EXECUTION COPY
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EXHIBIT 2.1
ASSIGNMENT, XXXX OF SALE AND ASSUMPTION AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that MathSoft, Inc., a Massachusetts
corporation having its principal offices at 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx ("Transferor"), for good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged hereby sells, exchanges,
transfers, assigns and conveys unto MathSoft Engineering & Education, Inc., a
Delaware corporation having its principal offices at 000 Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx ("Transferee"), its successors and assigns, all of the right,
title and interest of Transferor in and to the assets and contracts set forth on
Schedule A hereto (the "Transferred Assets"). Transferee hereby assumes and
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agrees to pay, perform, or discharge all debts, liabilities and obligations of
Transferor set forth on Schedule B hereto as the same may become due in
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accordance with their terms from and after the date hereof (each a "Liability"
and collectively, the "Transferred Liabilities" and, together with the
Transferred Assets, the "Business"). Any asset that is not a Transferred Asset
shall be deemed an "Excluded Asset" and any liability that is not a Transferred
Liability (regardless of whether such liability is accrued, contingent,
absolute, asserted or unasserted, known or unknown, determined, determinable or
otherwise) shall be deemed an "Excluded Liability." The assets of Transferor
consisting of intellectual property and certain proprietary rights are being
transferred to Transferee simultaneously herewith pursuant to an Intellectual
Property Agreement between the parties to this Agreement.
(a) Covenant of Transferor. Transferor does hereby covenant and agree
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that it will from time to time, if requested by Transferee, its successors and
assigns, do, execute, acknowledge and deliver, or will cause to be done,
executed and delivered to Transferee or its successors and assigns, such and all
further acts, transfers, assignments, and additional papers and instruments, and
cause to be done all acts or things as often as may be proper or necessary for
better assuring, conveying, transferring and assigning all of the said assets
hereby conveyed, transferred or assigned, and effectively to carry out the
intent hereof, and to vest in Transferee the entire right, title and interest of
Transferor in and to all of the Business.
(b) Indemnification.
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(i) Transferor hereby indemnifies Transferee against and agrees to
hold Transferee harmless to the fullest extent permitted by law from and against
any and all damages, losses, liabilities, diminution in value, fines, penalties,
costs and expenses of any kind or nature whatsoever (whether or not arising out
of a third-party claim and including reasonable expenses of investigation,
defense or settlement of the foregoing and reasonable attorneys' fees and
disbursements) (collectively, "Losses") incurred or suffered by Transferee
arising out of (i) any Excluded Liability or (ii) any liability arising in
connection with the conduct of the Business prior to the Closing Date (other
than a Transferred Liability).
(ii) Transferee hereby indemnifies Transferor against and agrees
to hold it harmless from any Losses incurred or suffered by Transferor arising
out of (i) any Transferred Liability or any liability of the Transferee or
MathSoft Corporate Holdings, Inc. after the Closing (other than an Excluded
Liability) or (ii) any liability arising in connection with the conduct of the
Business after the Closing (other than an Excluded Liability).
(c) Closing Balance Sheet.
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(i) Attached hereto as Schedule C is a Pro Forma Balance Sheet of
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the Business as of December 31, 2000 (the "Pro Forma Balance Sheet"). As soon
as reasonably practicable following the Closing Date, and in any event within
fifteen calendar days thereof, Transferor shall prepare and deliver to
Transferee a balance sheet of the Business as at the close of business on the
Closing Date (the "Closing Balance Sheet"). Transferor and its accountants may
consult with Transferee, and shall have reasonable access during normal business
hours to the books and records of the Business during the preparation of the
Closing Balance Sheet. The Closing Balance Sheet shall (i) be prepared in
accordance with United States generally accepted accounting principles ("GAAP"),
and (ii) fairly present in all material respects the financial position of the
Business as at the close of business on the date immediately preceding the
Closing Date calculated on a basis consistent with the Pro Forma Balance Sheet.
(ii) Transferee may dispute any element of the Closing Balance
Sheet by notifying Transferor of such disagreement in writing, setting forth in
detail the particulars of such disagreement, within fifteen days after its
receipt of the Closing Balance Sheet. In the event that Transferee does not
provide such a notice of disagreement within such fifteen-day period, Transferee
shall be deemed to have accepted the Closing Balance Sheet which shall be final,
binding and conclusive for all purposes hereunder. In the event any such notice
of disagreement is timely provided, Transferor and Transferee shall use their
reasonable best efforts for a period of fifteen days (or such longer period as
they mutually agree) to resolve any disagreements with respect to the Closing
Balance Sheet, and the transfer or non-transfer of any assets and the assumption
or non-assumption of any liabilities. If, at the end of such period, they are
unable to resolve such disagreements, then an independent accounting firm of
recognized national standing as may be mutually selected by Transferor and
Transferee (the "Auditor") shall resolve any remaining disagreements as promptly
as practicable, but in any event within sixty days of the date on which such
dispute is referred to the Auditor. The fees and expenses of the Auditor shall
be paid one-half by Transferor and one-half by Transferee. The determination of
the Auditor shall be final, conclusive and binding on the parties.
(d) Consents. Notwithstanding any other provision of this Agreement,
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this Agreement shall not constitute an agreement to assign any contract or lease
requiring a third-party consent if such an agreement to assign or an attempted
assignment would constitute a breach thereof. Transferor (until March 31, 2001)
and Transferee will each use commercially reasonable efforts (but, with respect
to Transferor, without the payment of any money) to obtain the consent of the
other parties to any such contract or lease for the assignment thereof to
Transferee as Transferee may request. If such consent is not obtained in
relation to any of the assigned contracts listed on Schedules A and B and unless
and until any such contract or lease shall be so assigned, Transferor and
Transferee will cooperate in a mutually agreeable arrangement under which
Transferee would obtain the benefits and assume the obligations thereunder on a
basis consistent with this Agreement, including subcontracting, sub-licensing or
subleasing to Transferee, or under which Transferor would enforce for the
benefit of Transferee (but only to the extent that such performance is permitted
by such contract or lease), with Transferee assuming Transferor's obligations
and any and all rights of Transferor against a third party thereto from the
Closing Date on such terms as shall (insofar as aforesaid) give to MEE the
benefits and obligations of each such contract or lease or to the same extent as
if the same had been assigned to MEE.
(e) Miscellaneous.
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(i) No waiver of a condition by either Transferor or Transferee
shall limit its rights under this Agreement.
(ii) This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Massachusetts, without regard to the
conflicts of laws rules of such state.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY.]
IN WITNESS WHEREOF, Transferor and Transferee have caused this Agreement to
be made effective as of this 23 day of January, 2001, immediately preceding the
execution and delivery of that certain Stock Purchase Agreement of even date
herewith to be entered into by MathSoft, Inc., MathSoft Corporate Holdings, Inc.
and MathSoft Engineering & Education, Inc. (the "Stock Purchase Agreement") and
this Agreement shall remain in full force and effect following the consummation
of the transactions contemplated by the Stock Purchase Agreement.
MATHSOFT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: /s/ Chief Executive Officer and
President
MATHSOFT ENGINEERING &
EDUCATION, INC.
By: /s/ Xxxxxx X. X'Xxxxx
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Title: Vice President
