Exhibit
10.2


 


PERPETUAL
SOFTWARE LICENSE AGREEMENT


 


This Perpetual Software License
Agreement (the “Agreement”) is made and entered into this 15th 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


 


4

















 


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 information,
non-disclosure or other rights of any third party.  No notice to, filing with, authorization of,
exemption by, or consent of any Person is required in order for Licensor to
consummate the transactions contemplated hereby.


 


4.3           Licensor has provided all versions,
modifications, modules and portions of the Software to Licensee, including all
manuals, work papers and other documents and electronic information related to
the Software.


 


4.4           To the best of Licensor’s knowledge, the Software
is merchantable and fit for the particular purposes for which it is intended
and operates substantially in accordance with the specifications contained in
the Documentation.


 


4.5           Licensor has good and marketable title to
the Software, free and clear of all Liens.


 


4.6           To the best of Licensor’s knowledge,
there are no agreements or contracts, whether or not in writing, to which Licensor
is a party which may:  (i) contain
provisions restricting and/or affecting the development, distribution, use,
marketing or sales of products or services relating to the Software; (ii) involve
any joint venture, partnership, license or other arrangement through which
another party has any ownership or use rights in the Software; (iii) identify
the Software for security against a debt or obligation; or (iv) require
the disclosure of the Software’s source or object code or a portion thereof.


 


4.7           There is no action, suit, proceeding, or
investigation pending or, to the best of Licensor’s knowledge, threatened
against Licensor that (i) questions the right of Licensor to enter into
this Agreement or to consummate the transactions contemplated hereby or
thereby, (ii) questions Licensor’s ownership of the Software, or (iii) would,
if determined adversely, result in Licensor being deemed anything less than the
complete owner of all intellectual property rights in the Software.  Licensor is aware of no other litigation,
claims or threatened claims pertaining to the Software.


 


4.8           To the best of Licensor’s knowledge, Licensor
has taken commercially reasonable steps in accordance with normal industry
practice to protect the Intellectual Property contained in the Software;
provided, however, that Licensee recognizes that Licensor has not taken steps
to copyright the Software.


 


4.9           To the best of Licensor’s knowledge, the
Software does not infringe upon, violate or constitute the unauthorized use of
any rights owned or controlled by any third party.


 


4.10         To the best of Licensor’s knowledge, no
third party is misappropriating, infringing, diluting or violating any
Intellectual Property contained in the Software.  At Licensee’s direction, Licensor will
enforce all rights it may have against anyone who acquired access to the
Software through Licensor.


 


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4.11         To the best of Licensor’s knowledge, the
Software does not and will not contain any software routine, code or
instruction, hardware component or combination of the above which is designed
to intentionally disable or otherwise repossess the Software by electronic or
other means for any reason.  To the best
of Licensor’s knowledge, the Software does not and will not contain any
software routine, code or instruction, hardware component or combination
thereof (collectively a “Virus”), that is designed to (a) permit
unauthorized access to any of the end-user’s computer systems; or (b) disable,
delete, modify, damage or erase software, hardware or data.  The term “Virus” is intended to include, but
is not limited to, components that are commonly referred to as “viruses,” “back
doors,” “time bombs,” “Trojan Horses,” “worms,” or “drop dead devices.”


 


4.12         The Software was either (i) developed
by Licensor; or (ii) developed by independent contractors who have
assigned their rights to Licensor pursuant to written agreements.  To the best of Licensor’s knowledge, the
Software does not contain any programming code, documentation or other
materials or development environments that embody Intellectual Property rights
of any Person other than Licensor, except for such materials or development
environments obtained by Licensor from other Persons who make such materials or
development environments generally available to all interested purchasers or
end-users on standard commercial terms without limitations on use,
modifications or commercialization. 
Licensor agrees to notify Licensee promptly of the circumstances
surrounding any unauthorized possession, use or knowledge of any part of the
Software or physical embodiments thereof, the Documentation or other
information licensed to Licensee pursuant to this Agreement.


 


ARTICLE V

INDEMNIFICATION


 


5.1           Licensor agrees to indemnify and defend Licensee
and its affiliates (as well as Licensee’s and such affiliates’ respective
directors, officers, agents and employees) (each an “Indemnified Party” and
collectively the “Indemnified Parties”) against, and agrees to hold them
harmless from, any Losses incurred or suffered by the Licensee relating to or
arising out of any of the following:


 


(a)           any breach of or inaccuracy in any representation or
warranty made by Licensor pursuant to this Agreement or any certificate,
document, writing or instrument delivered by Licensor pursuant to this
Agreement;


 


(b)           any breach of or failure by Licensor to perform any
covenant or obligation of Licensor set out in this Agreement; and


 


(c)           any alleged, contingent or absolute debt, claim,
obligation or other liability of Licensor.


 


5.2           The Indemnified Party shall give prompt
notice to Licensor, in accordance with the terms of Section 6.2, of
the assertion of any claim, or the commencement of any suit, action or
proceeding in respect of which indemnity may be sought hereunder (an “Action”),
specifying with reasonable particularity the basis therefor and giving Licensor
such information with respect thereto as Licensor may reasonably request (but
the giving of such notice shall not be a condition precedent to indemnification
hereunder).  Licensor may, at its own
expense, (a) participate in and (b) upon notice to the Indemnified
Party and Licensor’s written agreement that the Indemnified Party is entitled
to indemnification pursuant to Section 5.1 for Losses arising out
of such Action,


 


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at
any time during the course of any Action, assume the defense thereof; provided,
that (v) Licensor’s counsel is reasonably satisfactory to the
Indemnified Party; (w) Licensor’s counsel’s representation of both
Licensor and the Indemnified Party will not result in a conflict of interest; (x) the
Indemnified Party is reasonably satisfied that Licensor has the financial
ability to satisfy any judgment that may be awarded pursuant to such Action; (y) Licensor
shall thereafter consult with the Indemnified Party upon the Indemnified Party’s
request for such consultation from time to time with respect to such Action;
and (z) Licensor shall thereafter diligently pursue the defense of such
Action.  If Licensor assumes such defense
on such terms, the Indemnified Party shall have the right (but not the duty) to
participate in the defense thereof and to employ counsel, at its own expense,
separate from the counsel employed by Licensor. 
If Licensor does not assume such defense on such terms, the Indemnified
Party shall have the right (but not the duty) to assume the defense of such
Action at Licensor’s expense.  Whether or
not Licensor chooses to defend or prosecute any such Action, all of the parties
hereto shall cooperate in the defense or prosecution thereof.  In the event that Licensor elects not to
assume the defense of any Action, such election shall not relieve Licensor of
its obligations hereunder.


 


5.3           No party shall settle or compromise any
claim, suit, action or proceeding without the prior written consent of the
other party, which shall not be unreasonably withheld, conditioned or
delayed.  Any settlement or compromise made
or caused to be made by the Indemnified Party or Licensor, as the case may be,
of any such claim, suit, action or proceeding of the kind referred to in Section 5.2
shall also be binding upon Licensor or the Indemnified Party, as the case may
be, in the same manner as if a final judgment or decree had been entered by a
court of competent jurisdiction in the amount of such settlement or compromise.


 


5.4           Should any part of the Software, or the
operation thereof, become or in Licensee’s reasonable opinion be likely to
become, the subject of a Claim, Licensor shall have the obligation, at Licensor’s
expense, to either (i) procure for the Licensee the right to continue
using and copying such part of the Software, or (ii) replace or modify
such part of the Software so that it becomes non-infringing.


 


ARTICLE VI

MISCELLANEOUS


 


6.1           This Agreement may not be amended,
modified or supplemented unless such amendment is in writing and duly executed
by the parties.  No approval, consent or
waiver will be enforceable unless signed by the granting party.  Failure to insist on strict performance or to
exercise a right when entitled does not prevent a party from doing so later for
that breach or a future one.


 


6.2           Any notice, request, instruction or other
document to be given hereunder by a party hereto shall be in writing and shall
be deemed to have been given, (a) when received if given in person, (b) on
the date of transmission if sent by telex, telecopy or other wire transmission
or (c) three (3) business days after being deposited in the mail,
certified or registered mail, postage prepaid:


 


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If to Licensor or Allee, to:


 


CMS Solutions, Inc.


2727 N. Grove Industrial


Fresno, California  93727


Attn:  Mitchell Allee


 


With a copy to:


 


Caswell, Bell & Hillison,
LLP


5200 N. Palm Avenue, Suite 211


Fresno, California 93704


Attn:  James Bell, Esq.


 


If to Licensee, to:


 


RPW Consolidated Information
Systems Incorporated


1100 Peaked Hill Road


Bristol, NH  03222


Attn:  Rob Wilson


 


With copies to:


 


Allegiant Travel Company


8360 S. Durango Drive


Las Vegas, NV 89113


Attn:  Maurice J. Gallagher, Jr.


 


And also to:


 


Ellis Funk, P.C.


3490 Piedmont Road, Suite 400


Atlanta, GA  30305


Attn:  Robert B. Goldberg, Esq.


 


or to such other individual or address as a
party hereto may designate for itself by notice given as herein provided.


 


6.3           This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.  This Agreement may be signed by the parties
in separate counterparts, with the same effect as if all parties signed the
same counterpart.  A counterpart signed
by a party and transmitted to another party by facsimile will have the same
effect as the delivery of the original counterpart.


 


6.4           Licensor is and shall be an independent
contractor to Licensee, and nothing herein shall be deemed to cause this
Agreement to create an agency, partnership, or joint venture between the
parties.  Nothing in this Agreement shall
be interpreted or construed as creating or establishing the relationship of
employer and employee between Licensee and either Licensor or any employee or
agent of Licensor.


 


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6.5           This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of California
applicable to contracts executed in and performed entirely within that State.


 


6.6           This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. 
Notwithstanding anything contained herein to the contrary, Licensee
shall be permitted to transfer (by merger or otherwise) all of its right, title
and interest in this Agreement to Allegiant or an affiliated entity.  In that regard, Allegiant (or its affiliate) shall
be a third party beneficiary of this Agreement, entitled to enforce any
provisions hereof to the same extent as Licensee, with or without Licensee’s
involvement in such enforcement proceedings. 
Upon such transfer and assignment, Allegiant shall succeed to all rights
of Licensee hereunder, including, but not limited to, Licensee’s rights to
indemnification pursuant to Section 5.1 hereof.


 


6.7           This Agreement sets forth the entire
agreement and understanding of the parties in respect to the transactions
contemplated hereby and supersedes all prior agreements, arrangements and understandings
relating to the subject matter hereof and is not intended to confer upon any
other person any rights or remedies hereunder. 
There have been no representations or statements, oral or written, that
have been relied on by any party hereto, except those expressly set forth in
this Agreement.


 


6.8           Subject to the terms and
conditions expressly set forth herein, the parties hereto shall use their best
commercially reasonable efforts to do and perform or cause to be done and
performed all further acts required hereby, and in that connection shall
execute and deliver all other agreements, certificates, instruments or
documents, as the other party may reasonably request in order to promote and
effectuate the intent and purpose of this Agreement and the consummation of the
exclusive license contemplated hereby. 
Neither party hereto shall voluntarily undertake any course of action
inconsistent with the performance or satisfaction of the requirements
applicable to it set forth in this Agreement, and each party shall promptly do
all such acts and take all such measures as may be appropriate to enable it to
perform as early as practicable the obligations herein required to be performed
by it.


 


6.9           The parties acknowledge and agree that
each of them have participated in the drafting of this Agreement and that this
Agreement has been reviewed by the respective legal counsel for such parties
and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be applied
to the interpretation of this Agreement. 
No inference in favor of, or against, any party shall be drawn from the
fact that one party has drafted any portion of this Agreement.


 


6.10         All Exhibits referred to in this
Agreement are hereby made a part hereof and incorporated herein by reference.


 


6.11         Whenever possible each provision and term
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision or term of this Agreement
shall be held to be prohibited by or invalid under such applicable law, or
determined to be void or unenforceable for any reason, then such provision or
term shall be ineffective only to the extent of such prohibition, invalidity or
unenforceability, without


 


9

















 


invalidating or
affecting in any manner whatsoever the remainder of such provision or term or
the remaining provisions or terms of this Agreement, and the prohibited,
invalid or unenforceable provision shall be modified to the minimum extent
necessary to make it permissible, valid and enforceable, unless the result of
any such invalidity or unenforceability shall be to cause a material failure of
consideration to the party seeking to sustain the validity or enforceability of
the subject provision.


 


IN WITNESS WHEREOF, the parties have executed
and caused this Agreement to be executed and delivered on the date first above
written.


 


	
   

  	
  LICENSEE:

  
	
   

  	
  RPW Consolidated
  Information Systems Incorporated

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert P. Wilson, III

  
	
   

  	
   

  	
  Robert Wilson, President

  
	
   

  	
   

  
	
   

  	
  LICENSOR:

  
	
   

  	
  CMS Solutions, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mitchell Allee

  
	
   

  	
   

  	
  Mitchell Allee, President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ALLEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Mitchell Allee

  
	
   

  	
  Mitchell Allee

  



 


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EXHIBIT
“A”


 


Existing
License Agreement


 


Pinnacle Airlines


 


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EXHIBIT
“B”


 


Support
Agreement


 


Transition Support to be provided by Licensor
(CMS) in accordance with the following:


 


1.             CMS shall guarantee Licensee
up to 12 months of programming support at a maximum of $50,000.00 per
month.  The contracted support shall
provide Licensee with at least the same support level as has been provided by
CMS to Licensee over the previous two years; provided, however, that Allee
shall not be required to devote his personal time to the Licensee support.


 


2.             The support shall be
provided by the same CMS personnel who have supported Licensee’s system over
the previous two years to the extent they continue to work for CMS.  It is contemplated that the support will be
provided by four (4) programmers who will work essentially on a full-time
basis in support of Licensee’s applications. 
If one or more of the programmers assigned to Licensee’s support is no
longer employed by CMS or is otherwise unable or unwilling to provide such
support, then CMS shall have the right to replace such programmer with another
programmer acceptable to Licensee, in its reasonable discretion.  If CMS does not seek to replace a programmer
or if the replacement selected by CMS is not acceptable to Licensee, then the
support payment shall be reduced by $12,500.00 per month for each programmer no
longer working on the support for Licensee.


 


3.             Licensee will have the right
to offer positions to CMS programming staff. 
Should a member of the current CMS staff accept a position with
Licensee, the monthly support rate will be reduced by $12,500.00 per staff
member hired by Licensee.


 


4.             Licensee shall have the
right to reduce the level of support to be provided by CMS upon sixty (60) days
prior written notice, and the monthly support rate shall be reduced
proportionately upon the effective date of such reduction.


 


5.             As a condition of the
support contract, CMS agrees to assist in bringing new Licensee programmers up
to speed with existing software processes being utilized in the development and
maintenance of the Software provided that CMS has personnel to provide this
support (that is, CMS shall not be required to employ additional personnel to provide
the support).  CMS agrees to provide this
support in its Fresno office or in Licensee’s Las Vegas office as requested by
Licensee.  If Licensee requests services
to be provided away from CMS’s office, then Licensee shall reimburse CMS for
reasonable 


 


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out-of-pocket travel
expenses incurred in connection with such services (subject to Licensee’s
policies for travel cost reimbursement).


 


6.             Once the monthly support
rate has been reduced to zero, CMS shall make available to Licensee support on
an hourly basis and at an hourly support rate provided that CMS has personnel
to provide this support (that is, CMS shall not be required to employ
additional personnel to provide the support). 
The support rate would allow Licensee access to CMS programmers for
additional support at Licensee’s request. 
The additional support would be billed at a rate per hour as follows:


 


Programmer - $75.00 per hour


Consulting Level - $200.00
per hour (Mitch Allee)


Expenses for travel to be
paid by Licensee


 


7.             Licensee shall have
exclusive title to and use of all copyrights, patents, trade secrets, or other
intellectual property rights associated with any programmed software,
procedures, work-flow methods, reports, manuals, visual aids, documentation,
ideas, concepts, techniques, inventions, processes, or works of authorship
developed or created by CMS or its employees or contractors as a part of the
work for Licensee under this Support Agreement (“Work Product”). Licensee shall
have the sole right to obtain and to hold in its own name copyright, patent,
trademark, trade secret, and any other registrations, or other such protection
as may be appropriate to any Work Product, and any extensions and renewals
thereof. All such Work Product made as a part of the services rendered under
this Support Agreement shall, to the extent possible, be deemed “works made for
hire” within the meaning of the Copyright Act of 1976, as amended (the “Copyright
Act”). CMS hereby expressly disclaims any interest in any and all Work
Product.  To the extent that any Work Product is found as a matter of law
not to be a “work made for hire” under the Copyright Act, CMS hereby assigns to
Licensee the sole right, title and interest, including the copyright, in and to
all such Work Product, and all copies of them, without further
consideration.  For purposes of assignment of CMS’s copyright in such Work
Product, CMS hereby appoints Licensee as its attorney-in-fact for the purpose
of executing any and all documents relating to such assignment.  CMS shall
obtain specific agreement to the terms of this Section from each of its
employees and contractors assigned to perform services under this Support
Agreement.


 


The provisions of this Item
7 shall not be interpreted to expand the scope of the license provided by CMS
to Licensee under Article II of the Perpetual Software License Agreement
to which this Support Agreement is attached.


 


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