ASSIGNMENT AGREEMENT
Exhibit 10.4
This
Assignment Agreement (Agreement) is made as of the 28th day of April, 2009 by
and between XXXXX XXXXX AND ASSOCIATES, INC., a Colorado Corporation, its
successors, affiliates, and assigns, Xxxxxx Xxxxxxxx an individual residing in
the State of Arizona, his successors, and assigns, (hereinafter all collectively
referred to as the "Assignor") and, Terrasol Holdings LTD, a Nevada Corporation
(“Assignee”), Sometimes referred to herein collectively as “the
parties”.
RECITALS
1. Assignor
is a party to a certain Technology Assignee License and Distribution Agreement
dated the 1st day of August, 2008, attached hereto as “Exhibit A” and
incorporated herein by reference.
3. Assignor
desires to sell the Assignee all of Assignor's right, title and interest to the
Agreement, a certain Technology License and Distribution Agreement dated the 1st
day of August, 2008, attached hereto and incorporated herein by
reference.
IT IS AGREED AS FOLLOWS:
1. Purchase
of Technology License and Distribution
Agreement:
(a) Assignee
Shall pay Assignor a purchase price of One Million, Two Hundred Twenty US
Dollars and Zero Cents ($1,220,000.00) which shall be paid in the form of Two
Million (2,000,000) shares of Assignee’s $.0001 par value, Series “A”
Convertible Preferred Stock. The Shares shall be fully paid for and
non-assessable when issued and shall bear a restrictive legend in accordance
with the rules and regulations of the United States Securities and Exchange
Commission.
(b) During
the term of the Technology Assignee License and Distribution Agreement dated the
1st day of August, 2008 and including but not limited to all option periods or
extensions of said Term, as additional consideration for this
Agreement, Assignee shall pay to Assignor a royalty of Ten ($10.00)
US Dollars and Zero cents from “Net Receipts” on all sales. This royalty shall
be paid out of the net receipts from the sales of products covered under this
Agreement. Licensee's "net receipts" are defined as actual revenue
derived and collected from the sale of products sold at Licensee's wholesale
price less hard costs for manufacturing. No royalty shall be paid in
connection with free or promotional goods. "Hard costs" means all costs incurred
with respect to the manufacture, distribution and sale of products embodying the
licensed Technology including without limitation, graphic design, artwork,
printing, including proofs and color separations, physical manufacturing and
duplication, packaging and shipping of said products. Hard costs do not include
warehousing, accounting, distribution and internet, television, radio and retail
advertising, marketing and promotion.
(i) Royalties
in respect of sales outside the United States shall be computed in the same
national currency as Assignee is accounted to by its licensees and shall be paid
to Assignor at the same rate of exchange as Assignee is paid. It is
understood that such royalties will not be due and payable until payment thereof
or credit therefore against advances previously taken is received by Assignee in
the United States of America. In the event Assignee is unable to
receive payment in United States dollars in the United States due to
governmental regulations, royalties therefore shall not be credited to
Assignor's account during the continuance of such inability except that (i) if
any accounting rendered to Assignor hereunder during the continuance of such
inability shows Assignor's account to be in a credit position, Assignee will,
after Assignor's request and at Assignor's expense, if Assignee is able to do
so, deposit such royalties to Assignor's credit in the applicable foreign
currency in a foreign depository, or (ii) if the royalties are not credited to
Assignor's account exceed the amount, if any, by which Assignor's account is in
a debit position, then Assignee will, after Assignor's request and at Assignor's
expense, and if Assignee is able to do so, deposit such excess royalties to
Assignor's credit in the applicable foreign currency in a foreign
depository. Deposit as aforesaid shall fulfill Licensee's obligations
under this Agreement as to record sales to which such royalty payments are
applicable.
(ii) Statements
as to royalties payable hereunder shall be sent by Assignee to Assignor within
Thirty (30) days after the receipt of manufactured product at Assignee’s
warehouse from the manufacture. Concurrently with the rendition of each
statement, Assignee shall pay Assignor all royalties shown to be due by such
statement. No statements need be rendered by Assignee for any such period after
the expiration of the Term hereof for which there are no sales of product
derived from the license hereunder. All payments shall be made to the
order of Assignor and shall be sent to Assignor at Assignor's address contained
in this Agreement. Assignee shall be entitled to maintain a single
account with respect to all product sales subject to this or any other
agreement. Assignor shall be deemed to have consented to all accountings
rendered by Assignee hereunder and said accountings shall be binding upon
Assignor and shall not be subject to any objection by Assignor for any reason
unless specific objection, in writing, stating the basis thereof, is given to
Assignee within one (1) year after the date rendered, and after such
written objection, unless suit is instituted within eighteen (18) months after
the date upon which Assignee notifies Assignor that it denies the validity of
the objection.
(c) Assignor
shall have the right at Assignor's sole cost and expense to appoint a Certified
Public Accountant or attorney who is not then currently engaged in an
outstanding audit of Assignee to examine and copy Licensee's books and records
as same pertain to sales of the Technology subject hereto, provided that any
such examination shall be for a reasonable duration and shall take place at
Licensee's offices during normal business hours on one (1) month prior written
notice and shall not occur more than once in any calendar year.
i) Notwithstanding
anything to the contrary contained herein, if Assignee notifies Assignor that
the Certified Public Accountant designated by Assignor to conduct an audit
hereunder is engaged in an outstanding audit of Assignee on behalf of another
person ("Other Audit"), Assignor may nevertheless have Assignor's audit
conducted by such accountant, and the running of the time within which such
audit may be made shall be suspended until such accountant has completed the
Other Audit, subject to the following conditions:
ii) Assignor
shall notify Assignee of Assignor's election to that effect within fifteen (15)
days after the date of Licensee's said notice to Assignor;
iii) Assignor's
accountant shall proceed in a reasonable continuous and expeditious manner to
complete the Other Audit and render the final report thereon to the client and
Licensee; and
iv) Assignor's
audit shall not be commenced by Assignor's accountant before the delivery to
Assignee of the final report on the Other Audit, shall be commenced within
thirty (30) days thereafter, and shall be conducted in a reasonable continuous
manner.
v) The
provisions hereunder will not apply if Assignee elects to waive said provisions
which require that Assignor's accountant shall not be engaged in any Other
Audit.
2. Assignment: Assignor
assigns in full all of Assignor's right, title and interest in and to the a
certain Technology License and Distribution Agreement dated the 1st day of
August, 2008. Assignor will sign a Xxxx of Sale and Assignment in the
form attached as “Exhibit B”.
3. Closing: This transaction
will close at on or before April 28th, 2009. Assignee will pay all
costs of closing.
4. Representations
of Assignor:
A. Assignor
is the legal and equitable exclusive holder of One Hundred Percent (100%) of all
license rights granted under the Technology License and Distribution Agreement
dated the 1st day of August, 2008 and has full power and authority to sell and
assign the Technology License and Distribution Agreement dated the 1st day of
August, 2008 at its sole discretion, without prior notice or consent of any kind
or nature, from any person or entity, natural or unnatural.
B. Assignor
has not executed any prior assignment, pledge or any other document which
impairs Assignor's ability to assign in full all legal and equitable rights held
by Assignor in and to the Technology License and Distribution Agreement dated
the 1st day of August, 2008
C. Assignor
has executed no release, discharge, satisfaction or cancellation of the
Technology License and Distribution Agreement dated the 1st day of August,
2008.
D. Assignor
has provided Assignee with true and correct copies of the Technology License and
Distribution Agreement dated the 1st day of August, 2008.
5. Counterparts. This Agreement may be
signed in one or more counterparts with the same effect as if the signatures to
each counterpart were upon a single instrument, and all suchcounterparts
together shall be deemed an original of this Agreement. Delivery of
an executed counterpart of the signature to this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this
Agreement.
6. Choice
of Law; Venue; Jurisdiction; Attorneys’
Fees. The parties acknowledge
and agree that this Agreement has been made in Arizona, and that it shall be
governed by, construed, and enforced in accordance with the laws of
the State of Arizona, without reference to its conflicts of laws
principles. The parties also acknowledge and agree that any action or
proceeding arising out of or relating to this Agreement or the enforcement
thereof shall be brought in the Maricopa County Superior Court, and each of the
parties irrevocably submits to the exclusive jurisdiction of that Court in any
such action or proceeding, waives any objection the party may now or hereafter
have to venue or to convenience of forum, agrees that all claims in respect of
such action or proceeding shall be heard and determined only in that Court, and
agrees not to bring any action or proceeding arising out of or relating to this
Agreement or the enforcement hereof in any other court. The parties
also acknowledge and agree that either or both of them may file a copy of this
paragraph with any court as written evidence of the knowing, voluntary and
bargained agreement between the parties irrevocably to waive any objections to
venue or convenience of forum, or to personal or subject matter
jurisdiction. The parties also acknowledge and agree that any action
or proceeding referred to above may be served on any party anywhere in the world
without any objection thereto. The parties also acknowledge and agree
that the prevailing party in any such action or proceeding shall be awarded the
party’s reasonable attorneys’ fees and costs (including, but not limited to,
costs of court).
7. Fair
Meaning. The parties agree that
the wording of this Agreement shall be construed as a whole according to its
fair meaning, and not strictly for or against any of the parties to this
Agreement, including the party responsible for drafting the
Agreement.
8. Entire
Agreement. The parties declare and represent that no promise,
inducement or agreement not herein expressed has been made, and that this
Agreement constitutes the entire Agreement between the parties, and supersedes
all prior negotiations, proposed agreements, or understandings, if any, between
the parties concerning any of the provisions or contents of this
Agreement.
9. Mutual
Drafting. The parties hereto
acknowledge and agree that they are sophisticated and have been represented by
attorneys who have carefully negotiated the provisions of this Agreement. As a
consequence, the parties also agree that they do not intend that the
presumptions of any laws or rules relating to the interpretation of contracts
against the drafter of any particular clause should be applied to this Agreement
and therefore waive their effect.
10. Jurisdiction. Service of
Process. Any action or proceeding arising out of or relating to this
Agreement shall be governed by Section 6 of this Agreement, and each of the
parties irrevocably submits to the exclusive jurisdiction of each court
identified therein in any such action or proceeding; waives any objection the
party may now or hereafter have to venue or to convenience of forum; agrees that
all claims in respect of the action or proceeding shall be heard and determined
only in any such court; and agrees not to bring any action or proceeding arising
out of or relating to this Agreement or any transaction contemplated hereby in
any other court. The parties agree that either or both of them may
file a copy of this paragraph with any court as written evidence of the knowing,
voluntary and bargained agreement between the parties irrevocably to waive any
objections to venue or to convenience of forum. Process in any action
or proceeding referred to in the first sentence of this Section 10 may be
served on any party anywhere in the world.
11. Waiver;
Remedies Cumulative. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any
failure nor any delay by any party in exercising any right power or privilege
under this Agreement will operate as a waiver of such right, power or privilege,
and no single or partial exercise of any such right, power or privilege will
preclude any other or further exercise of such right, power or privilege, or the
exercise of any other right, power or privilege. To the maximum
extent permitted by applicable law,
(i) no
claim or right arising out of this Agreement can be discharged by one party, in
whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party;
(ii) no
waiver that may be given by a party will be applicable except in the specific
instance in which it is given; and
(iii) no
notice or demand on one party will be deemed to be a waiver of any obligation of
that party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this
Agreement.
12. Notices. All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be deemed given to a party when:
(i) delivered
by hand or by a nationally recognized overnight courier
service (costs prepaid),
(ii) sent
by facsimile with confirmation of transmission by the transmitting equipment,
or;
(iii) received
or rejected by the addressee, if sent by certified mail, postage prepaid and
return receipt requested, in each case to the following:
(i) if to Assignor,
to: 00000
X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Phone: (000)-000-0000
Facsimile:
(000)-000-0000
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(ii) if to Assignee,
to:
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Terrasol Holdings
Ltd.
|
|
|
000 Xxxxxxxxxx
Xxxxxx
|
|
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Xxxxx
#0000
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|
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Xxx Xxxxxxxxx, XX
00000
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13. Binding
on Successors and Assigns. This Agreement shall be binding on and shall
inure to the benefit of each party, its successors, and assigns. This
Agreement and the rights and obligations hereunder shall not be assignable or
transferable by either party without the prior written consent of the other
party.
14. Third-Party
Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their permitted successors or assigns, and nothing herein
expressed or implied shall give or be construed to give to any person, other
than the parties hereto and such successors or assigns, any legal or equitable
rights, remedy or claim hereunder.
15. Severability. If any
provision of this Agreement or the application of any such provision to any
person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof.
16. Authority
of Signers. The
parties represent and warrant that the person whose signature is set
forth below on behalf of a party is fully authorized to execute this
Agreement on behalf of that party.
17. Amendment. No
amendment to this Agreement shall be effective unless it shall be in writing and
signed by the parties hereto.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
"ASSIGNOR"
XXXXX
YOUNG and ASSOCIATES, INC. A Colorado Corporation
EIN#
00-0000000
By: XXXX XXX
XXXXXXXX
Xxxx
Xxx Xxxxxxxx
Its
President
"ASSIGNOR"
Xxxxxx
Xxxxxxxx, an Individual
By: XXXXXX
XXXXXXXX
Xxxxxx
Xxxxxxxx
“ASSIGNEE”
TERRASOL
HOLDINGS LTD, a
Nevada Corporation
XXXXX
XXXXXXX
By: Xxxxx Xxxxxxx, President,
Director
