EXHIBIT 10.5
ASSIGNMENT, ASSUMPTION AND CONSENT
This ASSIGNMENT, ASSUMPTION AND CONSENT (this "Agreement")
is made and entered into as of this Monday July, 1996, by and among PerArdua
Investors, L.P., a California limited partnership ("PLP"), University of
Southern California, a California nonprofit corporation ("USC"), and PerArdua
Corporation, a Missouri corporation ("PC").
R E C I T A L S
A. PLP and USC made and entered into that certain Option & License
Agreement effective March 28, 1994, as amended, modified and supplemented
through the date hereof (the "License Agreement"), a true and correct copy of
which is attached hereto as Exhibit "A";
B. PLP and PC desire to enter into an Option and Asset Purchase
Agreement dated July' 8 , 1996 (the "Option Agreement"), pursuant to which PC is
granted an option The "Option") to acquire, among other things, PLP's rights and
obligations under the License Agreement;
C. Subject to the terms and conditions set forth herein, (i) PLP
desires to sell, assign, transfer and convey all of its right, title and
interest in and to the License Agreement to PC, (ii) PC desires to acquire all
such rights from PLP and is willing to assume, and fully, completely and timely
perform, comply with and discharge, each and all of the obligations, duties and
liabilities of PLP as Licensee (or, if different, all obligations, duties and
liabilities of an assignee) under the License Agreement and (iii) USC is willing
to consent to such assignment by PLP and assumption by PC.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and conditions contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Assignment. For and in consideration of the assumption by PC
described in Section 2 hereof and the consent of USC described in Section 3
hereof, AND CONDITIONED UPON the exercise of the Option by PC in accordance with
the terms of the Option Agreement on or before September 15, 1996, PLP does
sell, assign, transfer and convey all of its right, title and interest in and to
the License Agreement to PC.
2. Assumption. For and in consideration of the assignment of PLP
described in Section 1 hereof and the consent of USC described in Section 3
hereof, and conditioned upon the exercise of the Option by PC in accordance with
the terms of the Option Agreement on or before September 15, 1996, PC does
assume, and covenant and agree fully, completely and timely to perform, comply
with and discharge each and all of the obligations, duties and liabilities of
PLP as Licensee (or, if different, all obligations, duties and liabilities of an
assignee) under the License Agreement, including without limitation the payment
of all amounts due to USC under or pursuant to the License Agreement such as
royalties attorneys' fees, and payments under the Research Agreement between USC
and PLP effective March 9, 1994, as amended. PC further agrees to be fully and
completely bound by each and every term and condition of the License Agreement
and expressly acknowledges that no term, condition, obligation, duty or
liability under the License Agreement has been waived or excused by USC.
3. Consent. For and in consideration of, and contingent upon the
assumption of PC described in Section 2 hereof and the satisfaction of the
condition provided for in Section 4 hereof, and conditioned upon the execution
of the Option by PC in accordance with the terms of the Option Agreement on or
before September 15, 1996, and with the understanding that neither the
assignment by PLP nor this consent shall constitute either (a) a consent to any
further assignment under the License Agreement, which further assignment may be
accomplished in and only in accordance with the provisions of the License
Agreement, or (b) a modification of any of the provisions of the License
Agreement, each and all of which provisions shall remain in full force and
effect without any modification whatsoever, USC does consent to the assignment
by PLP described in Section 1 hereof.
4. License Agreement Condition. PLP and PC acknowledge that,
pursuant to Section 16 of the License Agreement, the effectiveness of the
assignment, assumption and consent provided for herein is conditioned upon USC's
receipt of four percent (4%) of the aggregate consideration received by PLP as a
result of its assignment or transfer to PC, including without limitation all
cash, notes and securities issued or issuable to PLIP or any of its partners in
consideration for his or her partnership interest in PLP; provided that any such
securities shall be issued to USC but held by the Secretary of PC pursuant to
escrow instructions in form and substance reasonably acceptable to PC and USC.
5. Validity of Agreement. Notwithstanding any provision of this
Agreement to the contrary, in no event shall this Agreement be valid or binding
upon the parties hereto unless and until the Option is exercised by PC in
accordance with the terms of the Option Agreement on or before September 15, 1
996.
6. Miscellaneous.
A. Waiver of Breach. No parry's failure to enforce any provision or
provisions of this Agreement shall be deemed or in any way construed as a waiver
of any such provision or provisions, nor prevent that party thereafter from
enforcing each and every provision of this Agreement. The rights granted the
parties herein are cumulative and shall not constitute a waiver of any party's
right to assert all other legal remedies available to it under the
circumstances.
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B. Governing Law; Venue. This Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the internal
laws of the State of California; provided, however, that any provision of this
Agreement which may be prohibited by or otherwise held invalid under such laws
shall be ineffective only to the extent of such prohibition or invalidity and
shall not invalidate or otherwise render ineffective any or all of the remaining
provisions of this Agreement. USC, PC, and PLP hereby consent to the
jurisdiction of the courts of the State of California and the United States
courts located in the County of Los Angeles, State of California, in connection
with any lawsuit, action or proceeding arising out of or relating to this
Agreement, and such courts shall be the only courts having jurisdiction of any
such controversies. All parties hereby waive any defense of lack of In personam
jurisdiction, improper venue and forum non conveniens, and agree that service of
process of such court may be made upon each of them by personal delivery or by
mailing certified or registered mail, return receipt requested, to the parties
at the addresses set forth below.
C. Expenses. If any legal action or other proceeding is brought
forth for the enforcement of this Agreement, or because of an alleged dispute,
or breach or default in connection with any of the provisions of this Agreement,
the successful or prevailing party shall be entitled to recover reasonable
attorneys' fees and other costs incurred! in that action or proceeding, in
addition to any other relief to which it or they might be entitled.
D. Counterparts. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one (1) and the same instrument.
E. Complete Agreement; Amendments. This Agreement contains the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersedes any prior agreements and understandings relating thereto.
This Agreement may not be waived, changed, modified, extended or discharged
orally, but only by a written instrument signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in triplicate as of the day and year first above written.
UNIVERSITY OF SOUTHERN CALIFORNIA
By: Illegible
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Its: Sr. VP for Administration
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Address: Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
PERARDUA INVESTORS, L.P.
By:
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Its:
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Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PERARDUA CORPORATION
By:
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Its:
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Address: 000 Xxx Xxxxxxxx Xxxx
Xxxx & Xxxxxxx, Xxxxxxxx 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in triplicate as of the day and year first above written.
UNIVERSITY OF SOUTHERN CALIFORNIA
By:
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Its:
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Address: Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
PERARDUA INVESTORS, L.P.
By: Illegible
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Its: President and CEO of General Partner
PerArdua, II
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Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PERARDUA CORPORATION
By:
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Its:
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Address: 000 Xxx Xxxxxxxx Xxxx
Xxxx & Xxxxxxx, Xxxxxxxx 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
in triplicate as of the day and year first above written.
UNIVERSITY OF SOUTHERN CALIFORNIA
By:
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Its:
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Address: Xxxxxxxxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
PERARDUA INVESTORS, L.P.
By:
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Its:
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Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
PERARDUA CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Its: Treasurer
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Address: 000 Xxx Xxxxxxxx Xxxx
Xxxx & Xxxxxxx, Xxxxxxxx 00000
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