EXHIBIT 2.2
EXECUTION COPY
ASSET ACQUISITION AGREEMENT
---------------------------
ASSET ACQUISITION AGREEMENT (this "Agreement") dated as of June 24,
---------
1997, among TELCO COMMUNICATIONS GROUP, INC., a Virginia corporation ("Parent"),
------
TELCO NETWORK SERVICES, INC., a Nevada corporation and an indirect wholly owned
subsidiary of Parent ("Network"), TELCO SWITCH ACQUISITION, INC., a Nevada
-------
corporation and an indirect wholly owned subsidiary of Parent ("Switch"; Network
------
and Switch are collectively referred to as the "Sellers" and individually as a
-------
"Seller"), and INTERMEDIA COMMUNICATIONS INC., a Delaware corporation
-------
("Purchaser").
-----------
RECITALS:
--------
The Sellers desire to sell to Purchaser and Purchaser desires to
acquire from the Sellers, all right, title and interest of the Sellers in and to
certain assets and properties owned by the Sellers, all upon the terms and
subject to conditions contained herein.
Parent is entering into this Agreement to induce Purchaser to acquire
such assets and properties and to enter into this Agreement. In addition, on
the date hereof, Parent, Telco Holdings, Inc. ("Holdings") and Purchaser are
--------
entering into a Right to Use Agreement (the "Right to Use Agreement").
----------------------
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the parties hereto hereby agree as follows:
1. ACQUISITION
-----------
1.1. ACQUIRED ASSETS.
---------------
(a) In consideration of the payment by Purchaser of the relevant
portion of the Acquisition Price (as defined in Section 3.1 below), (i) Network
hereby sells, assigns, transfers, conveys and delivers to Purchaser, and
Purchaser hereby purchases, acquires and takes assignment and delivery of, all
the right, title and interest in and to the assets and properties of Network
listed on Schedule 1.1(a)(i), (ii) Switch hereby sells, assigns, transfers,
conveys and delivers to Purchaser, and Purchaser hereby purchases, acquires and
takes assignment and delivery of, all the right, title and interest in and to
the assets and properties of Switch listed on Schedule 1.1(a)(ii) and (iii)
Parent, Holdings and Purchaser are entering into the Right to Use Agreement (all
of such assets and properties and the Right
to Use Agreement being referred to herein as the "Acquired Assets").
---------------
(b) Except as set forth on Schedule 1.1(b), all of the Acquired Assets
are being sold, assigned, transferred, conveyed and delivered to Purchaser free
and clear of all encumbrances, security interests, mortgages, pledges,
restrictions, charges, or liens of any kind, including, without limitation, tax
liens ("Liens").
-----
1.2. EXCLUDED ASSETS. Notwithstanding the foregoing, the Sellers
---------------
are not selling, assigning, transferring, conveying or delivering, and Purchaser
is not purchasing pursuant to this Agreement, and the term "Acquired Assets"
does not include, any assets or properties of the Sellers not included in the
Acquired Assets (the "Excluded Assets").
---------------
2. LIMITED ASSUMPTION OF LIABILITIES
---------------------------------
2.1. ASSUMPTION OF LIABILITIES. Except as expressly provided
-------------------------
herein, Purchaser does not assume or agree to pay, perform or discharge, any
debts, liabilities, obligations, claims, expenses, taxes, contracts, accounts
payable, or commitments of any kind, character or description, whether accrued
or fixed, absolute or contingent, matured or unmatured or determined or
undetermined (collectively, "Liabilities") of any of the Sellers. Subject to
-----------
the terms, conditions, representations and warranties contained herein,
Purchaser hereby assumes and agrees to pay, perform and discharge when due all
Liabilities incurred and arising after the date hereof with respect to leases,
contracts and agreements set forth on Schedule 2.1 (the "Assumed Liabilities")
-------------------
and no other Liabilities of the Sellers.
2.2. EXCLUDED LIABILITIES. Except for the Assumed Liabilities, and
--------------------
regardless of whether any of the following may be disclosed to Purchaser
pursuant to Section 4 hereof or otherwise, or whether Purchaser has knowledge of
same, Purchaser does not assume, and shall have no liability for any Liabilities
arising out of any act or omission occurring, or any state of facts existing,
prior to the date hereof (the "Excluded Liabilities") including, without
--------------------
limitation, any Liability of any Seller relating to or arising from: (i) the
breach of any Seller's obligations under the leases, contracts and agreements
assigned to Purchaser; (ii) any infringement by any Seller on the rights of
others in connection with the business and operations of such Seller; (iii)
taxes, including, without limitation, any income, capital gains, sales, use or
transfer tax arising from the operations of any Seller through the date hereof,
including any thereof that may be due in connection with the transactions
contemplated hereby; (iv) any damages, fines, interest or
2
penalties assessed by any federal, state, county, city or municipal government
or governmental agency or authority; or (v) any current or long-term debts,
payables or amounts owing to any Seller's officers, directors, shareholders or
any of their affiliates or any other third party. Each Seller retains, and
shall pay, perform and discharge when due all Excluded Liabilities.
3. ACQUISITION PRICE
-----------------
3.1. ACQUISITION PRICE; ALLOCATION OF ACQUISITION PRICE. (a) The
--------------------------------------------------
acquisition price for the Acquired Assets shall be $38,030,962 (the "Acquisition
-----------
Price"). The Acquisition Price is hereby being paid by delivery of cash by wire
-----
transfer of immediately available funds.
(b) The sum of the Acquisition Price and the Assumed Liabilities
shall be allocated among the Acquired Assets as of the date hereof in accordance
with Exhibit A. For all tax purposes, Purchaser, Parent and the Sellers agree
to report the transactions contemplated in this Agreement in a manner consistent
with the terms of this Agreement, including the allocation under Exhibit A, and
that none of them will take any position inconsistent therewith in any tax
return, in any refund claim, in any litigation, or otherwise.
4. REPRESENTATIONS AND WARRANTIES OF PARENT AND THE SELLERS.
--------------------------------------------------------
As an inducement to Purchaser to enter into this Agreement and to
consummate the transactions contemplated hereby, Parent and the Sellers, jointly
and severally, represent and warrant to Purchaser as follows:
4.1. ORGANIZATION AND AUTHORITY OF PARENT AND THE SELLERS. Parent and
----------------------------------------------------
each of the Sellers is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all necessary power and authority to enter into this Agreement, to carry out its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Parent and each of the Sellers,
the performance by Parent and each of the Sellers of its obligations hereunder
and the consummation by Parent and each of the Sellers of the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of Parent and each of the Sellers. This Agreement has been duly executed
and delivered by Parent and each of the Sellers and constitutes a legal, valid
and binding obligation of Parent and each of the Sellers enforceable against
Parent and each of the Sellers in accordance with its terms.
3
4.2. NO CONFLICT. Assuming all consents, approvals, authorizations
-----------
and other actions described in Section 4.3 have been obtained and all filings
and notifications listed in Schedule 4.3 have been made, and except as may
result from any facts or circumstances relating solely to Purchaser, the
execution, delivery and performance of this Agreement by Parent and the Sellers
do not and will not (a) violate or conflict with the certificate of
incorporation or By-Laws of Parent or the Sellers, (b) conflict with or violate
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to Parent or any of the Sellers, or (c) except
as set forth on Schedule 4.2, result in any breach of, or constitute a default
(or event which with the giving of notice or lapse of time, or both, would
become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Lien on any of
the Acquired Assets pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or arrangement
to which Parent or any of the Sellers is a party or by which any of the Acquired
Assets is bound or affected.
4.3. CONSENTS AND APPROVALS. The execution, delivery and performance
----------------------
of this Agreement by Parent and Sellers do not and will not require any consent,
approval, authorization or other action by, or filing with or notification to,
any governmental or regulatory authority, except (a) as described in Schedule
4.3 and (b) as may be necessary as a result of any facts or circumstances
relating solely to Purchaser.
4.4. SOLVENCY. None of Parent or any Seller is currently insolvent,
--------
as such term is defined in Title 11 of the United States Bankruptcy Code or any
state statute relating to insolvency, and none of the execution and delivery of
this Agreement by Parent and the Sellers, the performance of their obligations
hereunder or the consummation by Parent and the Sellers of the transactions
contemplated hereby will render Parent or any Seller insolvent or result in
Parent or any Seller being unable to pay its debts as they become due.
4.5. COMPLIANCE WITH LAWS. Except as set forth in Schedule 4.5,
--------------------
none of Parent or any Seller requires any license, permit or authorization
issued by the Federal Communications Commission or any other governmental or
regulatory authority with respect to the operation of the Acquired Assets. The
Acquired Assets have been maintained in full compliance with all statutes, laws,
treaties, rules, codes, ordinances, regulations, licenses, permits, certificates
or orders of any governmental or regulatory authority and all judgments,
decrees, injunctions, writs, orders or like actions of any court or other
judicial or quasijudicial tribunal applicable to the Acquired Assets, except
where a
4
failure to do so would not materially adversely effect the Acquired Assets or
the ability of Purchaser to immediately use the Acquired Assets in the manner in
which they are currently being used (a "Material Adverse Effect"); provided,
----------------------- --------
however, that none of Parent or the Sellers is making any representation or
-------
warranties regarding Purchaser's ability to function as a common carrier.
4.6. COMPLIANCE WITH ENVIRONMENTAL LAWS. To the best knowledge of
----------------------------------
Parent and each Seller, except as would not have a Material Adverse Effect, (i)
none of Parent or any Seller is in violation of any Environmental Laws, and no
Lien has been attached to any of the Acquired Assets pursuant to any
Environmental Laws nor are there any circumstances that could reasonably give
rise to such a Lien, (ii) Parent's and each Seller's utilization of haulers and
transporters to dispose of any Hazardous Substance has been in compliance with
Environmental Laws, (iii) there has been no disposal or release of any Hazardous
Substance by any person on any property which at any time was owned, operated or
leased by Parent or any Seller except in compliance with Environmental Laws, and
(iv) there are no sites, locations or operations of Parent or any Seller or used
in connection with any of their businesses at which Parent or any Seller is
currently undertaking, or has completed, any remedial or response action
relating to any such disposal or release as required by Environmental Laws.
Except as would not have a Material Adverse Effect, Parent and each Seller has
obtained, and is in compliance with, all permits, licenses, authorizations
registrations and other consents required by Environmental Laws and no
suspension of them is, to the best knowledge of Parent and the Sellers,
threatened. Except as would not have a Material Adverse Effect, there are no
civil, criminal or administrative claims, actions, suits, hearings,
investigations or proceedings pending, or to the best knowledge of Parent and
the Sellers, threatened that are based on any Environmental Laws applicable to
the Acquired Assets. For purposes of this Agreement, "Environmental Laws" means
------------------
any federal, state, provincial, regional, territorial, municipal, local or
foreign statute, code, ordinance, rule or regulation (including the requirement
to register underground storage tanks), any permit, consent, approval or license
issued by an environmental regulatory agency, and any judgment, order, writ,
decree, injunction or other authorization, in each case relating to (i)
emissions, discharges, releases or threatened releases of Hazardous Substances
into the natural environment, including into ambient air, soil, sediments, land
surface or subsurface, buildings or facilities, surface water, groundwater,
publicly owned treatment works, septic systems or land, (ii) the generation,
treatment, storage, disposal, handling, manufacturing, transportation or
shipment of Hazardous Substances, or (iii) otherwise relating to the pollution
or protection of health or safety or the
5
environment or to solid waste handling, treatment or disposal. For purposes of
this Agreement, "Hazardous Substances" means (i) petroleum and petroleum
--------------------
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain polychlorinated biphenyls, and radon gas, (ii) any other chemicals,
materials or substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar import, under any applicable
Environmental Law, and (iii) any other chemical, material or substance exposure
to which is regulated by any governmental or regulatory authority.
4.7. LITIGATION, ETC. Except as set forth on Schedule 4.7, there are
----------------
no judicial or administrative actions, suits, proceedings or investigations
pending or threatened, relating to or affecting the Acquired Assets, or which
question the validity of this Agreement or challenge any of the transactions
contemplated hereby or the use of the Acquired Assets after the date hereof by
Purchaser. To the best knowledge of Parent and each Seller, there are no facts
or circumstances that may give rise to any of the foregoing. None of the
matters disclosed in Schedule 4.7 has had or could have a Material Adverse
Effect.
4.8. OWNERSHIP AND TRANSFER OF ACQUIRED ASSETS. (a) Each Seller has
-----------------------------------------
good and marketable title to, or in the case of leased or subleased Acquired
Assets, valid and subsisting leasehold interests in, or, in the case of licensed
or sublicensed Acquired Assets, valid and subsisting licenses or sublicenses in,
all of the Acquired Assets being sold to Purchaser by such Seller, free and
clear of all Liens (other than permitted Liens set forth on Schedule 1.1(b)).
Except as contemplated by Section 7.2, each Seller has the unrestricted right to
sell, transfer, assign, convey and deliver to Purchaser all right, title and
interest in and to the Acquired Assets being sold to Purchaser by such Seller
without penalty or other adverse consequences.
(b) The Acquired Assets are in good operating condition and fit for
operation in the usual course of business, ordinary wear and tear excepted.
(c) Following the consummation of the transactions contemplated by
this Agreement, Purchaser will own, pursuant to good and marketable title, or
lease, under valid and subsisting leases, the Acquired Assets.
4.9. MATERIAL CONTRACTS. (a) True and complete copies of all
------------------
contracts, agreements, leases, subleases, licenses,
6
sublicenses, commitments and arrangements (including, without limitation, oral
and informal arrangements) included in the Acquired Assets (the "Material
--------
Contracts") have been made available to Purchaser by the Sellers.
---------
(b) Except as disclosed in Schedule 4.9, each Material Contract: (i)
is valid and binding on the respective parties thereto and is in full force and
effect and (ii) upon consummation of the transactions contemplated by this
Agreement, except to the extent that any consents set forth in Schedules 4.2 or
4.3 are not obtained, shall continue in full force and effect without penalty or
other adverse consequence. No Seller is in breach of, or default under, any
Material Contract. Except as set forth in Schedule 4.9, none of Parent or the
Sellers has received any notice alleging a breach of, or a default under, any
Material Contract.
(c) Except as disclosed in Schedule 4.9, to the best knowledge of
Parent and the Sellers, no other party to any Material Contract is in breach
thereof or default thereunder and none of Parent or the Sellers has provided to
any other party any notice alleging a breach of, or a default under, any
Material Contract.
(d) Except as disclosed in Schedule 4.9, there is no contract,
agreement or other arrangement granting any person any preferential right to
purchase any of the Acquired Assets.
4.10. BROKERS, FINDERS, ETC. All negotiations relating to this
---------------------
Agreement and the transactions contemplated hereby have been carried on without
the participation of any person or entity acting on behalf of Parent or the
Sellers in such manner as to give rise to any valid claim for any brokerage or
finder's fee, commission or similar compensation.
4.11. FULL DISCLOSURE. None of Parent or the Sellers is aware of any
---------------
facts pertaining to the Acquired Assets which affect adversely the Acquired
Assets and which have not been disclosed in this Agreement or the Schedules
hereto or otherwise disclosed to Purchaser by Parent or any Seller in writing.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
-------------------------------------------
As an inducement to Parent and the Sellers to enter into this
Agreement and to consummate the transactions contemplated hereby, Purchaser
represents and warrants to Parent and the Sellers as follows:
5.1. INCORPORATION AND AUTHORITY OF PURCHASER. Purchaser is a
----------------------------------------
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and
7
has all necessary power and authority to enter into this Agreement, to carry out
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Purchaser, the
performance by Purchaser of its obligations hereunder and the consummation by
Purchaser of the transactions contemplated hereby have been duly authorized by
all requisite action on the part of Purchaser. This Agreement has been duly
executed and delivered by Purchaser, and constitutes a legal, valid and binding
obligation of Purchaser enforceable against Purchaser in accordance with its
terms.
5.2. NO CONFLICT. Assuming all consents, approvals, authorizations
-----------
and other actions described in Section 5.3 have been obtained and all filings
and notifications listed in Schedule 5.3 have been made, and except as may
result from any facts or circumstances relating solely to Parent and the
Sellers, the execution, delivery and performance of this Agreement by Purchaser
do not and will not (a) violate or conflict with the Certificate of
Incorporation or By-Laws of Purchaser, (b) except as would not prevent Purchaser
from performing any of its obligations under this Agreement, conflict with or
violate any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award applicable to Purchaser, or (c) except as would not
prevent Purchaser from performing any of its obligations under this Agreement,
result in any breach of, or constitute a default (or event which with the giving
of notice or lapse of time, or both, would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of any Encumbrance on any of the assets or properties of
Purchaser pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or arrangement to which
Purchaser is a party or by which any of such assets or properties is bound or
affected.
5.3. CONSENTS AND APPROVALS. The execution, delivery and performance
----------------------
of this Agreement by Purchaser do not and will not require any consent,
approval, authorization or other action by, or filing with or notification to,
any governmental or regulatory authority, except (a) where failure to obtain
such consent, approval, authorization or action, or to make such filing or
notification, would not prevent Purchaser from performing any of its obligations
under this Agreement and (b) as may be necessary as a result of any facts or
circumstances relating solely to Parent and the Sellers.
5.4. BROKERS. Except for Bear, Xxxxxxx & Co., Inc. ("Bear,
------- -----
Xxxxxxx"), no broker, finder or investment banker is entitled to any brokerage,
-------
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement
8
based upon arrangements made by or on behalf of Purchaser or any of its
affiliates. Purchaser shall solely be responsible for all of the fees and
expenses of Bear, Xxxxxxx.
6. INDEMNIFICATION
---------------
6.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
------------------------------------------
representations and warranties made by Purchaser, Parent and the Sellers shall
survive the signing and consummation of the transactions contemplated by this
Agreement for a period of 18 months, except for any such representations and
warranties relating to tax matters, which shall survive to the applicable
statute of limitations. All representations and warranties made by or on behalf
of Parent and the Sellers in this Agreement shall be deemed to have been relied
upon by Purchaser (notwithstanding any investigation by Purchaser).
6.2. INDEMNIFICATION. (a) Purchaser and its shareholders,
---------------
affiliates, officers, directors, employees, agents, successors and assigns (each
a "Purchaser Indemnified Party") shall be indemnified and held harmless by
---------------------------
Parent and the Sellers, jointly and severally, from and against any and all
Liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, attorneys' and
consultants' fees and expenses incurred by the Purchaser Indemnified Party in
any action or proceeding between the Sellers and/or Parent and the Purchaser
Indemnified Party or between the Purchaser Indemnified Party and any third party
or otherwise) actually suffered or incurred by them (including, without
limitation, any action or proceeding brought or otherwise initiated by any of
them) (hereinafter a "Loss"), arising out of or resulting from:
----
(i) the breach of any representation, warranty, covenant or agreement
made by Parent or the Sellers contained in this Agreement or any related
document; or
(ii) any claim or cause of action of any third party (including,
without limitation, any federal of state government entity), whether commenced
before or after the date of this Agreement, to the extent arising out of any
action, inaction, event, condition, Liability or obligation of Parent or any
Seller occurring or existing prior to the date hereof (regardless of whether or
not referred to on a Schedule to this Agreement or otherwise disclosed or known
to Purchaser as of the date hereof); or
(iii) any fines or penalties assessed by any federal, state, county,
city or municipal government or any governmental agency or authority to the
extent arising out of any action,
9
inaction, event, condition, Liability or obligation of Parent or any Seller
occurring or existing prior to the date hereof (regardless of whether or not
referred to on a Schedule to this Agreement or otherwise disclosed or known to
Purchaser as of the date hereof); or
(iv) failure to pay, perform or discharge any obligation, Liability,
agreement or commitment not assumed by Purchaser pursuant to this Agreement,
including, without limitation, the Excluded Liabilities.
(b) Parent, the Sellers and their respective shareholders, affiliates,
officers, directors, employees, agents, successors and assigns (each a "Parent
------
Indemnified Party") shall be indemnified and held harmless by Purchaser from and
-----------------
against any and all Losses arising out of or resulting from:
(i) the breach of any representation, warranty, covenant or agreement
made by Purchaser contained in this Agreement or any related document; or
(ii) any claim or cause of action of any third party (including,
without limitation, any federal of state government entity), commenced after the
date of this Agreement, to the extent arising out of any action, inaction,
event, condition, Liability or obligation of Purchaser arising after the date
hereof; or
(iii) any fines or penalties assessed by any federal, state, county,
city or municipal government or any governmental agency or authority to the
extent arising out of any action, inaction, event, condition, Liability or
obligation of Purchaser occurring or existing after the date hereof; or
(iv) failure to pay, perform or discharge any Assumed Liability.
6.3. NOTICE OF CLAIMS. An indemnified party shall promptly (and, in
----------------
any event, within five business days) give the indemnifying party notice of any
matter which an indemnified party has determined has given or could give rise to
a right of indemnification under Section 6.2, stating the amount of the Loss, if
known, and method of computation thereof, and containing a reference to the
provisions of this Agreement in respect of which such right of indemnification
is claimed or arises. The obligations and liabilities of the indemnifying party
under Section 6.2 with respect to Losses arising from claims of any third party
which are subject to the indemnification provided for in Section 6.2 ("Third
-----
Party Claims") shall be governed by and contingent upon the following additional
------------
terms and conditions: if an indemnified party shall have received notice of any
Third
10
Party Claim, the indemnified party shall promptly (and, in any event, within
five business days) give the indemnifying party notice of such Third Party
Claim; provided, however, that the failure to provide such notice shall not
-------- -------
release the indemnifying party from any of its obligations under Section 6.2
except to the extent the indemnifying party is materially prejudiced by such
failure and shall not relieve the indemnifying party from any other obligation
or liability that it may have to any indemnified party otherwise than under
Section 6.2. If the indemnifying party acknowledges in writing its obligation
to indemnify the indemnified party hereunder against any Losses that may result
from such Third Party Claim, then the indemnifying party shall be entitled to
assume and control the defense of such Third Party Claim at its expense and
through counsel of its choice if it gives notice of its intention to do so to
the indemnified party within five days of the receipt of such notice from the
indemnified party; provided, however, that if there exists or is reasonably
-------- -------
likely to exist a conflict of interest that would make it inappropriate in the
reasonable judgment of the indemnified party for the same counsel to represent
both the indemnified party and the indemnifying party, then the indemnified
party shall be entitled to retain its own counsel, in each jurisdiction for
which the indemnified party reasonably determines counsel is required, at the
expense of the indemnifying party. In the event the indemnifying party
exercises the right to undertake any such defense against any such Third Party
Claim as provided above, the indemnified party shall cooperate with the
indemnifying party in such defense and make available to the indemnifying party,
at the indemnifying party's expense, all witnesses, pertinent records, materials
and information in the indemnified party's possession or under the indemnified
party's control relating thereto as is reasonably required by the indemnifying
party. Similarly, in the event the indemnified party is, directly or
indirectly, conducting the defense against any such Third Party Claim, the
indemnifying party shall cooperate with the indemnified party in such defense
and make available to the indemnified party, at the indemnifying party's
expense, all such witnesses, records, materials and information in the
indemnifying party's possession or under the indemnifying party's control
relating thereto as is reasonably required by the indemnified party. Such Third
Party Claim may be settled by the indemnifying party if it contains a full
release of the indemnified party and such Third Party Claim may be settled by
the indemnified party if it contains a full release of the indemnifying party.
7. ADDITIONAL AGREEMENTS
---------------------
7.1. CONFIDENTIALITY. (a) Parent and each of the Sellers agrees to,
---------------
and shall cause its agents, representatives, affiliates, employees, officers and
directors to: (i) treat and hold as confidential (and not disclose or provide
access to any
11
person to) all information relating to trade secrets, processes, product
development, price, customer lists, pricing and marketing plans, policies and
strategies, details of client and consultant contracts, operations methods,
product development techniques, business acquisition plans, and all other
confidential information with respect to the Acquired Assets, (ii) in the event
that Parent or any Seller or any such agent, representative, affiliate,
employee, officer or director becomes legally compelled to disclose any such
information, provide Purchaser with prompt written notice of such requirement so
that Purchaser may seek a protective order or other remedy or waive compliance
with this Section 7.1, (iii) in the event that such protective order or other
remedy is not obtained, or Purchaser waives compliance with this Section 7.1,
furnish only that portion of such confidential information which is legally
required to be provided and exercise its best efforts to obtain assurances that
confidential treatment will be accorded such information, (iv) promptly furnish
to Purchaser any and all copies (in whatever form or medium) of all such
confidential information in the possession of Parent or any Seller or any of its
agents, representatives, affiliates, employees, officers and directors and
destroy any and all additional copies then in the possession of Parent or any
Seller or any of its agents, representatives, affiliates, employees, officers
and directors of such information and of any analyses, compilations, studies or
other documents prepared, in whole or in part, on the basis thereof; provided,
--------
however, that this sentence shall not apply to any information that, at the time
-------
of disclosure, is available publicly and was not disclosed in breach of this
Agreement by Parent, the Sellers, their agents, representatives, affiliates,
employees, officers or directors.
(b) Purchaser agrees to, and shall cause its agents, representatives,
affiliates, employees, officers and directors to: (i) treat and hold as
confidential (and not disclose or provide access to any person to) all
information relating to trade secrets, processes, product development, price,
customer lists, pricing and marketing plans, policies and strategies, details of
client and consultant contracts, operations methods, product development
techniques, business acquisition plans, and all other confidential information
with respect to Parent and the Sellers, (ii) in the event that Purchaser or any
such agent, representative, affiliate, employee, officer or director becomes
legally compelled to disclose any such information, provide Parent with prompt
written notice of such requirement so that Parent may seek a protective order or
other remedy or waive compliance with this Section 7.1, (iii) in the event that
such protective order or other remedy is not obtained, or Parent waives
compliance with this Section 7.1, furnish only that portion of such confidential
information which is legally required to be provided and exercise its best
efforts to obtain
12
assurances that confidential treatment will be accorded such information, (iv)
promptly furnish to Parent any and all copies (in whatever form or medium) of
all such confidential information in the possession of Purchaser or any of its
agents, representatives, affiliates, employees, officers and directors and
destroy any and all additional copies then in the possession of Purchaser or any
of its agents, representatives, affiliates, employees, officers and directors of
such information and of any analyses, compilations, studies or other documents
prepared, in whole or in part, on the basis thereof; provided, however, that
-------- -------
this sentence shall not apply to any information that, at the time of
disclosure, is available publicly and was not disclosed in breach of this
Agreement by Purchaser or its agents, representatives, affiliates, employees,
officers or directors.
7.2. SUBCONTRACTS. To the extent that any Material Contract is not
------------
assignable without the consent of a third party, this Agreement shall not
constitute an assignment, sublease or license or an attempted assignment,
sublease or license thereof if such assignment, sublease or license or attempted
assignment sublease or license would constitute a breach thereof. Parent and
the Sellers agree to use best efforts to obtain the consent of such third party
to the assignment of such Material Contract in all cases in which such consent
is or may be required. If any such consent shall not be obtained, Parent and
the Sellers shall cooperate fully with Purchaser in any reasonable arrangement
designed to provide to Purchaser the benefits intended to be assigned, subleases
or licensed to Purchaser under the relevant Material Contract, including,
without limitation, enforcement at the cost and for the account of Purchaser of
any rights of Parent or the Sellers against the other party thereto arising out
of the breach or cancellation thereof by such other party or otherwise. If and
to the extent such arrangement cannot be made, Purchaser shall not have any
obligation with respect to any such Material Contract and the parties shall
negotiate in good faith to determine an appropriate refund of a portion of the
Acquisition Price to cover the costs and expenses of Purchaser's replacement of
such Material Contract.
7.3. RECORDS. (a) In order to facilitate the resolution of any
-------
claims made against or incurred by Parent or the Sellers prior to the date
hereof, for a period of seven years after the date hereof, Purchaser shall (i)
retain the books and records for the Acquired Assets relating to periods prior
to the date hereof in a manner reasonably consistent with the prior practice of
the Sellers and (ii) upon reasonable notice, afford the officers, employees and
authorized agents and representatives of Parent or the Sellers reasonable access
(including the right to make, at Parent's or the Sellers' expense, photocopies),
during normal business hours, to such books and records.
13
(b) In order to facilitate the resolution of any claims made by or
against or incurred by Purchaser or for any other reasonable purpose, for a
period of seven years after the date hereof, each of Parent and the Sellers
shall (i) retain the books and records of Parent and the Sellers which relate to
the Acquired Assets for periods prior to the date hereof and which have not
otherwise been delivered to Purchaser and (ii) upon reasonable notice, afford
the officers, employees and authorized agents and representatives of Purchaser
reasonable access (including the right to make, at Purchaser's expense,
photocopies), during normal business hours, to such books and records.
7.4. EMPLOYEE MATTERS. Within 30 days after the date hereof,
----------------
Purchaser may, at its option, offer employment to any of the individuals listed
in Exhibit B. Purchaser shall not be under any obligation to offer any
employment to any employees listed on Exhibit B, but shall notify Parent
promptly upon Purchaser's making of such an offer. Purchaser and Parent shall
cooperate with each other on the employment start date for any such employee
hired by Purchaser. With respect to the employees listed on Exhibit B, the
terms of any offers will be in the sole discretion of Purchaser. Until the
expiration of the nine month period following the date hereof, none of Parent or
any Seller shall, directly or indirectly, offer employment to or employ any
person listed on Exhibit B without the prior written consent of Purchaser, which
shall not be unreasonably withheld.
7.5. ADDITIONAL SERVICES. (a) From and after the date hereof,
-------------------
Purchaser shall provide to Parent and the Sellers the services set forth in
Exhibit C at the rates specified in Exhibit C. In addition, Purchaser shall
offer such services at such rates to Advantis.
(b) From and after the date hereof, at the request of Purchaser,
Parent shall offer co-location services to Purchaser or its affiliates to the
extent space for such services is available in Parent's sole discretion.
Purchaser and Parent shall negotiate in good faith the terms and rates for such
co-location services as and when requested by Purchaser based upon the
reasonable and customary standards and rates for the industry.
7.6. FURTHER ACTION. Except as provided in Section 7.2, each of the
--------------
parties hereto shall use all reasonable efforts to do, or cause to be done, all
things necessary under applicable law to carry out the provisions of this
Agreement and shall execute and deliver such documents and other papers as may
be required to carry out the provisions of this Agreement. In addition, the
parties shall use all reasonable efforts to obtain
14
any and all documentation necessary to qualify for bulk sale, casual sale,
occasional sale or resale certification.
8. GENERAL
-------
8.1. EXPENSES. All costs and expenses, including, without
--------
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses.
8.2. NOTICES. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by cable, by telecopy, by telegram, by telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Parent or the Sellers:
TELCO COMMUNICATIONS GROUP, INC.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, COO
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx & Berlin, Chartered
0000 X Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
(b) if to Purchaser:
INTERMEDIA COMMUNICATIONS INC.
0000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, CFO
Telecopy: (000) 000-0000
15
with a copy to:
Kronish, Lieb, Weiner & Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
8.3. PUBLIC ANNOUNCEMENTS. Unless otherwise required by law, or
--------------------
the rules of the Nasdaq Stock Market, no party to this Agreement shall make any
public announcements in respect of this Agreement or the transactions
contemplated herein or otherwise communicate with any news media with respect
thereto without prior written approval of the other party, and the parties shall
cooperate as to the timing and contents of any such announcement.
8.4. HEADINGS. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.5. SEVERABILITY. If any term or other provision of this Agreement
------------
is invalid, illegal or incapable of being enforced by reason of any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon the determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
8.6. ENTIRE AGREEMENT. This Agreement constitutes the entire
----------------
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
Parent, the Sellers and Purchaser with respect to the subject matter hereof.
8.7. ASSIGNMENT. This Agreement shall not be assigned by operation
----------
of law or otherwise.
8.8 NO THIRD-PARTY BENEFICIARIES. Except as provided in Section 6.2,
----------------------------
this Agreement is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other Person or entity any legal or equitable right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
16
8.9 AMENDMENT; WAIVER. This Agreement may not be amended or modified
-----------------
except by an instrument in writing signed by the parties hereto. Waiver of any
term or condition of this Agreement shall only be effective if in writing and
shall not be construed as a waiver of any subsequent breach or waiver of the
same term or condition, or a waiver of any other term or condition of this
Agreement.
8.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
CONTRACTS EXECUTED IN AND TO BE PERFORMED IN THAT STATE.
8.11 WAIVER OF TRIAL BY JURY. EACH OF THE PARTIES HERETO HEREBY
-----------------------
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
8.12 CONSENT TO JURISDICTION. Each of Parent, the Sellers and
-----------------------
Purchaser hereby irrevocably submits to the exclusive jurisdiction of any
Delaware State or federal court sitting in Wilmington, Delaware in any action or
proceeding arising out of or relating to this Agreement, and each of Parent, the
Sellers and Purchaser hereby irrevocably agrees that all claims in respect of
such action or proceeding shall be heard and determined exclusively in such
Delaware State or federal court. Each of Parent, the Sellers and Purchaser
hereby irrevocably waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding. As an alternative method of service, each of Parent, the Sellers
and Purchaser also irrevocably consents to the service of any and all process in
any such action or proceeding by the mailing of copies of such process to it at
its address specified in Section 8.2. Each of Parent, the Sellers and Purchaser
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Section 8.12 shall affect
the right of Parent, the Sellers or Purchaser to serve legal process in any
other manner permitted by law or affect the right of Parent, the Sellers or
Purchaser to bring any action or proceeding not arising out of or relating to
this Agreement against the other party or its property in the courts of any
other jurisdictions. The consents to jurisdiction set forth in this Section
8.12 shall not constitute general consents to service of process in the State of
Delaware and shall have no effect for any purpose except as provided in this
Section 8.12 and shall not be deemed to confer rights on any person other than
Parent, the Sellers, Purchaser and the third party beneficiaries of this
Agreement specified in Section 8.8.
17
8.13 ATTORNEYS' FEES. In any action, proceeding or counterclaim
---------------
arising out of or in any way connected with this Agreement, the prevailing
parties shall be entitled to recover reasonable attorneys' fees and
disbursements incurred in connection therewith.
8.14 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
8.15 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
--------------------
damage would occur in the event any provision of this Agreement was not
performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
[Remainder of Page Intentionally Left Blank]
18
IN WITNESS WHEREOF, Purchaser, Parent and the Sellers have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
INTERMEDIA COMMUNICATIONS INC.
By:_______________________________
Name:
Title:
TELCO COMMUNICATIONS GROUP, INC.
By:_______________________________
Name:
Title:
TELCO NETWORK SERVICES, INC.
By:_______________________________
Name:
Title:
TELCO SWITCH ACQUISITION, INC.
By:_______________________________
Name:
Title:
19
IN WITNESS WHEREOF, Purchaser, Parent and the Sellers have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
INTERMEDIA COMMUNICATIONS INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP & CFO
TELCO COMMUNICATIONS GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer &
Secretary
TELCO NETWORK SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
TELCO SWITCH ACQUISITION, INC.
By:/s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Secretary
20
SCHEDULE 1.1(a)(i)
Acquired Assets from Network
----------------------------
License for the Xxxxxxxx Test System Software (owned by Xxxxxxxx Laboratories,
Inc.).
License for the DSC 1/0 DACs Operating System (owned by DSC Marketing Services,
Inc.).
SCHEDULE 1.1(a)(ii)
Acquired Assets from Switch
---------------------------
CITY EQUIPMENT QUANTITY
XXXXXXX
XXX000 0
XXXXXX 0X00 XX 108
AUSTRON CLOCK 1
HEIKIMIAN 1
SPX-30/50 1
NETWORK VRU 1
TITAN 5500 1
1/0 DACS - QWEST 1
CUS8A 1
EC2551 376
EC2551A 84
D4 CHNL - ADV 1
DSX-3 PANELS 9
DSX3-MODULES 173
DSX-1 PANELS 56
TEST GEAR 6
CHICAGO
DMS250 2
NORTEL 6X50 EC 130
AUSTRON CLOCK 1
HEIKIMIAN 1
SPX-30/50 1
NETWORK VRU 1
TITAN 5500 1
EC2551 253
EC2551A 159
D4 CHNL - ADV 1
DSX-3 PANELS 11
DSX-3 MODULES 163
DSX-1 PANELS 75
FUSE PANELS 3
TEST GEAR 6
ICRS XXX00 XXXXXXX 1
CITY EQUIPMENT QUANTITY
XXXXXX
XXX000 0
XXXXXX 0X00 XX 109
AUSTRON CLOCK 1
HEIKIMIAN 1
SPX-30/50 1
TITAN 5500 1
1/0 DACS - QWEST 1
M1/3NECRC-28D 2
EC2531-I1 58
EC2551 279
EC2551A 179
D4 CHNL - ADV 1
DSX-3 PANELS 14
DSX-3 MODULES 290
DSX-1 PANELS 43
FUSE PANELS 8
TEST GEAR 6
CDR COLLECTION SYS 1
ICRS SUN1000 GATEWAY 1
ICRS XXX00 XXXXXXX 1
2
CITY EQUIPMENT QUANTITY
LOS ANGELES
DMS250 1
NORTEL 6X50 EC 121
AUSTRON CLOCK 1
HEIKIMIAN 1
SPX-30/50 1
TITAN 5500 1
NECA31DACS 1
1/0 DACS - QWEST 1
M1/3NECRC-28D 4
EC2531-I2 114
EC2551 356
EC2551A 293
D4 CHNL - ADV 1
D4 CHNL - QWEST 2
DSX-3 PANELS 13
DSX-3 MODULES 425
DSX-1 PANELS 133
FUSE PANELS 1
POWER SUPPLIES 2
TEST GEAR 6
NEW YORK
DMS250 1
NORTEL 6X50EC 107
AUSTRON CLOCK 1
HEIKIMIAN 1
SPX-30/50 1
TITAN 5500 1
1/0 DACS - QWEST 1
M1/3NECRC-28D 2
EC2551 147
EC2551A 29
D4 CHNL - ADV 1
DSX-3 PANELS 12
DSX-3 MODULES 192
DSX-1 PANELS 117
FUSE PANELS 10
TEST GEAR 6
3
Lease agreement, dated April 15, 1997, between Switch (as successor to Advantis)
and American National Bank and Trust Company of Chicago relating to 000 X.
Xxxxxxxx Xxxxxx, 0xx Floor.
Sublease agreement, dated April 15, 1997, between Advantis and Switch relating
to 1100 Circle 00 Xxxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 0000 Xxxxx Xxxxxx, Xxxxx 000.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 000 X. Xxxxx Xxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 00 Xxxxxx Xxxxxx, 0x Xxxxx.
License for the Tellabs 532 I/O DACs Operation System (owned by Tellabs
Operations, Inc.).
License for the Tellabs 520 Admin. System - Ver 6.0 (owned by Tellabs
Operations, Inc.).
License for the DMS 250 Operating System (owned by Northern Telecom Inc.).
License for the SS7 Protocol Stack Software - for TCAP messages (owned by
NewNet, Inc.).
License for the SS7 Protocol Stack Software - for Excel switch interface (owned
by NewNet, Inc.).
License for the Intelligent Call Routing System/Resource Allocator Version 1.2
(ICRS/RA) (owned by Advantis).
License for the Enhanced Services Platform (ESP) (owned by Advantis).
License for the Call Detail Collection System (owned by Advantis).
License for the MAXM Rules Sets (owned by Advantis).
4
SCHEDULE 1.1(b)
Permitted Liens
---------------
NONE
SCHEDULE 2.1
Assumed Liabilities
-------------------
Lease agreement, dated April 15, 1997, between Switch (as successor to Advantis)
and American National Bank and Trust Company of Chicago relating to 000 X.
Xxxxxxxx Xxxxxx, 0xx Floor.
Sublease agreement, dated April 15, 1997, between Advantis and Switch relating
to 1100 Circle 00 Xxxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 0000 Xxxxx Xxxxxx, Xxxxx 000.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 000 X. Xxxxx Xxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 00 Xxxxxx Xxxxxx, 0x Xxxxx.
License for the Xxxxxxxx Test System Software (owned by Xxxxxxxx Laboratories,
Inc.).
License for the DSC 1/0 DACs Operating System (owned by DSC Marketing Services,
Inc.).
License for the Tellabs 532 I/O DACs Operation System (owned by Tellabs
Operations, Inc.).
License for the Tellabs 520 Admin. System - Ver 6.0 (owned by Tellabs
Operations, Inc.).
License for the DMS 250 Operating System (owned by Northern Telecom Inc.).
License for the SS7 Protocol Stack Software - for TCAP messages (owned by
NewNet, Inc.).
License for the SS7 Protocol Stack Software - for Excel switch interface (owned
by NewNet, Inc.).
License for the Intelligent Call Routing System/Resource Allocator Version 1.2
(ICRS/RA) (owned by Advantis).
License for the Enhanced Services Platform (ESP) (owned by Advantis).
License for the Call Detail Collection System (owned by Advantis).
License for the MAXM Rules Sets (owned by Advantis).
SCHEDULE 4.2
Conflicts
---------
Lease agreement, dated April 15, 1997, between Switch (as successor to Advantis)
and American National Bank and Trust Company of Chicago relating to 000 X.
Xxxxxxxx Xxxxxx, 0xx Floor.
Sublease agreement, dated April 15, 1997, between Advantis and Switch relating
to 1100 Circle 00 Xxxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 0000 Xxxxx Xxxxxx, Xxxxx 000.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 000 X. Xxxxx Xxxxxx, 00xx Xxxxx.
Sublease agreement, dated April 15, 1997, between Switch and Advantis relating
to 00 Xxxxxx Xxxxxx, 0x Xxxxx.
License for the Xxxxxxxx Test System Software (owned by Xxxxxxxx Laboratories,
Inc.).
License for the DSC 1/0 DACs Operating System (owned by DSC Marketing Services,
Inc.).
License for the Tellabs 532 I/O DACs Operation System (owned by Tellabs
Operations, Inc.).
License for the Tellabs 520 Admin. System - Ver 6.0 (owned by Tellabs
Operations, Inc.).
License for the DMS 250 Operating System (owned by Northern Telecom Inc.).
License for the SS7 Protocol Stack Software - for TCAP messages (owned by
NewNet, Inc.).
License for the SS7 Protocol Stack Software - for Excel switch interface (owned
by NewNet, Inc.).
License for the Intelligent Call Routing System/Resource Allocator Version 1.2
(ICRS/RA) (owned by Advantis).
License for the Enhanced Services Platform (ESP) (owned by Advantis).
License for the Call Detail Collection System (owned by Advantis).
License for the MAXM Rules Sets (owned by Advantis).
SCHEDULE 4.3
Consents and Approvals
----------------------
NONE
SCHEDULE 4.5
Compliance with Laws/ Permits
-----------------------------
NONE
SCHEDULE 4.7
Litigation
----------
NONE
SCHEDULE 4.9
Material Contracts
------------------
NONE
SCHEDULE 5.3
No Conflict
-----------
NONE
Exhibit A
Allocation of Acquisition Price
-------------------------------
The sum of the Acquisition Price and the Assumed Liabilities shall be allocated
to the Acquired Assets based upon fair market value. The excess of the sum of
the Acquisition Price and the Assumed Liabilities over the fair market value of
the Acquired Assets shall be allocated to intangible assets.
Exhibit B
List of Employees
Exhibit C
Services Provided by Purchaser
