Exhibit 2.1
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement"), is dated as of August 1,
1995 and is by and between Santiago Data Systems, Inc., a California corporation
("Seller"), and Santiago Data Systems, Inc. (formerly SDS, Inc.), a Nevada
corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, certain
assets of Seller as more specifically set forth herein;
NOW, THEREFORE, in consideration of the mutual representations, warranties
and convenants herein contained, and on the terms and subject to the conditions
herein set forth, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. As used in this Agreement, the following terms
shall have the meanings set forth below:
(a) "Assets" shall mean, with respect to Seller, all of the assets of
Seller listed on Schedule A attached hereto.
(b) "Closing" shall mean the closing of the transactions contemplated by
this Agreement, which shall occur on the Closing Date at such time and
place as shall be mutually agreed in writing by parties hereto.
(c) "Closing Date" shall mean the date hereof.
(d) "Purchase Price" shall have the meaning set forth in Section 2.2.
ARTICLE II
Purchase and Sale
SECTION 2.1. PURCHASE AND SALE OF ASSETS. Subject to and upon the terms and
conditions contained herein, at Closing Seller shall, transfer, assign, convey
and deliver to Purchaser, and Purchaser shall purchase, accept and acquire from
Seller, the Assets.
SECTION 2.2. PURCHASE PRICE. The total purchase price for the Assets (the
"Purchase Price") shall be (i) forgiveness of $200,000 of loans already advanced
to Seller by Purchaser; and (ii) payment of $529,000. All cash payments of the
Purchase Price shall be made in readily available funds and in U.S. dollars.
SECTION 2.3. PAYMENT OF PURCHASE PRICE. Purchaser shall pay to Seller the
cash portion of the Purchase Price pursuant to the terms of Schedule B attached
hereto.
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SECTION 2.4. ADDITIONAL TERMS.
(a) The parties hereby agree that Purchaser and Seller will enter into an
Assumption Agreement in a mutually acceptable form (the "Assumption
Agreement") whereby Seller assumes all of Purchaser's liabilities
pursuant to, certain obligations listed in Schedule C. Other than the
obligations listed therein, Purchaser shall not assume any liabilities
or obligations of Seller.
(b) Seller agrees and convenants to use all sums received as the cash
portion of the Purchase Price to the extent necessary to retire all of
Seller's obligations to the Internal Revenue Service.
ARTICLE III.
Representations and Warranties of Seller
Seller represents and warrants that the following are true and correct as
of the date hereof:
SECTION 3.1. ORGANIZATION AND GOOD STANDING; QUALIFICATION. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation, with all requisite corporate power and authority
to carry on the business in which it is engaged, to own the properties it owns,
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
SECTION 3.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Seller of this Agreement and the other agreements contemplated
hereby, and the consummation of the transactions contemplated hereby and
thereby, have been duly authorized by Seller. This Agreement and each other
agreement contemplated hereby have been duly executed and delivered by Seller
and constitute legal, valid and binding obligations of Seller, enforceable
against Seller in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
SECTION 3.3. NO VIOLATION. Neither the execution, delivery or performance
of this Agreement or the other agreements contemplated hereby nor the
consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions or
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Seller or any agreement, indenture or other instrument under which
Seller is bound or to which any of the assets are subject, or result in the
creation, imposition on continuation, except as permitted herein, of any
security interest, lien, charge or encumbrance upon any of the Assets or (ii)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
having jurisdiction over Seller or the Assets.
SECTION 3.4. CONSENTS. No consent, authorization, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any other person or entity is required to authorize, or is
required in connection with, the execution, delivery and performance of this
Agreement or the agreements contemplated hereby on the part of Seller.
SECTION 3.5. LITIGATION. There are no material legal actions or
administrative proceedings or investigations instituted, or to the best
knowledge of Seller threatened, against or affecting, or that could affect, the
Assets. Seller is not subject to any continuing court or administrative order,
writ, injunction or decree applicable specifically to the Assets.
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ARTICLE IV.
Representations and Warranties of Purchaser
Purchaser represents and warrants that the following are true and correct
as of the date hereof:
SECTION 4.1. ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its incorporation, with all requisite corporate power and authority to
carry on the business in which it is engaged, to own the properties it owns, to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
SECTION 4.2. AUTHORIZATION AND VALIDITY. The execution, delivery and
performance by Purchaser of this Agreement and the other agreements contemplated
hereby, and the consummation of the transaction contemplated hereby and thereby,
have been duly authorized by Purchaser. This Agreement and each other agreement
contemplated hereby have been duly executed and delivered by Purchaser and
constitute legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally or the availability of equitable remedies.
SECTION 4.3. NO VIOLATION. Neither the execution, delivery or performance
of this Agreement or the other agreements contemplated hereby nor the
consummation of the transactions contemplated hereby or thereby will (i)
conflict with, or result in a violation or breach of the terms, conditions and
provisions of, or constitute a default under, the Articles of Incorporation or
Bylaws of Purchaser or any agreement, indenture or other instrument under which
Purchaser is bound or (ii) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Purchaser or the properties
or assets of Purchaser.
ARTICLE V.
Closing Deliveries
SECTION 5.1. DELIVERIES OF SELLER. In connection with the Closing, Seller
is delivering to Purchaser the following:
(a) a bill of sale conveying the Assets to Purchaser;
(b) the Assumption Agreement; and
(c) such other instrument or instruments of transfer as shall be necessary
or appropriate, as Purchaser or its counsel shall reasonably request,
to vest in Purchaser good and marketable title to the Assets.
SECTION 5.2. DELIVERIES OF PURCHASER. In connection with the Closing,
Purchaser is delivering to Seller:
(a) that portion of the Purchase Price which is payable at Closing, in
immediately available funds; and
(b) the Assumption Agreement
SECTION 5.3. FURTHER INSTRUMENTS OF TRANSFER. Following the Closing, at the
request of Purchaser, Seller shall deliver any further instruments of transfer
reasonably requested by Purchaser and take all reasonable action as may be
necessary or appropriate to vest in Purchaser good and marketable title to the
Assets.
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ARTICLE VI.
Miscellaneous
SECTION 6.1. AMENDMENT. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by all the parties
hereto.
SECTION 6.2. ASSIGNMENT. Neither this agreement nor any right created
hereby or in any agreement entered into in connection with the transactions
contemplated hereby shall be assignable by any party hereto.
SECTION 6.3. PARTIES IN INTEREST; NO THIRD PARTY BENEFICIARIES. Except as
otherwise provided herein, the terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto. Neither this
agreement nor any other agreement contemplated hereby shall be deemed to confer
upon any person not a party hereto or thereto any rights or remedies hereunder
or thereunder.
SECTION 6.4. ENTIRE AGREEMENT. This Agreement, the Schedules attached
hereto and the agreements and documents contemplated hereby constitute the
entire agreement of the parties regarding the subject matter hereof, and
supersede all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof.
SECTION 6.5. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
SECTION 6.6. SURVIVAL OF REPRESENTATION, WARRANTIES AND COVENANTS. The
representations and warranties contained herein shall survive the Closing.
SECTION 6.7. COSTS, EXPENSES AND LEGAL FEES. Each party hereto shall bear
its own costs and expenses (including attorneys' fees), except that each party
hereto agrees to pay the cost and expenses (including reasonable attorneys' fees
and expenses) incurred by the other party in successfully (i) enforcing any of
the terms of this Agreement or (ii) proving that the other party breached any of
the terms of this Agreement.
SECTION 6.8. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULES GOVERNING CONFLICTS OF
LAWS) OF THE STATE OF TEXAS.
SECTION 6.9. CAPTIONS. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
SECTION 6.10. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. SANTIAGO DATA SYSTEMS,
INC., a California corporation
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SANTIAGO DATA SYSTEMS, INC.
a California corporation
By: /s/ Tom Banks
Its: President
SANTIAGO DATA SYSTEMS, INC.
(formerly SDS, Inc.),
a Nevada corporation
By: /s/ Scott A. Haire
Its: Secretary
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