2(b), 4, 7, 9, 10 and 11 shall survive the expiration or sooner termination
of
this Agreement.
2
8. Licensee
Obligations and Covenants.
(a) Licensee
shall use the Marks consistent with past practices in the Business.
(b) Licensee
shall enter into a web site hosting agreement whereby Licensee, at its sole
cost
and expense, shall provide for reasonably satisfactory hosting of the Domain
Name website during the Term as well as related e-mail services (including
customary service level guarantees consistent with past practice). Additionally,
as part of such obligation, Licensee shall ensure that the Domain Name website
includes prominent disclosure and an active link to Licensor’s designated
website (in a form pre-approved by Licensor).
(c) Licensee
shall not make any separate agreement with any third party that is inconsistent
with any of the provisions of this Agreement.
(d) Licensee
shall not conduct the Business in violation of any laws, regulations or
ordinances that are applicable in the countries and territories within which
the
Business operates.
9. Licensor
Representations.
LICENSOR MAKES, AND LICENSEE RECEIVES, NO REPRESENTATIONS, WARRANTIES OR
CONDITIONS (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE), INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT OF A THIRD-PARTY RIGHTS, OR THEIR EQUIVALENTS UNDER
THE LAWS OF ANY JURISDICTION.
10. Indemnification.
Except
for claims of infringement by third parties, which claims are not subject to
indemnification under this paragraph, Licensee agrees to indemnify, hold
harmless and defend Licensor from and against all suits, actions, claims,
damages, liabilities, costs and expenses including reasonable attorney’s fees,
court costs and other legal expenses arising out of or connected with the use,
production, packaging, sale, distribution, consumption or rendering of any
goods
or services which are produced, packaged, sold, distributed or rendered by
or on
behalf of Licensee under the Marks.
11. Miscellaneous.
(a) Severability.
If any
provision of this Agreement shall be held unenforceable, either by operation
of
law or otherwise, the remainder of the Agreement shall nevertheless remain
in
full force and effect, it being the intent and Agreement of the parties that
this Agreement will be deemed to have been amended by modifying such provision
to the extent necessary to render it valid, legal and enforceable while
preserving its intent or, if such modification is not possible, by substituting
therefore another provision that is legal and enforceable and that achieves
the
same objective.
3
(b) No
Waiver.
No
express or implied waiver by any party of any provision of this Agreement or
of
any breach or default of the other party shall constitute a continuing waiver,
and no waiver by any party shall prevent such party from enforcing any and
all
other provisions of this Agreement or from acting upon such other provisions
or
upon any other or subsequent breach or default by the other party.
(c) Notices.
All
notices, demands, requests, consents, statements, satisfactions, waivers,
designations, refusals, confirmations, denials and other communications that
may
be required or otherwise provided for or contemplated hereunder shall be in
writing and shall be deemed to be properly given and received (i) upon delivery,
if delivered in person or by facsimile transmission with receipt acknowledged,
(ii) one (1) business day after having been deposited for overnight delivery
with Federal Express or another comparable nationally-recognized overnight
courier service, or (iii) three (3) business days after having been deposited
in
any post office or mail depository regularly maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, addressed
as
follows:
|
If
to Licensor:
|
If
to Licensee:
|
|
Das
Family Holdings
|
BPOMS/HRO,
Inc.
|
|
0000
X. Xxxxxxx Xxxxx
|
00000
Xxxx Xxxxx Xxxxxxx
|
|
Xxxxxx,
Xxxxxxxxxx 00000
|
Xxxxx
Xxxxx, Xxxxxxxxxx 00000
|
|
Fax
No.: (000) 000-0000
|
Fax
No.: (000) 000-0000
|
|
Attn:
Chief Executive Officer
|
Attn:
Chief Executive
Officer
|
or
such
other person or persons at such address or addresses as may be designated by
written notice to the other parties hereunder.
(d) Transferability.
Licensee shall not be free to transfer the rights or obligations under this
Agreement to any other party, whether by sale, operation of law, pledge,
assignment, or otherwise, without obtaining the prior written consent of
Licensor. A “Change in Control” of Parent (as hereinafter defined) shall be
deemed a transfer by Licensee under this agreement, and shall require the prior
written consent of Licensor. A “Change
in Control”
shall
mean (i) the acquisition, directly or indirectly, by any person or group (within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended) of the beneficial ownership of securities of Parent possessing more
than fifty percent (50%) of the total combined voting power of all outstanding
securities of Parent; (ii) a merger or consolidation in which Parent is not
the
surviving entity, except for a transaction in which the holders of the
outstanding voting securities of Parent immediately prior to such merger or
consolidation hold, in the aggregate, securities possessing more than fifty
percent (50%) of the total combined voting power of all outstanding voting
securities of the surviving entity immediately after such merger or
consolidation; (iii) a reverse merger in which Parent is the surviving entity
but in which securities possessing more than fifty percent (50%) of the total
combined voting power of all outstanding voting securities of Parent are
transferred to or acquired by a person or persons different from the persons
holding those securities immediately prior to such merger; (iv) the sale,
transfer or other disposition (in one transaction or a series of related
transactions) of all or substantially all of the assets of Parent; or (v)
approval by the stockholders of a plan or proposal for the liquidation or
dissolution of Parent.
4
(e) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
(f) Amendments.
No
modification or amendment of this Agreement shall be valid or binding on the
parties unless such modification or amendment shall be in writing signed by
the
party or parties against whom the same is sought to be enforced.
(g) Further
Assurances.
Each
party hereby covenants and agrees that it shall execute and deliver such
additional agreements and other documents, and take such further acts, as may
be
necessary or desirable in order to implement any of the provisions of this
Agreement.
(h) Counterparts.
This
Agreement may be executed in counterparts, each such counterpart shall be deemed
an original, and all of which, when taken together, shall constitute one and
the
same instrument, and each party hereby covenants and agrees to execute all
duplicates or replacement counterparts of this Agreement as may be
required.
(i) Costs
and Expenses.
Unless
otherwise provided in this Agreement, each party shall bear all fees and
expenses incurred by it in connection with this Agreement or its performance
hereunder.
(j) Title
and Captions.
Section
titles or captions contained in this Agreement are inserted only as a matter
of
convenience and for reference purposes and in no way define, limit, extend
or
describe the scope of this Agreement or the intent of any provisions
thereof.
(k) Applicable
Law.
The
Agreement shall be deemed made in, and governed by, the laws of the State of
California and in the event of a dispute, each party hereby consents to the
jurisdiction of the appropriate federal or state courts located in the State
of
California, county of Orange, to resolve such dispute.
(l) Specific
Performance.
Licensee agrees that money damages would not be a sufficient remedy for any
breach of this Agreement by Licensee and that Licensor shall be entitled to
equitable relief, including injunction and specific performance, as a remedy
for
any such breach or threatened breach. Such remedies shall not be deemed to
be
Licensor’s exclusive remedies for a breach of this Agreement but shall be in
addition to all other remedies available to Licensor at law or in
equity.
(m) Attorneys’
Fees.
In
the
event of any litigation or other legal proceeding relating to this Agreement,
the prevailing party in such proceeding shall be entitled to receive from the
other party its reasonable attorneys’ and other professionals’ fees and
costs,
including fees and costs incurred in connection with such litigation and any
appeal therefrom and costs of collection.
(n) Entire
Agreement.
The
parties acknowledge that this Agreement constitutes the entire agreement between
the parties in respect of the matters contemplated herein, and supersedes all
prior agreements and merges all prior discussions between them.
5
[Signature
Page Follows]
6
IN
WITNESS WHEREOF, the parties have caused this Transition Agreement to be signed
by their respective duly authorized officers as of the date first written
above.
Das
Family Holdings,
a
California corporation
By: /s/_________________________________
Print
Name: _____________________________
Its:
___________________________________
BPOMS/HRO,
Inc.,
a
Delaware corporation
By: /s/________________________________
Print
Name: ____________________________
Its:
__________________________________
7
EXHIBIT
A
Marks
netGuru,
Inc.
xxxxxxx.xxx
