LICENSING CONSENT AGREEMENT
THIS
LICENSING CONSENT AGREEMENT, dated as of September 30, 2008 (the “Agreement”) is made
and entered into by and between: (i) BCGU, LLC (the “Holder”); (ii)
AudioStocks, Inc. (the “Assignor”); and (iii)
DAO Information Systems, LLC, a Delaware limited liability company and its
subsidiary, DAO Information Systems, Inc. (collectively, the “Assignee”). The
Holder, Assignor and Assignee may be referred to individually as a “Party” and
collectively as the “Parties.”
RECITALS
WHEREAS,
the Assignor and Assignee are contemplating entering into that certain Asset
Purchase Agreement dated as of the date of this Agreement (the “Asset Purchase
Agreement,” a copy of which has been attached hereto as Exhibit
A). Any capitalized term used herein and not defined shall have the same
meaning as given in the Asset Purchase Agreement.
WHEREAS,
pursuant to the Asset Purchase Agreement, the Assignor will sell, assign and
transfer to Assignee all rights to the assets of Assignor related to the
AudioStocks Business (the “Assets”);
WHEREAS,
the Assignor currently licenses all rights to the Assets from the Holder
pursuant to a Licensing Agreement (the “Licensing Agreement,”
a copy of which has been attached hereto as Exhibit
B);
WHEREAS,
the Assignor requires consent from the Holder in order to effectuate the
transfer of the Assets as contemplated in the Asset Purchase
Agreement.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and confirmed, the Parties hereby agree as
follows:
1. Assignment Of Rights To
Assets. The Holder hereby consents to the transfer of the
Assets from the Assignor to the Assignee pursuant to the terms of the Asset
Purchase Agreement.
2. Assumption of Terms of
Licensing Agreement. Assignee hereby undertakes and
agrees to the assumption of the Assets pursuant to the same terms of the
Licensing Agreement.
3. Governing
Law. The subject matter of this Agreement shall be governed by
and construed in accordance with the laws of the State of California (without
reference to its choice of law principles) as applied to residents of the State
of California relating to contracts executed in and to be performed solely
within the State of California, and to the exclusion of the law of any other
forum, without regard to the jurisdiction in which any action or special
proceeding may be instituted. EACH PARTY HERETO AGREES TO SUBMIT TO
THE PERSONAL JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED
IN NORTH COUNTY OF SAN DIEGO, CALIFORNIA FOR RESOLUTION OF ALL DISPUTES ARISING
OUT OF, IN CONNECTION WITH, OR BY REASON OF THE INTERPRETATION, CONSTRUCTION,
AND ENFORCEMENT OF THIS AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE
THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. AS A MATERIAL
INDUCEMENT FOR THIS AGREEMENT, EACH PARTY SPECIFICALLY WAIVES THE RIGHT TO TRIAL
BY JURY OF ANY ISSUES SO TRIABLE.
4. Attorneys’
Fees. Should any Party hereto employ an attorney for the
purpose of enforcing or constituting this Agreement, or any judgment based on
this Agreement, in any legal proceeding whatsoever, including insolvency,
bankruptcy, arbitration, declaratory relief or other litigation, the prevailing
party shall be entitled to receive from the other Party or Parties thereto
reimbursement for all reasonable attorneys’ fees and all reasonable costs,
including but not limited to service of process, filing fees, court and court
reporter costs, investigative costs, expert witness fees, and the cost of any
bonds, whether taxable or not, and that such reimbursement shall be included in
any judgment or final order issued in that proceeding.
5. Necessary
Acts. Each Party to this Agreement agrees to perform any
further acts and execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
6. Conflicts of
Interest. The Parties shall exercise their best efforts to
make the other party aware of any conflicts of interest that exist, including
any conflicts of interest related to any other business or entity that a Party
beneficially owns or controls. Disclosure, acknowledgment and waiver of such
conflicts of interest may be made in writing or through oral
communication.
7. Entire Agreement;
Modifications; Waiver. This Agreement and the agreements
referenced herein constitute the entire agreement between the Parties pertaining
to the subject matter contained herein. This Agreement and the agreements
referenced herein supersede all prior and contemporaneous agreements,
representations, and understandings of the Parties. No supplement,
modification, or amendment of this Agreement shall be binding unless executed in
writing by all the Parties. No waiver of any of the provisions of
this Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the
Party making the waiver.
8. Counterparts. This
Agreement may be executed simultaneously in one or more counterparts, and by
different Parties hereto in separate counterparts, each of which when executed
shall be deemed an original, but all of which taken together shall constitute
one and the same instrument.
***SIGNATURE
PAGE FOLLOWS***
SIGNATURE
PAGE
IN
WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement as
of the day and year first above written.
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HOLDER:
BCGU,
LLC
______________________________________
By:
Business Consulting Group Unlimited, Inc.
Its:
Administrative Manager
By:
Xxxx X. Xxxx, Esq.
Its:
Managing Director
|
ASSIGNOR:
AudioStocks,
Inc.
____________________________
By:
Xxxx X. Xxxxx
Its:
President
|
|
ASSIGNEE:
DAO
Information Systems, LLC
____________________________
By:
Xxxx X. Xxxxx
Its:
Managing Member
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LIST OF
EXHIBITS
Exhibit
A Asset
Purchase Agreement
Exhibit
B Licensing
Agreement
______Holder
______Assignor ______Assignee
