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AGREEMENT FOR EXCHANGE OF INTANGIBLES
THIS AGREEMENT FOR EXCHANGE OF INTANGIBLES is made this 29th day of
December, 1995 (the "Effective Date"), by and between ASA INTERNATIONAL
VENTURES, INC., a Delaware corporation ("ASA Ventures"); and ASA INTERNATIONAL
LTD., a Delaware corporation ("ASA International").
W I T N E S S E T H :
WHEREAS, ASA Ventures and ASA International are the
owners of certain Intangibles, as defined below; and
WHEREAS, ASA Ventures and ASA International desire to exchange certain
Intangibles.
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions.
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a. THE ASA VENTURES INTANGIBLES. The "ASA Venture Intangibles"
shall mean any and all information regarding the composition of the customer
market, market share, and any other value resulting from the future provision
of goods and services pursuant to relationships with customers (contractual or
otherwise) in the ordinary course of business related to ASA Ventures' CWI
and BSD product lines.
b. THE ASA INTERNATIONAL INTANGIBLES. The "ASA International
Intangibles" shall mean any and all information regarding the composition of the
customer market, market share, and any other value resulting from the future
provision of goods and services pursuant to relationships with customers
(contractual or otherwise) in the ordinary course of business related to ASA
International's Trade and Legal Data product lines.
2. EXCHANGE OF INTANGIBLES. As of the Effective Date, ASA Ventures
grants to ASA International the right to use the ASA Ventures Intangibles,
and ASA International grants to ASA Ventures the right to use the ASA
International Intangibles.
3. PAYMENT TO ASA VENTURES. In addition to the exchange of
Intangibles set forth above in Section 2, ASA International shall pay annually
to ASA Ventures the sum of One Hundred Thousand Dollars ($100,000) as a royalty
payment for use of the International Trade, Legal Data, and Tire Intangibles
owned by ASA Ventures.
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In the event that ASA International suffers a loss, expense, cost or damage
resulting from any claim made against ASA International relating to this
Agreement, including but not limited to a breach of ASA Ventures's obligations
pursuant to Section 2 of this Agreement or a breach of the representations and
warranties of ASA Ventures, as set forth below, ASA International may reduce the
amounts paid to ASA Ventures under this Section by the amount of the loss
suffered by ASA International, including related fees and costs.
4. Representations and Warranties of the Parties.
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a. REPRESENTATIONS AND WARRANTIES OF ASA VENTURES. ASA Ventures
represents and warrants, upon which representations and warranties ASA
International relies, and which shall survive the execution of this Agreement
that:
(i) ASA Ventures is the sole owner of the ASA Ventures
Intangibles free of any liens, encumbrances and claims of any description.
(ii) ASA Ventures has not previously assigned the ASA Ventures
Intangibles.
(iii) ASA Ventures has not granted any license to any person or
entity permitting the use of the ASA Ventures Intangibles, or granting the right
to reproduce the ASA Ventures Intangibles, except as previously disclosed to ASA
International.
(iv) The ASA Ventures Intangibles being transferred are fit and
sufficient for the purposes which ASA International intends to use them.
b. REPRESENTATIONS AND WARRANTIES OF ASA INTERNATIONAL. ASA
International represents and warrants, upon which representations and
warranties ASA Ventures relies, and which shall survive the execution of
this Agreement that:
(i) ASA International is the sole owner of the ASA International
Intangibles free of any liens, encumbrances and claims of any description.
(ii) ASA International has not previously assigned the ASA
International Intangibles.
(iii) ASA International has not granted any license to any person
or entity permitting the use of the ASA International Intangibles, or granting
the right to reproduce the ASA International Intangibles, except as previously
disclosed to ASA Ventures.
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(iv) The ASA International Intangibles being transferred are fit
and sufficient for the purposes which ASA Ventures intends to use them.
5. COVENANTS OF ASA INTERNATIONAL. ASA International agrees that the
ASA Ventures Intangibles are, or will be, used exclusively for business
purposes. ASA Ventures shall have the right to use the ASA International
Intangibles and to receive the proceeds and profits thereof in the ordinary
course of business.
6. COVENANTS OF ASA VENTURES. ASA Ventures agrees that the ASA
International Intangibles are, or will be, used exclusively for business
purposes. ASA International shall have the right to use the ASA Ventures
Intangibles and to receive the proceeds and profits thereof in the ordinary
course of business.
7. FURTHER ACTIONS. The parties agree to execute such further
instruments and to take such further actions as may reasonably be necessary to
carry out the intent of this Agreement.
8. INTERPRETATION. It is the intent of the parties that in case
any one or more of the provisions contained in this Agreement shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect the other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. Moreover, it
is the intent of the parties that if any provision of this Agreement is or
becomes or is deemed invalid, illegal or unenforceable or in case any one or
more of the provisions contained in this Agreement shall for any reason be held
to be excessively broad as to duration, geographical scope, activity or subject,
such provision shall be construed by amending, limiting and/or reducing it to
conform to applicable laws so as to be valid and enforceable or, if it cannot be
so amended without materially altering the intention of the parties, it shall be
stricken and the remainder of this Agreement shall remain in full force and
effect.
9. WAIVERS. No waiver of any right under this Agreement shall be deemed
effective unless contained in a writing signed by the party charged with
such waiver, and no waiver of any right arising from any breach or failure to
perform shall be deemed to be a waiver of any future such right or of any other
right arising under this Agreement. If either party should waive any breach of
any provision of this Agreement, it shall not thereby be deemed to have waived
any preceding or succeeding breach of the same or any other provision of this
Agreement.
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10. COMPLETE ASSIGNMENT, AMENDMENTS. The parties agree that with
respect to the subject matter hereof this Agreement is the entire agreement of
the parties, superseding any previous oral or written communications,
representations, understandings, or agreements. Any amendment to this Agreement
shall be effective only if evidenced by a written instrument executed by the
parties hereto.
11. HEADINGS. The headings of the Sections contained in this Agreement are
for convenience and reference only and in no way define, limit, extend or
describe the scope of this Agreement, the intent of any provisions hereof, and
shall not be deemed to constitute a part hereof nor to affect the meaning of
this Agreement in any way.
12. COUNTERPARTS. This Agreement may be signed by facsimile and in
counterparts, each of which shall be deemed an original and both of which shall
together constitute a single Agreement.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Massachusetts,
without regard to its conflict of law principles.
14. NOTICES. All notices, requests, demands and communications which are
or may be required to be given hereunder shall be deemed effectively given
upon receipt after being sent by registered or certified mail, return receipt
requested, postage prepaid.
15. SUCCESSORS AND ASSIGNS. ASA International may not assign this
Agreement without the express written consent of ASA Ventures. Any attempt to so
assign shall be deemed to be null and void and given no force or effect. This
Agreement shall be binding upon and shall inure to the benefit of the respective
legal representatives, successors and permitted assigns of the parties hereto.
16. INDEPENDENT LEGAL COUNSEL. Each party represents that it: (1)(i) has
received independent advice from counsel of its own choosing with respect to
the advisability of entering into this Agreement, and (ii) has had a reasonable
amount of time to properly review this Agreement with such legal counsel; or
(2) that it has had the opportunity to seek independent advice from legal
counsel but for reasons of its own decided not to seek such advice.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the day and year first set
forth above.
WITNESS ASA INTERNATIONAL VENTURES, INC.
/s/ XxxxXxx Xxxxxx By: /s/ Xxxxxxxx X. XxXxxxxx
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WITNESS ASA INTERNATIONAL LTD.
/s/ XxxxXxx Xxxxxx By: /s/ Xxxxxxxx X. XxXxxxxx
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