EXHIBIT 10.19
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated February 21, 1997
(the "Effective Date"), is made between Visio Corporation, a Washington
corporation ("Purchaser"), and Boomerang Technology, Inc., a California
corporation ("Seller"). The parties agree as follows:
SECTION 1. PURCHASE AND SALE OF ASSETS
1.1 PURCHASE OF ASSETS
Subject to the terms and conditions of this Agreement, Seller hereby sells,
assigns, transfers, conveys and delivers to Purchaser, and Purchaser hereby
purchases, acquires and accepts from Seller, free and clear of all liens, claims
and encumbrances, the assets set forth on Exhibit A (the "Assets").
1.2 NO ASSUMED OBLIGATIONS
Purchaser does not assume and shall not be or become liable for, and Seller
shall, in accordance with Section 5.2, indemnify Purchaser against, any and all
debts, liabilities or obligations arising from or relating to (a) the use,
licensing, distribution or other dealings involving all or any portion of the
Assets prior to the Effective Date, (b) the Technology Transfer Agreement dated
February 21, 1997, between Seller and Softdesk, Inc. ("Softdesk"), except for
the amounts to be paid by Visio to Softdesk under Section 2.1(a), and (c) the
conduct of Seller's business.
SECTION 2. PURCHASE PRICE
2.1 PURCHASE PRICE
The purchase price for the Assets shall be Six Million Seven Hundred
Sixteen Thousand Four Hundred Thirty-Eight and 60/100 Dollars ($6,716,438.60)
(the "Purchase Price"), payable as follows:
(a) upon execution of this Agreement, the sum of One Million Dollars
($1,000,000) shall be paid to Softdesk by cashier's check as instructed by
Seller; and
(b) upon receipt by Purchaser of all the items described in Section
4.1, the sum of Five Million Seven Hundred Sixteen Thousand Four Hundred
Thirty-Eight and 60/100 Dollars ($5,716,438.60) shall be paid to Seller by
wire transfer or other immediately available funds.
2.2 TRANSFER TAXES
Except for any legal expenses of Seller payable by Purchaser under Section
2 of the Memorandum of Understanding dated February 21, 1997, between Seller and
Purchaser (the
"MOU"), the Purchase Price shall be deemed to include any and all taxes, fees
and expenses to be remitted by Purchaser to Seller relating to Purchaser's
purchase of the Assets. All title, recording and transfer fees payable or
assessable in connection with the sale and transfers contemplated by this
Agreement, together with any and all sales taxes payable or assessable in
connection with the sale and transfers contemplated by this Agreement, shall be
borne by Seller.
2.3 FULL COMPENSATION
Payment of the amounts set forth in Section 2.1 shall constitute full
compensation to Seller for the Assets, the representations and warranties set
forth in Section 3 and full performance of Seller's obligations under this
Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser, which representations and
warranties shall survive the execution and delivery of this Agreement to the
extent provided herein, as follows:
3.1 ORGANIZATION AND GOOD STANDING
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of California. Seller has all requisite
corporate power and authority to own, operate and lease its properties and
assets and to carry on its business as now conducted.
3.2 POWER AND AUTHORITY; ENFORCEABILITY; NO VIOLATION
Seller has full power and authority to execute, deliver and perform its
obligations under this Agreement, and to consummate the transactions
contemplated hereby. All actions on the part of Seller and its officers,
directors and shareholders necessary for the authorization, execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been taken. This Agreement has been duly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
3.3 NO APPROVALS OR NOTICE REQUIRED; NO CONFLICTS WITH INSTRUMENTS
The execution, delivery and performance of this Agreement by Seller and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of any law or any judgment, decree, order, regulation or rule of
any court, agency or other governmental authority applicable to Seller, (b)
require any consent, approval or authorization of any person, corporation,
partnership, governmental or regulatory authority or other organization or
entity (a "Person"), (c) result in a default (with or without the giving of
notice or lapse of time, or both) under, an acceleration or termination of, or
the creation in any party of the right to accelerate, terminate, modify or
cancel, any agreement, lease, note or other restriction, encumbrance, obligation
or liability to which Seller is a party or by which it is bound or to which the
Assets is subject, (d) result in the creation of any lien or encumbrance upon
the Assets, (e) conflict with or result in a breach of or constitute a default
under any provision of Seller's Articles of Incorporation or Bylaws, or (f)
invalidate or adversely affect any permit, license, authorization or status used
in Seller's conduct of Seller's business; where such
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violation, default, acceleration, termination, creation or imposition, or
consent, approval or authorization, if not obtained, would have a material
adverse effect on the Assets.
3.4 INTELLECTUAL PROPERTY
(a) Seller owns all right, title and interest in and to the Assets,
free and clear of any liens, encumbrances, security interests rights or claims
of any other Person (other than the license rights granted to Softdesk pursuant
to the Technology Transfer Agreement dated February 21, 1997, between Softdesk
and Seller). The execution and delivery of this Agreement will convey, transfer
and assign to Purchaser good and marketable title to the Assets free and clear
of all security interests, liens, encumbrances, rights and claims of any Person
(other than the license rights granted to Softdesk pursuant to the Technology
Transfer Agreement dated February 21, 1997, between Softdesk and Seller).
(b) Neither Seller nor any Person claiming by, through or under Seller
has a copy, or the right to acquire or discover a copy, of any of the source
code with respect to the Assets (except for copies which Seller will immediately
deliver to Purchaser or destroy). Seller has not delivered copies of source
code for the Assets to any Person, whether pursuant to an escrow arrangement or
otherwise. Copies of all licenses, sublicenses and other agreements, including
confidential disclosure agreements, as to which Seller is a party and pursuant
to which any other Person is authorized to use any the Assets have been
delivered by Seller to Purchaser. Seller is not, and as a result of the
execution and delivery of this Agreement or the performance of Seller's
obligations hereunder will not be, in violation of, or lose any rights pursuant
to any license, sublicense or agreement.
(c) The Assets do not infringe any patent, copyright, trade secret,
trademark or other intellectual property of any Person.
(d) No claims with respect to the Assets have been asserted or, to the
knowledge of Seller, are threatened by any Person, and Seller does not know of
any claims (i) to the effect that the manufacture, sale or use of any product
related to the Assets as now used or offered by Seller infringes any copyright,
patent, trade secret or other intellectual property right, (ii) against the use
by Seller of any of the Assets, or (iii) challenging the ownership, validity or
effectiveness of any of the intellectual property rights associated with the
Assets.
(e) Any patents and registered trademarks, service marks and other
company, product or service identifiers and registered copyrights, associated
with the Assets are valid and subsisting.
(f) There has not been and there is not now any material unauthorized
use, infringement or misappropriation of any of the Assets by any third party,
including without limitation any employee or former employee of Seller. Seller
has not been sued or charged in writing as a defendant in any claim, suit,
action or proceeding which involves a claim of infringement of any patents,
trademarks, service marks, copyrights or other intellectual property rights and
which has not been finally terminated prior to the date of this Agreement.
There are no such charges or claims outstanding and, to the best knowledge of
Seller, Seller does not have any infringement liability with respect to any
patent, trademark, service xxxx, copyright or other intellectual property right
of another.
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3.5 CLAIMS AND LEGAL PROCEEDINGS
There are no claims, actions, suits, arbitrations, criminal or civil
investigations or proceedings pending or involving or, to Seller's knowledge,
threatened against Seller before or by any court or governmental or
nongovernmental department, commission, board, bureau, agency or
instrumentality, or any other Person which would, directly or indirectly have a
material adverse impact on the Assets. To Seller's knowledge, there is no valid
basis for any claim, action, suit, arbitration, investigation or proceeding.
There are no outstanding or unsatisfied judgments, orders, decrees or
stipulations to which Seller is a party that involve the transactions
contemplated herein or that could result in a lien, claim or encumbrance on any
of the Assets or result in the commencement of a claim, suit or other proceeding
against Purchaser which would, directly or indirectly have a material adverse
impact on the Assets.
3.6 GOVERNMENTAL AUTHORIZATIONS AND COMPLIANCE WITH LAWS
Seller has conducted its business in accordance with all applicable
foreign, federal, state and local laws, regulations, permits, licenses,
authorizations and other requirements of all governmental entities having
jurisdiction over Seller, the noncompliance with which, or the violation of, or
the failure to obtain or adhere to, could have a material adverse affect on the
condition or use of the Assets.
SECTION 4. COVENANTS AND AGREEMENTS OF SELLER
Seller agrees to perform and observe the following agreements:
4.1 DELIVERY
Seller shall deliver or cause to be delivered forthwith to Purchaser all
intangible and any tangible embodiments of the Assets (including, without
limitation, one complete copy of the source code for the Assets).
4.2 USE OF ASSETS
On the Effective Date, Seller shall cease all use, development, or other
exploitation of the Assets, except with the prior written consent of Purchaser.
Without limiting the generality of the foregoing, Seller shall treat all trade
secrets, technology, designs, know-how and methods related to the Assets as
confidential and proprietary information of Purchaser. Seller shall not
disclose such information to any other person unless and until the information
is in the public domain at the time of its disclosure through no fault of Seller
or Purchaser consents to the disclosure in writing.
SECTION 5. SURVIVAL; INDEMNITY
5.1 SURVIVAL
All provisions of this Agreement, including without limitation all
representations and warranties contained in this Agreement or in any instrument
delivered pursuant hereto, shall survive the consummation of the transactions
contemplated by this Agreement.
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5.2 INDEMNIFICATION
Seller shall indemnify and hold harmless Purchaser from and against any
claims, losses, liabilities, actions, damages, costs and expenses (including
reasonable attorneys' fees) incurred by Purchaser arising out of or in
connection with (a) any breach of the representations or warranties made by
Seller under this Agreement; (b) any claims by third parties arising out of the
ownership, use or distribution of the Assets on or before the Effective Date;
(c) any liabilities or obligations arising from or relating to the Technology
Transfer Agreement dated February 21, 1997, between Seller and Softdesk, except
for the amounts to be paid by Visio to Softdesk under Section 2.1(a), (d) any
claims by Seller's creditors (including, without limitation, any trade
creditors); and (e) any failure of the transactions contemplated by this
Agreement to comply with applicable creditor protection or similar laws;
provided, however, that Seller shall not be responsible to defend Purchaser or
pay Purchaser's attorney's fees or other costs of defense unless an adverse
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final judgment as to an item in subsections (a) through (e) has been entered and
no further appeal therefrom is possible.
SECTION 6. MISCELLANEOUS
6.1 EXPENSES
Except as specifically provided for in this Agreement, and subject to
Section 2 of the MOU, each party shall bear its own expenses incident to the
negotiation, preparation, authorization and consummation of this Agreement and
the transactions contemplated hereby, including, without limitation, all fees
and expenses of its counsel and accountants, whether or not such transactions
are consummated.
6.2 NOTICES
All notices, claims and other communications hereunder shall be in writing
and shall be made by hand delivery, registered or certified mail (postage
prepaid, return receipt requested) or overnight air courier guaranteeing next-
day delivery:
(a) If to Purchaser, to: with a copy to:
Visio Corporation Xxxxxxx Coie
Xxxxx 0000 000 - 000xx Xxxxxx XX, 00xx Xxxxx
000 Xxxx Xxxxxx Xxxxxxxx, Xxxxxxxxxx 00000
Xxxxxxx, XX 00000-0000 Attention: Xxxx X. Xxxxxx, Esq.
Attention: Chief Financial Officer
(b) If to Seller, to: with a copy to:
Boomerang Technology, Inc. Xxxxxxx, Phleger & Xxxxxxxx
000 Xxxxxxxx Xxxxxx 000 Xxxx X Xxxxxx
Xxxxxx, XX 00000 Suite 1300
Attention: Xxxxxxx X. Xxxxxx Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
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or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section 6.2.
All such notices and communications shall be deemed to have been duly given at
the time delivered by hand, if personally delivered; upon receipt, if mailed;
and upon receipt, if sent by an overnight air courier service guaranteeing next-
day delivery.
6.3 ENTIRE AGREEMENT
This Agreement, together with Exhibit A hereto, constitutes the entire
agreement among the parties concerning the subject matter hereof, supersedes all
other agreements and understandings, whether oral or written (including without
limitation the Assignment and Xxxx of Sale dated February 21, 1997, from Seller
to Purchaser and, except with respect to Section 2 of the MOU, the MOU), and may
not be changed, modified, altered or terminated except by an agreement in
writing executed by the parties hereto. Any waiver by any party of any of its
rights under this Agreement or of any breach of this Agreement shall not
constitute a waiver of any other rights or of any other or future breach.
6.4 REMEDIES CUMULATIVE
Except as otherwise provided herein, each and all of the rights and
remedies provided in this Agreement, and each and all of the rights and remedies
allowed at law and in equity in like case, shall be cumulative, and the exercise
of one right or remedy shall not be exclusive of the right to exercise or resort
to any and all other rights or remedies provided in this Agreement or at law or
in equity.
6.5 GOVERNING LAW; JURISDICTION AND VENUE
This Agreement shall be governed by and construed and enforced in
accordance with and subject to the internal laws and decisions of the State of
Washington, regardless of its or any other jurisdiction's conflict of law
provisions.
6.6 COUNTERPARTS; SIGNATURE
This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together constitute one and the same
instrument. To expedite the process of entering into this Agreement, the
parties acknowledge that Transmitted Copies of the Agreement shall be equivalent
to original documents until such time as original documents are completely
executed and delivered. "Transmitted Copies" shall mean copies which are
reproduced or transmitted via photocopy, facsimile, or other process of complete
and accurate reproduction and transmission.
6.7 WAIVERS
No provision of this Agreement shall be deemed waived by course of conduct,
unless such waiver is in writing signed by the parties and stating that it was
intended to modify this Agreement.
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6.8 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Seller shall not
have the right to assign this Agreement or any of its rights or obligations
hereunder to any Person without Purchaser's prior written consent.
6.9 FURTHER ASSURANCES
Each party shall, at the request of any other party hereto from time to
time, execute and deliver such other assignments, transfers, conveyances and
other instruments and documents and do and perform such other acts and things as
may be reasonably necessary or desirable for effecting complete consummation of
this Agreement and the transactions contemplated hereby.
6.10 CONFIDENTIALITY
Seller shall not make any public announcement or other disclosure with
regard to the transactions contemplated hereby or the material terms hereof
(including, without limitation, the Purchase Price and form of consideration to
be paid pursuant to Section 2.1 hereof) without the prior consent Purchaser;
provided, however, that nothing herein shall restrict Seller from disclosing or
using for its own benefit or for any other purpose any such information which
enters the public domain and is readily available to the general public so long
as such information did not enter the public domain or become available to the
general public as a direct or indirect result of Seller's breach of this
Agreement and so long as such disclosure or use does not violate any
intellectual property right of Purchaser.
6.11 SEVERABILITY
In the event that any term or provision of this Agreement is determined to
be illegal, invalid or unenforceable, the remainder of this Agreement shall
continue in full force and effect, provided that such continuation would not
materially alter the terms hereof or materially diminish the benefits or
materially increase the burdens of this Agreement for any party.
VISIO CORPORATION BOOMERANG TECHNOLOGY, INC.
By /s/ Xxxxxx Xxxxx By /s/ Xxxxxxx Xxxxxx
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Its President Its President
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