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Exhibit: 10.25FT
AGREEMENT
FOR
PURCHASE AND SALE
OF
ASSETS
THIS AGREEMENT is made as of the 31st day of December, 1997, by and
between Newtech Consulting, Inc., an Arizona corporation ("Seller") and Futech
Educational Products, Inc., an Arizona corporation ("Buyer").
RECITALS:
A. Seller owns the intellectual and other property identified on
Exhibit "A" attached hereto and hereby made a part hereof (collectively the
"Assets").
B. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Assets, in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties hereto agree as follows:
TERMS:
1. PURCHASE AND SALE. Seller hereby sells to Buyer, and Buyer hereby
purchases from Seller, the Assets, including all rights of Seller relating
thereto, upon the terms and conditions hereinafter set forth.
2. PURCHASE PRICE. The purchase price for the Assets is as follows:
2.1 Three hundred thousand dollars ($300,000), payable in cash
upon execution of this Agreement;
2.2 Six million (6,000,000) shares of the common stock of
Buyer (to be issued to Seller simultaneously with the execution of this
Agreement); and
2.3 The assumption of liabilities as set out in Section 3
below.
3. ASSUMPTION of LIABILITIES. As part of, and in addition to the
other purchase price identified in Section 2 above, Buyer hereby assumes and
agrees to pay any and all liabilities of Seller to the extent of, and only to
the extent of, a maximum amount of $25,000.00. Seller remains liable for all
other debts of Seller.
4. TERMINATION OF CONSULTANT AGREEMENT. Seller and Buyer entered in
that certain Consulting Agreement, dated August, 1996, wherein, among other
things, Seller agreed to render consulting services to Buyer relating to the
design, creation, development, testing and/or
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Agreement for Purchase and Sale of Assets
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support services for certain of Buyer's then-existing and future technology.
Seller and Buyer agree that, without the necessity of any additional
documentation, said Consulting Agreement agree is hereby terminated, and the
parties shall have no obligations under said Consulting Agreement, except for
any obligations which by the terms of the Consulting Agreement survive
termination.
5. TERMINATION OF EMPLOYMENT AGREEMENT. Seller and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇") entered into that certain Employment Agreement, dated August, 7,
1996, wherein, among other things, the Parties and ▇▇▇▇▇▇▇▇▇ by his signature
appearing below, hereby agree that, without the necessity of any additional
documentation, said Employment Agreement is hereby terminated, and the parties
thereto shall have no obligations under said Employment Agreement, except for
any obligations which by the terms of the Employment Agreement survive
termination.
6. REPRESENTATIONS AND WARRANTIES. Seller hereby represents and
warrants as follows:
6.1 Authority. Seller has the power and authority to enter
into and perform its obligations under this Agreement, and the Board of
Directors of Seller has approved, authorized, and ratified the
execution and delivery of this Agreement, and of the documents herein
required to consummate the transaction contemplated herein.
6.2 Liens. The Assets are free and clear of any and all liens
and encumbrances.
6.3 Litigation. To the knowledge of Seller, there is no
litigation, proceeding, or investigation pending or threatened against
Seller or the Assets.
6.4 Judgements Against Seller and/or Assets. Neither Seller
nor the Assets are under any governmental investigation, no such
investigation has been threatened, and there are no judgments against
Seller or the Assets.
6.5 Patents. There is no litigation pending or threatened with
respect to the patents included in the Assets, there is no outstanding
order, judgment, decree or stipulation affecting the validity or
enforceability of said patents, there exists no outstanding notices of
infringement given by Seller regarding the patents, there are no
pending interferences or other contested proceedings pending, or that
are in the process of being instituted, in the United States Patent
Office or in the courts, relating to said patents, and to the best
knowledge of Seller, none of the patents are presently being infringed.
7. GOVERNING LAW; JURISDICTION. The courts of the State of Arizona
shall have the sole and exclusive jurisdiction and venue in any case or
controversy arising under this Agreement or by reason of this Agreement. The
parties agree that any litigation or arbitration
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Agreement for Purchase and Sale of Assets
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arising from the interpretation or enforcement of this Agreement shall be only
in either Maricopa County Superior Court or in the United States Federal
District Court for the District of Arizona, and for this purpose each party to
this Agreement (and each person who shall become a party) hereby expressly and
irrevocably consents to the jurisdiction and venue of such courts.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns.
9. ENTIRE AGREEMENT. Except as otherwise set forth herein, this
Agreement constitutes the entire agreement between the parties which respect to
the subject matter hereof, and supersedes all prior understandings, if any, with
respect thereto.
10. FURTHER ASSURANCES. The parties agree to do such further acts and
things and to execute and deliver such additional agreements and instruments as
any party may reasonably require to consummate, evidence, or confirm any
agreement contained herein in the manner contemplated hereby.
11. MODIFICATION. Any modification or waiver of any term of this
Agreement, including a modification or waiver of this term, must be in writing
and signed by the parties to be bound by the modification or waiver.
12. SEVERABILITY. In the event any portion of this Agreement shall be
declared by any court of competent jurisdiction to be invalid, illegal, or
unenforceable, such portion shall be deemed severed from this Agreement, and the
remaining parts hereof shall remain in full force and effect as fully as though
such invalid, illegal or unenforceable portion had never been a part of this
Agreement.
13. COUNTERPARTS, FACSIMILE SIGNATURES. This Agreement may be executed
by the parties in one or more counterparts, and any number of counterparts
signed in the aggregate by the parties shall constitute a single instrument. The
parties authorize and agree to accept facsimile signatures in counterparts to
this Agreement, and that said facsimile signatures shall for all purposes be
binding upon the parties as if the same were original signatures.
14. ATTORNEY'S FEES. Should any party institute any action or
proceeding to enforce this Agreement or any provision hereof, or for damages by
reason of any alleged breach of this Agreement, or of any provision hereof, or
for a declaration of rights hereunder, the prevailing party(s) of such action or
proceeding shall be entitled to receive from the other involved party or parties
all costs and expenses, including reasonable attorneys' fees and expert witness
fees incurred by the prevailing party(s) in connection with such action or
proceeding.
15. PARAGRAPH TITLES AND HEADINGS. The titles and headings of sections
of this Agreement are for the convenience of reference only, and are not
intended to define, limit, or
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Agreement for Purchase and Sale of Assets
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describe the scope or intent of any provision of this Agreement, and shall not
affect the construction of any provision of this Agreement.
16. MISCELLANEOUS. The parties agree that each party and its counsel
have reviewed and revised this Agreement, or had an opportunity to review and
revise this Agreement, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply to the
interpretation of this Agreement or any amendments or exhibits hereto. In the
event of default by Seller hereunder, Buyer shall, in addition to its other
remedies under this Agreement and in law or equity, be entitled to specific
performance of Seller's obligations under this Agreement. The parties do not
intend to confer any benefit upon any person, firm, or corporation other than
the parties hereto. No representation or warranty herein may be relied upon by
any person not a party to this Agreement.
SELLER: Newtech Consulting, Inc.,
an Arizona corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
BUYER: Futech Educational Products, Inc.,
an Arizona corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
ACCEPTED AND AGREED TO
as of the date first herein above written,
as to the termination of the Employment Agreement
as described in Section 5 above, by:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
List of Exhibits:
Assets Transferred "A"
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EXHIBIT "A"
(ASSETS TRANSFERRED)
All assets, of any type or nature, owned by Seller, other than Seller's
$2,000,000.00 promissory note receivable payable by Buyer, Seller's stock
ownership in Buyer, the cash to be received by Seller under Section 2.1 of this
Agreement, Seller's loan receivable from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Seller's loan
receivable from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and Seller's cash (▇▇▇▇▇ cash and all accounts
receivable).
