EXHIBIT 99.20
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (the "Purchase Agreement") made and
entered into as of September 24, 2003, by and between THE SCO GROUP, INC., a
Delaware corporation ("SCO"), and XXXX X. XXXX ("Wall").
1. ACQUISITION OF SECURITIES; ASSIGNMENT OF RIGHTS AND ASSUMPTION OF
OBLIGATIONS.
(a) Sale and Purchase. SCO hereby sells, assigns and transfers to Wall,
and Wall hereby purchases from SCO:
(i) 3,312,737 shares of Series C Convertible Preferred Stock (the
"Vista Preferred Shares") of Community XX.xxx, Inc. d/b/a Xxxxx.xxx ("Vista");
(ii) a promissory note issued August 15, 2002 by Vista to SCO in the
original principal amount of $1,000.000 with a amount owing of $1,088,767.12
(including interest through September 24, 2003); a promissory note issued
January 16, 2003 by Vista to SCO in the original principal amount of $100,000
with an amount owing of $100,000 with an amount owing of $105,501.37 (including
interest through September 24, 2003; and a promissory note issued April 2, 2003
by Vista to SCO in the original principal amount of $100,000 with an amount of
$103,835.62 (including interest through September 24, 2003) (collectively, the
"Vista Notes"); and
(iii) a promissory note issued June 3, 2003 by Next eStage, Inc.
("Next eStage") to SCO in the original principal amount of $250,000 with an
amount owing of $256,191.78 (including interest through September 24, 2003);
and a promissory note issued June 27, 2003 by Vista to SCO in the original
principal amount of $250,000 with an amount owing of $254,876.71 (including
interest through September 24, 2003) (collectively, the "Next eStage Notes");
and
The vista Preferred Shares, Vista Notes, Next eStage Notes, Next eStage
Warrant are collectively referred to herein as the "Securities." In connection
with the transfer of the Securities as provided herein, SCO shall deliver to
Wall (i) the original stock certificate number [___] issued by Vista in the
name of SCO representing the Vista Preferred Shares; (ii) the Stock Power
Separate from Certificate attached hereto as Exhibit A with respect to the
Vista Preferred Shares; (iii) the original Vista Notes; and (iv) the original
Next eStage Notes.
(b) Consideration. Wall agrees to transfer to SCO 100,000 shares of common
stock of SCO ("SCO Shares") in consideration for the Securities. In connection
with the transfer of SCO Shares as provided herein, Wall shall deliver to SCO
(i) original stock certificate number 1396 issued to Wall by SCO representing
the SCO Shares and (ii) the Stock Power Separate from Certificate attached
hereto as Exhibit B.
(c) Assignment of Rights and Assumption of Obligations. To the extent SCO
has received the necessary consents, SCO hereby assigns to Wall all rights held
by SCO under the following documents: Note Purchase Agreement dated August 15,
2002 between SCO and Wall; Stock Purchase Agreement dated December 13, 2002
among SCO, Vista and Wall; Shareholder Agreement dated December 13, 2002 among
SCO, Vista and certain Vista shareholders; Note
and Warrant Purchase Agreement dated June 3, 2003 between SCO and Next eStage;
Security Agreement dated June 3, 2003 among SCO, Next eStage and the other
parties thereto; and Interparty Agreement between SCO Group and Access Capital,
Inc., a New York corporation (collectively, the "Vista and Next eStage
Documents"). Wall hereby assumes all obligations of SCO under each of the Vista
and Next eStage Documents.
2. REPRESENTATIONS AND WARRANTIES OF WALL.
In connection with the purchase of the Securities, Wall represents,
warrants and agrees as follows:
(a) Wall is an individual resident of the State of Washington and has all
legal capacity and power necessary to purchase the Securities pursuant to the
terms of this Purchase Agreement and perform his other obligations under this
Purchase Agreement.
(b) This Purchase Agreement has been duly executed and delivered by Wall
and constitutes the legal, valid and binding obligation of Wall enforceable
against Wall in accordance with its terms.
(c) The execution, delivery and performance by Wall of this Purchase
Agreement require no action by or in respect of, or filing with, any
governmental body, agency or official.
(d) The execution, delivery and performance by Wall of this Purchase
Agreement do not (i) violate any applicable statute, law, rule, regulation,
ordinance, judgment, ruling by a court, writ, injunction, order or decree or
(iii) require any consent or other action by, or any notice to, any person
under, or constitute a default or create a penalty under, conflict with any
agreement, contract, lease, license or other instrument, judgment or order
binding upon or applicable to Wall.
(e) There is no action, suit, investigation or proceeding pending against,
or, to the knowledge of Wall, threatened against or affecting, Wall as of the
date of this Purchase Agreement which in any manner challenges or seeks to
prevent, enjoin, alter or delay the transactions contemplated by this Purchase
Agreement.
(f) Wall is the sole record and beneficial owner of the SCO Shares, and has
all right, title and interest in the SCO Shares, free and clear of any and all
liens, pledges, encumbrances, security interests, charges, agreements,
restrictions or claims of any kind whatsoever (each a "Lien"), and no Lien will
arise as a result of the sale of the SCO Shares to the Company pursuant to this
Purchase Agreement. There are no options, warrants, first refusal rights,
purchase rights or other contracts, commitments or agreements outstanding that
would permit any person to acquire any of the SCO Shares or any interest
therein except pursuant to this Purchase Agreement, no voting trusts or
agreements are in existence with respect to such SCO Shares, and no person
other than Wall has or shares any voting rights with respect to any Shares. No
person has asserted any claim or commenced or threatened any litigation
concerning Wall's record or beneficial title to or any other interested in the
SCO Shares.
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(g) Wall is acquiring and will hold the Securities for investment for his
account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act.
(h) Wall understands that the Securities have not been registered under the
Securities Act by reason of a specific exemption therefrom and that the
Securities must be held indefinitely, unless they are subsequently registered
under the Securities Act of 1933, as amended (the "Securities Act").
(i) Wall is aware of the adoption of Rule 144 by the Securities and
Exchange Commission under the Securities Act, which permits limited public
resales of securities acquired in a non-public offering, subject to the
satisfaction of certain conditions, including (without limitation) the
availability of certain current public information about the issuer, the resale
occurring only after the holding period required by Rule 144 has been satisfied,
the sale occurring through an unsolicited "broker's transaction," and the amount
of securities being sold during any three-month period not exceeding specified
limitations. Wall acknowledges and understands that with respect to the
Securities the conditions for resale set forth in Rule 144 have not been
satisfied and that neither Vista nor Next eStage has no plans to satisfy these
conditions in the foreseeable future.
(j) Wall will not sell, transfer or otherwise dispose of the Securities in
violation of the Securities Act, the Securities Exchange Act of 1934, as
amended, or the rules promulgated thereunder, including Rule 144 under the
Securities Act. Wall agrees that it will not dispose of the Securities unless
and until it has complied with all requirements of this Purchase Agreement and
any other agreement applicable to the disposition of the Securities.
(k) Wall has been furnished with, and has had access to, such information
as he considers necessary or appropriate for deciding whether to purchase the
Securities, and Wall has had an opportunity to ask questions and receive answers
from SCO, Vista and Next eStage regarding the terms and conditions of the
Securities.
(l) With regard to Wall's decision to transfer the SCO Shares to SCO in
consideration for the Securities, Wall is in possession of all reports and
documents filed by SCO with the Securities and Exchange Commission and has
reviewed such filings and such other information regarding SCO and its business
and operations as Wall deems relevant to make an informed decision to transfer
for the SCO Shares to SCO. Wall with his legal, tax and financial advisors
("Representatives") has investigated SCO and its business and Wall has
negotiated the transaction contemplated herein and has independently determined
to transfer the SCO Shares to SCO at the valuation and on the terms described
herein. Wall alone or with the assistance of his Representatives has determined
to transfer the SCO Shares in consideration for the Securities and believes such
consideration is fair and reasonable. Wall alone or with the assistance of his
Representatives is knowledgeable and experienced in financial and business
matters and is capable of making an informed decision to transfer the SCO Shares
to SCO. No representation is being or has been made by SCO or its advisors to
Wall regarding the value of the SCO shares or the tax or other effects to Wall
of the transactions contemplated herein. The transactions contemplated herein
are not being effected through a broker or dealer or on or through any exchange.
Wall has been given the opportunity to ask questions of, and receive answers
from,
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the officers of SCO with respect to the financial performance and prospects of
SCO, including without limitation the current and recent market price of SCO's
common stock, and has had access to all additional information requested by him
concerning the business, operations and financial condition, performance and
prospects of SCO.
(m) Wall is aware that his purchase of the Securities is a speculative
investment that has limited liquidity and is subject to the risk of complete
loss. Wall is able, without impairing his financial condition, to hold the
Securities for an indefinite period and to suffer a complete loss of his
investment in the Securities. Wall understands that an investment in the
Securities involves a high degree of risk. Wall is an "accredited investor" as
such term is defined in Regulation D promulgated under the Securities Act.
3. REPRESENTATIONS AND WARRANTIES OF SCO.
In connection with its sale of the Securities, SCO represents, warrants and
agrees as follows:
(a) SCO is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all corporate power
necessary to sell the Securities pursuant to the terms of this Purchase
Agreement and perform its other obligations under this Purchase Agreement.
(b) The execution, delivery and performance by SCO of this Purchase
Agreement have been duly authorized by all necessary corporate action on the
part of SCO. This Purchase Agreement has been duly executed and delivered by SCO
and constitutes the legal, valid and binding obligation of SCO enforceable
against SCO in accordance with its terms.
(c) The execution, delivery and performance by SCO of this Purchase
Agreement require no action by or in respect of, or filing with, any
governmental body, agency or official, provided that this Purchase Agreement may
be filed with the Securities and Exchange Commission.
(d) The execution, delivery and performance by SCO of this Purchase
Agreement do not (i) violate the article of incorporation or bylaws of SCO, (ii)
violate any applicable statute, law, rule, regulation, ordinance, judgment,
ruling by a court, writ, injunction, order or decree or (iii) other than the
consent of Vista and Next eStage, require any consent or other action by, or any
notice to, any person under any agreement, contract, lease, license or other
instrument binding upon or applicable to SCO, provided that this Purchase
Agreement may be filed with the Securities and Exchange Commission.
(e) There is no action, suit, investigation or proceeding pending against,
or, to the knowledge of SCO, threatened against or affecting, SCO as of the date
of this Purchase Agreement which in any manner challenges or seeks to prevent,
enjoin, alter or delay the transactions contemplated by this Purchase Agreement.
(f) SCO is the sole record and beneficial owner of the Securities, and has
all right, title and interest in Securities, free and clear of any and all
Liens, and no Lien will arise as a result of the sale of the Securities to Wall
pursuant to this Purchase Agreement. There are no
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options, warrants, purchase rights or other contracts or commitments outstanding
that would permit any person to acquire any of the Securities or any interest
therein except pursuant to this Purchase Agreement.
No person has asserted any claim or commenced or threatened any litigation
concerning SCO's record title to or any other interest in the Securities.
4. MISCELLANEOUS.
(a) Wall agrees that with respect to any information pertaining to SCO
that is provided to Wall in connection with this Purchase Agreement or
otherwise (collectively, "Confidential Matters"), to treat as confidential all
such information and Wall will not, and will not permit any of his
Representatives to, disclose any Confidential Matters, provided that Wall or
his Representative may disclose any such information: (i) after it has become
generally available to the public or (ii) as to which SCO has previously
consented in writing. Wall acknowledges that he is aware and will advise his
Representatives who are informed as to the subject of this Purchase Agreement,
that the United States securities laws prohibit any person who has material,
non-public information concerning SCO from purchasing or selling securities of
SCO or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities. Wall agrees that this Purchase Agreement
constitutes a confidentiality agreement within the meaning of Rule
100(b)(2)(ii) of Regulation FD.
(b) Each party represents to the other party that it has had no dealings
with any broker or finder in connection with the transactions contemplated by
this Purchase Agreement. Each party agrees to indemnify the other party and hold
the other party harmless from and against any and all liability to which the
other party may be subjected by reason of any broker's, finder's or similar fee
with respect to the transactions contemplated by this Agreement.
(c) Each party agrees to execute and deliver to the other party all
documents or instruments necessary to effect the transaction contemplated
herein.
(d) This Purchase Agreement shall be governed by and construed in
accordance with the laws of the State of Utah applicable to contracts made and
wholly performed in that jurisdiction.
(e) This Purchase Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended
only by a writing executed by the party to be bound thereby.
(f) The headings of the sections of this Purchase Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Purchase Agreement.
(g) This Purchase Agreement may be executed in several identical
counterparts, each of which when executed by the parties hereto and delivered
shall be an original, but all of which together shall constitute a single
instrument. In making proof of this Purchase Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
(h) Each party acknowledges that it has been advised by counsel in the
negotiation, execution and delivery of this Purchase Agreement. Any rule of
constructions to the effect that
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ambiguities are to be resolved against the drafting party shall not apply in
interpreting this Purchase Agreement. The language in this Purchase Agreement
shall be interpreted as to its fair meaning and not strictly for or against any
party.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Purchase Agreement
effective as of the date first set forth above.
THE SCO GROUP, INC.
By: /s/ Xxxxxx Bench
---------------------------
Name: Xxxxxx Bench
Its: CFO
/s/ Xxxx Xxxx
-------------------------------
Xxxx Xxxx
[Signature Page to Purchase Agreement]
EXHIBIT A
STOCK TRANSFER POWER SEPARATE FROM CERTIFICATE
[See attached.]
STOCK TRANSFER POWER
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED. The SCO Group, Inc. (the "SCO"), hereby sells, assigns
and transfers to Xxxx Xxxx 3,312,737 shares of the Series C Convertible
Preferred Stock of Community XX.xxx d/b/a Xxxxx.xxx, a Washington corporation
(the "Company"), standing in SCO's name on the books of the Company and
represented by Certificate No. [ ] and does hereby irrevocably constitute and
appoint the Company's Secretary to transfer such shares of Series C Convertible
Preferred Stock on the books of the Company with full power of substitution in
the premises.
Dated effective as of September 24, 2003.
THE SCO GROUP, INC.
By:
---------------------------
Name:
Its:
EXHIBIT B
STOCK TRANSFER POWER SEPARATE FROM CERTIFICATE
[See attached.]
STOCK TRANSFER POWER
SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, Xxxx Xxxx hereby sells, assigns and transfers to The
SCO Group, Inc. 100,000 shares of common stock of The SCO Group, Inc., a
Delaware corporation (the "Company"), standing in Wall's name on the books of
the Company and represented by Certificate No. 1396 and does hereby irrevocably
constitute and appoint the Company's Secretary to transfer such shares of common
stock on the books of the Company with full power of substitution in the
premises.
Dated effective as of September 24, 2003.
/s/ Xxxx X. Xxxx
---------------------------------
Xxxx X. Xxxx
TECHNOLOGY LICENSE AGREEMENT
This TECHNOLOGY LICENSE AGREEMENT (this "Agreement") is entered into as of
September 24, 2003 (the "Effective Date") between THE SCO GROUP, INC., a
Delaware corporation ("Licensee"), and COMMUNITY XX.XXX. INC. D/B/A XXXXX.XXX,
a Washington corporation ("Licensor")
1. CERTAIN DEFINITIONS.
1.1 "License" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.2 "Licensed Technology" shall mean the technology and processes set
forth on Exhibit A to this Agreement, together with all discoveries,
inventions, improvements, ideas, designs, technology, information, techniques,
formulae, methods, processes (including business processes), process
parameters, machines, instruments, devices, apparatus, or compositions of
matter, works of authorship, copyright protected items, and all written,
graphic, or recorded information reflecting, comprising, or incorporating any of
the foregoing that have been developed by or on behalf of and are owned by
Licensor as of the Effective Date.
1.3 "Licensee Claims" shall have the meaning set forth in Section 8
of this Agreement.
1.4 "Licensee Improvements" shall mean any and all improvements,
modifications and enhancements of the Licensed Technology developed, conceived
or reduced to practice by Licensee as of the Effective Date.
1.5 "Licensor Claims" shall have the meaning set forth in Section 7.2
of this Agreement.
1.6 "Product" shall mean any product, software, process, method,
apparatus, part or component thereof the creation, manufacture, development,
marketing, use, sale, offer for sale, distribution or other commercial
exploitation of which would, but for the License (or any waive or release
contained in this Agreement), constitute an infringement of Licensor's
Proprietary Rights.
1.7 "Proprietary Rights" shall mean patent rights, copyrights, trade
secret rights, and all other intellectual property and proprietary rights
anywhere in the world.
2. License Grant.
2.1 Licensed Technology. Licensor hereby grants to Licensee (and its
current and future parents, subsidiaries, affiliates or successors) a
nonexclusive, worldwide, royalty-free, fully paid-up, sublicensable,
transferable, assignable and irrevocable license (the "License") to use,
develop, reproduce, create derivative works, modify and otherwise fully exploit
the Licensed Technology by any means and in any medium now known or later
developed and to make, create, develop, use, sell, distribute, market,
manufacture or otherwise fully exploit any
and all Products, provided, that the Licensee will not market Licensed
Technology as a stand-alone product.
3. Ownership. As between the parties, except as expressly licensed herein,
Licensor shall retain and exclusively own all title rights and interest in and
to the Licensed Technology, Licensor Improvements and all Proprietary Rights
therein. As between the parties, Licensee shall retain and exclusively own all
title rights and interest in and to the Licensee Improvements and all
Proprietary Rights therein.
4. Consideration. In consideration of the License granted Licensee
hereunder, upon execution of this Agreement by both parties. Licensor shall be
deemed to have paid $250,000 of its outstanding debt to Licensee, evidenced by
prepaid royalties and/or fees.
5. Confidentiality. Licensee agrees that the Licensed Technology and all
information relating thereto and all other proprietary information disclosed by
Licensor to Licensee under this Agreement are the confidential property of
Licensor ("Licensor Proprietary Information"). Licensor agrees that the Licensee
Improvements, the Products made, developed, used, distributed, created,
manufactured or sold by or on behalf of the Licensee, including, but not limited
to, the processes, software, methods, apparatuses, or parts or components
thereof that comprise such Products (collectively, the "Licensee Products"),
and all information relating to Licensee's business, including, but not limited
to, names and expertise of employees and consultants, know-how, and other
technical, business, financial, customer and product development plans,
forecasts, strategies and information, and all other proprietary information
disclosed by Licensee to Licensor under this Agreement, are the confidential
property of Licensee ("Licensee Proprietary Information"). Except as permitted
by this Agreement, Licensee shall hold in confidence and not use or disclose any
Licensor Proprietary Information, and Licensor shall hold in confidence and not
use or disclose any Licensee Proprietary Information. Licensee's and Licensor's
respective nondisclosure obligations shall not apply to (i) information that
Licensee or Licensor, as the case may be, can document as generally available to
the public (other than through breach of this Agreement), (ii) information that
was rightfully in the Licensee's or Licensor's, as applicable, possession or
part of its general knowledge prior to disclosure by the other party, (iii)
information that is disclosed to Licensee or Licensor, as applicable, without
confidential or proprietary restriction by a third party who rightfully
possesses the information (without confidential or proprietary restriction) and
who did not learn of it directly from Licensee or Licensor, or (iv) information
that is developed by Licensee or Licensor, as applicable, without use of or
reference to the other parties proprietary information.
6. Waiver of Past Infringement; Covenant Not to Bring Claims. Licensor
hereby releases, acquits and forever discharges the Licensee (including all
officers, employees, directors, stockholders, representatives and agents
thereof) (collectively, the "Licensee Releases") from any and all claims or
liability for infringement of the Licensed Technology and any Licensee
Improvements, whether such claim or liability arose prior to, on, or after the
Effective Date of this Agreement. Licensor further agrees and covenants not to
bring any claim against the Licensee Releases for any infringement of the
Licensed Technology and any
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Licensor Improvements whether such infringement occurred prior to, on or after
the Effective Date of this Agreement.
7. Cooperation; Representation and Warranty. Licensor and Licensee
agree to work cooperatively regarding issues concerning patents and Proprietary
Rights and similar matters and to exercise reasonable business judgment in
carrying out the objects of this Agreement to avoid exposing either party to
liability under patent or similar laws in any country. Each party represents
and warrants that it is not aware of infringement or potential infringement
issues that have not been communicated to the other in writing before execution
of this Agreement Licensor's Representation, Warranty and Indemnification
Obligations.
7.1 Licensor represents and warrants to Licensee as follows:
(a) Licensor owns and has all right and title to the
Licensed Technology or otherwise has the necessary rights and authority to
grant the License and perform its obligations under this Agreement.
(b) The Licensed Technology does not infringe any
United States patent or any copyright, trade secret or other intellectual
property or proprietary right of any third party.
(c) The execution, delivery and performance by
Licensor of the Agreement and participation in performance under this Agreement
by employees, subcontractors and other representatives of Licensor, does not and
will not: (i) violate any provision of law, statue, judgment, order, writ,
injunction, decree, award, rule, or regulation of any court, arbitrator, or
other governmental or regulatory authority applicable to Licensor or any such
employee, subcontractor and representative; or (ii) violate, result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
agreement or other legal obligation to which Licensor or any such employee,
subcontractor and representative is party or subject, which violation, breach
or default adversely impacts the performance of Licensor's obligations under
this Agreement or adversely impacts the Licensee Group.
7.2 Licensor agrees to indemnify, hold harmless and defend
Licensee from and against any and all claims, suits, losses, damage, costs,
fees, and expenses ("Licensor Claims") resulting from or arising out of any
breach of this Agreement and the warranties set forth herein, provided that
Licensee (i) provides Licensor with prompt notice of any Licensor Claims or
potential Licensor Claims of which Licensee learns, and (ii) provides Licensor,
at Licensor's expense, with all reasonable assistance requested by Licensor in
connection with the defense of any such Licensor Claims. Licensee shall, at its
option, have the right to participate in the defense of any Licensor Claims,
with counsel of Licensee's choosing, at Licensee's expense.
8. Licensee's Indemnification Obligations. Licensee agrees to
indemnify, hold harmless and defend Licensor from and against any and all
claims, suits, losses, damage, costs, fees, and expenses ("Licensee Claims")
resulting from or arising out of any manufacture, use, sale, or exploitation of
the Licensed Technology under this Agreement, other than Licensor Claims for
which Licensor shall indemnify Licensee, provided that Licensor (i) provides
Licensee with prompt notice of any Licensee Claims or potential Licensee Claims
of which
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Licensor learns, (ii) provides Licensee, at Licensee's expense, with all
reasonable assistance requested by Licensee in connection with the defense of
any such Licensee Claims, and (iii) gives Licensee the sole control over the
defense of such Licensee Claims. Notwithstanding anything to the contrary set
forth in this Section 8, Licensor shall have the right to participate in the
defense of any Claims, with counsel of Licensor's choosing, at Licensor's
expense.
9. Incidental and Consequential Damages. NEITHER PARTY WILL BE LIABLE
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT EXCEPT A BREACH OF SECTION 5 OR THE FULFILLMENT OF SUCH PARTY'S
INDEMNIFICATION OBLIGATIONS UNDER SECTION 7.2 OR 8 OF THIS AGREEMENT.
10. Relationship of the Parties. Both parties are independent contractors
under this Agreement. Nothing contained in this Agreement is intended nor is to
be construed as to constitute Licensor and Licensee as partners, joint ventures
or agents with respect to this Agreement. Neither party shall have any express
or implied right or authority to assume or create any obligations on behalf of,
or in the name of the other party, or bind the other party to any contract,
agreement or undertaking with any third party.
11. Assignment. The rights and obligations of Licensor under this
Agreement may not be assigned or transferred without the consent of Licensee
except that, in the event of a Change in Control, such rights and obligations
may be assigned or transferred upon compliance with the provisions of
Section 12 below.
12. Change in Control of Licensor. In the event of a Change in Control,
Licensor shall require the acquirer to agree, in writing, to abide by the
provisions of this Agreement and perform all obligations as if such acquirer
were "Licensor" hereunder and be deemed to have provided the same
representations and warranties of Licensor contained herein. "Change in
Control" shall mean (i) an acquisition of the Licensor by another entity by
means of any transaction or series of related transactions (including, without
limitation, any acquisition of stock, reorganization, merger or consolidation),
or (ii) a sale of all or substantially all of the assets of the Licensor, or
(iii) the sale of all or substantially all of the Licensed Technology and/or
the Licensor Improvements.
13 Miscellaneous.
13.1 Amendment and Waiver. Except as otherwise expressly provided
herein, any provision of this Agreement may be amended and the observance of
any provision of this Agreement may be waived (either generally or in any
particular instance and either retroactively or prospectively) only with the
written consent of the parties.
13.2 Governing Law; Venue. This Agreement shall be governed by and
construed under the laws of the state of Utah and the United States without
regard to conflicts of laws provisions thereof. The sole jurisdiction and venue
for actions related to the subject matter hereof shall be in the state of Utah
and U.S. federal courts having within their jurisdiction the location of
Licensee's principal place of business. Both parties consent to the
jurisdiction of
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such courts and agree that process may be served in the manner provided herein
for giving of notices or otherwise as allowed by Utah state law or federal law.
In any action or proceeding to enforce rights under this Agreement, the
prevailing party shall be entitled to recover costs and attorney's fees.
13.3 Headings. Heading and captions are for convenience only and are
not to be used in the interpretation of this Agreement.
13.4 Notices. All notices required or permitted under this Agreement
shall be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified; (b) when sent by confirmed facsimile if
sent during normal business hours of the recipient (and on the next business day
if sent after normal business hours); (c) five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or (d)
one day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All
communications shall be sent to the address as set forth on the signature page
hereof or at such other address as such party may designate by ten days' advance
written notice to the other parties hereto.
13.5 Entire Agreement. This Agreement supersedes all proposals, oral
or written, all negotiations, conversations, or discussions between or among the
parties relating to the subject matter of this Agreement and all past dealing or
industry custom.
13.6 Force Majeure. Neither party hereto shall be responsible for any
failure to perform its obligations under this Agreement (other than obligations
to pay money or obligations under Section 5) if such failure is caused by acts
of God, war, strikes, revolutions, lack or failure of transportation facilities,
laws or governmental regulations or other causes which are beyond the reasonable
control of such party. Obligations hereunder, however, shall in no event be
excused but shall be suspended only until the cessation of any cause of such
failure. In the event that such force majeure should obstruct performance of
this Agreement for more than [two (2)] months, the parties hereto shall consult
with each other to determine whether this Agreement should be modified. The
party facing an event of force majeure shall use its best endeavors in order to
remedy that situation as well as to minimize its effects.
13.7 Severability. If any provision of this Agreement is held illegal,
invalid or unenforceable by a court of competent jurisdiction, that provision
will be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
THE SCO GROUP, INC.
By: /s/ XXXXXX XXXXXX
---------------------------
Name: XXXXXX XXXXXX
-------------------------
Title: CFO
------------------------
Address:
----------------------
----------------------
Fax No:
-----------------------
-----------------------
with a copy to:
Xxxxxx & Xxxxxxx LLP
Attn: Xxxxx Xxxxxx, Esq.
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Fax: No.: (000) 000-0000
COMMUNITY XX.XXX. INC.
D/B/A XXXXX.XXX
By: /s/ XXXX X. XXXX
---------------------------
Name: XXXX X. XXXX
-------------------------
Title: CEO
------------------------
Address:
----------------------
----------------------
Fax No.:
----------------------
6
EXHIBIT A
LICENSED TECHNOLOGY
API
store - xml and soap calls for maintaining the store
users - xml and soap calls for updating or maintain the users database.
CUSTOMIZABLE SKIN
The technology involved in creating a custom skin, or a style for a site which
has interchangeable logos, colors, fonts, etc.
USER REGISTRATION
The online registration of new users, and the Internationalization of this code.
A-1
