AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT made as of the 17th day of November, 1998
B E T W E E N
ADVANCED SYSTEMS COMPUTER CONSULTANTS INC., a corporation
incorporated under the laws of the Province of Ontario, Canada
(hereinafter called the "Vendor")
- and -
CHELTENHAM TECHNOLOGIES (BERMUDA)
CORPORATION, a corporation incorporated under
the laws of the Island of Barbados
(hereinafter called the "Purchaser")
WHEREAS the Vendor has all rights and title to certain computer
software and all intellectual properties rights relating thereto as more
particularly described in Schedule "1" hereto (the "Assets");
AND WHEREAS the Vendor wishes to sell, and the purchaser wishes to
purchase, all rights and title to the Assets on the terms and subject to the
conditions hereinafter contained.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein contained and the sum of $2.00 and other
good and valuable consideration paid by each of the parties hereto to the other
(the receipt and sufficiency of which are hereby acknowledged), the parties
hereto agree as follows:
1.0 PURCHASE AND SALE
1.1 On the terms and subject to the fulfillment of the conditions hereof, Vendor
hereby sells, assigns, conveys, transfers and delivers unto the Purchaser all of
the Vendor's right, title and interest in the Assets (as described in Schedule
"1" hereto).
2.0 PURCHASE PRICE
2.1 The purchase price payable by the Purchaser to the Vendor for the Assets is
the sum of CDN $400,000 (the "Purchase Price").
2.2 The Purchaser agrees to pay the Vendor on terms and conditions as follows:
(i) Payment of Cdn$75,000 when the Purchaser or its
parent/affiliated company becomes public and has completed a
minimum financing of Cdn$2 million; and
(ii) The balance of Cdn$325,000 when the Remote Banking generates
its first revenue whether such revenue is generated from
license payments or actual transaction fees.
3.0 REPRESENTATIONS WARRANTIES OF THE VENDOR
3.1 The Vendor hereby represents and warrants to the Purchaser as follows, and
confirms that the Purchaser is relying upon the accuracy of each of such
representations and warranties in connection with the purchase of the Assets and
the completion of the other transactions hereunder:
(1) Corporate Authority and Binding Obligation
The Vendor has good right, full corporate power and absolute authority
to enter into this Agreement and to sell, assign and transfer the
Assets to the Purchaser in the manner contemplated herein and to
perform all of the Purchaser's obligations under this Agreement. The
Vendor and its shareholders and board of directors have taken all
necessary or desirable actions, steps and corporate and other
proceedings to approve or authorize, validly and effectively, the
entering into of, and the execution, delivery and performance of, this
Agreement and the sale and transfer of the Assets by the Vendor to the
Purchaser. This Agreement is a legal, valid and binding obligation of
the Vendor, enforceable against it in accordance with its terms subject
to (i) bankruptcy, insolvency, moratorium, reorganization and other
laws relating to or affecting the enforcement of creditors' rights
generally and (ii) the fact that equitable remedies, including the
remedies of specific performance and injunction, may only be granted in
the discretion of a court.
(2) No Other Purchase Agreements
No person has any agreement, option, understanding or commitment, or
any right or privilege (whether by law, preemptive or contractual)
capable of becoming an agreement, option or commitment, for the
purchase or other acquisition from the Vendor of any of the Asset, or
any rights or interest therein.
(3) Contractual and Regulatory Approvals
The Vendor is not under any obligation, contractual or otherwise, to
request or obtain the consent of any person and no permits, licenses,
certifications, authorizations or approvals
-2-
of, or notifications to any government or governmental agency, board,
commission or authority are required to be obtained by the Vendor,
i) in connection with the execution, delivery or
performance by the Vendor of this Agreement or the
completion of any of the transactions contemplated
herein, or
ii) to avoid the loss of any permit, licence,
certification or other authorization relating to the
Assets.
(4) Corporate Status
The Vendor is a corporation duly incorporated and validly subsisting in
all respects under the laws of its jurisdiction of incorporation.
(5) Compliance With Constating Documents, Agreements and Laws
The execution, delivery and performance of this Agreement and each of
the other agreements contemplated or referred to herein by the Vendor,
and the completion of the transactions contemplated hereby, will not
constitute or result in a violation, breach or default under:
(i) any term or provision of any of the articles, by-laws
or other constating documents of the Vendor, or
(ii) the terms of any indenture, agreement (written or
oral), instrument or understanding or other
obligation or restriction to which the Vendor is a
party or by which it is bound; or
(iii) any term or provision of any licenses or any order of
any court, governmental authority or regulatory body
or any law or regulation of any jurisdiction in which
the Vendor carries on business.
(6) Liabilities
There are no liabilities (contingent or otherwise) relating to the
Assets of any kind whatsoever in respect of which the Purchaser may
become liable on or after the consummation of the transactions
contemplated by this Agreement.
(7) Litigation
There are no actions suits or proceedings, judicial or administrative
(whether or not purportedly on behalf of the Vendor) pending or, to the
best of the knowledge of the
-3-
Vendor, threatened, by or against or affecting the Vendor which relate
to the Assets, at law or in equity, or before or by any court or any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign.
(8) Title to Assets
The Vendor is the owner of and has good and marketable title to all of
the Assets free and clear of any encumbrances whatsoever.
(9) Intellectual Property
(a) The Vendor owns or is licensed or otherwise possesses legally
enforceable rights to use, sell and license, free and clear of claims
or rights of others, all patents, trademarks, trade names, trade
secrets, industrial designs, slogans, logos, service marks, copyrights
and any applications therefor, technology, inventions, ideas, circuit
topographies, know how computer software programs or applications (in
both source code and object code form), manufacturing and other
processes, hardware and other designs, formulae, programming and other
processes, software, algorithms, source and object codes, user manuals,
working papers, tapes, charts, plans, models, drawings, concepts,
ideas, discoveries, inventions, developments, modifications,
adaptations, derivative works, and other information and written matter
required for or incident to the Assets and tangible or intangible
proprietary information or material that are necessary to, required
for, used in or proposed to be used in the Assets and the commercial
exploitation thereof (the "Vendor Intellectual Property Rights").
Schedule "2" to this Agreement lists all current and past (lapsed,
expired, abandoned or canceled) patents, registered and material
unregistered trademarks and service marks, registered and material
unregistered copyrights, registered material unregistered industrial
designs, and trade names, and any applications in respect of the Vendor
Intellectual Property Rights, and specifies the jurisdictions in which
each such Vendor Intellectual Property Right has been issued or
registered or in which an application for such issuance and
registration has been filed, including the respective registration or
application numbers and the names of all registered owners, together
with a list of all of the Vendor's currently marketed software products
and an indication as to which, if any, of such software products have
been registered for copyrights or other protection with the United
States or Canadian Copyright Office and any other foreign offices and
by whom such items have been registered.
(b)The Vendor is not, nor will it be as a result of the execution and
delivery of this Agreement or the performance of its obligations
hereunder, in violation in any material respect of any license,
sublicense or agreement described in Schedule "2", nor will the
execution and delivery of this Agreement or the performance of its
obligations hereunder cause the forfeiture or termination or give rise
to a right of forfeiture or termination of any Vendor Intellectual
Property Right. No claims with respect to the Vendor Intellectual
-4-
Property Rights, any trade secret or other intellectual property right
material to the Assets are currently pending or, to the best knowledge
of the Vendor, are threatened by any person, nor are there any valid
grounds for any bona fide claims (i) to the effect that the
manufacture, sale, licensing or use of the Assets as now used, sold or
licensed or proposed for use, sale or license by the Purchaser as
disclosed to the Vendor infringes on any copyright, patent design,
service mark industrial design or trade secret or other intellectual
property right of any other person. There is no material unauthorized
use, infringement or misappropriation of any of the Vendor Intellectual
Property by any third party, including any employee or former employee
or contractor of the Vendor or any of its subsidiaries. Neither the
Vendor nor any of its subsidiaries (i) has been sued or charged in
writing as a defendant in any claim, suit, action or proceeding which
involves a claim or infringement of any trade secrets, patents,
trademarks, service marks, maskworks, copyrights or contractor and
which has not been finally terminated prior to the date hereof, or been
informed or notified by any third party that the Vendor may be engaged
in such infringement by, or (ii) has knowledge of any infringement
liability with respect to, or infringement by, the Vendor or any of its
subsidiaries of any trade secret, patent, trademark, service mark,
maskwork, copyright or other intellectual property right of any other
person.
(c) The Vendor has taken all reasonable, necessary and appropriate
steps to safeguard and maintain the secrecy and confidentiality of, and
its proprietary rights in, the Assets and all Vendor Intellectual
Property Rights. All of the Vendor Intellectual Property Rights are and
have been properly marked and, if applicable, licensed in accordance
with the appropriate legislation so as to protect the property rights
therein and allow proper enforcement of such rights against infringing
third parties.
(d) All software applications and products comprising the Assets (the
"Software Applications and Products") have been tested internally and
conform to Year 2000 date criteria. The Software Applications and
Products:
(i) accurately process date data (including, but not
limited to calculating, comparing and sequencing)
from, into and between the twentieth and twenty-first
centuries, including leap year calculations, without
a decrease in the functionality of such Software
Applications and Products;
(ii) are designed to be used prior to, during and after
the calendar year 2000, and that will operate during
each such time period without interruption, delay,
impediment or error relating to date data,
specifically including any interruption, delay,
impediment or error relating to, or the product of,
date data which represents or references different
centuries or more than once century; and
-5-
(iii) shall not be adversely affected, interrupted, delayed
or impeded by the internal computer clock turning to
January 1, 2000.
Date elements in interfaces and data storage in the Software
Applications and Products will permit specifying the century to
eliminate date ambiguity.
(10) Outstanding Agreements
The Vendor is not a party to or bound by any outstanding or executory
agreement, contract or commitment, whether written or oral, relating to
the Assets or Vendor Intellectual Property Rights.
4.0 REPRESENTATIONS AND WARRANTIES BY THE PURCHASER
4.1 The Purchaser hereby represents and warrants to the Vendor as follows, and
confirms that the Vendor is relying upon the accuracy of each of such
representations and warranties in connection with the sale of the Assets and the
completion of the other transactions hereunder:
(1) Corporate Authority and Binding Obligation
The Purchaser is a corporation duly incorporated and validly subsisting
in all respects under the laws of its jurisdiction of incorporation.
The Purchaser has good right, full corporate power and absolute
authority to enter into this Agreement and to purchase the Assets from
the Vendor in the manner contemplated herein and to perform all of the
Purchaser's obligations under this Agreement. The Purchaser and its
shareholders and board of directors have taken all necessary or
desirable actions, steps and corporate and other proceedings to approve
or authorize, validly and effectively, the entering into of, and the
execution, delivery and performance of, this Agreement and the purchase
of the Assets by the Purchaser from the Vendor. This Agreement is a
legal, valid and binding obligation of the Purchaser, enforceable
against it in accordance with its terms subject to (i) bankruptcy,
insolvency, moratorium, reorganization and other laws relating to or
affecting the enforcement of creditors' rights generally and (ii) the
fact that equitable remedies, including the remedies of specific
performance and injunction, may only be granted in the discretion of a
court.
(2) Contractual and Regulatory Approvals
The Purchaser is not under any obligation, contractual or otherwise to
request or obtain the consent of any person, and no permits, licenses,
certifications, authorizations or approvals or, or notifications to,
any government or governmental agency, board, commission or authority
are required to be obtained by the Purchaser in connection with the
execution, delivery or performance by the Purchaser of this Agreement
or the completion of any of the transactions contemplated herein.
-6-
(3) Compliance with Constating Documents,. Agreements and Laws
The execution, delivery and performance of this Agreement and each of
the other agreements contemplated or referred to herein by the
Purchaser, and the completion of the transactions contemplated hereby,
will not constitute or result in a violation or breach of or default
under:
(i) any term or provision of any of the articles, by-laws
or other constating documents of the Purchaser, or
(ii) the terms of any indenture, agreement (written or
oral), instrument or understanding or other
obligation or restriction to which the Purchaser is a
party or by which it is bound, or
(iii) any term or provision of any licenses, registrations
or qualification of the Purchaser or any order of any
court, governmental authority or regulatory body or
any applicable law or regulation of any jurisdiction.
5.0 SURVIVAL AND LIMITATIONS OF REPRESENTATIONS AND WARRANTS
Survival of Representations and Warranties by the Vendor
5.1 The representations and warranties made by the Vendor and contained in this
Agreement, or contained in any document or certificate given in order to carry
out the transactions contemplated hereby, will survive the closing of the
purchase of the Assets provided for herein and, notwithstanding such closing or
any investigation made by or on behalf of the Purchaser or any other person or
any knowledge of the Purchaser or any other person, shall continue in full force
and effect for the benefit of the Purchaser, subject to the following provisions
of this section.
Subject to paragraph 5.1(b), no warranty claim may be made or brought by the
Purchaser after the date which is three years following the Closing Date.
Any warranty claim which is based upon or relates to the title to the Assets or
which is based upon intentional misrepresentation or fraud by the Vendor may be
made or brought by the Purchaser at any time.
After the expiration of the period of time referred to in paragraph (a) of this
section, the Vendor will be released from all obligations and liabilities in
respect of the representations and warranties made by the Vendor and contained
in this Agreement or in any document or certificate given in order to carry out
the transactions contemplated hereby except with respect to any claims made by
the Purchaser in writing prior to the expiration of such period and subject to
the rights of the Purchaser to make any claim permitted by paragraph (b) of this
section.
-7-
Survival of Warranties by Purchaser
5.2 The representations and warranties made by the Purchaser and contained in
this Agreement or contained in any document or certificate given in order to
carry out the transactions contemplated hereby will survive the closing of the
purchase and sale of the Assets provided for herein and, notwithstanding such
closing or any investigation made by or on behalf of the Vendor or any other
person or any knowledge of the Vendor or any other person, shall continue in
full force and effect for the benefit of the Vendor.
6.0 CLOSING
Closing Arrangements
6.1 Subject to the terms and conditions hereof, the transactions contemplated
herein shall be closed at 10:00 AM (the "Closing Time") at the offices of the
Vendor or at such other place or places and may be mutually agreed upon by the
Vendor and the Purchaser.
Documents be Delivered
6.2 At or before the Closing Time, the Vendor shall execute, or cause to be
executed, and shall deliver, or cause to be delivered, to the Purchaser all
documents, instruments and things which are to be delivered by the Vendor
pursuant to the provisions of this Agreement, and the Purchaser shall execute,
or cause to be executed, and shall deliver, or cause to be delivered, to the
Vendor all cheques or bank drafts and all documents, instruments and things
which the Purchaser is to deliver or cause to be delivered pursuant to the
provisions of this Agreement.
7.0 GENERAL PROVISIONS
Further Assurances
7.01 Each of the Vendor and the Purchaser hereby covenants and agrees that at
any time and from time to time after the Closing Date it will, upon the request
of the others, do, execute, acknowledge and deliver or cause to be done,
executed, acknowledged and delivered all such further acts, deeds, assignments,
transfers, conveyances and assurances as may be required for the better carrying
out and performance of all the terms of this Agreement.
Notices
7.02 Any notice, designation, communication, request, demand or other document,
required or permitted to be given or sent or delivered hereunder to any party
hereto shall be in writing and shall be sufficiently given or sent or delivered
if it is:
(a) delivered personally to an officer or director of such party,
or
-8-
(b) sent to the party entitled to receive it by registered mail,
postage prepaid, mailed in Bermuda, BVI, Barbados or Canada,
or
(c) sent by telecopy machine.
Notices shall be sent to the following addresses or telecopy numbers:
(i) in the case of the Vendor,
Advance Systems Computer Consultants Inc.
1050 Castlefield Avenue, Suite 310
Toronto, Ontario MOB 1E7
Telephone/Telecopy: 416-787-4673
Attention: Mr. Satish Kumeta
(ii) in the case of the Purchaser,
Cheltenham Technologies (Bermuda) Corporation
129 Front Street
Penthouse Suite
Hamilton HM12, Bermuda
Telephone: 441-296-4545
Telecopy: 441-232-0637
Attention: Mr. A.T. Griffis
or to such other address or telecopier number as the party entitled to or
receiving such notice, designation, communication, request, demand or other
document shall, by a notice given in accordance with this section, have
communicated to the party giving or sending or delivering such notice
designation, communication, request, demand or other document.
Any notice, designation, communication, request, demand or other document giving
or sent or delivered as aforesaid shall
if delivered as aforesaid, be deemed to have been given, sent, delivered and
received on the date of delivery;
if sent by mail as aforesaid, be deemed to have been given, sent, delivered and
received (but not actually received) on the fourth business day following the
date of mailing, unless at
-9-
any time between the date of mailing and the fourth business day thereafter
there is a discontinuation or interruption of regular postal service, whether
due to strike or lockout or work slowdown, affecting postal service at the point
of dispatch or delivery of any intermediate point, in which case the same shall
be deemed to have been given, sent, delivered and received in the ordinary
course of the mails, allowing for such discontinuance or interruption of regular
postal service; and
if sent by telecopy machine, be deemed to have been given, sent, delivered and
received on the date the sender receives the telecopy answer back confirming
receipt by the recipient.
Counterparts
7.03 This Agreement may be executed in several counterparts, each of which so
executed shall be deemed to be an original, and such counterparts together shall
constitute but one and the same instrument.
Expenses of Parties
7.04 Each of the parties hereto shall bear all expenses incurred by it in
connection with this Agreement including, without limitation, the charges of
their respective counsel, accountants, financial advisors and finders.
Assignment
7.05 This rights of the Vendor and the Shareholder hereunder shall not be
assignable without the written consent of the Purchaser. The rights of the
Purchaser hereunder shall not be assignable without the written consent of the
Vendor and the Shareholder.
Successors and Assigns
7.06 This Agreement shall be binding upon and endure to the benefit of the
parties hereto and their respective successors and permitted assigns. Nothing
herein, express or implied, is intended to confer upon any person, other than
the parties hereto and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement
Entire Agreement
7.07 This Agreement and the Schedules referred to herein constitute the entire
agreement between the parties hereto and supersede all prior agreements,
representations, warranties, statements, promises, information, arrangements and
understandings, whether oral or written, express or implied, with respect to the
subject matter hereof None of the parties hereto shall be bound or charged with
any oral or written agreements, representations,
-10-
warranties, statements, promises, information, arrangements or understandings
not specifically set forth in this Agreement or in the Schedules, documents and
instruments to be delivered on or before the Closing Date pursuant to this
Agreement. The parties hereto further acknowledge and agree that, in entering
into this Agreement and in delivering the Schedules, documents and instruments
to be delivered on or before the Closing Date, they have not in any way relied,
and will not in any way rely, upon any oral or written agreements,
representations, warranties, statements, promises, information, arrangements or
understandings, express or implied, not specifically set forth in this Agreement
or in such Schedules, documents or instruments.
The Purchaser may wish to modify the foregoing section if it is relying on
information provided by the Vendor or its agent in an offering document. In that
case, appropriate references would also be made to such information in the
representations and warranties.
Waiver
7.08 Any party hereto which is entitled to the benefits of this Agreement may,
and has the right to, waive any term or condition hereof at any time on or prior
to the Closing Time; provided; however, that such waiver shall be evidenced by
written instrument duly executed on behalf of such party.
Amendments
7.09 No modifications or amendments to this Agreement may be made unless agreed
to by the parties hereto in writing.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal as of the day and year first above written.
ADVANCED SYSTEMS COMPUTER
CONSULTANTS INC.
By: /s/ Satish Kumeta 17 Nov. 1998
---------------------
Authorized Signatory
CHELTENHAM TECHNOLOGIES
(BERMUDA) CORPORATION
By: /s/ A.T. Griffis
---------------------
Authorized Signatory
-11-