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AGREEMENT FOR PURCHASE AND SALE OF ASSETS
AGREEMENT dated as of the 29 day of December, 1995, by and among
ASA INTERNATIONAL VENTURES, INC., a Delaware Corporation ("ASA Ventures"); and
ASA INCORPORATED, a Massachusetts corporation ("ASA Inc.").
W I T N E S S E T H T H A T:
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WHEREAS, ASA Inc., a company which is engaged in the computer software
business wishes to sell certain of its assets; and
WHEREAS, ASA Ventures, a company which is engaged in the computer software
business, wishes to acquire certain assets of ASA Inc.
Intending to be legally bound hereby, and in consideration of the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. PURCHASE OF ASSETS. On December 29, 1995 (the "Closing Date" or the
"Closing") ASA Ventures will purchase and acquire from ASA Inc., and ASA
Inc. will sell, transfer and deliver to ASA Ventures, all of the customer
intangibles of ASA Inc. related to the CWI, BSD and Tire product lines (the
"Assets") as more fully set forth on SCHEDULE 1.
2. NO LIABILITIES ASSUMED. ASA Ventures shall not assume any of the
liabilities of ASA Inc.
3. PURCHASE PRICE. In full consideration for the conveyance and
transfer to ASA Ventures of the Assets in Section 1 hereof, ASA Ventures shall
pay ASA Inc. a purchase price of Five Million Two Hundred Thousand Dollars
($5,200,000) in accordance with the terms of a promissory note attached
hereto as EXHIBIT 1.
4. REPRESENTATIONS AND WARRANTIES OF ASA INC. ASA Inc. represents and
warrants to ASA Ventures, upon which representations and warranties ASA
Ventures relies, and which representations and warranties shall survive the
Closing, notwithstanding any investigation of the affairs of ASA Inc. by ASA
Ventures, as follows:
(a) ASA Inc. is a corporation duly organized, validly existing and in
corporate and tax good standing under the laws of the Commonwealth of
Massachusetts, and has full corporate power and authority to own its properties
and carry on its business as it is now being conducted and as presently proposed
to be conducted.
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(b) ASA Inc. has full power and authority (corporate and other) to
execute and deliver this Agreement and consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors and stockholder of ASA Inc., and no other corporate actions
or proceedings on the part of ASA Inc. or its stockholder are necessary to
consummate the transactions so contemplated.
5. REPRESENTATIONS AND WARRANTIES OF ASA VENTURES. ASA Ventures represents
and warrants to ASA Inc. as follows:
(a) ASA Ventures represents and warrants that it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) ASA Ventures represents and warrants that any transfer by ASA Inc.
to ASA Ventures of the Assets will not violate the terms of any contract, loan
or other agreement under which ASA Ventures is now bound.
(c) ASA Ventures represents and warrants that the execution and
delivery of this Agreement and the consummation of the transactions contemplated
have been duly authorized by its Board of Directors.
(d) The representations and warranties of ASA Ventures contained in
this Agreement or its attachments or attendant documents shall be true and
correct in all respects as of the date when made and as of Closing as though
such representations were made at and as of Closing.
6. DISCLOSURE OF INFORMATION. ASA Ventures and ASA Inc. each
agree that it will has not and will not disclose to the other any of its
confidential information, other than that information which is necessary to
complete the transaction contemplated by this Agreement. ASA Inc. will not
release any information regarding this Agreement or the transaction contemplated
herein to any third party, including current or future employees of ASA Inc.,
without the prior written approval of ASA Ventures.
7. FURTHER ASSURANCES. Subsequent to the Closing, ASA Ventures and ASA
Inc. shall each, at the request of the other, furnish, execute and deliver
such documents, instruments, opinions of counsel, certificates, notices and
other such instruments and further assurances as counsel for the requesting
party shall reasonably require as necessary or desirable to effect complete
consummation of this Agreement, or in connection with the preparation and filing
of reports required or requested by governmental agencies, stock exchanges or
other regulatory bodies. ASA Inc. shall assure the retention and availability of
all records as requested by ASA Ventures.
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8. EXPENSES. Whether or not the transactions contemplated hereby are
consummated, ASA Ventures and ASA Inc. shall pay their own expenses in
connection with the negotiation, authorization, preparation, execution and
performance of this Agreement, including, without limitation, all fees and
expenses of investment banking firms, agents, representatives, counsel and
accountants. All expenses of ASA Inc. incurred in connection with the
transactions contemplated hereby shall not constitute a liability assumed by ASA
Ventures. Each party to this Agreement has had the opportunity to consult with
independent legal counsel, and any decision by a party not to seek legal counsel
is that party's sole decision.
9. ENTIRE AGREEMENT. This Agreement and the Schedule and Exhibit
hereto set forth the entire Agreement and understanding of the parties, and
there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties or covenants not specifically referred to or
contained herein or attached hereto. This Agreement may be amended, modified or
terminated only by a written instrument signed by the parties hereto.
10. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their and each of their respective
heirs, executors, administrators, successors and permitted assigns, but may not
be assigned by any party without the prior written consent of the other parties;
except that ASA Ventures may assign its rights hereunder (a) to any affiliate of
ASA Ventures, provided that ASA Ventures shall guarantee and remain liable for
the performance of all of ASA Ventures' obligations hereunder; or (b) to any
purchaser of all or substantially all of ASA Ventures' business.
11. HEADINGS. The headings of the various paragraphs of this
Agreement are inserted merely for the purpose of convenience and do not
expressly or by implication limit, define or extend the specific terms or text
of the paragraph so designated.
12. LAW GOVERNING. This Agreement shall be governed in all respects,
whether as to validity, construction, capacity, performance or otherwise, by
the laws of the Commonwealth of Massachusetts without regard to its conflict
of laws principles in which it has been executed and in which it has a situs.
If any provision of this Agreement shall be held invalid by a court with
jurisdiction over the parties to this Agreement, then and in that event such
provision shall be deleted from the Agreement, which shall then be construed
to give effect to the remaining provisions thereof.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which taken together shall be considered one Agreement.
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IN WITNESS WHEREOF, ASA Ventures and ASA Inc. have caused this Agreement for
Purchase and Sale of Assets to be executed by their respective duly authorized
officers and have affixed their respective corporate seals all on the day and
year first above written.
Attest: ASA INTERNATIONAL VENTURES, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Attest: ASA INCORPORATED
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Schedule 1
Description of Assets
The Assets consist of the following, as related to the CWI, BSD, and Tire
product lines:
Any and all information regarding the composition of the customer
market, market share, and any other value resulting from the future
provisions of goods or services pursuant to relationships with
customers (contractual or otherwise) in the ordinary course of
business.
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EXHIBIT 1
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ASA INTERNATIONAL VENTURES, INC.
December 29, 1995 $5,200,000
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DEMAND PROMISSORY NOTE
ASA International Ventures, Inc., a Delaware corporation (the "Company"),
for value received, hereby promises to pay to ASA Incorporated (the "Payee")
with an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, the
principal amount of Five Million Two Hundred Thousand Dollars and no Cents
($5,200,000.00), in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
I. Payment
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The amounts to be repaid by the Company to the Payee shall be in such
amount and at such time as the Payee shall demand in writing. The Payee may
demand payment in full or in part at any time.
II. Interest
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Interest on all amounts unpaid under this Note shall accrue at the rate of
seven percent (7%) per annum.
III. Prepayment
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The principal amount of this Note may be prepaid by the Company, in whole
or in part, without penalty, at any time. The Company's payments will be
credited first to accrued interest, and the remainder to the principal amount.
IV. Events of Default
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A. Notwithstanding any other provision to the contrary, this Note shall
become and be due and payable in its entirety within 45 days after receipt of
written demand made by the Payee hereof if one or more of the following events,
herein called "events of default," shall happen and be continuing for a period
of 45 days:
(i) Default in any payment of the principal or accrued interest on this
Note when and as the same shall become due and payable, whether by acceleration
or otherwise;
(ii) Application for, or consent to, the appointment of a receiver,
trustee or liquidator of the Company or of its property;
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(iii) General assignment by the Company for the benefit of creditors;
(iv) Filing by the Company of a voluntary petition in bankruptcy or
a petition or an answer seeking reorganization, or an arrangement with
creditors;
(v) Entering against the Company of a court order approving a petition
filed against it under the federal bankruptcy laws, which order shall not have
been vacated or set aside or otherwise terminated within ninety (90) days; and
(vi) Upon the sale of all or substantially all of the Company's assets,
a discontinuation of the Company's business or a liquidation of the Company's
assets.
B. In case any one or more of the events of default specified above shall
happen and be continuing, the Payee of this Note may proceed to protect and
enforce his rights by suit in the specific performance of any covenant or
agreement contained in this Note or in aid of the exercise of any power granted
in this Note or may proceed to enforce the payment of this Note or to enforce
any other legal or equitable rights as such Payee.
V. Miscellaneous
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A. All agreements between the Company and Payee expressly are limited so
that in no event whatsoever shall the amount paid or agreed to be paid by the
Company to Payee hereunder exceed the higher lawful contractual rate of interest
permissible under the law which a court of competent jurisdiction, by a final
order which is not appealed or is nonappealable, determines is applicable to
this Note. If fulfillment of any provision of this Note at the time performance
of such provision becomes due involves exceeding such highest lawful contractual
rate, then such obligation shall be reduced to such highest lawful contractual
rate. If by any circumstance Payee shall ever receive as interest an amount
which exceeds such highest lawful contractual rate, any amount which may be
deemed excessive interest shall be applied as payment of the principal of the
indebtedness evidenced hereby and not as payment of interest. The terms and
provisions of this paragraph shall control all other terms and provisions
contained in this Note.
B. The Payee acknowledges and represents that the Company has been induced
to execute this Note based upon certain representations, covenants, and
statements made by the Payee in an Agreement for Purchase and Sale of Assets of
even date herewith and that the terms, representations, statements, and
acknowledgements of the Payee therein are incorporated in this Note.
C. If any provision hereof is for any reason and to any extent invalid or
unenforceable, the remainder of this Note shall not be affected thereby, but
instead shall be enforceable to the maximum extent permitted by law.
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D. This Note may not be terminated or amended orally, but only by a
termination or amendment in writing signed by both parties hereto.
E. This Note shall be construed and enforced in accordance with the laws
of the Commonwealth of Massachusetts without regard to its conflict of law
provisions.
F. All notices required or permitted under this Note shall be in writing
and shall be effective upon receipt thereof.
G. No recourse shall be had for the payment of the principal or
interest of this Note against any incorporator or any past, present or future
stockholder, officer, director or agent of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, under any statute or by the enforcement of any assessment or
otherwise, all such liability of the incorporators, stockholders, officers,
directors and agents being waived, released and surrendered by the holder
hereof by the acceptance of this Note.
IN WITNESS WHEREOF, ASA International Ventures, Inc. has caused this Note
to be signed in its name by its Chief Executive Officer.
ASA INTERNATIONAL VENTURES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Chief Executive Officer
Dated: December 29, 1995
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