PARTIAL ASSIGNMENT OF LICENSE AGREEMENT
Exhibit
10.28
This
Partial Assignment of License Agreement (this “Agreement”) is made as of the
11th
day of
October, 2007 by and among Xxxxxx.xxx, Inc., a Nevada corporation with its
principal place of business located at 000 Xxxxx 000xx
Xxxxxx,
Xxxxx, XX 00000 (“Assignor”), ACS Technologies Group, Inc., a South Carolina
corporation with its principal place of business located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxx, XX 00000 (“Assignee”), and Riverdeep Inc., A Limited Liability
Company, a Delaware LLC, with its principal place of business located at 000
Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000 (“Licensor”) (Assignor,
Assignee and Licensor shall be referred to hereinafter individually as a “party”
and collectively as the “parties”).
WHEREAS,
Licensor is the current owner of certain intellectual property relating to
a
church management and administration software product currently marketed and
known as “Membership Plus” (the “Membership Plus Intellectual Property”) which
Membership Plus Intellectual Property, among other intellectual property, was
licensed to Assignor pursuant to a certain Software License Agreement dated
June
30, 1999 between Assignor and Xxxxxxx Technology, Inc., a California
corporation, a copy of which is annexed hereto as Exhibit A (the “License
Agreement”);
WHEREAS,
Assignor maintains certain rights under the License Agreement as of the date
hereof, but now wishes to assign such rights to Assignee as part of an asset
sale conveying the Membership Plus product line and business (the “Contemplated
Asset Sale”) involving, inter
alia,
a
certain asset purchase agreement by and between Assignor and Assignee entered
into contemporaneously herewith (the “Asset Purchase Agreement”);
WHEREAS,
as part of the Contemplated Asset Sale, and included in the Asset Purchase
Agreement, Assignee wishes to acquire all of Assignor’s rights and interest in
and to all of the Membership Plus Intellectual Property under the License
Agreement;
WHEREAS,
in accordance with Section 13.3 of the License Agreement, a valid assignment
of
Assignor’s rights and interest in and to all of the Membership Plus Intellectual
Property under the License Agreement requires the express written consent of
Licensor;
WHEREAS,
subject to the terms and provisions contained herein, Licensor desires to
provide the requisite consent to the contemplated assignment on a partial
assignment basis and subject to the written terms and conditions of an agreement
by and between Licensor and Assignor; and
WHEREAS,
Licensor is not a party to the Asset Purchase Agreement;
NOW,
the
parties hereby agree as follows:
1. Assignment.
In
consideration of the “Purchase Price” (as defined in the Asset Purchase
Agreement) paid by the Assignee to the Assignor pursuant to the Asset Purchase
Agreement, Assignor irrevocably assigns to Assignee all of its rights, title
and
interest in and to the Acquired Assets (as defined in the Asset Purchase
Agreement), including without limitation all rights, title and interest of
Assignor specifically associated with or corresponding to the Membership Plus
Intellectual Property arising under the License Agreement.
2. Assumption
of Obligations.
Assignee expressly assumes all economic and other obligations of Assignor
specifically associated with or corresponding to the Membership Plus
Intellectual Property arising under the License Agreement and maturing or to
be
performed from and after the date hereof; provided,
however,
that
Assignee shall not be deemed to have assumed any obligations under the License
Agreement maturing or to be performed prior to the date hereof or associated
with or corresponding to any licensed intellectual property other than the
Membership Plus Intellectual Property.
3. Contingent
Reversion of Obligations.
Notwithstanding the assignments noted herein, Assignor expressly guarantees
all
economic and other obligations under the License Agreement, including without
limitation, any indemnification obligations.
4. Indemnification
By Assignor.
From
and after the date hereof, Assignor shall reimburse, indemnify and hold harmless
Licensor against and in respect of:
(a) any
and
all damages, losses, deficiencies, liabilities, costs and expenses incurred
or
suffered by Licensor that result from, relate to or arise out of any and all
claims made by Assignee with respect to the License Agreement or any breach
thereof; and
(b) any
and
all actions, judgments, costs and other expenses (including, without limitation,
reasonable legal fees) incident to any of the foregoing.
5. Consent
of Licensor; Amendment of License Agreement.
Subject
to the terms and conditions set forth in this Agreement, and specifically for
purposes of Section 13.3 of the License Agreement, Licensor consents to the
assignment by Assignor to Assignee of all rights, title and interest of Assignor
specifically associated with or corresponding to the Membership Plus
Intellectual Property arising under the License Agreement. The parties expressly
acknowledge and agree that the licenses granted to Assignor and Assignee under
the License Agreement are perpetual, as set forth in Sections 2.1 and 2.2 of
the
License Agreement. For clarification purposes, the provisions of Section 5.4
of
the License Agreement are hereby deleted in their entirety and replaced with
the
following: “Sections 1, 2, 3, 5.4, 6, 8, 9, 10, 11, 12 and 13 of this Agreement
shall survive any termination of this Agreement.”
6.
Entire
Agreement.
Except
for the License Agreement, the Asset Purchase Agreement, and any other
agreements executed contemporaneously herewith as part of the Contemplated
Asset
Sale, this Agreement, contains the entire understanding and agreement between
or
among the parties hereto with respect to its subject matter and supersedes
any
prior or contemporaneous written or oral agreements, representations or
warranties between or among them respecting the subject matter hereof.
7.
Amendment.
This
Agreement may be amended only by a writing signed by each of the parties.
8.
Severability.
If any
term, provision, covenant or condition of this Agreement, or the application
thereof to any person, place or circumstance, shall be held by a court of
competent jurisdiction to be invalid, unenforceable or void, the remainder
of
this Agreement and such term, provision, covenant or condition as applied to
other persons, places and circumstances shall remain in full force and effect.
9.
Agreement
to Perform Necessary Acts.
Assignor and Assignee shall each perform any further acts and execute and
deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement.
10.
Governing
Law.
This
Agreement shall be construed in accordance with, and all actions arising
hereunder shall be governed by, the laws of the State of California.
IN
WITNESS WHEREOF,
this
Agreement has been duly executed as of the day and year first above
written.
XXXXXX.XXX,
INC. ACS
TECHNOLOGIES GROUP, INC.
By:
/s/
Xxxxxx Xxxxxx By:
/s/
J. Xxxxx Xxxxxx
Name:
Xxxxxx Xxxxxx Name:
J.
Xxxxx Xxxxxx
Title:
Chief Executive Officer Title:
Chief Operating and Financial Officer
RIVERDEEP
INC., A LIMITED LIABILITY COMPANY
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
