Asset Exchange Agreement, Effective As of October 1, 2008, Between Proginet Corporation And Beta Sys

Exhibit 10.23

FINAL

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ASSET EXCHANGE AGREEMENT



between



BETA SYSTEMS SOFTWARE OF NORTH AMERICA, INC.,



BETA SYSTEMS SOFTWARE OF CANADA LTD.



and



PROGINET CORPORATION



dated effective as of



October 1, 2008












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TABLE OF CONTENTS REDACTED COPY




Page

ARTICLE 1
INTERPRETATION
1.1 Definitions 1
1.2 Schedules 8
1.3 Exhibits 8
1.4 Conflicts 8
1.5 References 8
1.6 Headings 9
1.7 Singular/Plural; Derivatives 9
1.8 Business Day 9
1.9 Beta's Knowledge 9
1.10 Proginet's Knowledge 9

ARTICLE 2
ASSET EXCHANGE
2.1 Asset Exchange 10
2.2 Acquisition Price 10
2.3 Sales Taxes 10
2.4 Trade Accounts Receivable 11

ARTICLE 3
CLOSING
3.1 Place and Time of Closing 11
3.2 Deliveries at Closing 11
3.3 Contract Lists 13
3.4 Physical Deliveries 13

ARTICLE 4
CONVEYANCES
4.1 Conveyances 13

ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PARTIES
5.1 Each Party's Representations and Warranties 14
5.2 Beta Canada's Representations and Warranties 15
5.3 Beta America's Representations and Warranties 17
5.4 Proginet's Representations and Warranties 18
5.5 Survival of Representations and Warranties 20
5.6 No Additional Representations or Warranties by any Party 21

ARTICLE 6
LIABILITIES AND INDEMNITIES
6.1 Responsibility of Beta Canada 21
6.2 Responsibility of Beta America 21
6.3 Responsibility of Proginet 21











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6.4 Limit on Responsibility 22
6.5 Insurance 22
6.6 Sole Right and Remedy 22
6.7 Procedure - Indemnities 22
6.8 No Limitation 23

ARTICLE 7
POST-CLOSING OBLIGATIONS
7.1 Post-Closing 23
7.2 Further Assurances 24
7.3 Transition Services 24

ARTICLE 8
GOVERNING LAW AND DISPUTE RESOLUTION
8.1 Governing Law 25
8.2 Dispute Resolution 25
8.3 Consent to Jurisdiction; Waiver of Jury Trial 26

ARTICLE 9
NOTICES
9.1 Addresses for Service 27
9.2 Service of Notice 27
9.3 Change of Address for Service 28

ARTICLE 10
MISCELLANEOUS
10.1 Supersedes Previous Agreements; Amendment 28
10.2 Entire Agreement 28
10.3 Assignment 28
10.4 Time of the Essence 28
10.5 Enurement 28
10.6 Counterpart Execution 29
10.7 Public Securities Filings 29









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ASSET EXCHANGE AGREEMENT



THIS AGREEMENT is dated effective as of October 1, 2008.



BETWEEN:



BETA SYSTEMS SOFTWARE OF NORTH AMERICA, INC. , a Delaware corporation, having an office in the City of Herndon, in the State of Virginia (" Beta America "),



BETA SYSTEMS SOFTWARE OF CANADA LTD. , a body corporate having an office in the City of Calgary in the Province of Alberta (" Beta Canada ") and



PROGINET CORPORATION , a Delaware corporation, having an office in Garden City, in the State of New York (" Proginet ").



WHEREAS:



The Parties are desirous of exchanging certain assets and taking other actions all in accordance with the terms and conditions contained herein.



AGREEMENT:



NOW THEREFORE in consideration of the premises hereto and of the covenants, warranties, representations and agreements herein set forth and provided for, the Parties covenant and agree as follows:



ARTICLE 1

INTERPRETATION



1.1 Definitions




In this Agreement, the words and phrases set forth below shall have the meaning ascribed thereto, namely:



(a) " AAA " has the meaning attributed to it in Section 8.2(b) ;




(b) " Additional Indemnitees " means, with respect to any Person to which indemnification is granted pursuant to Article 6 , its Affiliates and the respective directors, officers, servants, agents, advisors and employees of that Person and its Affiliates;




(c) " Affiliate " means, in respect of a Person, any other Person or group of Persons acting in concert, directly or indirectly, that controls, is controlled by or under common control with the first mentioned Person, and for the purposes of this definition " control " means the possession, directly or indirectly, by such Person or group of Persons acting in concert of the power to direct or cause the direction of the management and policies of the first mentioned Person, whether through the ownership of voting securities or otherwise;






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(d) " Agreement " means this document, together with the Schedules attached hereto and made a part hereof, all as amended, supplemented or modified from time to time in accordance with the provisions hereof;




(e) " Agreement Default " means any material breach of a representation or warranty made by a Party, or the failure of a Party to perform or observe in any material respect any of the covenants or agreements to be performed by such Party under this Agreement;




(f) " Applicable Law " means, in relation to any Person, transaction or event, all applicable provisions of laws, statutes, rules, regulations, official directives and orders of all federal, provincial, municipal and local governmental bodies (whether administrative, legislative, executive or otherwise) and final, non-appealable judgements, orders and decrees of all courts, arbitrators, commissions or bodies exercising similar functions in actions or proceedings in which the Person in question is a party, by which it is bound or having application to the transaction or event in question;




(g) " Assets " means the Beta Canada Assets or Proginet Assets, as the case may be;




(h) " Beta " means Beta America and Beta Canada;




(i) " Beta America " means Beta Systems Software of North America, Inc.;




(j) " Beta America Contract Assignment " means the assignment and assumption agreement whereby Beta America conveys the Beta America Contracts to Proginet and Proginet assumes certain obligations related to the Beta America Contracts;




(k) " Beta America Contracts " means all contracts, agreements and arrangements related to the Beta Products by which Beta or its Affiliates, on the one hand, and the customers listed in Schedule 5.3(d) , on the other hand, are bound;




(l) " Beta Canada " means Beta Systems Software of Canada Ltd.;




(m) " Beta Canada Asset Assignment " means the assignment agreement whereby Beta Canada conveys the Beta Canada Assets to Proginet;




(n) " Beta Canada Assets " means all the properties, assets, interests and rights of Beta Canada which are related to the Beta Products including the following:




(i) the Beta Canada Intellectual Property and Beta Canada Technology;




(ii) the Beta Canada Books and Records; and




(iii) all proceeds of any or all of the foregoing received or receivable after the Effective Time;






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(o) " Beta Canada Books and Records " means all books, records, files and papers related to the Beta Products including drawings, engineering information, manuals and data, sales and advertising materials, sales and purchases correspondence, trade association files, research and development records, lists of present and former customers, distributors and suppliers and all copies and recordings of the foregoing;




(p) " Beta Canada Intellectual Property " means all rights to and interests in:




(i) all trade dress and brand names, logos, slogans, domain names, trade-marks (whether used with wares or services and including the goodwill attaching to such trade marks) and all registrations and applications for trade marks (all future income from such trade marks) related to the Beta Products, all of which are listed in Schedule 5.2(a) ;




(ii) all inventions, patents, patent rights, patent applications (including all reissues, divisions, continuations, continuations-in-part and extensions of any patent or patent application), industrial designs and applications for registration of industrial designs related to the Beta Products, all of the registrations or applications for registration of which are listed in Schedule 5.2(a) ;




(iii) all copyrights, registrations and applications for copyrights (and all future income from such copyrights) related to the Beta Products, all of the registrations or applications for registration of which are listed in Schedule 5.2(a) ;




(iv) all rights and interests in and processes, lab journals, notebooks, data, trade secrets, designs, know-how, product formula and information, manufacturing, engineering and other drawings and manuals, technology, blue prints, research and development reports, agency agreements, technical information, technical assistance, engineering data, design and engineering specifications, and similar materials recording or evidencing expertise, information or technology related to the Beta Business;




(v) all of the intellectual property affected by the registrations and applications for registration listed in Schedule 5.2(a) and the permissions and licenses listed in Schedule 5.2(a) ;




(vi) all other intellectual and industrial property rights throughout the world related to the Beta Products;




(vii) all licenses of the intellectual property granted by Beta Canada to third persons and listed in items (i) to (vi) above;




(viii) all future income and proceeds from any of the intellectual property listed in items (i) to (vi) above and the licenses listed in item (vii) above;






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(ix) all documentation, packaging and media relating to the intellectual property described in items (i) to (viii) above, including all computer disks, CD ROMs and other storage media containing any such intellectual property and all inventory, boxes, wrapping and other packaging material; and




(x) all rights to damages, royalties and profits by reason of the past, present or future infringement or other misuse of any of the intellectual property listed in items (i) to (vii) above.




(q) " Beta Canada Technology " means all computer software (including source code and object code), operating systems, browsers, user interfaces, algorithms, architecture, structure, display screens, layouts, development tools, instructions, templates, servers, hardware, technical information, engineering data or reports or other technology or related information all of which are developed, licensed or owned by Beta Canada and whether completed or in the course of development all as related to the Beta Products;




(r) " Beta Products " means the products of Beta related to the Harbor NSM and Harbor HFT product lines;




(s) " Business Day " means a week day (other than a Saturday or Sunday), excluding all statutory holidays under Applicable Law;




(t) " Closing " means the transfer of (i) the Proginet Assets (other than the Proginet Contracts) by Proginet to Beta Canada, (ii) the Proginet Contracts by Proginet to Beta America, (iii) the Beta Canada Assets by Beta Canada and the Beta America Contracts by Beta America to Proginet, and the completion of all matters incidental thereto, all as contemplated by this Agreement;




(u) " Closing Date " means the date of this Agreement;




(v) " Effective Time " means 12:01 a.m. Eastern Time on October 1, 2008;




(w) " include " and " including " mean "include, without limitation" and "including, without limitation", respectively;




(x) " Indemnifiable Losses " means all losses, costs, damages, expenses, charges, fines, penalties, assessments or other liabilities whatsoever (including reasonable attorneys fees and expenses), but does not (except to the extent claimed by a third Person) include consequential, incidental, economic or punitive losses, damages or claims;




(y) " Indemnified Party " has the meaning attributed to it in Section 6.7 ;




(z) " Indemnifying Party " has the meaning attributed to it in Section 6.7 ;




(aa) " License Agreement " means the agreement whereby Proginet will grant an exclusive license to Beta America to sell, maintain and modify Proginet's Secure-Line Products (as such term is defined in the License Agreement), in the form attached hereto as Exhibit A ;






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(bb) " Maintenance and Support Agreement " means the agreement whereby Beta Canada will provide maintenance and support services for the Harbor products to Proginet, in the form attached hereto as Exhibit B ;




(cc) " Master Distributor Agreement " means the agreement whereby Beta Systems Software AG or any of its distributors, subsidiaries or associated companies, will become the master distributor for Proginet's CFI Suite in Europe, in the form attached hereto as Exhibit C ;




(dd) " Notice of Claim " means a notice by a Party on behalf of itself or one or more Additional Indemnities (if applicable) of a claim for Indemnifiable Losses pursuant to Sections 6.1, 6.2 or 6.3 , as applicable, together with detailed particulars as to the nature and amount of the claim, the basis which it is sought and the provisions of this Agreement applicable to such claim;




(ee) " Parties " means Beta Canada, Beta America and Proginet and " Party " means one of them, as the context may indicate;




(ff) " Permitted Security Interests " means (a) mechanic's, materialman's, warehouseman's, carrier's and similar liens for labor, materials or supplies incurred in the ordinary course of business, (b) purchase money security interests arising in the ordinary course of business, and (c) liens for taxes, assessments and other governmental charges not yet due and payable;




(gg) " Person " includes an individual, a partnership (limited or general), a corporation, a limited liability company, a trust, a joint venture, an unincorporated organization, a union, a government or any department or agency thereof and the heirs, executors, administrators or other legal representatives of an individual;




(hh) " Place of Closing " means the offices of Beta Systems Software AG, or such other place as may be agreed by the Parties;




(ii) " Proginet " means Proginet Corporation;




(jj) " Proginet Asset Assignment " means the assignment agreement whereby Proginet conveys the Proginet Assets to Beta Canada;




(kk) " Proginet Assets " means all the properties, assets, interests and rights of Proginet which are related to the Proginet Products including the following:




(i) the Proginet Intellectual Property and the Proginet Technology;




(ii) the Proginet Books and Records;




(iii) the Proginet Contracts; and




(iv) all proceeds of any or all of the foregoing received or receivable after the Effective Time.






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(ll) " Proginet Books and Records " means all books, records, files and papers related to the Proginet Products including drawings, engineering information, manuals and data, sales and advertising materials, sales and purchases correspondence, trade association files, research and development records, lists of present and former customers, distributors and suppliers and all copies and recordings of the foregoing;




(mm) " Proginet Contract Assignment " means the assignment and assumption agreement whereby Proginet conveys the Proginet Contracts to Beta America and Beta America assumes certain obligations related to the Proginet Contracts;




(nn) " Proginet Contracts " means all contracts, agreements and arrangements related to the Proginet Products, by which Proginet, on the one hand, and the customers listed in Schedule 5.4(f) , on the other hand, are bound;




(oo) " Proginet Intellectual Property " means all rights to and interests in:




(i) all trade dress and brand names, logos, slogans, domain names, trade-marks (whether used with wares or services and including the goodwill attaching to such trade marks) and all registrations and applications for trade marks (all future income from such trade marks) related to the Proginet Products, all of which are listed in Schedule 5.4(a) ;




(ii) all inventions, patents, patent rights, patent applications (including all reissues, divisions, continuations, continuations-in-part and extensions of any patent or patent application), industrial designs and applications for registration of industrial designs related to the Proginet Products, all of the registrations or applications for registration of which are listed in Schedule 5.4(a) ;




(iii) all copyrights, registrations and applications for copyrights (and all future income from such copyrights) related to the Proginet Products, all of the registrations or applications for registration of which are listed in Schedule 5.4(a) ;




(iv) all rights and interests in and processes, lab journals, notebooks, data, trade secrets, designs, know-how, product formula and information, manufacturing, engineering and other drawings and manuals, technology, blue prints, research and development reports, agency agreements, technical information, technical assistance, engineering data, design and engineering specifications, and similar materials recording or evidencing expertise, information or technology related to the Proginet Products;




(v) all of the intellectual property affected by the registrations and applications for registration listed in Schedule 5.4(a) and the permissions and licenses listed in Schedule 5.4(a) ;




(vi) all other intellectual and industrial property rights throughout the world related to the Proginet Products;






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(vii) all licenses of the intellectual property granted by Proginet to third persons and listed in items (i) to (vi) above;




(viii) all future income and proceeds from any of the intellectual property listed in items (i) to (vi) above and the licenses listed in item (vii) above;




(ix) all documentation, packaging and media relating to the intellectual property described in items (i) to (viii) above, including all computer disks, CD ROMs and other storage media containing any such intellectual property and all inventory, boxes, wrapping and other packaging material;




(x) all rights to damages, royalties and profits by reason of the past, present or future infringement or other misuse of any of the intellectual property listed in items (i) to (vii) above;




(pp) " Proginet Products " means the products of Proginet related to the SecurPass product line;




(qq) " Proginet Technology " means all computer software (including source code and object code), operating systems, browsers, user interfaces, algorithms, architecture, structure, display screens, layouts, development tools, instructions, templates, servers, hardware, technical information, engineering data or reports or other technology or related information all of which are developed, licensed or owned by Proginet and are related to the Proginet Products and whether completed or in the course of development, all as related to the Proginet Products;




(rr) " Sales Taxes " has the meaning attributed to it in Section 2.3 ;




(ss) " SEC " has the meaning attributed to it in Section 10.7 ;




(tt) " Security Interest " means any mortgage, pledge, hypothecation, lien (statutory or otherwise), preference, priority, security agreement or other encumbrance affecting title to such asset;




(uu) " Secur-Line Contract Assignment " means the assignment and assumption agreement whereby Proginet conveys the Secur-Line Contracts to Beta America and Beta America assumes certain obligations related to the Secur-Line Contracts;




(vv) " Secur-Line Contracts " means all contracts, agreements and arrangements related to the SecurForce product line and the SecurAccess product line, by which Proginet, on the one hand, and the customers listed in Schedule 5.4(f) , on the other hand, are bound;




(ww) " Survival Period " means, other than for claims related to Taxes (including Sales Taxes), a period beginning on the Closing Date and ending 12 months after the Closing Date;






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(xx) " Tax Survival Period " means, for claims related to Taxes (including Sales Taxes) a period beginning on the Closing Date and ending 24 months after the Closing Date;




(yy) " Taxes " means all taxes, charges, fees, levies, imposts and other assessments, including all income, sales, use, goods and services, value added, capital, capital gains, alternative, net worth, transfer, profits, withholding, payroll, employment, government pension, employer health, excise, franchise, real property and personal property taxes, and any other taxes, customs duties, fees, assessments or similar charges in the nature of a tax, together with any instalments with respect thereto, and any interest, fines and penalties, imposed by any governmental authority (including federal, state, provincial, municipal and foreign governmental authorities), and whether disputed or not.




1.2 Schedules




Appended hereto are the following Schedules:



(a) Schedule 5.2(a) - Beta Canada Intellectual Property




(b) Schedule 5.3(b) - Beta America Consents and Approvals




(c) Schedule 5.3(d) - Beta America Customers and Distributors




(d) Schedule 5.4(a) - Proginet Intellectual Property




(e) Schedule 5.4(d) - Proginet Consents and Approvals




(f) Schedule 5.4(f) - Proginet Customers and Distributors




all of which are incorporated into and form part of this Agreement by this reference as fully as though contained in the body of this Agreement.



1.3 Exhibits




Appended hereto are the following Exhibits:



(a) Exhibit A - Form of License Agreement




(b) Exhibit B - Form of Maintenance and Support Agreement
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