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EXHIBIT 10.81
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EXHIBIT 10.81
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT is dated as of January 31, 1996, by and
between TeleSouth Communications, Inc., a Mississippi corporation ("Buyer"),
and Xxxxxx X. Xxxxxx and Xxxxxx Networks, Inc., a Florida corporation
(collectively the "Seller").
RECITALS
A. Seller owns and operates the South Carolina Radio Network (the
"Network").
B. Seller desires to sell, and Buyer wishes to buy, substantially all
the assets that are used or useful in the business or operations of the
Network, for the price and on the terms and conditions set forth in this
Agreement.
AGREEMENTS
In consideration of the above recitals and of the mutual agreements
and covenants contained in this Agreement, Buyer and Seller, intending to be
bound legally, agree as follows:
SECTION 1 DEFINITIONS
The following terms, as used in this Agreement, shall have the
meanings set forth in this Section:
"Accounts Receivable" means the rights of Seller to payment for the
sale of advertising time run on the Station by Seller prior to the Closing
Date.
"Assets" means the assets to be sold, transferred, or otherwise
conveyed to Buyer under this Agreement, as specified in Section 2.1.
"Assumed Contracts" means (i) those Contracts listed in Schedule 3.6
which are to be assumed by Buyer upon its purchase of the Network, (ii) any
Contracts entered into by Seller between the date of this Agreement and the
Closing Date that Buyer agrees in writing to assume, and (iii) time sales
contracts entered into by Seller in compliance with Section 5.3.
"Closing" means the consummation of the purchase and sale of the
Assets pursuant to this Agreement in accordance with the provisions of Section
8.
"Closing Date" means the date on which the Closing occurs, as
determined pursuant to Section 8.
"Consents" means the consents, permits, or approvals of government
authorities and other third parties necessary to transfer the Assets to Buyer
or otherwise to consummate the transactions contemplated by this Agreement.
"Contracts" means all contracts, leases, non-governmental licenses,
and other agreements to which Seller is a party or which are binding upon
Seller and which relate to or affect the Assets or the business or operations
of the Network, and (I) which are in effect on the date of this Agreement or
(ii) which are entered into by Seller between the date of this Agreement and
the Closing Date.
"Purchase Price" means the purchase price specified in Section 2.3.
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"Real Property" means all real property which are used or useful in
the business or operations of the Network, together with any additions thereto
between the date of this Agreement and the Closing Date.
"Tangible Personal Property" means all machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant,
inventory, spare parts, and other tangible personal property which is used or
useful in the conduct of the business or operations of the Network, together
with any additions thereto between the date of this Agreement and the Closing
Date including, but not limited to, those items set forth on Schedule 3.5.
SECTION 2 PURCHASE AND SALE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, transfer, and
deliver to Buyer on the Closing Date, and Buyer agrees to purchase, all of the
tangible and intangible assets used or useful in connection with the conduct of
the business or operations of the Network, together with any additions thereto
between the date of this Agreement and the Closing Date, but excluding the
assets described in Section 2.2, free and clear of any claims, liabilities,
security interests, mortgages, liens, pledges, conditions, charges, or
encumbrances of any nature whatsoever (except for liens for current taxes not
yet due and payable), including, but not limited to, the following:
(a) The Tangible Personal Property;
(b) The Real Property;
(c) The Assumed Contracts;
(d) All contracts and contract rights of Seller which pertain
to or benefit the South Carolina Radio Network operations or associated with
the South Carolina Radio Network, including, but not limited to, all contracts
specifically assigned herein and all advertising contracts, leases,
distribution agreements and all other contracts, understandings or agreements,
provided that the assignment of such contracts, understandings or agreements to
Buyer shall create no obligations on Buyer except as expressly set forth in
Section 2.5;
(e) All rights of Seller under any and all licenses or permits
issued by any governmental agency, whether state or federal, which pertain to
the operations of the Network;
(f) The administrative, sales, programming and technical
records of the Network including, but not limited to, employment records, and
program and technical logs maintained in the ordinary course of such
operations; and
(g) All goodwill and other general intangibles including, but
not limited to, the right to use those names specified in Section 2.7.
2.2 Excluded Assets. The Assets shall exclude the following assets:
(a) Seller's cash on hand as of the Closing and all other
cash in any of Seller's bank or savings accounts and the Accounts Receivable;
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(b) All books and records that Seller is required by law to
retain and that pertain to Seller's organization, provided that Buyer shall
have reasonable access to and the right to copy such records which pertain to
the Network; and
(c) Any pension, profit-sharing, or employee benefit plans,
and any collective bargaining agreements, provided that Buyer shall have
reasonable access to and the right to copy such records which pertain to the
Network.
(d) All property listed on Schedule 2.2, attached hereto.
2.3 Purchase Price. The Purchase Price for the Assets shall be One
Hundred Fifty Thousand Dollars ($150,000), adjusted as provided below:
Prorations. The Purchase Price shall be increased or decreased as
required to effectuate the proration of expenses. All expenses arising from
the operation of the Network, including business and license fees, utility
charges, real and personal property taxes and assessments levied against the
Assets, and similar prepaid and deferred items, shall be prorated between Buyer
and Seller in accordance with the principle that Seller shall be responsible
for all expenses, costs, and liabilities allocable to the period prior to the
Closing Date as determined on an accrual basis method of accounting, and Buyer
shall be responsible for all expenses, costs, and obligations allocable to the
period on and after the Closing Date as determined on an accrual basis method
of accounting.
2.4 Payment of Purchase Price. The Purchase Price, as adjusted,
shall be paid by Buyer to Seller at Closing by certified check or wire transfer
of same-day funds.
2.5 Assumption of Liabilities and Obligations. As of the Closing
Date, Buyer shall assume and undertake to pay, discharge, and perform all
obligations and liabilities of Seller under the Assumed Contracts insofar as
they relate to the time on and after the Closing Date, and arise out of events
related to Buyer's ownership of the Assets or its operation of the Network on
or after the Closing Date. Except for the Assumed Contracts listed on Schedule
3.6, Buyer shall assume no liability, obligation or expense of Seller
including, but not limited to, any action arising out of tort, contract, equity
or otherwise whether expressed or implied, written or oral. Further, Buyer
shall not assume liability or any obligation for contracts for the future
employment of current employees or accrued employee benefits, including, but
not limited to, severance pay, vacation time, sick leave or pension and profit
sharing.
2.6 Non-Compete Agreement. The parties hereto recognize that Seller
has operated the Network for a number of years, and that Seller is familiar
with the radio network broadcasting business in the South Carolina area.
Therefore, as an integral part of this Agreement, Seller agrees to execute a
Non-Competition Agreement at Closing in the form of Schedule 2.6. The
consideration for this Non-Competition Agreement shall be Five Thousand and
no/100 ($5,000.00) Dollars, such amount to be included in the Purchase Price
paid on the Closing Date.
2.7 Trade Names. Seller agrees that Buyer shall have, after the
Closing Date, the exclusive use of the names South Carolina Network, South
Carolina News Network, and South Carolina Radio Network, and Seller will not at
any time after the Closing Date use such names or any similar name. Seller
further agrees at Closing to assign any and all rights it may have to said
names and take any and all steps necessary to transfer the rights to said names
with any public office or agency where
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same is registered. Buyer acknowledges that Seller has not requested formal
registration of these names with any governmental agency.
2.8 Assignment of Contracts. As of the Closing Date, Seller shall
assign to Buyer any and all rights, titles and interest it may have to the
Contracts described in Section 2.1(d) above and the Assumed Contracts.
2.9 Agreement to Uplink. Seller currently uplinks the broadcasts of
the Network through its business operations in the State of Tennessee. In
consideration of the monthly sum of Six Thousand Dollars ($6,000) to be paid by
Buyer to Seller on or before the tenth (10th) day of each month until canceled,
Seller agrees to continue uplinking the broadcasts of the Network under its
current procedure for a period not to exceed six (6) months from and after
Closing Date. Buyer may cancel the provisions of the Section 2.9 at any time
by giving written notice to Seller of such cancellation.
2.10 Agreement with CBSI. Seller currently has an agreement with CBSI
which has expired and is currently being utilized by Seller on a month-to-month
basis. In consideration for $150.00 per month to be paid by Buyer to Seller on
or before the tenth (10th) day of each month until canceled, Seller agrees to
allow Buyer to utilize the benefits of such contract for a period not to exceed
six (6) months from and after Closing Date. Buyer may cancel the provisions of
this Section 2.10 at any time by giving thirty (30) days prior written notice
to Seller of such cancellation.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 Organization, Standing, and Authority. Seller is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Florida. Seller has all requisite power and authority (I) to own,
lease, and use the Assets as now owned, leased, and used, (ii) to conduct the
business and operations of the Network as now conducted, and (iii) to execute
and deliver this Agreement, and the documents contemplated hereby and to
perform and comply with all of the terms, covenants, and conditions to be
performed and complied with by Seller hereunder.
3.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement by Seller has been duly authorized by all
necessary actions on the part of Seller. This Agreement has been duly executed
and delivered by Seller and constitute the legal, valid, and binding
obligations of Seller, enforceable against it in accordance with their
respective terms except as the enforceability of this Agreement may be affected
by bankruptcy, insolvency, or similar laws affecting creditors' rights
generally, and by judicial discretion in the enforcement of equitable remedies.
3.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents listed on Schedule 3.3, the execution, delivery, and performance of
this Agreement and the documents contemplated hereby do not require the consent
of any third party.
3.4 Title to and Condition of Real Property. Schedule 3.4 contains a
complete and accurate description of all the Real Property and Seller's
interests therein.
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3.5 Title to and Condition of Tangible Personal Property. Schedule
3.5 lists all material items of Tangible Personal Property. As of Closing
Date, all Assets transferred or to be transferred to Buyer under this Agreement
are owned by Seller, free and clear of all liens, encumbrances or restrictions
of any kind whatsoever, and do not require the consent of any third party to
make such transfer. The Assets listed on Schedule 3.5, together will all
improvements, replacements and additions thereto from the date hereof to the
Closing Date, will, at Closing, constitute all the tangible personal property
owned by Seller which is used in the operation of the Network. Further, all
equipment or items, including, but not limited to, those listed on Schedule 3.5
conveyed to Buyer are in good working condition.
3.6 Assumed Contracts. Schedule 3.6 is a true and complete list of
all Assumed Contracts except contracts with advertisers for the sale of
advertising time on the Network for cash at prevailing rates and which have not
been prepaid and which may be canceled by the Network without penalty on not
more than thirty days' notice. Seller has delivered to Buyer true and complete
copies of all written Assumed Contracts.
3.7 Financial Statements. Schedule 3.7 hereto contains true and
complete copies of financial statements including balance sheets, statements of
operations and a statement of operating cash flow for the period ending
December 31, 1995 (collectively, the "Financial Statements"). Such Financial
Statements were prepared in accordance with generally accepted accounting
principles.
3.8 Broker. Neither Seller nor any person acting on Seller's behalf
has incurred any liability for any finders' or brokers' fees or commissions in
connection with the transactions contemplated by this Agreement, except for a
commission payable by Buyer to The Xxxxxxxx Company.
3.9 Full Disclosure. No representation or warranty made by Seller in
this Agreement or in any certificate, document, or other instrument furnished
or to be furnished by Seller pursuant hereto contains or will contain any
untrue statement of a material fact, or omits or will omit to state any
material fact and required to make any statement made herein or therein not
misleading.
3.10 No Breach of Contracts Assigned. As of closing Date, Seller has
not breached in any material respect, nor is it in default under the terms of
any Assumed Contract.
3.11 No Legal Actions. As of Closing Date, there are no actions,
suits or proceedings pending or, to the knowledge of Seller, threatened against
it at law or in equity or before any Federal, State, municipal or other
governmental agency or instrumentality.
3.12 No Conflicts. As of Closing Date, neither the execution and
delivery of this Agreement, nor the consummation of the transactions herein
contemplated will conflict with or result in the breach of or accelerate the
performance required by the terms of any agreement to which Seller is a party
or constitute a default thereunder, or result in the creation of any mortgage,
lien, charge or encumbrance upon any of the properties or assets of Seller.
3.13 No Breach of Agreement. As of Closing Date, Seller is in
compliance with all terms of this Agreement.
3.14 Insolvency Proceedings. No insolvency proceedings of any
character, including, without limitation, bankruptcy, receivership,
reorganization, composition or arrangement of creditors, voluntary or
involuntary, affecting the Seller or any of its assets or properties are
pending or, to the
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knowledge of Seller, threatened, and the Seller has made no assignment for the
benefit of creditors, or taken any action with a view to, or which would
constitute the basis for, the institution of any such insolvency proceedings.
3.15 Compliance with Labor Laws. To the best of its knowledge, Seller
has, in the conduct of the affairs of the Network, complied in all material
respects with all applicable laws, rules and regulations relating to the
employment of labor, including those related to wages, hours, equal employment
opportunity, collective bargaining, pension, welfare benefit plans, and the
payment of social security and similar taxes.
3.16 No Breach. To the best of Seller's knowledge, eh execution and
performance of this Agreement will not violate any order, rule, judgement, or
decree to which Seller is subject or breach any contract, agreement, or other
commitment to which Seller is a party or by which Seller is bound.
3.17 Taxes. Seller, by Closing Date, will have paid and discharged
all taxes, assessments, excises and other levies relative to the Assets, which
if due and not paid, would materially interfere with Buyer's full enjoyment of
the Assets conveyed hereunder, excepting such taxes, assessments and other
levies which will not be due until after the Closing Date and which are to be
prorated between Seller and Buyer at Closing.
3.18 No Violations of Laws. As of Closing Date, the Network is not in
violation of any zoning ordinance, regulation, law or restrictive covenant
which violation has a material adverse affect on the operations of the Network.
3.19 Employee Contracts. No employee of the Network has, or on the
Closing Date will have a contract of employment not terminable at will.
3.20 Buyer Reliance. The foregoing representations and warranties are
made by Seller with the knowledge and expectation that Buyer is placing
complete reliance thereon in entering into this Agreement.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization, Standing, and Authority. Buyer is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Mississippi. Buyer has all requisite power and authority to execute
and deliver this Agreement and the documents contemplated hereby and to perform
and comply with all of the terms, covenants, and conditions to be performed and
complied with by Buyer hereunder.
4.2 Authorization and Binding Obligation. The execution, delivery,
and performance of this Agreement by Buyer have been duly authorized by all
necessary actions on the part of Buyer. This Agreement have been duly executed
and delivered by Buyer and constitute the legal, valid, and binding obligations
of Buyer, enforceable against Buyer in accordance with their respective terms
except as the enforceability of this Agreement may be affected by bankruptcy,
insolvency, or similar laws affecting creditors' rights generally and by
judicial discretion in the enforcement of equitable remedies.
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4.3 Absence of Conflicting Agreements. Subject to obtaining the
Consents, the execution, delivery, and performance by Buyer of this Agreement
and the documents contemplated hereby do not require the consent of any third
party.
4.4 Full Disclosure. No representation or warranty made by Buyer in
this Agreement or in any certificate, document, or other instrument furnished
or to be furnished by Buyer pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any material fact
and required to make any statement made herein or therein not misleading.
SECTION 5 OPERATIONS OF THE NETWORK PRIOR TO CLOSING
5.1 Generally. Seller agrees that, between the date of this
Agreement and the Closing Date, Seller shall operate the Network in the
ordinary course of business in accordance with its past practices and in
accordance with the other covenants in this Section 5.
5.2 Compensation. Seller shall not increase the compensation,
bonuses, or other benefits payable or to be payable to any person employed in
connection with the conduct of the business or operations of the Network,
except in accordance with past practices.
5.3 Contracts. Seller will not enter into any contract or commitment
relating to the Network or the Assets, or amend or terminate any Contract that
will be binding on Buyer after Closing, except for cash time sales agreements
made in the ordinary course of business.
5.4 Disposition of Assets. Seller shall not sell, assign, lease, or
otherwise transfer or dispose of any of the Assets, except where no longer used
or useful in the business or operations of the Network or in connection with
the acquisition of replacement property of equivalent kind and value.
5.5 No Inconsistent Action. Seller shall not take any action that is
inconsistent with its obligations under this Agreement or that could hinder or
delay the consummation of the transactions contemplated by this Agreement.
5.6 Access to Information. Seller shall give Buyer and its counsel,
accountants, engineers, and other authorized representatives reasonable access
to the Assets and to all other properties, equipment, books, records,
Contracts, and documents relating to the Network for the purpose of audit and
inspection, including inspections.
5.7 Maintenance of Assets. Seller shall use its best efforts and
take all reasonable actions to maintain all of the Assets in good condition
(ordinary wear and tear excepted), and use, operate, and maintain all of the
Assets in a reasonable manner.
5.8 Books and Records. Seller shall maintain its books and records
relating to the Network in accordance with past practices.
5.9 Compliance with Laws. Seller shall comply in all material
respects with all laws, rules, and regulations applicable or relating to the
ownership and operation of the Network.
SECTION 6 CONDITIONS TO OBLIGATIONS OF BUYER AND SELLER AT CLOSING
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6.1 Conditions to Obligations of Buyer. All obligations of Buyer at
the Closing are subject at Buyer's option to the fulfillment prior to or at the
Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Seller contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Seller shall have performed
and complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date.
(c) Consents. All Consents shall have been obtained and
delivered to Buyer without any adverse change in the terms or conditions of any
agreement or any governmental license, permit, or other authorization.
(d) Deliveries. Seller shall have made or stand willing to
make all the deliveries to Buyer set forth in Section 7.2.
(e) Adverse Change. Between the date of this Agreement and
the Closing Date, there shall have been no material damage, destruction, or
loss affecting any Assets used or useful in the conduct of the business of the
Network.
6.2 Conditions to Obligations of Seller. All obligations of Seller
at the Closing are subject at Seller's option to the fulfillment prior to or at
the Closing Date of each of the following conditions:
(a) Representations and Warranties. All representations and
warranties of Buyer contained in this Agreement shall be true and complete in
all material respects at and as of the Closing Date as though made at and as of
that time.
(b) Covenants and Conditions. Buyer shall have performed and
complied in all material respects with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or on the Closing Date.
(c) Deliveries. Buyer shall have made or stand willing to
make all the deliveries set forth in Section 7.3.
6.3 Accounts Receivable. At the Closing, Seller shall designate Buyer
as its agent solely for the purposes of collecting the Accounts Receivable.
Buyer shall not be obligated to use any extraordinary efforts to collect any of
the Accounts Receivable. Between the Closing Date and ninety (90) days
thereafter, Buyer shall make reasonable efforts to collect the Accounts
Receivable and shall every thirty days furnish to Seller the funds collected
during the prior thirty day period.
SECTION 7 CLOSING AND CLOSING DELIVERIES
7.1 Closing.
(a) Closing Date. The Closing shall take place at 10:00 a.m.
on January 31, 1996.
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(b) Closing Place. The Closing shall be held at the offices
of Seller, or any other place that is agreed upon by Buyer and Seller.
7.2 Deliveries by Seller. Prior to or on the Closing Date, Seller
shall deliver to Buyer the following, in form and substance reasonably
satisfactory to Buyer and its counsel:
(a) Transfer Documents. Duly executed bills of sale,
assignments, and other transfer documents which shall be sufficient to vest
good and marketable title to the Assets in the name of Buyer, free and clear of
all mortgages, liens, restrictions, encumbrances, claims, and obligations
except for liens for current taxes not yet due and payable;
(b) Consents. A manually executed copy of any instrument
evidencing receipt of any Consent;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Seller by a duly authorized officer,
certifying (1) that the representations and warranties of Seller contained in
this Agreement are true and complete in all material respects as of the Closing
Date as though made on and as of that date; and (2) that Seller has in all
material respects performed and complied with all of its obligations,
covenants, and agreements set forth in this Agreement to be performed and
complied with on or prior to the Closing Date;
(d) Licenses, Contracts, Business Records, Etc. Originals of
all Assumed Contracts and all files and records used by Seller in connection
with its operations;
(e) Corporate Resolutions. All necessary certified corporate
resolutions of Seller authorizing the execution of this Agreement and the
completion of this transaction.
(f) Documents to Assign Names. All documents necessary to
assign all names as set forth in Section 2.7, and to effect the transfer of
rights to such names with any public office or agency where the same are
registered.
(g) Other Documents. All other documents reasonably necessary
to comply with the terms and agreements contained herein.
7.3 Deliveries by Buyer. Prior to or on the Closing Date, Buyer
shall deliver to Seller the following, in form and substance reasonably
satisfactory to Seller and its counsel:
(a) Purchase Price. The Purchase Price as provided in
Section 2.4(a);
(b) Assumption Agreements. Appropriate assumption
agreements pursuant to which Buyer shall assume and undertake to perform
Seller's obligations under the Licenses and Assumed Contracts arising on or
after the Closing Date;
(c) Officer's Certificate. A certificate, dated as of the
Closing Date, executed on behalf of Buyer by its President, certifying (1) that
the representations and warranties of Buyer contained in this Agreement are
true and complete in all material respects as of the Closing Date as though
made on and as of that date, and (2) that Buyer has in all material respects
performed and complied with all of its obligations, covenants, and agreements
set forth in this Agreement to be performed and complied with on or prior to
the Closing Date;
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(d) Other Documents. All other documents reasonably necessary
to comply with the terms and agreements contained herein.
SECTION 8 TERMINATION
8.1 Termination by Seller. This Agreement may be terminated by
Seller and the purchase and sale of the Network abandoned, if Seller is not
then in material default, upon written notice to Buyer, upon the occurrence of
any of the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Seller set
forth in this Agreement have not been satisfied or waived in writing by Seller.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by
January 31, 1996.
8.2 Termination by Buyer. This Agreement may be terminated by Buyer
and the purchase and sale of the Network abandoned, if Buyer is not then in
material default, upon written notice to Seller, upon the occurrence of any of
the following:
(a) Conditions. If on the date that would otherwise be the
Closing Date any of the conditions precedent to the obligations of Buyer set
forth in this Agreement have not been satisfied or waived in writing by Buyer.
(b) Judgments. If there shall be in effect on the date that
would otherwise be the Closing Date any judgment, decree, or order that would
prevent or make unlawful the Closing.
(c) Upset Date. If the Closing shall not have occurred by
January 31, 1996.
SECTION 9 MISCELLANEOUS
9.1 Fees and Expenses. Any federal, state, or local sales or
transfer tax arising in connection with the conveyance of the Assets by Seller
to Buyer pursuant to this Agreement shall be paid by the party upon which such
tax is imposed by law. Except as otherwise provided in this Agreement, each
party shall pay its own expenses incurred in connection with the authorization,
preparation, execution, and performance of this Agreement. Buyer shall be
responsible for all fees or commissions payable to the Xxxxxxxx Company.
9.2 Notices. All notices, demands, and requests required or
permitted to be given under the provisions of this Agreement shall be (a) in
writing, (b) delivered by personal delivery, or sent by commercial delivery
service or registered or certified mail, return receipt requested, (c) deemed
to have been given on the date of personal delivery or the date set forth in
the records of the delivery service or on the return receipt, and (d) addressed
as follows:
If to Buyer: TeleSouth Communications, Inc.
0000 Xxxxxxxxxx #00, Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
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Attn: Xxxxxxx X. Xxxxxxxxx, President
If to Seller: Xxxxxx Networks, Inc.
000 Xxxxxxxxxx Xxxx Xxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or to any other or additional persons and addresses as the parties may from
time to time designate in a writing delivered in accordance with this Section
9.2.
9.3 Benefit and Binding Effect. Neither party hereto may assign this
Agreement without the prior written consent of the other party hereto;
provided, however, that Buyer may assign its rights and obligations under this
Agreement to one or more subsidiaries or commonly controlled affiliates of
Buyer without seeking or obtaining Seller's prior approval.
9.4 Further Assurances. The parties shall take any actions and
execute any other documents that may be necessary or desirable to the
implementation and consummation of this Agreement, including, in the case of
Seller, any additional bills of sale, deeds, or other transfer documents that,
in the reasonable opinion of Buyer, may be necessary to ensure, complete, and
evidence the full and effective transfer of the Assets to Buyer pursuant to
this Agreement.
9.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED, AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA (WITHOUT REGARD TO
THE CHOICE OF LAW PROVISIONS THEREOF).
9.6 Headings. The headings in this Agreement are included for ease
of reference only and shall not control or affect the meaning or construction
of the provisions of this Agreement.
9.7 Gender and Number. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender, masculine, feminine, or neuter, and any other number,
singular or plural, as the context requires.
9.8 Entire Agreement. This Agreement, the schedules, hereto, and all
documents, certificates, and other documents to be delivered by the parties
pursuant hereto, collectively represent the entire understanding and agreement
between Buyer and Seller with respect to the subject matter hereof. This
Agreement supersedes all prior negotiations between the parties and cannot be
amended, supplemented, or changed except by an agreement in writing that makes
specific reference to this Agreement and which is signed by the party against
which enforcement of any such amendment, supplement, or modification is sought.
9.9 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any
obligation, representation, warranty, covenant, agreement, or condition herein
may be waived by the party entitled to the benefits thereof only by a written
instrument signed by the party granting such waiver, but such waiver or failure
to insist upon strict compliance with such obligation, representation,
warranty, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.
9.10 Press Release. Neither party shall publish any press release,
make any other public announcement or otherwise communicate with any news media
concerning this Agreement or the
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transactions contemplated hereby without the prior written consent of the other
party; provided, however, that nothing contained herein shall prevent either
party from promptly making all filings with governmental authorities as may, in
its judgement be required or advisable in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby.
9.11 Counterparts. This Agreement may be signed in counterparts with
the same effect as if the signature on each counterpart were upon the same
instrument.
9.12 Survival of Representations and Warranties. The several
representations and warranties of the parties contained herein shall survive
the Closing for such maximum period as permitted by law.
9.13 Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality, and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
9.14 Risk of Loss. Prior to Closing Date, all risk of loss shall be on
Seller.
9.15 Default. In the event of any default in any of the terms and
provisions of this Agreement by any party, the non-defaulting party shall be
entitled to specific performance and any and all other remedies provided by law
or in equity and the prevailing party shall be reimbursed its reasonable
attorney's fees and all court costs by the other party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Asset
Purchase Agreement as of the day and year first above written.
XXXXXX NETWORKS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Its:
-------------------------------------
TeleSouth Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------------
Its: President
-------------------------------------
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Individually
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SCHEDULE 2.2
Excluded Tangible Personal Property
ABR-200, series #15743, the splitter and block down converter
Telos Zephyr #9200005300GC120
Xxxxxx wide-area computer network:
Xxxxxxxxx xxxxxx, #XXX00000
Adtran DSU III AR #H423B2063
US Robotics modern #0002680214006341
Computer and office furniture in Xxx Xxxxxxxx office
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SCHEDULE 3.3
Required Consents
Host Communications, Inc.
NASRN
Xxxxx Landmark IV Partners
Computer Information Network, Inc.
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SCHEDULE 3.4
Real Property
Leased office space located at
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
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