Exhibit 10.3
ASSIGNMENT, ASSUMPTION AND SALE AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND SALE AGREEMENT (the
"Agreement") is made as of the 30th day of December, 1996 between
Xxxxx-Xxxxxx Company ("SVC") and Touchstone Applied Science
Associates, Inc. ("Touchstone"). SVC is successor by assignment to
Berrent Publications, Inc. ("Berrent") under that certain Publishing
Agreement dated January 6, 1994, between Berrent and Xxxx D'Arcy
Maculaitis (the "Publishing Agreement").
1. Assignment. For the consideration set forth below,
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from and after the date hereof, SVC irrevocably assigns, grants,
transfers, and sets over unto Touchstone all of SVC's rights, title,
interest, benefits, privileges, causes of action and remedies under,
in and to the Publishing Agreement.
2. Assumption. Touchstone irrevocably accepts the
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assignment of the Publishing Agreement pursuant to Section 1 hereof
and, from and after the date hereof, Touchstone assumes, and agrees to
perform, pay and discharge when due any and all of the liabilities,
obligations, commitments and duties of SVC arising under the
Publishing Agreement. Except liabilities for royalties on sales thru
the date hereof which remain the obligation of SVC. SVC shall also
prepare the royalty report for the same period.
3. Purchase of Inventory. In connection with the
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foregoing assignment, as of the date of this Agreement, Touchstone
hereby irrevocably purchases from SVC, and SVC hereby sells to
Touchstone, all inventory of the Maculaitis Test Series published
pursuant to the Publishing Agreement (the "Work"). Such inventory
consists of approximately 10,040 saleable copies of the Work, which
inventory shall be shipped FOB Austin, Texas within 15 days of the
date of this Agreement, in accordance with Touchstone's shipping
instructions and at Touchstone's cost and expense.
4. Consideration. In consideration of the foregoing,
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Touchstone shall pay to SVC within 15 days of execution of this
Agreement a total of Fifty Thousand Dollars ($50,000), which shall
consist of $29,900 payable for assignment of the Publishing Agreement,
and $20,100 payable for purchase of SVC's inventory of the Work.
5. Further Assurances. SVC and Touchstone hereby
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covenant and agree that at any time, and from time to time, upon
written request therefor, SVC or Touchstone will execute, acknowledge
and deliver or cause to be done, instruments of transfer, assignments,
covenants, powers of attorney and assurances as may be reasonably
requested by the other party in connection with the assigning,
delegating, conveying, assuring and confirming by SVC to Touchstone
the Publishing Agreement. The parties shall cooperate in any
reasonable arrangement designed to provide for the enjoyment by
Touchstone and the release and discharge of SVC of rights to,
interests in, benefits of or liabilities of the Publishing Agreement.
6. Governing Law. This Agreement shall be governed by
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and construed in accordance with the substantive laws of the State of
Texas without giving effect to the conflicts of law or choice of law
provisions thereof. Any dispute arising hereunder will be resolved by
binding arbitration in front of the American Arbitration Association
or such other arbitration service acceptable to both parties.
7. Indemnification. Each party (the "Indemnifying
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Party") hereby agrees to indemnify, defend and hold harmless the other
party (the "Indemnified Party") from and against any breach or alleged
breach of this Agreement by the Indemnifying Party. The Indemnified
Party shall provide prompt notice to the Indemnifying Party of any
claim or threat that may give rise to indemnification hereunder, and
the Indemnifying Party shall assume defense and resolution of such
claim or threat. The Indemnifying Party's obligations shall be
limited to the extent of any prejudiced caused the Indemnifying Party
by delay in notification from the Indemnified Party of any such claim
or threat.
8. Limitation of Liability. The liability of SVC, if
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any, for damages arising out of or relating to this Agreement shall be
limited to direct damages and shall not exceed the total amount paid
by Touchstone to SVC hereunder. In no event shall SVC be liable for
punitive, special, consequential or incidental damages arising out of
or relating to this Agreement, even if SVC has been advised in advance
of the possibility of such damages.
9. Binding Effect. This Agreement shall be binding upon,
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be enforceable against, and inure to the benefit of the parties and
their respective successors and assigns.
10. Counterparts. This Agreement may be executed in one
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or more counterparts, each of which shall be deemed an original, and
all of which together shall be deemed to constitute one and the same
document.
11. Entire Agreement. This Agreement represents the
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entire agreement, arrangement and understanding between the parties
hereto, and supersedes and terminates any prior agreement, arrangement
or understanding.
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment and Assumption Agreement as of the date and year first
above written.
TOUCHSTONE APPLIED SCIENCE XXXXX-XXXXXX COMPANY
ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXX XXXXXXXXXX
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Xxxx Xxxxxxxxxx, Vice President
Its: Xxxxxx X. Xxxxx Pres.
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