Exhibit 10.35
ASSET PURCHASE AGREEMENT
This AGREEMENT is entered into as of January 31, 2000 ("Effective Date") by and
among Peritus Software Services (India) Private Limited, an Indian corporation
having its principal place of business at Xxxxxxxxxxxxx Xxxxxxx, X Xxxxx, 00/0,
Xxxxxxxxx Xxxx, Xxxxxxxxx, 560 025, India ("Peritus"), LTP (India) Pvt. Ltd., an
Indian corporation having its principal place of business at Xxxxxxxxxxxxx
Xxxxxxx, X Xxxxx, 00/0, Xxxxxxxxx Xxxx, Xxxxxxxxx, 560 025, India ("Lisle
India"), and Lisle Technology Partners, L.L.C., a Massachusetts limited
liability company having its principal place of business in 0000 Xxxxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx Xxxxx, XX 00000 ("Lisle USA").
Whereas, Lisle, U.S.A. is a company organized under the laws of Massachusetts;
Whereas, Lisle, U.S.A. has formed Lisle India, a subsidiary company in India;
and
Whereas, Lisle U.S.A., Lisle India, and Peritus wish to enter into this
Agreement, and Lisle India wishes to purchase at the closing and Peritus wishes
to sell at the closing certain assets as set forth on Exhibit A, attached hereto
and incorporated herein by reference, for the consideration set forth below,
subject to the terms and conditions of this Agreement.
Now, therefore, in consideration of the mutual promises hereinafter set forth
and acknowledged, the parties hereby agree as follows:
1. Purchase and Sale of Assets. As of February 15, 2000 or, if the agreement
dated September 1, 0000 xxxxxxx Xxxxxxx xxx Xxxxx X.X.X. is extended pursuant to
its Amendment No. 1 dated January 31, 2000, March 15, 2000 (hereinafter, the
"Closing Date"), Peritus shall sell, transfer, convey, assign, and deliver to
Lisle India, and Lisle India shall purchase from Peritus, the assets set forth
on Exhibit A (hereinafter, the "Assets"), subject to and upon the terms and
conditions of this Agreement.
2. Purchase Price. The purchase price for the Assets shall be due and payable
jointly and severally by Lisle India and Lisle U.S.A in an amount in Indian
rupees equivalent (as determined on the Closing Date) to fifty thousand U.S.
dollars ($50,000.00 U.S.) if the Closing Date is February 15, 2000 or fifty-five
thousand U.S. dollars ($55,000.00 U.S.) if the Closing Date is March 15, 2000.
For purposes of this Agreement, the "purchase price" shall be defined as the
amount owed to Peritus for the Assets, net of any sales taxes, transfer taxes,
value added taxes, goods and services taxes, withholding taxes, duties,
bondings, and any other taxes, duties and charges applicable to the sale of
Assets or this Agreement, whether presently in force or imposed in the future.
Such purchase price shall be due and payable on the Closing Date.
3. The Closing. On the Closing Date, (i) Lisle India and/or Lisle U.S.A. shall
pay to Peritus the purchase price as set forth above, and (ii) Peritus shall
deliver to Lisle India the Assets and a xxxx of sale (in a form substantially
similar to that which is attached hereto as Exhibit B) for the same, at which
time the transfer of Assets from Peritus to Lisle India shall be deemed to
occur.
4. Disclaimer of Warranties. The Assets are transferred on an "as is" and "where
is" basis without any warranty of any kind. PERITUS HEREBY DISCLAIMS ANY AND ALL
WARRANTIES OR LIABILITIES WITH RESPECT TO THE ASSETS, EXPRESSED OR IMPLIED,
INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
5. Limitation of Liability. IN NO EVENT SHALL PERITUS BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE TRANSFER OF THE
ASSETS, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY
DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF
BUSINESS, EVEN IF PERITUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Representations. Lisle U.S.A., Lisle India and Peritus represent that on the
date hereof and on the Closing Date:
a.) such party is a corporation or entity duly organized or established,
validly existing and in good standing under the laws of its
jurisdiction, state or country of organization or establishment, and
has all requisite power and authority (corporate or other) to (i)
own its properties, (ii) to carry on its business as now being
conducted, and (iii) to execute and deliver this Agreement and the
agreements contemplated herein and to consummate the transactions
contemplated hereby and thereby;
b.) the execution and delivery of this Agreement, and the agreements
provided for herein, and the consummation of all the transactions
contemplated hereby, have been duly authorized by all requisite
corporate or other action on the part of each respective party; and
c.) this Agreement and all such other agreements and written obligations
entered into and undertaken in connection with the transactions
contemplated hereby constitute the valid and legally binding
obligations of the respective parties, enforceable against them in
accordance with its terms.
7. Miscellaneous.
7.1 Applicable Law. This Agreement shall be construed and enforced in
accordance with the law of the Commonwealth of Massachusetts, U.S.A., excluding
those portions of such law that relate to choice of law and also excluding the
United Nations Convention on the International Sale of Goods.
7.2 Jurisdiction. Lisle India and Lisle USA hereby consent to the personal
jurisdiction of the United States District Court for the District of
Massachusetts, which shall be the exclusive venue and forum for the resolution
of all disputes arising under or in any way related to this Agreement.
7.3 Waiver. The waiver by either party of a breach or default in any
provision of this Agreement shall not be construed as a waiver of any succeeding
breach thereof or of any other provision hereof, nor shall any delay or omission
on the part of either party to exercise or avail itself of any right, power or
privilege that it has or may have hereunder be construed as a waiver of any
right, power or privilege of such party.
7.4 Notices. Any notice, demand or other communication required, or which
may be given unless otherwise specifically provided for in this Agreement, shall
be in writing and shall be effective: five (5) days after mailed, if sent by
certified, postage prepaid U.S. mail; upon receipt of confirmation, if delivered
by confirmed facsimile; upon delivery if delivered in person; or the day after
dispatch if sent by an overnight courier service that provides the sender with
written record of delivery, and shall be addressed to the respective parties as
follows:
To Lisle India: LTP (India) Pvt. Ltd.
Xxxxxxxxxxxxx Xxxxxxx, X Xxxxx
00/0, Xxxxxxxxx Xxxx
Xxxxxxxxx, 560 025 India
Attn: Center Head
To Lisle U.S.A.: Lisle Technology Partners, L.L.C.
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxx
To Peritus: Peritus Software Services (India) Private Limited
c/o Peritus Software Services, Inc.
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000 U.S.A.
Attn: Xxxx Xxxxxxxx
The above addresses and contact persons may be changed at any time by giving
written notice hereunder.
7.5 Assignment. This Agreement and the rights and obligations of the
parties hereto shall inure to the benefit of the respective parties, their
successors and assigns; provided, however, that in no event shall Lisle India or
Lisle U.S.A assign, transfer or delegate any of its obligations hereunder
without the prior written consent of Peritus.
7.6 Integration. This Agreement, including Exhibits A and B, contains the
entire understanding of the parties with respect to the subject matter hereof,
and supersedes all prior understandings or writings relating thereto. No
amendment, waiver, alteration or modification of the provisions hereof shall be
made except by a writing signed by each of the parties.
7.7 Relationship of the Parties. The relationship of the parties to one
another shall be that of independent
contractors. Nothing contained in this Agreement shall be construed to
constitute the parties as partners or joint venturers.
7.8 Severability. If any term or provision in this Agreement shall be
deemed to be invalid, unenforceable, or unduly broad in duration or scope, it
shall be enforced to the maximum extent permitted by law. To the extent that any
term or provision is unenforceable or void, it shall be severed from the balance
of the Agreement, which shall remain in full force and effect.
7.9 Covenants. Lisle India and Lisle U.S.A., jointly and severally,
covenant and agree to indemnify upon demand Peritus and its officers, directors,
stockholders, agents and affiliates from and against any damages, losses,
liabilities, costs and expenses, including reasonable attorney's fees, for any
taxes, duties, bondings or charges incurred by or assessed against Peritus or
any of its officers, directors, stockholders, agents and affiliates in
connection the transfer of Assets, this Agreement or the transactions
contemplated hereby.
7.10 Survival. The provisions of Sections 4, 5, 6 and 7 shall survive the
Closing Date.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in their names by their respective duly authorized officers as of the date first
above written.
PERITUS SOFTWARE SERVICES (INDIA) LTP (INDIA) PVT. LTD.
PRIVATE LIMITED
By: _________________________________ By: ________________________________
Name: _______________________________ Name: ______________________________
Title: ______________________________ Title: _____________________________
Date: _______________________________ Date:_______________________________
Duly authorized thereunto Duly authorized thereunto
LISLE TECHNOLOGY PARTNERS, L.L.C.
By: ________________________________
Name: ______________________________
Title: _____________________________
Date:_______________________________
Duly authorized thereunto
Exhibit A
ASSETS
1. Building Furniture and Equipment, consisting of :
Wooden Fixtures
Air-conditioners - 4 Nos.
Electrical Installations
False Ceilings
Network Cabling
Chairs - 54 Nos.
NEC EPABX
Carpets
Access Control System
Sofa Sets
Speakers
Wooden Flooring
Music Systems
2. Bonded Equipment, consisting of:
Sun Server
Sun Workstations - 7 Nos.
Compaq Deskpro 2000 Systems - 12 Nos.
NEC 21' Monitors - 13 Nos.
CISCO MultiProtocol Router
D-Term Phones - 5 Nos.
Analogue Phones - 40 Nos.
3. Modi Xerox
4. HP Laser Network Printer
5. Mobile Phones - 2 Nos.
6. Fax Machine
7. Refrigerator
8. Filing Cabinet
9. HP Scanner
10. Vacuum Cleaner
11. Water Purifier
12. Overhead Projector
Exhibit B
XXXX OF SALE
This Xxxx of Sale dated ________________, 2000 (the "Xxxx of Sale") is executed
and delivered by Peritus Software Services (India) Private Limited, an Indian
corporation having its principal place of business at Xxxxxxxxxxxxx Xxxxxxx, X
Xxxxx, 00/0, Xxxxxxxxx Xxxx, Xxxxxxxxx, 560 025, India ("Peritus") to LTP
(India) Pvt. Ltd., an Indian corporation having its principal place of business
at Xxxxxxxxxxxxx Xxxxxxx, X Xxxxx, 00/0, Xxxxxxxxx Xxxx, Xxxxxxxxx, 560 025,
India ("Lisle India"). All capitalized words and terms used in this Xxxx of Sale
and not defined herein shall have the respective meanings ascribed to them in
the Asset Purchase Agreement dated January 31, 2000 by and among Peritus, Lisle
India and Lisle Technology Partners, L.L.C. and the other signatories thereto
(the "Agreement")
Whereas, pursuant to the Agreement, Peritus has agreed to sell, transfer,
convey, assign and deliver to Lisle India, its successors and assigns, to have
and to hold forever, the Assets.
NOW, THEREFORE, for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Peritus hereby agrees as follows:
1. Peritus hereby sells, tranfers, conveys, assigns and delivers to Lisle
India, its successors and assigns, to have and to hold forever, the
Assets.
2. Peritus hereby covenants and agrees that it will, at the request of Lisle
India and without further consideration, execute and deliver, and will
cause its employees to execute and deliver, such other instruments of
sale, transfer, conveyance and assignment, and take such other action as
may reasonably be necessary to more effectively sell, transfer, convey
assign, and deliver to Lisle India, its successors and assigns, the Assets
hereby sold, transferred, conveyed, assigned and delivered.
3. This sale, transfer, conveyance and assignment has been executed and
delivered by Peritus in accordance with the Agreement.
4. Peritus, by its execution of this Xxxx of Sale, and Lisle India, by its
acceptance of this Xxxx of Sale, each hereby acknowledges and agrees that
neither the representations nor the rights and remedies of any party under
the Agreement shall be deemed to be enlarged, modified or altered in any
way by this Xxxx of Sale.
IN WITNESS WHEREOF, Peritus and Lisle India have caused this Xxxx of Sale to be
duly executed as of the date first above written.
PERITUS SOFTWARE SERVICES (INDIA) PRIVATE LIMITED
______________________________________________
By:
Title:
ATTEST:
___________________________________
ACCEPTED:
LTP (INDIA) PVT. LTD.
___________________________________
By:
Title:
