EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT made this 17th day of December, 1998;
Between: Cadapult Graphic Systems, Inc., a Delaware corporation
with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to alternatively as
"Cadapult" or "Purchaser";
And: Tartan Technical, Inc., a Massachusetts corporation with
offices located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, hereinafter referred to alternatively as "Tartan" or
"Seller".
Whereas, both Purchaser and Seller are engaged in the sale and servicing of
computer graphics and imaging equipment and supplies; and,
Whereas, Purchaser is desirous of purchasing the Assets of Seller, as defined
hereinafter, and Seller is desirous of selling said Assets, for the
consideration and upon the terms and conditions set forth hereinafter.
Now Therefore, in consideration of the mutual covenants, promises and conditions
set forth herein, the parties hereto do hereby agree as follows:
1. Purchase and Sale.
1.01 Seller agrees to sell to Purchasers and Purchaser agrees to
purchase from Seller all of the Assets owned and used by Seller in the operation
of its business, including but not limited to the following:
A. Accounts Receivable, less allowances;
B. Inventory at lower of cost or fair market value;
C. Property and Equipment as listed on Exhibit A annexed to and made a
part hereof;
D. Use of the name "Tartan Technical";
E. Customer lists and all files relating thereto;
F. Sales, service and vendor contracts and security deposits;
G. Existing telephone numbers (▇▇▇) ▇▇▇-▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, 800-869-
0507;
H. Databases
I. Rights to ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ URL
J. Trade Show deposits, health insurance premiums and other prepaid
commitments as listed on Exhibit J for which there shall be an
adjustment at Closing.
The Assets which are the subject of the within sale, including those set forth
hereinabove, shall hereinafter be collectively referred to as "Assets".
1.02 In conjunction with purchase by Cadapult of the Assets, as defined
herein, Cadapult has agreed to assume the following Liabilities of Seller:
A. Trade payables as of the date of Closing;
B. Customer deposits payable as of the date of Closing;
C. Bank debt listed on Exhibit B.
Purchaser shall indemnify Seller against any and all losses, liabilities,
deficiencies or damages suffered or incurred by Seller, or its shareholders,
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, resulting from any failure of Purchaser to discharge
the Liabilities referenced herein.
Cadapult has not agreed to assume any other liabilities other than those set
forth hereinabove. Liabilities specifically EXCLUDED from assumption by
Cadapult include the following: (a) any monies due any governmental agency,
including any federal, state and/or local taxes; (b) any contingent liabilities
resulting from any claim or threatened claim against Seller which may not, as of
this date or date of Closing, have matured into a debt; (c) any obligations
arising out of any claim by Seller's personnel, including any unpaid salaries,
commissions, pension or other benefits, accrued vacation or sick pay arising
prior to the date of Closing, and, (d) any other undisclosed liabilities.
2. Purchase Price and Terms of Sale.
2.01 Cadapult does hereby agree to assume the Liabilities referenced in
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇,▇ and C of Paragraph 1.02 hereinabove (hereinafter referred to
as "Liabilities") and to purchase the Assets referenced in Subparagraphs A
though I of Paragraph 1.01 hereinabove. It is anticipated that the dollar value
of the Liabilities assumed will exceed the Assets purchased, as determined by
standard accounting principals, by One Hundred Fourteen Thousand ($114,000.00)
Dollars. In such event, Cadapult shall then be obligated to tender to Seller
One Hundred Eighty Five Thousand Seven Hundred (185,700) shares of unregistered
and restricted Cadapult common stock which shall constitute the purchase price.
A. In the event the dollar value of the Liabilities, as defined
hereinabove, assumed at Closing by Cadapult, as also defined hereinabove, exceed
the Assets by more than $114,000, at Closing, the Seller shall execute a
Promissory Note in favor of Cadapult whereby the principal of the Note shall be
an amount equivalent to the difference between the dollar value of the
Liabilities assumed, less the Assets purchased and $114,000. The form of the
Promissory Note to be executed at Closing is annexed hereto and made a part
hereof as Exhibit H.
B. In the alternative, in the event the dollar value of the
Liabilities assumed by Cadapult at Closing exceed the Assets purchased by less
than $114,000, then Cadapult will be obligated to issue additional unregistered
and restricted common stock to Seller, over and above the 185,700 shares
referenced in Paragraph 2.01 hereinabove, the number of shares of which shall be
determined by dividing the dollar difference between the Liabilities assumed,
less the Assets purchased, and $114,000 by $3.50 which, for the purpose of this
Paragraph 2.01B, shall be deemed to be the trading price of Cadapult's common
stock irrespective of the actual trading price as of the date of Closing. For
example, if the dollar value of Liabilities assumed, less the Assets purchased
and is $112,000, then an additional 571 shares of unregistered and restricted
common stock shall be issued by Cadapult to Seller (the number of shares to be
issued shall be rounded off to the nearest whole number). Any differential due
Seller pursuant to this Subparagraph B shall be issued within 30 days of the
Closing.
2.02 In order to provide the Seller with certain Gross Profit incentives
as well as protection against a reduction in the trading price of Cadapult's
common stock, the parties have further agreed as follows:
A. The following shall apply to 75% of the shares of Cadapult
common stock issued at Closing. At the close of business on the last day of
Twelfth month from the Closing, the average trading price of Cadapult's common
stock (for the purposes of this Subparagraph A defined as the price "asked" and
not "bid") for that month shall be determined. If the average trading Price, as
defined herein, as same applies to 75% of the Cadapult common stock issued as
Closing is less than $3.50, Cadapult shall then be required to issue additional
unregistered and restricted common stock to Seller; provided however, that there
shall be an artificial "floor" in the per share value of $2.33 so that when
issuing such shares in no event shall a price of less than $2.33 be applied to
the above calculation. By way of example, if 185,700 shares are issued at
Closing and the average daily price during the eleventh month from the date of
Closing is $3.00, then Cadapult will be obligated to issue an additional 23,212
unregistered and restricted shares to the Seller as determined in the following
manner: 185,700x75%=139,275x$3.50=$487,462.5/$3.00=$162,487.50-139,275=23,212.
Any such additional shares issued pursuant to this Subparagraph 2.02A shall be
subject to the escrow as set forth in Paragraph 3 hereinafter
B. The same formula as referenced in Subparagraph 2.02A
hereinabove shall apply to the remaining 25% of the Cadapult common stock issued
to Seller at Closing, which calculation shall be made on the last day of the
twenty fourth month from the Closing. Again, if any stock is issued to Seller,
it shall be subject to the escrow provisions of Paragraph 3 hereinafter.
C. Further, again, at the end of the close of business on the
last day of the twelfth month from the Closing, a determination shall be made if
Gross Profits for the prior twelve months attained by Seller exceeded $901,600
as set forth in Exhibit C annexed hereto and made a part hereof. If Gross
Profits for such period exceeded $901,600 AND the average trading price of
Cadapult common stock (again, the price "asked") during the twelfth month from
the Closing was less than $1.83 per share, then the monetary consideration due
Seller from Cadapult in relation to the within Asset Purchase would be increased
by $50,000, with said sum paid to Seller within thirty (30) days of such
determination.
D. In the event there is a dispute between the parties as to the
calculations to be made pursuant to Subparagraphs A, B and C of this Paragraph
2.02, then the parties shall agree upon a neutral third party, who shall be a
Certified Public Accountant in the Commonwealth of Massachusetts to render a
determination as to the calculation. If the parties cannot agree upon one
neutral C.P.A., then each shall select its own C.P.A., and the two C.P.A.'s so
selected shall select a third C.P.A., and the three C.P.A.'s shall then render a
determination by agreement of at least two of the three. Any such decision
shall be final in the absence of fraud. The cost of any neutral accountant
shall be borne equally by the parties.
3. Escrow and Post Closing Adjustments. At Closing, fifty (50%) percent of
the common stock of Cadapult due Seller thereat, or 92,850 shares (hereinafter
"Escrowed Shares"), shall be endorsed in blank and delivered to the Joint Escrow
Agents designated herein, after which Escrowed Shares shall be held in escrow
pending attainment of specified Gross Profit objectives in the first 12 and
second 12 months from the date of Closing. For the purposes of this Paragraph
3, Gross Profit shall be defined in the manner set forth in Exhibit C annexed to
and made a part hereof.
It is the intent of the parties hereto that if Seller attains, or exceeds,
certain Gross Profit Targets, as defined hereafter, during the first twelve (12)
months following the closing, 50% of the Escrowed Shares will be released to
Seller from the Escrow plus additional unregistered and restricted shares may be
issued to Seller by Cadapult pursuant to the schedule of Gross Profit Targets
annexed to and made a part hereof as Exhibit D. In the alternative, failure to
attain Gross Profit Targets resulting in less than 50% of the Escrowed Shares
being issued to Seller at the end of the first twelve month period shall result
in those shares being returned to Cadapult.
By way of example, if the Gross Profits achieved during the first twelve month
period from the date of Closing is $700,000, then 46,425 Escrowed Shares shall
be released to Seller and 11,607 Escrowed Shares shall be returned to Purchaser.
The same process shall be repeated in the second twelve month period from the
date of the Closing.
Any additional shares of Cadapult common stock issued pursuant to this Paragraph
3 shall be subject to adjustments on the twelfth and twenty-fourth month from
the date of Closing as set forth in Paragraphs 2.02 A and B hereinabove.
The aforesaid shall be set forth in a separate Escrow Agreement to be executed
at Closing. The Joint Escrow Agents shall be one attorney designated by Seller
and another attorney designated by Cadapult. The Joint Escrow Agents shall
receive an agreed upon fee, as set forth in the Escrow Agreement, for services
rendered by them as Joint Escrow Agents.
4. Deposit. Simultaneously upon the execution of the within Agreement,
Purchaser shall forward a check in the sum of $50,000.00 payable to the attorney
trust account of Seller's attorney who shall be an attorney admitted to the Bar
of the State of Massachusetts designated by Seller in the sum of $50,000.00
constituting an ▇▇▇▇▇▇▇ money deposit, which monies shall be held in escrow by
the aforesaid. Since it is anticipated that at Closing no cash payment will be
due Seller, the within Deposit of $50,000.00 shall at that time be refunded to
Purchaser, without any deduction or set off unless otherwise provided in this
Asset Purchase Agreement. In the event a Closing does not occur as a
consequence of the failure of any conditions precedent to the Contract or
Seller's breach, the within ▇▇▇▇▇▇▇ money deposit shall be refunded to the
Purchaser, without any deduction or set off whatsoever, within forty-eight (48)
hours of demand therefore.
5. Allocation of Purchase Price. The total purchase price shall be allocated
amongst the various Assets and agreements to be executed at Closing in the
manner set forth in Exhibit E annexed to and made a part hereof.
6. Employment Agreements. A condition precedent to Cadapult's obligation to
Close shall be (1) Seller's shareholders, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, execution
of Employment Agreements in the form annexed to and made a part hereof as
Exhibit F for a term of not less than two (2) years from Closing; and (2) Seller
obtaining from one of its key employees, namely, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, either an
agreement to become an employee of Cadapult, as evidenced by execution by her of
an Employment Agreement in the form annexed hereto as Exhibit F for a term of
not less than two (2) years from Closing, or, in the alternative, a written
undertaking on the part of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ that she shall be restricted from
contacting or soliciting any of Seller's customers for a period of not less than
two years from the date of Closing, said Restrictive covenant to be in the form
annexed hereto and made a part hereof as Exhibit I. Execution and delivery of
the Agreements referenced in this Paragraph 6 shall be deemed to satisfy the
obligation of Seller as created hereunder.
7. Closing. The Closing shall occur on or about January 5, 1999 at Seller's
offices or the offices of Seller's attorneys provided same are located within 15
miles of Boston, Massachusetts (hereinbefore referred to as "Closing Date").
All monies due and payable at Closing shall be paid in the form of a bank,
certified or attorneys trust account check.
8. Conditions Precedent.
A. Purchaser agrees to accept an assignment of Seller's lease for its
current location. A true copy of said Lease is annexed hereto and made a part
hereof as Exhibit G. On or before the Closing, Seller shall obtain its
Landlord's consent to an assignment of said Lease to Cadapult..
B. Purchaser's satisfactory review of aspects of Seller's business,
including but not limited to not less than audited financial statements,
including Statements of Profits and Losses and Balance Sheets, for all of 1997
and for at least the first 9 months of 1998. Said review shall be completed
within 45 days of the date hereof.
C. Execution at Closing of the Employment Agreements referenced in
Paragraph 6 hereinabove.
9. Seller's Representations. Seller represents and warrants to Purchaser as
follows:
A. Title to Assets. Seller shall, as of the date of Closing, hold good
and marketable title to the Assets, free and clear of restrictions on or
conditions to transfer or assignment as well as any and all liens, pledges,
charges, or encumbrances. At Closing, Seller shall convey all such Assets.
B. Indemnification. Seller, and Seller's shareholders, do hereby
jointly and severally agree to protect, indemnify, and hold the Purchaser
harmless from and against any loss, damage or expense, as well as reasonable
counsel fees and costs, if incurred, resulting from any breach of the warranties
set forth in Subparagraph A of this Paragraph 9. Specifically, the within
Indemnification shall include any claim made against Purchaser for any unpaid
liability of Seller. Should any claim for indemnification arise during the
pendency of the Escrow as referenced in Paragraph 3 hereinabove, the Purchaser
shall have the right to request that any funds being held on behalf of the
Seller continue to be held pending resolution of such claim and, further to pay
the amount of such claim upon adjudication thereof from said Escrowed Funds,
should same remain unsatisfied.
C. Transfer Not Subject to Encumbrances or Third-Party Approval. The
execution and delivery of this Agreement by Seller, and the consummation of the
within contemplated transaction, will not result in the creation or imposition
of any valid lien, charge, or encumbrance on any of the Assets, and will not
require the authorization, consent, or approval of any third party, including
any lender or governmental or regulatory agency.
D. Corporate Existence. Seller is now, and on the Closing Date will
be, a corporation duly organized and validly existing and in good standing under
the laws of the State of Massachusetts. At Closing, Seller shall provide a copy
of a Certificate of Good Standing issued by the Commonwealth of Massachusetts
and Massachusetts Department of Revenue. In addition, Seller shall comply with
all applicable governmental and legal requirements in relation to the bulk sales
of its Assets.
E. Authorization. The execution, delivery, and performance of this
Agreement has been duly authorized and approved by the Board of Directors and
shareholders of Seller having a majority of the issued and outstanding Common
Stock thereof, and this Agreement constitutes a valid and binding Agreement of
Seller in accordance with its terms.
F. Noncancelable Contracts. At the time of Closing, there will be no
leases, employment contracts, contracts for services or maintenance, or other
similar material contracts existing or relating to or connected with the
operation of Seller's business not cancelable at Closing or within 30 days
thereof.
G. Continued Operations. Seller will continue to conduct its business
up to the date of Closing in essentially the same manner as it has been
conducted in the past, and in accordance with all applicable laws and
regulations. Until Closing, Seller shall maintain all of its Assets in their
present condition. Seller shall use its best efforts to preserve, for
Purchaser, the goodwill of vendors, suppliers, customers and others having
business relations with it. Prior to Closing, Seller will not sell or transfer
any of the Assets which are the subject of this Agreement. Seller has no
knowledge of a business termination of a material customer, vendor or supplier.
H. Withholding Taxes. Seller has paid in full, or will arrange for the
payment in full, in a timely manner, of all federal and Commonwealth of
Massachusetts taxes incurred by Seller, including, but not limited to income,
withholding, social security, unemployment insurance, and sales taxes due
through the Date of Closing, and shall hold Purchaser harmless therefrom.
I. Financial Records. Seller will deliver two year audited financial
statement prepared by Seller's accountant within within 45 days of Closing, at
Seller's expense. Seller must be in agreement with audited data. Seller makes
no warranties or representations regarding future sales or profits in connection
with the Assets purchased by Purchaser pursuant to this Agreement, such sales
and profits being dependent on Purchaser's efforts, skill, and conduct of its
business. Financial records and other documents delivered by Seller to
Purchaser in connection with the within transaction, including profit and loss
statements and balance sheets, contracts, and other books and records,
accurately reflect the financial condition of Seller. To the best of Seller's
knowledge, Seller is in compliance with all laws and regulations affecting its
business.
J. Employee Benefits. Seller does not maintain any retirement or
deferred compensation plan, savings, incentive, stock option or stock purchase
plan, unemployment compensation plan, vacation pay, severance pay, bonus or
benefit arrangement, insurance or hospitalization program or any other fringe
benefit arrangement for any employee, consultant or agent of the Seller, whether
pursuant to contract, arrangement, custom or informal understanding, which
constitute an "Employee Benefit Plan" (as defined in Section 3(3) of ERISA), for
which the Seller may have any ongoing material liability after Closing. The
Seller does not maintain, nor has it ever contributed to, any Multi-employer
Plan as defined by Section 3(37) of ERISA. The Seller does not currently
maintain any Employee Pension Benefit Plan subject to Title IV of ERISA. There
have been no "prohibited transactions" (as described in Section 406 of ERISA or
Section 4975 of the Code) with respect to an Employee Pension Benefit Plan or
Employee Welfare Benefit party. Seller has no employee benefits plans or
written contracts with employees. Seller shall be responsible for paying, prior
to Closing, all accrued vacation or sick pay entitlements.
K. Accuracy of Representations and Warranties. None of the
representations or warranties of Seller contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make statements in this Agreement not misleading. Seller
knows of no fact or circumstance that has resulted, or that in the reasonable
judgment of Seller will result, in a material change in the business,
operations, or assets of Seller that has not been previously disclosed or set
forth in this Agreement.
L. Seller's Agreement to Restriction on Sale of Seller's Stock Conveyed
Pursuant to the Within Agreement. The Sellers agree that, for a period
commencing 45 business days preceding the one year anniversary of the Closing
Date of this Agreement and ending the day following the one year anniversary of
the Closing Date of this Agreement, the Sellers will not offer to sell, sell,
transfer, assign, give, bequeath, hypothecate, otherwise dispose of or otherwise
in any manner alienate any of the securities of the Corporation, whether now
owned or hereafter acquired by the Sellers (the "Securities"), or any right or
interest therein, whether voluntarily or by operation of law. Any purported
transfer in violation of any provision of this Agreement shall be void and
ineffective, and shall not operate to transfer any interest or title to the
purported transferee and the Corporation shall not recognize such transfer. The
Sellers agree that any sale or other disposition of the Securities after the one
year anniversary of the Closing Date shall be a bona fide transaction in
accordance with Rule 144, as promulgated under the Securities Act of 1933 as
amended, conducted through a major brokerage firm or such other firm as is
mutually agreed by the parties in writing, and shall be sold in a manner not to
cause any adverse effect on the market for the Corporation's common stock. Any
such sale shall be made without "hitting" the bid price for the Corporation's
common stock. These representations by the Sellers are material to the
Purchaser's decision to enter into this Agreement and, Seller's agree that any
violation hereof would entitle the Purchaser to injunctive relief to preclude
Securities sales activity by the Sellers in contravention of these
representations.
10. Purchaser's Representations. Purchaser represents and warrants to Seller
as follows:
A. Buyer is a DELAWARE corporation, duly organized, validly existing
and in good standing under the laws of the state of Delaware and has the power
and authority to carry on its business, as now conducted, to own and operate its
properties and assets, to execute the Agreement and other agreements and
instruments refereed to therein and delivering and carrying out the transactions
contemplated.
B. Execution and delivery of the Agreement and other Agreements and
instruments referred to have been duly authorized by the board of directors and
shareholders of Cadapult Graphic Systems, Inc. and constitute legal, valid,
binding and enforceable agreements and instruments.
C. Neither the execution, delivery or performance of the Agreement or
any other agreement or instrument executed and delivered by or on behalf of
Cadapult Graphic Systems, Inc., nor the consummation of the transactions nor
compliance with the terms and provisions of the Agreement contravenes the
Certificate of Incorporation, Articles of Incorporation, or bylaws or any
provision of law, statute, rule, regulation or order of any court or
governmental authority to which Cadapult Graphic Systems, Inc., is subject, or
any judgment, decree, franchise, order or permit applicable to it, or conflicts
or inconsistent with, or will result in any breach of or constitute a default
under, any contract, commitment, agreement, understanding, arrangement or
instrument, or result in the creation of or imposition of, or the obligation to
create or impose any lien, encumbrance or liability upon, any of the property or
assets of it, or will increase any such lien, encumbrance, or liability.
D. Purchaser shall indemnify Seller against any and all loss,
liability, deficiency, or damage suffered or incurred by Tartan, or its
shareholders, resulting from any untrue representation, breach of warranty or
non-fulfillment of any covenant or agreement by Cadapult Graphic System, Inc.
contained in the Agreement or in any certificate, document, or instrument
delivered to Tartan in connection with the within transaction.
E. Purchaser agrees to hire current employees of Seller, not otherwise
referenced herein, specifically, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇.
In the event said employees are terminated by Purchaser, any sums due said
employees resulting from Purchaser's termination shall be the sole
responsibility of Purchaser.
11. Indemnification. Purchaser and Seller agree to protect, indemnify, and
hold the other harmless against, and with respect to, any loss, damage or
expense occasioned by any breach or alleged breach, falsity, or failure of any
of the representations, covenants, warranties or agreements of any such party
contained herein or contained in any document exchanged between Purchaser and
Seller in connection with this transaction. This Indemnification shall survive
the Closing.
12. Default. In the event of a material breach, the non-breaching party shall
have the right, in addition to seeking damages, to choose to compel the breach
party to perform under the terms of this Agreement (specific performance).
Irrespective of the aforesaid, and in addition thereto, in the event of a
material breach by Purchaser, Seller shall have the right to retain the Deposit
irrespective of whether Seller is able to establish damages, seeks to compel
specific performance, or ultimately obtains a judgment for damages in excess of
the Deposit provided however that in the event of the latter, the amount of the
Deposit shall be deducted from any damage award.
13. Miscellaneous.
A. Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified, or supplemented only by a written agreement signed by
all of the parties hereto.
B. Notices. All notices, requests, consents, approvals or other
communications under this Agreement shall be in writing and mailed by certified
mail, return receipt requested, postage prepaid, or delivered by a nationally
recognized overnight courier service which obtains delivery receipts (e.g.,
Federal Express), addressed:
Seller:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Purchaser:
Cadapult Graphic Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Either party may, by notice given as aforesaid, change its address for all
subsequent notices. All notices hereunder shall be effective upon receipt of
same.
C. Legal Fees in the Event of Dispute. In the event a dispute arises
between the parties in relation to the interpretation and/or implementation of
the within Agreement resulting in the filing of a legal proceeding in a court of
competent jurisdiction, the non-prevailing party shall reimburse the prevailing
party to the extent of reasonable counsel fees and costs incurred by the latter.
D. No Broker. The Seller and Purchaser represent and warrant, each to
the other, that neither has engaged or in any way dealt with a broker, finder,
agent, or anyone in a similar capacity, in relation to the transaction
contemplated by the within Agreement. To this extent, Seller and Purchaser do
each hereby agree to indemnify, defend and hold the other harmless from and
against any and all loss, expense, including but not limited to reasonable
counsel fees and costs, damage or liability resulting from any claim or claims
arising from an alleged rendering of any services to the indemnifying party in
breach of the within warranty.
E. Titles and Captions. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor affect the interpretation of this Agreement. All pronouns and any
variation thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons may require.
F. Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understanding and
agreements among them respecting the subject matter of this Agreement. Any
amendments to this Agreement must be in writing and signed by the party against
whom enforcement of that amendment is sought.
G. Presumption. This Agreement, or any Section thereof, shall not be
construed against any part due to the fact that said Agreement or any Section
thereof was drafted by said party.
H. Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forebear from all such action as
may be necessary or appropriate to achieve the purpose of the Agreement.
I. Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
J. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid. The remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
Executed as of the dates set forth below, in several counterparts, each of which
shall be deemed an original, but all constituting only one agreement.
Purchaser:
Cadapult Grapic Systems, Inc.
Date: 12/17/98 By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Seller
Tartan Technical, Inc.
Date: 12/17/98 By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇, Pres.
Solely as to the provisions of Paragraph
6 as same pertains to the undersigned and
as to no other provision contained herein.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 12-17-98
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Include stock option form
Include warrants