Exhibit 10.6
CUSTOMER INTANGIBLES LICENSE AGREEMENT
THIS AGREEMENT, made this 2nd day of August, 1999, by and between ASA
INTERPRO SMARTTIME LLC, a Delaware limited liability company (herein "SMLLC" or
"SMARTTIME LLC"), and INTERPRO EXPENSE SYSTEMS, INC., a Delaware corporation
("INTERPRO").
W I T N E S S E T H:
WHEREAS, SMLLC, INTERPRO and ASA INTERNATIONAL LTD. ("ASA") are
parties to an Option to Purchase Agreement dated of even date herewith (the
"Option Agreement"), pursuant to which SMLLC has granted to INTERPRO an option
to purchase all of the assets of SMLLC; and
WHEREAS, during the term of the Option Agreement SMLLC and INTERPRO
desire that INTERPRO conduct the Business (as defined in the Option Agreement);
and
WHEREAS, to facilitate the conduct of the Business by INTERPRO during
the term of the Option Agreement, SMLLC and INTERPRO desire to enter into this
License Agreement in which SMLLC grants to INTERPRO a license for the use of
SMLLC's Customer Intangibles (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and mutual promises
contained in this Agreement, IT IS AGREED:
1. CUSTOMER INTANGIBLES. "Customer Intangibles" shall mean any and all
information regarding the composition, with respect to the Business, of the
customer market, market share, and any other value resulting from the future
provision by SMLLC of goods or services pursuant to relationships with customers
(contractual or otherwise) in the ordinary course of business, including but not
limited to the customer list of the Business attached hereto as EXHIBIT A.
Customer Intangibles shall not include any such information ("InterPro
Information") acquired by INTERPRO from any source other than SMLLC.
2. GRANT OF LICENSE. SMLLC hereby grants to INTERPRO and INTERPRO
hereby accepts upon the terms and conditions hereinafter set forth, under all of
SMLLC's Property and other rights in the Customer Intangibles, royalty-free,
worldwide right and license (the "License"), to (a) use, for any purpose,
reproduce, distribute, publicly perform, display and sell the Customer
Intangibles, and (b) make, have made, use, sell, offer for sale and import any
product and practice any process. The License hereunder includes the right to
grant sublicenses. During the term of the License, SMLLC shall not use or grant
to any other party the right to use the Customer Intangibles for any purpose
which would be competitive with the Business, and SMLLC shall keep confidential
all of the information contained in the Customer Intangibles. In this Agreement,
"Initial Period" means the period commencing on the Option Date and ending on
the sooner to occur of (a) the date INTERPRO exercises its option to purchase
the assets of SMLLC pursuant to the Option Agreement, and (b) August 31, 1999.
3. TERM. The term of this Agreement shall commence on the date of the
execution of this Agreement and shall continue until August 31, 2000; provided,
however, that if, prior to the expiration of this Agreement, INTERPRO exercises
its option to purchase the assets of SMLLC pursuant to the Option Agreement,
then, immediately prior to such exercise, the term of this Agreement shall be
deemed to be extended until August 31, 2009 (the "Extended Term"). At any time
after August 31, 2009, if the Extended Term occurs, INTERPRO shall have the
right to acquire all of SMLLC's right, title and interest in and to the Customer
Intangibles free and clear of all Liens (as defined in the Purchase Agreement
attached to the Option Agreement), for a cash payment equal to the fair market
value of the Customer Intangibles on the date purchased, as determined by an
appraiser selected by INTERPRO.
4. LICENSE FEE. Upon execution of this Agreement, INTERPRO shall pay
SMLLC a non-refundable license fee for use of the Customer Intangibles during
the term of this Agreement (including any Extended Term) in the amount of Three
Hundred Thousand Dollars ($300,000) by wire transfer of immediately available
funds.
5. OWNERSHIP. During the term of this Agreement (including any
Extended Term), all Customer Intangibles shall remain the property of SMLLC. At
all times during the term of this Agreement and thereafter, INTERPRO shall own
the InterPro Intangibles.
6. PROTECTION OF THE CUSTOMER INTANGIBLES. Subject to Section 2, The
parties agree that, during the term of this Agreement, each shall take all such
steps as may be necessary or reasonable to safeguard the confidentiality of the
Customer Intangibles and shall not disclose any of the foregoing to any third
party, except for purposes consistent with this Agreement.
7. TERMINATION. This Agreement, and the License granted hereby, will
terminate on August 31, 2000 unless INTERPRO exercises its option to purchase
the assets of SMLLC pursuant to the Option Agreement, in which event the term of
this Agreement and the License granted hereunder shall be extended pursuant to
Section 3 hereof.
8. WARRANTY. SMLLC represents and warrants to INTERPRO that at all
times during the term of this Agreement (a) SMLLC has the full right, power and
authority to enter into this Agreement and fully perform its obligations
hereunder, and (b) SMLLC shall own exclusively all right, title and interest in
and to the Customer Intangibles, except as set forth in the Purchase Agreement
(as defined in the Option Agreement).
9. ASSIGNMENT. Neither this Agreement nor any interest herein may be
assigned, in whole or in part, by either party without the prior written consent
of the other party; provided, however, that at any time during the Extended Term
INTERPRO may assign or transfer this Agreement, or any of its rights hereunder,
to a third party that agrees to be bound by the terms of this Agreement.
10. WAIVER. The failure of either party to insist, in any one or more
instances, upon performance of the terms or conditions of this Agreement shall
not be construed as a waiver or a relinquishment of any right granted hereunder
or of the future performance of any such term, covenant or condition.
11. NOTICES. Any notice to be given hereunder shall be deemed
sufficient if in writing and delivered in accordance with the notice provisions
of the Option Agreement.
12. SEVERABILITY. In the event that any provisions shall be held to be
invalid or unenforceable for any reason whatsoever, it is agreed that such
invalidity or unenforceability shall not affect any other provision of this
Agreement and the remaining covenants, restrictions and provisions hereof shall
remain in full force and effect and that any court of competent jurisdiction may
so modify the objectionable provisions as to make it valid, reasonable and
enforceable.
13. ENTIRE AGREEMENT. This Agreement and the schedules attached hereto
constitute the entire agreement between the parties hereto and supersede all
prior agreements, understandings and arrangements, oral or written, between the
parties with respect to the subject matter hereof.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
15. HEADINGS. The headings of this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
16. RELATIONSHIP. Nothing in this Agreement is intended to or shall
(i) establish any agency, partnership or joint venture relationship between the
parties hereto; or (ii) except as otherwise specifically provided, confer on any
person other than the parties, or their authorized assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
17. DISPUTE RESOLUTION. Any dispute between the parties arising out of
or related to this Agreement shall be settled by arbitration in accordance with
the provisions of the Purchase Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers or representatives.
SMARTTIME LLC
By: /S/ XXXXXX X. XXXXXXXX
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INTERPRO EXPENSE SYSTEMS, INC.
By: /S/ XX XXXXXXXXX
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