Exhibit 2.2
INTERNET ACCELERATOR
ASSIGNMENT AGREEMENT
IA GLOBAL ACQUISITION CO
IA GLOBAL, INC
QUIKCAT AUSTRALIA PTY LTD
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CONTENTS
1. DEFINED TERMS AND INTERPRETATION 2
2. GRANT OF IGA LICENCE 2
2.1
ASSIGNMENT IN
AND TO FIELD OF USE IN THE INET PROPERTY
2
2.2
RESTRAINT
2
2.3
IGA OWNS ALL
OTHER RIGHTS IN THE INET PROPERTY
2
2.4
SHORT FORM
INSTRUMENTS OF ASSIGNMENT IN REGISTRABLE FORM
2
2.5
NAMES, TRADE
MARKS AND INTELLECTUAL PROPERTY AND COMPETITIVE
PRODUCTS
3
2.6
INTELLECTUAL
PROPERTY RIGHTS WARRANTIES
3
2.7
EXCLUSION OF
OTHER WARRANTIES
3
3. OPTION 4
3.1
GRANT OF OPTION
4
3.2
EXERCISE OF
OPTION
4
3.3
EFFECT OF
EXERCISE OF OPTION
4
3.4
QCA TO PERFORM
NORTH AMERICAN CONTRACTS FROM THE OPTION
EXERCISE DATE
4
3.5
IGA RESPONSIBLE
FOR PERFORMANCE UNDER NORTH AMERICAN
CONTRACTS FOR PERIOD PRIOR TO THE OPTION EXERCISE DATE
4
3.6
NORTH AMERICAN
CONTRACTS WARRANTY
5
3.7
TRANSFER OF
NORTH AMERICAN CONTRACTS
5
3.8
CONTINUING
CONDUCT OF INET BUSINESS
5
3.9
EXERCISE OF
OPTION AND USE OF NAMES, TRADE MARKS AND
COMPETITIVE PRODUCTS
5
3.10
DOCUMENTS AVAILABLE
AFTER THE OPTION EXERCISE DATE
6
4. SOURCE CODE IN INET PROPERTY AND OTHER
CONFIDENTIAL INFORMATION
6
4.1
SOURCE CODE IN
AND FOR THE INET PROPERTY
6
4.2
DISCLOSURE
REQUIRED BY LAW AND PUBLIC DOMAIN
7
5. QCA INTERNET ACCELERATOR
7
i
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5.1
QCA DEVELOPMENT
PROGRAMME
7
5.2
OWNERSHIP OF QCA
DEVELOPMENTS AND QCA INTERNET ACCELERATOR
8
6. REPRESENTATIONS, WARRANTIES AND
INDEMNITIES 8
6.1
MUTUAL
REPRESENTATIONS AND WARRANTIES
8
7. GENERAL 9
7.1
ENTIRE AGREEMENT
9
7.2
VARIATION
7.3
RELATIONSHIP OF
THE PARTIES
9
7.4
FURTHER
ASSURANCES
9
7.5
CONSENTS AND
APPROVALS
9
7.6
SURVIVAL AND
MERGER
9
7.7
SEVERABILITY
10
7.8
WAIVER
10
7.9
CUMULATIVE
RIGHTS
10
7.10
ASSIGNMENT, NOVATION
AND OTHER DEALINGS
10
7.11
COSTS, EXPENSES AND
DUTIES
10
7.12
NOTICES
10
1.2
GOVERNING LAW
12
1.3
JURISDICTION
12
1.4
COUNTERPARTS
12
SCHEDULE ONE - NORTH AMERICAN CONTRACTS
1
ATTACHMENT A - DICTIONARY AND
INTERPRETATION
ii
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DATED 15 SEPTEMBER 2004
PARTIES
1. IA
GLOBAL ACQUISITION CO a corporation organized under the laws of
the
State of Delaware of 533 Airport Boulevard, Suite 400, Burlingame,
CA
94010 United States of America (IGA)
2. IA
GLOBAL INC a corporation organized under the laws of the State
of
Delaware of 533 Airport Boulevard, Suite 400, Burlingame, CA
94010
United States of America (IAO)
3.
QUIKCAT AUSTRALIA PTY LTD (ABN 82 106 946 043) of 3/56 Mount
Street,
Perth, Western Australia 6005 Australia (QCA)
BACKGROUND
A. In
an auction conducted by the United States Bankruptcy Court for
the
Northern District of Ohio pursuant to Case No. 03-12179-H, IAO
acquired
certain software (including source code) and Intellectual
Property
Rights, including, but not limited to, software (including source
code)
and Intellectual Property Rights in the QUIKCAT INTERNET
ACCELERATOR
(also known as the INET ACCELERATOR) and other relevant code that
could
be utilised within or with the QuikCAT Internet Accelerator
product,
and the North American Contracts (as defined in this
agreement).
B. IAO
subsequently transferred to IGA the software (including source
code) and Intellectual Property Rights in the INET Property (as
defined
in this agreement) and the North American Contracts.
C. The
QUIKCAT INTERNET ACCELERATOR product is marketed by IGA as a
two
part server and client based software package, with server code
based
upon the Microsoft Advanced Server operating system, that is
designed
to enable an end user to accelerate the movement of data to
their
personal computer via a browser.
D. QCA
proposes to further develop and market the QUIKCAT INTERNET
ACCELERATOR as a as a two part server and client package, with
server
code based upon an operating system or platform other than the
Microsoft Advanced Server operating system, that enables an end
user to
accelerate the movement of data to their personal computer via
a
browser.
E. IGA
has agreed to assign to QCA (and by this agreement assigns to
QCA)
all Intellectual Property Rights in the INET Property exclusively
in,
to and for the Field of Use, but subject to the Restraint.
F. IGA
has agreed to grant QCA a certain option to acquire the North
American Contracts and to have the Restraint removed, in
accordance
with the terms of this agreement.
1
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THE PARTIES AGREE
1.
DEFINED TERMS AND INTERPRETATION
(a) A term or
expression starting with a capital letter which is defined in
the Dictionary in Attachment A (Dictionary), has the meaning given
to
it in the Dictionary.
(b) The
Interpretation clause in Attachment A (Interpretation) sets out
rules of interpretation for this agreement.
2.
GRANT OF IGA LICENCE
2.1 Assignment
in and to Field of Use in the INET Property
With effect on and from the date of this
agreement IGA as legal and beneficial
owner:
(a) absolutely
assigns to QCA all of IGA's Intellectual Property Rights in
the INET Property exclusively in, to and for the Field of Use;
(b) consents
to the absolute and unrestricted use by QCA of all
Intellectual Property Rights and moral rights whether now in
existence
or created in
the future in the INET Property exclusively in, to and
for the Field of Use, subject to the Restraint.
2.2
Restraint
(a) QCA agrees
that it will not market any product or service based on or
derived from the INET Property in the United States of America
or
Canada during the balance of the life of Intellectual Property
Rights
in the INET Property as those Intellectual Property Rights exist as
at
the date of this agreement (the Restraint).
(b) The
Restraint will cease to operate if the option under clause 3 is
validly exercised by QCA.
2.3 IGA owns
all other rights in the INET Property
Subject to the assignment in clause 2.1
(Assignment in and to Field of Use in
the INET Property), all Intellectual
Property Rights in the INET Property held
by IGA are and remain the property of
IGA.
2.4 Short Form
Instruments of Assignment in Registrable Form
When reasonably requested by QCA, IGA must
execute (at the reasonable expense of
QCA) any reasonable short form deed or
other instrument evidencing or confirming
the assignment of all of IGA's Intellectual
Property Rights exclusively in and
to the Field of
2
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Use in the INET Property as referred to in
clause 2.1, as QCA may reasonably
require for the purpose of lodgment with
any intellectual property registration
authority in any country.
2.5 Names,
Trade Marks and Intellectual Property and Competitive Products
After 1 September 2004, IGA and IAO
respectively will stop:
(a) using
outside the United States of America and Canada in their
respective businesses trade names or words the same as or
resembling
"INET" or "Internet Accelerator" or any other trade names or
words
similar to or likely to be mistaken for or confused with "INET"
or
"Internet Accelerator";
(b) otherwise
using or dealing with any of the Intellectual Property Rights
assigned to QCA under this agreement, except outside the Field of
Use;
and
(c) marketing
or developing directly or indirectly any product competitive
with or substitutable for the QuikCAT Internet Accelerator (also
known
as the Inet Accelerator), other than marketing in the United States
of
America and Canada the QuikCAT Internet Accelerator (also known as
the
Inet Accelerator) based on the Microsoft Advanced Server
operating
system,
and must not permit or assist any other
person to do so
AND
(d) IGA and
IAO consent to QCA using the name "QuikCAT" as its corporate
name (including that of associates) and with the Internet
Accelerator
product, wherever that is marketed in accordance with this
agreement.
2.6 Intellectual
Property Rights Warranties
(a) IAO
warrants to QCA that as at date of this agreement IGA holds all
Intellectual Property Rights in the INET Property formerly held by
IAO.
(b) IGA and
IAO respectively warrant to QCA that as at date of this
agreement each of IGA and IAO is not aware of any Claim that the
INET
Property infringes any person's Intellectual Property Rights.
(c) QCA
warrants to IGA and IAO that as at date of this agreement QCA
is
not aware
of any Claim that the INET Property infringes any person's
Intellectual Property Rights.
2.7 Exclusion
of Other Warranties
QCA acknowledges and agrees that the INET
Property is taken as is and without
any warranty as to fitness for use,
merchantability, or other express or implied
warranty.
3
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3.
OPTION
3.1 Grant of
Option
IGA grants QCA an exclusive irrevocable
right and option to purchase all of
IGA's rights, benefits and obligations in
the North American Contracts,
including the rights to receive any revenue
accruing under such agreements from
the date of the option being exercised in
relation to performance of obligations
of under the North American Contracts, and
to remove the Restraint, in both
cases with effect from the Option Exercise
Date (as determined in accordance
with clause 3.2), by payment of the sum of
US$213,000 by QCA to IGA (the
Option).
3.2 Exercise
of Option
The Option must be exercised, if QCA elects
to exercise it, by notice given by
IGA to IAO and accompanied by the payment
no later than 28 February 2005. The
date of receipt of payment by QCA will be
the Option Exercise Date.
3.3 Effect of
Exercise of Option
IGA on the exercise of the Option must
execute such documents (prepared at the
expense of QCA) as are reasonably necessary
or desirable to perfect the exercise
of the Option and the transactions
contemplated by this clause 3 and provide
such further assurances as QCA may
reasonably request to give effect to this
clause 3 of this agreement.
3.4 QCA to
Perform North American Contracts from the Option Exercise Date
(a) Subject to
clause 3.5, QCA is entitled to all benefits and rights and
must perform all obligations arising from the Option Exercise
Date
under the North American Contracts as are under the North
American
Contracts stated to be obligations of IGA.
(b) Subject to
clause 3.5, QCA must indemnify and keep indemnified IGA from
and
against any Claim or Liability, including but not limited to
any
Claim or Liability arising out of failure to perform any
performance
related obligation, under the North American Contracts as arises as
and
from the Option Exercise Date in relation to performance of the
North
American Contracts as and from the Option Exercise Date.
3.5 IGA
Responsible for Performance Under North American Contracts for
Period Prior to the Option Exercise Date
(a) IGA is entitled to all benefits
and rights and must perform all
obligations of IGA under the North American Contracts as arise
in
relation to any period prior to the Option Exercise Date.
(b)
Notwithstanding clause 3.4(b), IGA and IAO respectively must
indemnify
and keep indemnified QCA from and against any Claim whenever made
or
Liability
4
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whenever arising if that Claim or Liability
arises out of the operation or
performance of IGA under the North American
Contracts in relation to any period
prior to the Option Exercise Date.
3.6 North
American Contracts Warranty
(a) IGA
warrants to QCA that as at date of this agreement IGA is not
aware
of any Claim or any Liability whenever arising out of the operation
or
performance of IGA under the North American Contracts in relation
to
any period prior to the Option Exercise Date. IGA will promptly
advise
QCA if at any time subsequent to the date of this agreement any
such
Claim is made by any person and as to the nature of that Claim and
as
to any action that IGA takes in relation to any such Claim.
3.7 Transfer
of North American Contracts
(a) transfer
as soon as possible: On or as soon as possible after the
Option Exercise Date, IGA must transfer the North American
Contracts to
QCA.
(b) assignment
or novation: The transfer may be by assignment or by
novation, at the QCA's reasonable election.
(c) consents:
IGA must use its best efforts to obtain any consent of a
third party required for the assignment or novation, but IGA shall
not
be responsible for or required to make any payment to any party
in
connection with attempting to obtain such consents and IGA shall
have
no liability to QCA as a result of the failure of any party to
grant
consents to assignment or novation.
3.8 Continuing
Conduct of iNet Business
IGA must at its own cost promptly refer to
QCA each enquiry IGA receives in
relation to the INET Property that is
within the Field of Use, subject to the
Restraint, and any query that otherwise
relates to performance of the North
American Contracts in the period subsequent
to the Option Exercise Date.
3.9 Exercise
of Option and Use of Names, Trade Marks and Competitive
Products
After the Option Exercise Date, IGA and IAO
respectively will stop:
(a) using
words or trade names in their respective businesses in the
United
States of America or Canada the same as or resembling "INET" or
"Internet Accelerator" or any other words or trade names similar to
or
likely to be mistaken for o
