Exhibit 10.2
PERPETUAL SOFTWARE LICENSE
AGREEMENT
This Perpetual Software License
Agreement (the “Agreement”) is made and entered into
this 15 th day of March, 2009 (the “Effective
Date”), by and between CMS Solutions, Inc., a California
corporation (“Licensor”), MITCHELL ALLEE
(“Allee”) and RPW Consolidated Information Systems
Incorporated, a New Hampshire corporation
(“Licensee”).
W
I T N
E S S E T H
:
WHEREAS, Licensor has developed and
owns software commonly referred to “Icarus Airline Web
6.0”, which is a content management system designed to assist
an organization in the travel industry streamline its business
processes; and
WHEREAS, Licensee wishes to license
the Software from Licensor, and Licensor is willing to license the
Software to Licensee, upon the terms and conditions set forth in
this Agreement; and
WHEREAS, Allee owns all of the
outstanding shares of stock in Licensor.
NOW, THEREFORE, in consideration of
the mutual covenants, agreements and warranties herein contained,
the parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1
“Existing
License Agreement” shall mean that certain non-exclusive
license agreement for the use of the Software set forth on
Exhibit “A” attached hereto. Licensor agrees
that it will not permit the Software to be used under the Existing
License Agreement for any purpose beyond the airline operations of
Pinnacle Airlines.
1.2
“Intellectual
Property” shall mean all logos, domain names, trademarks and
service marks (whether registered or unregistered), trade names,
trade dress, designs and general intangibles of like nature,
together with all goodwill related thereto (collectively,
“Trademarks”); United States and foreign patents,
patent applications, patent license rights, industrial design
registrations, patentable inventions and certificates of invention
(including any continuations, continuations-in-part, divisionals,
reissues, renewals and applications related thereto) (collectively
“Patents”); rights associated with works of authorship
or expression, including all exclusive exploitation rights,
copyrights, neighboring rights, moral rights and mask works
(including any registrations and applications therefor and whether
registered or unregistered), (collectively
“Copyrights”); and information, including a formula,
pattern, compilation, program, device, method, technique, or
process, that: (1) derives independent economic value,
actual or potential, from not being generally known to the public
or to other Persons who can obtain economic value from its
disclosure or use; and (2) is the subject of efforts to
maintain its secrecy (collectively, “Trade
Secrets”). “Trade Secrets” include computer
software; databases; works of authorship; mask works; technology;
know-how, proprietary processes, formulae, algorithms, models, user
interfaces, customer lists, inventions, discoveries, concepts,
ideas, techniques, methods, source codes, object codes,
methodologies and, with respect to all of the foregoing, related
confidential data or information.
1.3
“Law”
shall mean any federal, state, local or other law, statute,
ordinance, regulation, rule, policy, guideline, ordinance, order,
judgment, consent decree, permit, settlement agreement, judicial or
administrative decision, injunction or requirement of any kind
applicable to or binding on Licensee, Licensor, or the
Software.
1.4
“Licensee
Derivative Works” shall mean all modifications, improvements,
additions, changes, revisions and enhancements, and any derivatives
thereof, of the Software developed by Licensee.
1.5
“Lien” shall mean
any encumbrance or restriction of any kind, including, without
limitation, any pledge, security interest, lien, charge,
hypothecation, claim, option, right of first refusal or
restriction, however imposed.
1.6
“Losses” shall
mean all liabilities, equitable remedies, losses, costs, fines,
damages of any nature, judgments, penalties, diminution of value,
or expenses (including, without limitation, reasonable
attorneys’ fees and costs of litigation).
1.7
“Person” shall
mean any individual, corporation, partnership, limited liability
company, association, trust, or other entity or
organization.
1.8
“Software” shall
mean the Icarus Airline Web 6.0 software and includes any and all
(i) computer programs, including any and all software
implementations of algorithms, models and methodologies, whether in
source code or object code, (ii) databases and compilations,
including any and all data and collections of data, whether machine
readable or otherwise, (iii) descriptions, schematics,
flow-charts and other work product used to design, plan, organize
and develop any of the foregoing, and (iv) all documentation,
including user manuals and training materials, relating to any of
the foregoing (the “Documentation”).
1.9
“Travel
Applications” shall mean the use of the Software for all
applications involving the travel industry, including, but not
limited to, air travel, bus travel, train travel, cruises, travel
agencies, on-line bookings, hotels, rental cars, travel
attractions, tours, and related travel services.
ARTICLE II
GRANT OF LICENSE
2.1
Licensor hereby
grants to Licensee, with the exception of the Existing License
Agreement, an exclusive, worldwide, irrevocable, perpetual license
to use and sublicense Licensor’s Software for any and all
Travel Applications. Licensor has supplied Licensee without
charge one (1) copy of all Documentation. For clarity,
Licensor and Allee confirm that exclusive ownership and use of the
Software for Travel Applications belong to Licensee, and neither
Licensor nor Allee shall ever be permitted to use the Software or
any portion or derivatives thereof for Travel
Applications.
Licensee may request
Licensor’s consent to other uses of the Software not
interfering with Licensor’s use or planned use or marketing
of the Software for applications other than Travel Applications and
Licensor’s consent thereto shall not be unreasonably
withheld.
2.2
Licensee may use,
enjoy and obtain economic benefit from the Software in any manner
it chooses, including without limitation entering into sublicense
arrangements. Licensor acknowledges that Licensee intends to
modify the Software for application in its own business or in the
businesses of Licensee’s sublicensees. Licensor shall
provide Licensee with a copy of the source code for such
purposes. Nothing contained herein shall preclude Licensee
from
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compiling a program in which
a source code listing is produced in the ordinary course of
modifying or enhancing the Software. Any modified version of
the licensed Software will constitute Licensee Derivative Works
hereunder that may be used by Licensee and that shall be owned
exclusively by Licensee. Licensor shall have no rights to any
of Licensee’s Derivative Works and if exposed to any of
Licensee’s Derivative Works, shall treat such Derivative
Works as Licensee’s confidential information and shall not
use or disclose such Derivative Works at any time without the prior
written consent of Licensee. Licensor agrees to take
reasonable steps necessary to insure that persons having access to
Licensee’s Derivative Works refrain from any unauthorized
reproduction or disclosure of such information and data other than
to those employees of Licensor who (i) have a need to have
such access in order to enable Licensee to utilize the Software as
contemplated by this Agreement, and (ii) have been advised of
and have agreed to treat such Derivative Works as
confidential. Licensor agrees to take reasonably necessary
security measures in order to satisfy its obligations of
nondisclosure hereunder. Licensor agrees to notify Licensee
promptly of the circumstances surrounding any unauthorized
possession, use or knowledge of any part of Licensee’s
Derivative Works or physical embodiments thereof, the Documentation
therefore, or other information made available to Licensor pursuant
to this Agreement. Licensor acknowledges and agrees that in
the event of an unauthorized reproduction or disclosure of any
confidential information or data subject to this Section, Licensee
will not have an adequate remedy at law and therefore injunctive or
other equitable relief would be proper to restrain such
reproduction or disclosure, threatened or actual.
2.3
Allee and
Licensor each covenant and agree that for a period of five
(5) years following the Effective Date, they shall not
develop, support, market, sell, or otherwise promote, either
directly or indirectly, any product with substantially similar
functionality to the Software in the field of Travel Applications.
So long as (and only so long as) Allee owns, controls and manages
Licensor, nothing in this Section 2.3 shall preclude Allee or
Licensor from developing, marketing or supporting software for
venue-specific travel attractions. By way of example, Licensor
would have the ability to perform software services in connection
with campgrounds, concert halls, nature tours, historic tours and
the like, but not if coupled with other Travel Applications. By way
of amplification, nothing herein shall ever permit Allee or
Licensor (during the restricted period) to perform software
services for airlines (other than under the Existing License
Agreement) or travel agencies or for on-line booking services for
air transportation, hotels, rental cars or travel packages.
Further, Allee (but not Licensor) shall not be precluded from
consulting on an hourly fee for service basis concerning travel or
reservation matters, but shall not be permitted to sell or develop
software in that role. Allee may also request
Licensee’s consent to other activities not interfering with
Licensee’s use or planned use or marketing of the Software,
and Licensee’s consent shall not be unreasonably
withheld. As a condition to permitting Licensor or Allee to
perform services within the exceptions provided in this
Section 2.3, Licensor and Allee shall be required to report to
Licensee monthly (or at such other intervals to which parties may
agree) as to all activities conducted by Licensor or Allee within
such exceptions.
2.4
Licensor
covenants and agrees that for a period of one (1) year
following the Effective Date (the “Transition Period”),
Licensor shall provide Licensee with ongoing support in connection
with the maintenance and proper performance of the Software and for
the creation and performance of any Licensee Derivative Works that
may be developed by Licensee during the Transition Period. The
terms of such support shall be as described in
Exhibit “B” attached hereto and hereby made a part
hereof.
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2.5
Licensor agrees that Licensee (or
Allegiant as its successor in interest) will have the right to
directly hire any personnel of Licensor without any liability to
Licensor whatsoever. Licensor acknowledges that Licensee (or
Allegiant) will likely offer employment to one or more of
Licensor’s programmers.
ARTICLE III
LICENSE FEE; DEFAULT
3.1
The total fee
(the “License Fee”) for the license granted hereunder
shall be Seven Thousand One Hundred Fifty (7,150) shares (the
Allegiant Shares”) of Allegiant Travel Company
(“Allegiant”). The Allegiant Shares shall be issued in
the name of Licensor upon the execution of this Agreement. Licensor
acknowledges the Allegiant Shares are not registered under federal
or state securities laws and Licensor will not be able to resell
the Allegiant Shares without registration under federal and
applicable state securities laws or without an exemption
therefrom.
3.2
The following
rights and obligations of the respective parties shall survive
termination under this Article III:
(a)
the
representations and warranties of Licensor under Article IV
shall survive and continue and shall bind Licensor and its legal
representatives, successors, heirs and assigns; and
(b)
sublicenses
granted by Licensee pursuant to this Agreement prior to the date of
termination shall continue in effect.
3.3
This Agreement
shall have an indefinite term, shall not be terminable and shall
remain in full force and effect perpetually.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF LICENSOR
Licensor makes the following representations and
warranties to Licensee:
4.1
Licensor is a
duly organized corporation, validly existing and in good standing
under the laws of the State of California, and has all requisite
power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
4.2
Licensor has full
power and authority to enter into this Agreement and to carry out
the transactions contemplated hereby. The execution, delivery
and performance of this Agreement have been duly authorized by all
necessary corporate action on the part of Licensor. This
Agreement has been duly and validly executed and delivered by
Licensor, and constitutes the legal, valid and binding obligation
of Licensor, enforceable in accordance with its terms. The
execution, delivery and performance by Licensor of this Agreement
and all other instruments, agreements, certificates and documents
contemplated hereby (a) do not, and will not, violate or
conflict with any provision of the articles of incorporation,
bylaws or other governing documents
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of Licensor; (b) do
not, and will not, violate or constitute a default under any Law or
any contract to which Licensor is a party, or by which Licensor or
the Software is bound; (c) will not result in the creation of
any Lien upon the Software; and (d) to the best of
Licensor’s knowledge, do not, and will not, constitute an
infringement or other violation of any copyright, trade secret,
trademark, patent, invention, proprietary
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