EXHIBIT E-4-2
WHEREAS
A. The SELLER is a company active in the data processing field and is the
owner of assets (hereinafter the "Company") organized for the creation,
marketing and maintenance of software programmes, as specified in the
enclosures attached to this agreement (hereinafter the "Agreement");
B. The PURCHASER is a company active in the data processing field;
C. The SELLER intends to transfer the Company to the PURCHASER, who is
willing to purchase, pursuant to the terms and conditions set forth in this
Agreement (which represent the mere, partial, execution of part of the
agreements previously made between the Parties)
THE ABOVE BEING STATED
The Parties hereby agree as follows
1. SUBJECT OF THE AGREEMENT
1.1 In accordance with the terms and conditions of this Agreement, the
SELLER transfers and sells to the PURCHASER, who purchases, the Company as
described in this Clause "Subject of the Agreement" and in the Enclosures
mentioned therein.
1.2 The Company includes the assets and liabilities indicated in the
patrimonial situation enclosed to this Agreement as Enclosure 1.2 updated
to 30 September, 1997 (hereinafter the "Reference Date") and in the
relevant enclosures (hereinafter the "Provisional Patrimonial Situation"),
as successively updated to 31 December, 1997 (hereinafter the "Transferral
Date").
1.3 In compliance with the provisions of the previous Clause, the Parties
undertake to jointly prepare, within 31 March, 1998, a new patrimonial
situation relevant to the Company, updated to the Transferral Date
(hereinafter the "Updated Patrimonial Situation"). Attached to the Updated
Patrimonial Situation will be a series of enclosures which describe the
individual assets and liabilities which, upon the execution of this
Agreement, will be intended as transferred by the SELLER to the PURCHASER.
1.4 The Parties agree that for the purpose of preparing the Updated
Patrimonial Situation no amendment or adjustment will be made to the values
given in the Provisional Patrimonial Situation under the items (i) Fixed
Assets; (ii) Intellectual Property Rights; and (iii)_ Risks and Fees Fund.
The Parties have also agreed to conventionally fix (on the basis of the
evaluations and estimates made) as Itl. 417,762,500 the value of the
Start-up of the Company (which is not included in the items of the
Provisiona l Patrimonial Situation) and not to subject such element to any
value adjustment.
2. VALIDITY OF THE AGREEMENT
2.1 This Agreement will become valid as of 00.01 a.m. of 1 January 1998, as
of such date all of the assets and liabilities which are the subject of
this transfer (as for every risk pertinent to the Company), will be
intended as transferred by the SELLER to the PURCHASER.
3. PAYMENT
3.1 The payment due by the PURCHASER to the SELLER for the transfer of the
Company, as determined on the basis of the Preliminary Patrimonial
Situation attached hereto, is established as Itl. 443,762,500 (hereinafter
the "Payment").
3.2 The Payment has been determined by adding together the patrimonial
value of the assets and liabilities transferred with the Company (equal, as
of the Reference Date, to Itl. 26,000,000) and the conventional value
attributed to the item Start-up, equal to Itl. 417,762,500.
3.3 The Parties undertake to make (and to cooperate in such way) - as far
as possible - the patrimonial value of the assets and liabilities
transferred with the Company at the Transferral Date, identical to that
which results at the Reference Date, on the basis of the Preliminary
Patrimonial Situation attached hereto (i.e. Itl. 26,000,000). It is
furthermore agreed that only in the case in which the patrimonial value
ascertained at the Transferral Date (on the basis of the Updated
Patrimonial Situation) r esults as being higher than Itl. 26,000,000 or
lower than Itl. 24,000,000, such value will be re-established as Itl.
26,000,000, by means of the payment of an amount equal to the difference
(i) between the patrimonial value ascertained at the Transferral Date and
the amount of Itl. 26,000,000 (if the patrimonial value at the Transferral
Date results as higher than the patrimonial value at the Reference Date) or
(ii) between Itl. 26,000,000 and the patrimonial value ascertained at the
Transferal Date (if th e patrimonial value at the Transferral Date results
as being lower than Itl. 24,000,000) (hereinafter the "Difference"). The
Difference - which will be paid by the SELLER to the PURCHASER, if the
patrimonial value of the Company at the Transferral Date results as being
lower than Itl. 24,000,000; or by the PURCHASER to the SELLER, if the
patrimonial value of the Company at the Transferral Date results as being
higher than Itl. 26,000,000 - will be paid in cash or, if still possible,
by means of cancelling some credits or some debits of the transferred
assets. In the case in which the patrimonial value as of the Transferral
Date (on the basis of the Updated Patrimonial Situation) results as being
between Itl. 26,000,000 and Itl. 24,000,000, the transferral price of the
Company will not be subject to any amendment.
3.4 It is finally agreed that, whenever during the course of 1998, with
reference to the activity carried out by the Company and the company unit
of SIPI-U S.r.l., with registered office in Udine, Via Xxxxxxxx 126
(company unit that the PURCHASER had purchased from SIPI-U through separate
contractual agreements), the PURCHASER should make a profit (calculated
prior to applying the relevant taxes) equal or exceeding the amount of Itl.
750,000,000, the aforementioned Payment due to the SELLER will be increa
sed by an amount equal to the market value of 100,000 ordinary shares of
ASA INTERNATIONAL LTD (with registered office in Framingham in the State of
Massachusetts-USA-, at 00 Xxxxx Xxxxxx) quoted on the American Stock
Exchange as NASDAQ (hereinafter the "ASA International Shares").
4. TERMS AND MEANS OF PAYMENT
4.1 The Payment will be paid today by the PURCHASER to the SELLER, by means
of banker's drafts for Itl. 25,000,000 and, for the remaining amount, by
means of the proprietary transfer to the SELLER of 100,000 ASA
International Shares (proprietary transfer which the PURCHASER undertakes
to ensure that it is effected in favour of the SELLER directly by ASA
International Ltd., by means of the issuance of 100,000 new shares of the
company).
4.2 Where necessary, pursuant to and to fulfill what is established in
Clause 3.4 above, the additional quota of Payment will be paid by the
PURCHASER to the SELLER - by means of the proprietary transfer by the
PURCHASER of a further (in respect of what is established in Clause 4.1
above) 100,000 ASA International Shares. If necessary, such transferral
will be made as soon as the details concerning the PURCHASER's 1998 Balance
Sheet are available and, in any case, no later than 30 June 1999.
5. REGISTRATION TAX AND COSTS
5.1 The Parties hereby give notice that this Agreement is subject to a
registration tax in proportion to the Payment and declare that the Company
does not include any immovable properties.
5.2 The Parties agree that the registration tax due in accordance with the
law, will be equally divided between the SELLER and the PURCHASER. All
other costs (notary fees, deposit of deeds, etc.) however connected to the
transfer of the Company will, instead, be the whole charge of the
PURCHASER, who will directly provide for the fulfilment of the relevant
costs and undertakes, in any case, to reimburse the SELLER, if the latter
directly bears any or part of the costs.
5.3 This Agreement will be liable to registration pursuant and in
fulfilment of Clause 35 (provisional liquidation) of the Stature on
Registration Tax mentioned in President of The Republic's Decree No. 131 of
26.4.1986. As soon as the Payment is definitely determined and, in the case
in which it results as different to that indicated in Clause 3.1 of this
Agreement, the Parties will provide for every consequent fulfilment in
accordance with the law.
6. ARBITRATION
6.1 The Parties hereto shall endeavour to settle amicably any dispute
arising from the interpretation, performance or termination of this
Agreement.
6.2 Any eventual dispute arising from the interpretation, performance or
termination of this Agreement, which is not settled amicably, shall be
brought before a Board of Arbitrators composed of 3 (three) members. The
arbitration procedure shall be carried out in compliance with the
provisions of the (Paris) ICC Rules on Conciliation and Arbitration, in
force at such time.
6.3 Each party shall designate its Arbitrator, the Plaintiff in its request
for arbitration and the Defendant in its reply to the request; the third
Arbitrator, who shall be Chairman of the Board, shall be appointed by the 2
(two) arbitrators appointed by the Parties. In the case that the Defendant
fails to designate its Arbitrator within 20 (twenty) days from receipt of
the request for arbitration containing the name of the Plaintiff's
arbitrator and/or the Arbitrators appointed by the Parties fail to re ach
an agreement on the designation of the third Arbitrator within 20 (twenty)
days from the appointment of the Defendant's Arbitrator, then the
Arbitrator or the missing Arbitrators shall be designated by the Chairman
of the Court of Arbitration of the International Chamber of Commerce of
Paris, upon the Parties' request.
6.4 Arbitration shall take place in London and shall be conducted in the
English language. The Arbitrators shall render their award within 180 (one
hundred and eighty) days from the date on which they have accepted their
appointment.
6.5 In the case in which any dispute arises between the Parties in respect
of the rendering or interpretation of the Arbitrators award or, however, in
respect of this Agreement (which, in the latter case, does not come under
the competence of the Board of Arbitrators), will be exclusively subject to
the Court of Padua.
7. FINAL PROVISIONS
7.1 The above Clauses and the Enclosures attached hereto form an integral
part of this Agreement.
7.2 Any amendment or addition to this Agreement which may be mutually
agreed between the Parties may only be made in writing.
Padua, 13 January, 1998
CEDES S.r.l.
Xx. Xxxxxxx Xxxxxxxxx
Special attorney of the Company
------------------------------
CEDES ASSOCIATES S.r.l.
Xx. Xxxxxx Xxxxxxxx
Chairman and Legal representative of the Company
------------------------------
DEED OF TRANSFER OF THE BUSINESS
between
SIPI-U S.r.l., with registered office in Xxx Xxxxxxxx xx. 000, Xxxxx,
represented by Xx. Xxxxxxx Xxxxxxxxx, special attorney of the Company
(pursuant to the power of attorney issued in his favour on ------- exhibit
no. --------- of the Notary Public Xxxxx Xxxx in Xxxxx)
(hereinafter the "SELLER")
and
CEDES ASSOCIATES S.r.l., with registered office in Xxxxx xxxx'Xxxxxxxxx
xx. 00, Padua, represented by Xx. Xxxxxx Xxxxxxxx, Chairman and legal
representative of the Company
(hereinafter the "PURCHASER")
