Asset Purchase Agreement
This Asset Purchase Agreement (the "Agreement") is made and entered into this
12th day of March, 1998, by and between Augrid of Nevada, Inc., a Nevada
corporation ("Buyer") and Augrid Corporation, a Delaware corporation ("Seller").
RECITALS
A. Seller is the owner of certain assets, a list of which is attached hereto at
Exhibit A and incorporated herein by reference (the "Assets").
B. Buyer desires to purchase and acquire from Seller such Assets, and Seller
desires to transfer and convey the same to Buyer, in accordance with the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual representations, warranties and
covenants contained herein, and on the terms and subject to the conditions
herein set forth, the parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the meanings set forth
below:
1.1 Closing. "Closing" shall mean the closing of the transaction contemplated
by this Agreement, which shall occur at 10:00 a.m., Pacific Standard Time, on
the Closing Date in the offices of Buyer, or at such other time and place as
shall be mutually agreed in writing by the parties hereto.
1.2 Closing Date. "Closing Date" shall mean March 12, 1998, unless otherwise
mutually agreed in writing by the parties hereto.
1.3 Assets. "Assets" shall mean all rights and interests in the assets listed
at Exhibit A hereto.
ARTICLE II
Purchase and Sale
2.1 Sale and Purchase of Assets. Subject to and upon the terms and conditions
contained herein, at the Closing, Seller shall sell, transfer, assign, convey,
and deliver to Buyer, free and clear of all liens, claims and encumbrances, and
Buyer shall purchase, accept and acquire from Seller the Assets.
2.2 Purchase Price. The total purchase price for the Assets shall be ONE
MILLION (1,000,000) shares of common stock of Buyer.
2.3 Instruments of Transfer; Further Assurances.
(a) At the Closing, Seller shall deliver to Buyer:
(i) An assignment of each Asset, in form and substance satisfactory to Buyer;
(ii) Such other instrument or instruments of transfer as shall be necessary or
appropriate, as Buyer shall reasonably request, to vest in Buyer good and
marketable title to the Assets.
(b) At the Closing, Buyer shall deliver to Seller such instrument or
instruments as shall be necessary or appropriate, as Seller shall
reasonably request.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents and warrants that the following are true and correct as of this
date and will be true and correct through the Closing Date as if made on that
date:
3.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada,
with all the requisite power and authority to carry on the business in which it
is engaged, to own the properties it owns and to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
3.2 Authorization and Validity. The execution, delivery and performance by
Buyer of this Agreement and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby, have been duly authorized
by Buyer. This Agreement and each other agreement contemplated hereby have been
or will be prior to Closing duly executed and delivered by Buyer and constitute
or will constitute legal, valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective terms.
3.3 No Violation. Neither the execution and performance of this Agreement or
the other agreements contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a) conflict with, or result
in a breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of Buyer or any agreement,
indenture or other instrument under which Buyer is bound, or (b) violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over Buyer or the properties or Assets of Buyer.
3.4 Consents. No authorization, consent, approval, permit or license of, or
filing with, any governmental or public body or authority, any lender or lessor
or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement or
the agreements contemplated hereby on the part of Buyer.
ARTICLE IV
Representations and Warranties of Seller
Seller represents and warrants that the following are true and correct as of
this date and will be true and correct through the Closing Date as if made on
that date:
4.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of Delaware, with all the
requisite power and authority to carry on the business in which it is engaged,
to own the properties it owns and to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
4.2 Authorization and Validity. The execution, delivery and performance by
Seller of this Agreement and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby, have been duly authorized
by Seller. This Agreement and each other agreement contemplated hereby have
been or will be prior to Closing duly executed and delivered by Seller and
constitute or will constitute legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their respective terms.
4.3 Title. Seller has good and marketable title to the Assets which are the
subject of this Agreement. Upon consummation of the transactions contemplated
hereby, Buyer shall receive good, valid and marketable title to all the Assets
free and clear of all liens, claims, and encumbrances.
4.4 Commitments. Seller has not entered into, nor are the Assets or the
business of Seller bound by, whether or not in writing, any (i) partnership or
joint venture agreement; (ii) deed of trust or other security agreement; (iii)
guaranty or suretyship, indemnification or contribution agreement or performance
bond; (iv) employment, consulting or compensation agreement or arrangement,
including the election or retention in office of any director or officer; (v)
labor or collective bargaining agreement; (vi) debt instrument, loan agreement
or other obligation relating to indebtedness for borrowed money or money lent to
another; (vii) deed or other document evidencing an interest in or contract to
purchase or sell real property; (viii) agreement with dealers or sales or
commission agents, public relations or advertising agencies, accountants or
attorneys; (ix) lease of real or personal property, whether as lessor, lessee,
sublessor, or sublessee; (x) agreement relating to any material matter or
transition in which an interest is held by a person or entity which is an
affiliate of Seller; (xi) powers of attorney; or (xii) contracts containing
noncompetition covenants.
4.5 Adverse Agreements. Seller is not a party to any agreement or instrument
or subject to any charter or other corporate restriction or any judgment, order,
writ, injunction, decree, rule or regulation which materially and adversely
affects or, so far as Seller can now foresee, may in the future materially and
adversely affect the business operations, prospects, properties, Assets or
condition, financial or otherwise, of Seller.
4.6 No Violation. Neither the execution and performance of this Agreement or
the other agreements contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a) conflict with, or result
in a breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of Seller or any agreement,
indenture or other instrument under which Buyer is bound, or (b) violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over Seller or the properties or Assets of Seller.
4.7 Consents. No authorization, consent, approval, permit or license of, or
filing with, any governmental or public body or authority, any lender or lessor
or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery and performance of this Agreement or
the agreements contemplated hereby on the part of Seller.
4.8 Compliance with Laws. There are no existing violations by Seller of any
applicable federal, state or local law or regulation, except to the extent that
any such violations would not have a material adverse effect on the property or
business of Seller.
4.9 Accuracy of Information Furnished. All information furnished to Buyer by
Seller is true, correct and complete in all material respects. Such information
states all material facts required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such statements
are made, true, correct and complete.
4.10 Proceedings. No action, proceeding or order by any court or governmental
body or agency shall have been threatened in writing, asserted, instituted or
entered to restrain or prohibit the carrying out of the transactions
contemplated by this Agreement.
ARTICLE V
Indemnification
5.1 Seller's Indemnity. Subject to the terms of this Section, Seller hereby
agrees to indemnify, defend and hold harmless Buyer and its officers, directors,
agents, attorneys, accountants and affiliates from and against any and all
losses, claims, obligations, demands, assessments, penalties, liabilities,
costs, damages, reasonable attorneys' fees and expenses ("Damages") asserted
against or incurred by Buyer by reason of or resulting from a breach by Seller
of any representation, warranty or covenant contained herein, or in any
agreement executed pursuant thereto.
5.2 Buyer's Indemnity. Subject to the terms of this Section, Buyer hereby
agrees to indemnify, defend and hold harmless Seller and its officers,
directors, agents, attorneys, accountants and affiliates from and against any
and all losses, claims, obligations, demands, assessments, penalties,
liabilities, costs, damages, reasonable attorneys' fees and expenses ("Damages")
asserted against or incurred by Seller by reason of or resulting from a breach
by Buyer of any representation, warranty or covenant contained herein, or in
any agreement executed pursuant thereto.
5.3 Remedies Not Exclusive. The remedies provided for in this Section shall
not be exclusive of any other rights or remedies available by one party against
the other, either at law or in equity.
ARTICLE VI
Termination
6.1 Termination for Cause. This Agreement may be terminated prior to Closing
upon notice to the other party at any time by a party if any representation or
warranty of the other party contained in this Agreement or in any certificate or
other document executed and delivered by one party to the other is or becomes
untrue or breached in any material respect or if one party fails to comply in
any material respect with any covenant or agreement contained herein, and any
such misrepresentation, breach or noncompliance is not cured, waived, or
eliminated before Closing.
6.2 Termination Without Cause. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
without further obligation or liability on the part of any party in favor of any
other by mutual consent of Purchaser and Seller.
ARTICLE VII
Miscellaneous Provisions
7.1 Amendment and Modification. Subject to applicable law, this Agreement may
be amended, modified or supplemented only by a written agreement signed by Buyer
and Seller.
7.2 Waiver of Compliance; Consents.
7.2.1 Any failure of any party to comply with any obligation, covenant,
agreement or condition herein may be waived by the party entitled to the
performance of such obligation, covenant or agreement or who has the
benefit of such condition, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, or agreement or condition will
not operate as a waiver of, or estoppel with respect to, any subsequent or
other failure.
7.2.2 Whenever this Agreement requires or permits consent by or on behalf
of any party hereto, such consent will be given in a manner consistent with
the requirements for a waiver of compliance as set forth above.
7.3 Notices. All Notices, requests, demands and other communications required
or permitted hereunder will be in writing and will be deemed to have been duly
given when delivered by (i) hand; (ii) reliable overnight delivery service; or
(iii) facsimile transmission.
If to Buyer, to: ________________________________________________
If to Seller, to: ________________________________________________
7.4 Titles and Captions. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the context
nor effect the interpretation of this Agreement.
7.5 Entire Agreement. This Agreement contains the entire understanding between
and among the parties and supersedes any prior understandings and agreements
among them respecting the subject matter of this Agreement.
7.6 Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
7.7 Attorneys' Fees. In the event an arbitration, suit or action is brought by
any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
7.8 Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period shall begin to run on the next day that
is not a Saturday, Sunday or legal holiday.
7.9 Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
7.10 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEVADA. THE PARTIES AGREE THAT ANY LITIGATION RELATING
DIRECTLY OR INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND DETERMINED
BY A COURT OF COMPETENT JURISDICTION WITHIN THE STATE OF NEVADA.
7.11 Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of this
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbiter agreed upon
by the parties, or if no single arbiter can be agreed upon, an arbiter or
arbiters shall be selected in accordance with the rules of the American
Arbitration Association and such dispute, difference or disagreement shall be
settled by arbitration in accordance with the then prevailing commercial rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbiter may be entered in any court having jurisdiction thereof.
7.12 Presumption. This Agreement or any Section thereof shall not be construed
against any party due to the fact that said Agreement or any section thereof was
drafted by said party.
7.13 Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
7.14 Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
7.15 Savings Clause. If any provision of this Agreement, or the application of
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those as to which it is held invalid, shall not be
affected hereby.
7.16 Confidentiality. The parties shall keep this Agreement and its terms
confidential, but any party may make such disclosures as it reasonably considers
are required by law or necessary to obtain financing. In the event that the
transactions contemplated by this Agreement are not consummated for any reason
whatsoever, the parties hereto agree not to disclose or use any confidential
information they may have concerning the affairs of other parties, except for
information which is required by law to be disclosed. Confidential information
includes, but is not limited to, financial records, surveys, reports, plans,
proposals, financial information, information relating to personnel contracts,
stock ownership, liabilities and litigation.
7.17 Costs, Expenses and Legal Fees. Whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own costs
and expenses (including attorneys' fees), except as set forth in the Escrow
Agreement.
7.18 Severability. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws effecting during the term
hereof, such provision shall be fully severable and this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof shall remain
in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid and unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in nature in its
terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
7.19 Counterparts and Facsimile Signatures. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. For purposes of
this Agreement, facsimile signatures shall be treated as originals until such
time that applicable pages bearing non-facsimile signatures are obtained from
the relevant party or parties.
7.20 Continuing Nature. All representations and warranties contained in this
Agreement shall survive the Closing for a period of two (2) years and, if
applicable, all covenants, which, according to their terms are to be performed
after the execution of this Agreement, shall survive the Closing for a period of
two (2) years.
IN WITNESS WHEREOF, the parties hereto have set their hands this 12th day of
March, 1998.
Augrid of Nevada, Inc. Augrid Corporation
A Nevada Corporation (Buyer) A Delaware
Corporation (Seller)
by: ___________________________ by:___________________________
