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EXHIBIT 1.6
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement"), dated as of May 1,
1998, is made and entered into by and between ABOG, INC., a California
corporation doing business as Landmark Computer Group (the "Purchaser"), and
INTERSCIENCE COMPUTER CORPORATION, a California corporation (the "Seller").
Capitalized terms not otherwise defined herein have the meanings set forth in
Section 8.1.
RECITALS:
WHEREAS, Seller is engaged in the business of, among other things,
servicing and maintaining laser printers (and the sale of consumable products in
connection therewith) through maintenance contracts with its customers (the
"Business") including the service and maintenance of high speed laser printers
manufactured by Siemens Nixdorf Printing Systems (the "Siemens Laser Printer
Maintenance Business"); and
WHEREAS, Seller desires to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase and acquire from Seller, certain of the assets of
Seller relating to the operation of the Siemens Laser Printer Maintenance
Business and in connection therewith, Purchaser has agreed to assume certain of
the liabilities of Seller relating to Seller's Siemens Laser Printer Maintenance
Business, all on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
SALE OF ASSETS AND CLOSING
1.1 Assets.
1.1.1 Assets Transferred. On the terms and subject to the
conditions set forth in this Agreement, Seller will
sell, transfer, convey, assign and deliver to Purchaser,
and Purchaser will purchase and pay for, at the Closing,
all of Seller's right, title and interest in, to and
under the following Assets of Seller which were used by
Seller in connection with the Siemens Laser Printer
Maintenance Business as the same shall exist on the
Closing Date (collectively, the "Assets"):
1.1.2 Business Contracts With Customers. Certain purchase
orders, computer maintenance or service agreements and
other contracts listed on attached Schedule 1.1.2 hereto
which are utilized in or part and
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parcel of the conduct of the Siemens Laser Printer
Maintenance Business (the "Business Contracts").
1.1.3 Excluded Assets. Notwithstanding anything in this
Agreement to the contrary, except for those assets
explicitly set forth in section 1.1.1 above all other
assets, are excluded from said sale including any
inventory used to service said accounts.
1.2 Liabilities.
1.2.1 Assumed Liabilities. In connection with the sale,
transfer, conveyance, assignment and delivery of the
Assets pursuant to this Agreement, on the terms and
subject to the conditions set forth in this Agreement,
at the Closing, Purchaser will assume and agree to pay,
perform and discharge when due the following obligations
of Seller arising in connection with the operation of
the Siemens Laser Printer Maintenance Business, as the
same shall exist on the Closing Date (the "Assumed
Liabilities"), and no others.
1.2.2 Obligations Under Contracts and Licenses. With respect
to the Siemens Laser Printer Maintenance Business those
obligations of Seller under the Business Contracts
listed in attached Schedule 1.1.2, and hold Seller
harmless from any further service obligations.
1.3 Purchase Price; and Allocation.
1.3.1 Purchase Price. The purchase price for the Assets shall
be as follows (collectively "the Purchase Price"):
1.3.2 The purchase price for the Business Contracts shall be
as follows:
1.3.3 Purchaser shall pay Seller up to the aggregate sum of
$40,320.00 as determined by the following formula: a
number which is the product of (a) Eighty Percent (80%)
and (b) the base revenue for the 12 months following
Closing (the "Relevant Period") of the contracts set
forth in the attached Schedule 1.1.2. To the extent
that the third party to any of the contracts set forth
in Schedule 1.1.2 cancel or are terminated under the
terms of the Operative Agreements, through no fault of
Buyer or Seller, then the payment provided herein shall
be reduced by the allocable amount of base revenue
accruing from the contract so canceled from the date of
cancellation to the end of the Relevant Period. To the
extent that Seller shall supply additional Siemens laser
printers during the Relevant Period to third parties,
the monthly base revenues for additional service
contracts related to such machines shall
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be added to the base revenue for the period commencing
with the date such machine is placed into service and
concluding at the end of the service contract for that
machine.
1.3.4 Purchaser shall pay Seller in accordance with the
schedule provided in the attached Schedule 1.3.1. To
secure the timely payment of the amounts set forth in
attached Schedule 1.3.1, Purchaser and Seller shall
execute and deliver at Closing a security agreement and
UCC 1 financing statement which creates a security
interest in the Assets and proceeds and products thereof
in favor of Seller in the forms attached hereto as
Schedules 1.3.1. and 1.3.1.A., respectively.
1.3.5 During the Relevant Period Seller agrees to sell to
Purchaser certain Siemens consumables in the quantities
and prices set forth in attached Schedule 1.3.1.A.
Purchaser shall pay Seller cash on delivery for the
Siemens consumables set forth in attached Schedule
1.3.1.A. At the conclusion of the Relevant Period,
Seller shall have no further obligation to honor the
price and quantity terms provided in attached Schedule
1.3.1.A.
1.4 Payment of Sales, Use and Transfer Taxes. Purchaser shall pay
all sales, use, transfer, and other similar taxes and fees
("Transfer Taxes") arising out of or in connection with the
transactions effected pursuant to the Operative Agreements.
1.5 Closing. The Closing will take place at the offices of
Interscience Computer Corporation in Agoura, California, or at
such other place as Purchaser and Seller mutually agree, at
10:00 A.M. local time, on the Closing Date. At the Closing,
Purchaser will sign the agreement and payment schedule.
Simultaneously, (a) Seller will assign and transfer to Purchaser
all of its right, title and interest in and to the Assets, by
delivery of (I) a General Assignment and Xxxx of Sale
substantially in the form of Exhibit A hereto (the "General
Assignment"), duly executed by Seller, and (II) such other good
and sufficient instruments of conveyance.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser as follows:
2.1 Organization of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of the
State of California, is qualified to do business in the State of
California.
2.2 Authority. Seller has full corporate power and authority to
execute and deliver this Agreement and the Operative Agreements
to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated
hereby and thereby, including without limitation to sell and
transfer (pursuant to this Agreement) the Assets. The execution
and delivery by Seller of this Agreement and the Operative
Agreements to which it is a party, and the performance by Seller
of its obligations hereunder and thereunder is the authorized
act of Seller. This Agreement and the Operative Agreements, to
which the Seller is a party, have been duly and validly executed
and delivered by Seller and will constitute, legal, valid and
binding obligations of Seller enforceable against Seller in
accordance with their terms.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
3.1 Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the Laws of the State of
California. Purchaser has full corporate power and authority to
enter into this Agreement and the Operative Agreements to which
it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated
hereby and thereby.
3.2 Authority. The execution and delivery by Purchaser of this
Agreement and the Operative Agreements to which it is a party,
and the performance by Purchaser of its obligations hereunder
and thereunder, have been duly and validly authorized by the
Board of Directors of Purchaser, no other corporate action on
the part of Purchaser or its stockholders being necessary. This
Agreement has been duly and validly executed and delivered by
Purchaser and constitutes, and upon the execution and delivery
by Purchaser of the Operative Agreements to which it is a party,
such Operative Agreements will constitute,
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legal, valid and binding obligations of Purchaser enforceable
against Purchaser in accordance with their terms.
3.3 No Conflicts. The execution and delivery by Purchaser of this
Agreement does not, and the execution and delivery by Purchaser
of the Operative Agreements to which it is a party, the
performance by Purchaser of its obligations under this Agreement
and such Operative Agreements and the consummation of the
transactions contemplated hereby and thereby will not conflict
with or result in a violation or breach of any of the terms,
conditions or provisions of the certificate or articles of
incorporation or by-laws or other comparable corporate charter
document of Purchaser or constitute (with or without notice or
lapse of time or both) a default under, require Purchaser to
obtain any consent, approval or action of, make any filing with
or give any notice to any Person as a result or under the terms
of, any contract or License to which Purchaser is a party.
3.4 Legal Proceedings. There are no Actions or Proceedings pending
or, to the knowledge of Purchaser, threatened against, relating
to or affecting Purchaser or any of its Assets and Properties
which could reasonably be expected to result in the issuance of
an Order restraining, enjoining or otherwise prohibiting or
making illegal the consummation of any of the transactions
contemplated by this Agreement or any of the Operative
Agreements.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been
duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the
parties at the following addresses or facsimile numbers:
If to Purchaser, to:
ABOG, INC.
0000 Xxxxx Xxxx
Xxxx X
Xxxxxxxxx, XX 00000
Attn; Xx. Xxxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
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If to Seller, to:
Interscience Computer Corporation
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxxx Xxxxxxxx
All such notices, requests and other communications will (I) if
delivered personally to the address as provided in this Section, be deemed given
upon delivery, (II) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt, and (III) if
delivered by mail in the manner described above to the address as provided in
this Section, be deemed given upon receipt (in each case regardless of whether
such notice, request or other communication is to be delivered pursuant to this
Section). Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other party hereto.
4.2 Entire Agreement. This Agreement and the Operative Agreements
supersede all prior discussions and agreements between the
parties with respect to the subject matter hereof and thereof
and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof and thereof.
4.3 Expenses. Except as otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby
are consummated, each party will pay its own costs and expenses
incurred in connection with the negotiation, execution and
closing of this Agreement and the Operative Agreements and the
transactions contemplated hereby and thereby.
4.4 Confidentiality. Each party hereto will hold, and will use its
best efforts to cause their respective representatives to hold,
in strict confidence from any Person unless (I) compelled to
disclose by judicial or administrative process (including
without limitation in connection with obtaining the necessary
approvals of this Agreement and the transactions contemplated
hereby of Governmental or Regulatory Authorities) or by other
requirements of Law or (II) disclosed in an Action or Proceeding
brought by a party hereto in pursuit of its rights or in the
exercise of its remedies hereunder, all documents and
information concerning the other party or any of its Affiliates
furnished to it by the other party or such other party's
Representatives in connection with this Agreement or the
transactions contemplated hereby, except to the extent that such
documents or information can be shown to have been (a)
previously known by the party receiving such documents or
information, (b) in the public domain (either prior to or after
the furnishing of such documents or information hereunder)
through no fault of such receiving party or (c) later
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acquired by the receiving party from another source if the
receiving party is not aware that such source is under an
obligation to another party hereto to keep such documents and
information confidential. Following the Closing, the foregoing
restrictions will not apply to Purchaser's use of documents and
information furnished by Seller hereunder concerning the Siemens
Laser Printer Maintenance Business, the Assets or the Assumed
Liabilities; except, however, that Purchaser shall maintain the
confidentiality of any information regarding the Siemens Laser
Printer Maintenance Business obtained by Purchaser pursuant to
this Agreement. In the event the transactions contemplated
hereby are not consummated, upon the request of the other party,
each party hereto will, and will cause its Affiliates and their
respective Representatives to, promptly (and in no event later
than five (5) Business Days after such request) redeliver or
cause to be redelivered all copies of documents and information
furnished by the other party in connection with this Agreement
or the transactions contemplated hereby and destroy or cause to
be destroyed all notes, memoranda, summaries, analyses,
compilations and other writings related thereto or based thereon
prepared by the party furnished such documents and information
or its Representatives.
4.5 Waiver. Any term or condition of this Agreement may be waived at
any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a
written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any
term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the
same or any other term or condition of this Agreement on any
future occasion. All remedies, either under this Agreement or by
Law or otherwise afforded, will be cumulative and not
alternative.
4.6 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on
behalf of each party hereto.
4.7 No Third Party Beneficiary. The terms provisions of this
Agreement are intended solely for the benefit of each party
hereto and their respective successors or permitted assigns, and
it is not the intention of the parties to confer third-party
beneficiary rights upon any other Person.
4.8 No Assignment; Binding Effect. Neither this Agreement nor any
right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other
party hereto and any attempt to do so will be void, except (a)
for assignments and transfers by operation of Law and (b) that
Purchaser may assign any or all of its rights, interests and
obligations hereunder to (I) an Affiliate or wholly-owned
subsidiary, provided that any such Affiliate or subsidiary
agrees in writing to be bound by all of the terms,
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conditions and provisions contained herein, (II) any
post-Closing purchaser of the Siemens Laser Printer Maintenance
Business or a substantial part of the Assets or (III) any
financial institution providing purchase money or other
financing to Purchaser from time to time as collateral security
for such financing, but no such assignment referred to in clause
(I) or (II) shall relieve Purchaser of its obligations
hereunder. Subject to the preceding sentence, this Agreement is
binding upon, insures to the benefit of and is enforceable by
the parties hereto and their respective successors and assigns.
4.9 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the
provisions hereof.
4.10 Consent to Jurisdiction. Each party hereby irrevocably submits
to the jurisdiction of the Superior court of the State of
California for the County of Riverside in such action, suit or
proceeding arising out of or relating to this Agreement or any
of the Operative Agreements or any of the transactions
contemplated hereby and agrees that any such action, suit or
proceeding shall be brought only in such court. Each party
hereby irrevocably waives, to the fullest extent permitted by
Law, any objection that it may now or hereafter have to the
laying of the venue of any such actin, suit or proceeding
brought in such court and any claim that any such action, suit
or proceeding brought in such a court has been brought in an
inconvenient forum.
4.11 Invalid Provisions. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or
future Law, and if the rights or obligations of any party hereto
under this Agreement will not be materially and adversely
affected thereby, (a) such provision will be fully severable,
(b) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised
a part hereof and (c) the remaining provisions of this Agreement
will remain in full force and effect and will not be affected by
the illegal, invalid or unenforceable provision or by its
severance herefrom.
4.12 Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State of California
applicable to a contract executed and performed in such State,
without giving effect to the conflicts of laws principles
thereof.
4.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party as of the date first above written.
INTERSCIENCE COMPUTER CORPORATION
a California corporation, Seller
By:________________________________
Name:
Title:
A.B.O.G. INC., a California corporation,
doing business as Landmark Computer Group
By:________________________________
Name:
Title:
