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EXHIBIT 10.61
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 4th day of September,
1996, by and between TOTAL COMMUNICATION SERVICES, INC., a corporation
organized and existing under the laws of the State of Iowa, ("Seller") and
XXXXXX TELEMANAGEMENT, INC., an Iowa corporation with its principal place of
business in Cedar Rapids, Iowa ("Buyer"), and joined in by the shareholders and
management of Seller listed on Exhibit "B" to this Agreement for the limited
purpose of agreeing not to compete, all as hereinafter set forth in this
Agreement.
RECITALS
A. Seller desires to sell and Buyer desires to purchase certain
of the assets of Seller on the terms herein stated and;
B. Seller and Buyer have reached certain agreements and
understandings relative thereto, including terms relating to
price, method of payment, delivery and wish to reduce such
agreements to writing.
The parties agree as follows:
1. ASSETS SOLD AND PURCHASED. Buyer agrees to purchase from
Seller and Seller agrees to sell, convey, transfer and deliver to Buyer, free
and clear of all liens and encumbrances, the following assets of Seller, which
are more fully described on Exhibit A attached (the "Assets"):
(a) The Seller's customer base which shall include 1320 Centrex
local and long distance lines, 123 long distance only lines,
and 135 local lines only, excluding any customer with a Past
Due Account (as defined in subparagraph 1(f) of this
Agreement);
(b) All Customer deposits and the documentation related to Centrex
services, to include: customer lists including addresses,
customer files including copies of Letters of Agency and PIC
forms, LEC orders, LEC records, LEC correspondence, install
date, billing records, internal order forms, customer contact
lists, and if applicable an electronic file of all customer
stored data ("Customer Data");
(c) Ninety-nine (99) installed Dialers;
(d) One-hundred Fifty-four (154) toll-free 800/888 numbers
(e) All calling cards;
(f) All voice mail accounts, all ISDN lines, all T-Span lines and
all 56K lines, if any are owned by Seller on the date of
Closing; and
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(g) Account receivables due in less than 60 days after the
invoice date on the date of Closing ("Receivables"). Seller
shall commence disconnect procedures with respect to any
customer whose account is over 60 days past due ("Past Due
Account(s)"), in accordance with Iowa Utilities Board rules.
Buyer shall not be obligated to service such Past Due
Accounts, and Buyer shall be under no obligation or duty to
pursue collection of Past Due Accounts. However, if Buyer
receives payment for any such Past Due Accounts, Buyer shall
forward such payment to Seller. All Receivables are being
sold free and clear of liens and encumbrances.
All other assets of Seller not listed above or on Exhibit A are specifically
excluded. BUYER IS NOT ASSUMING ANY LIABILITIES OF SELLER.
2. PURCHASE PRICE. The total Purchase Price for the Assets shall
equal the sum of Five Hundred Thirty-Two Thousand Five Hundred Thirty Dollars
($532,530.00) (the "Purchase Price"), adjusted as follows:
(a) Increase in Customer Base. The Purchase Price shall be
increased if the Seller's customer base for any of the
following Assets: (1) Centrex local and long distance lines;
(2) long distance only lines, and (3) 800/888 numbers, has
increased by five percent or more from the respective customer
base as identified in paragraph 1 of this Agreement. If any
such an increase has occurred, Seller shall pay Buyer for each
additional active customer telephone number which exceeds the
five percent (5%) threshold of the applicable customer base:
(i) an additional $290 for each additional active
customer telephone number which subscribes to local
and long distance service, which is installed prior
to Closing.
(ii) an additional $130 for each additional active
customer telephone number which subscribes to only
long distance service which is installed prior to
Closing.
(iii) an additional $260 for each additional active 800/888
customer telephone number which is installed prior to
Closing.
(b) Decrease in Customer Base. The Purchase Price shall be
reduced if the Seller's customer base for any of the following
Assets: (1) Centrex local and long distance lines; (2) long
distance only lines, and (3) 800/888 numbers, has decreased by
five percent or more from the respective customer base as
identified in paragraph 1 of this Agreement. If any such
decrease has occurred, the Purchase Price shall be reduced for
each additional active
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customer telephone number which exceeds the five percent (5%)
threshold of the applicable customer base:
(i) a reduction of $290 for each active customer
telephone number which subscribes to local and long
distance service, which is no longer part of the
Seller's customer base at Closing.
(ii) a reduction of $130 for each active customer
telephone number which subscribes to only long
distance service, which is no longer part of the
Seller's customer base at Closing.
(iii) a reduction of $260 for each active 800/888 customer
telephone number which is no longer part of the
Seller's customer base at Closing.
(c) Active Account. An active account is one that has been
installed with U.S. West as a customer of Seller.
(d) Price for Receivables. The Purchase Price shall be increased
to reflect the value of the Seller's Receivables which are
being purchased. Buyer shall pay Seller an additional $0.95
for each $1.00 of Receivables.
The "Final Purchase Price" shall be equal to the Purchase Price, as
adjusted in accordance with subparagraphs (a) (b) and (c) above.
3. PAYMENT OF PURCHASE PRICE. Buyer has deposited One Hundred
Sixty-Six Thousand Dollars ($166,000) in escrow ("Escrow Funds") with Xxxxx &
Xxxxxxx, P.L.C. pursuant to an Escrow Agreement dated August 26, 1996. At the
Closing, the Final Purchase Price shall be paid in cash or in other immediately
available funds, reduced by the amount of the Escrow Funds (excluding any
interest on the Escrow Funds) and the Escrow Fund and interest earned shall be
paid to Seller.
Buyer does not accept or assume and will not accept or assume any
liability or obligation of Seller of any kind or nature currently existing or
incurred by Seller at any time in the future, including, but not limited to,
Seller's bank debt, trade accounts payable, accrued salary and vacation, and
any actual or contingent liabilities (known or unknown) associated with the
conduct of Seller's business arising from acts occurring prior to or continuing
after Closing, including but not limited to commission payments and billing
disputes.
4. SELLER'S CREDITORS. Seller agrees to be responsible for and
pay promptly all creditors of the Seller and to defend, indemnify, and hold
Buyer harmless for the full amount of any claim made against Buyer by creditors
of Seller.
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5. CLOSING.
(a) The transaction which is the subject of this Agreement shall
be closed on September 30, 1996 ("Closing"), or sooner by mutual agreement of
the parties, at the offices of Xxxxxxxxxxxx & Ingersoll, P.C., 000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxx 00000. However, the parties acknowledge that the
Closing may be delayed up to ninety (90) days after submittal of the parties
joint application relating to the items required by subparagraphs 5(b)(iv) and
5(b)(v) of this Agreement if the IUB does not waive the 90 day notice
requirement.
(b) At the Closing Seller will deliver to Buyer the following:
(i) A Xxxx of Sale and other instruments of transfer
sufficient and effective to vest Buyer with good and
marketable title to the Assets.
(ii) An assignment of the letters of agency relating to
the Assets.
(iii) All Customer Data.
(iv) An assignment and transfer of the Certificate of
Public Convenience and Necessity from the Iowa
Utilities Board (the "Certificate") to provide local
land line and local telephone service in Iowa.
(v) Approval from the Iowa Utilities Board of Seller's
application to discontinue service to its Iowa
customers located in those cities and towns listed on
the attached Exhibit "D".
(vi) A Certificate of Incumbency identifying the then
current officers, directors and shareholders of
Seller.
(vii) A certified copy of all resolutions and actions of
the Seller's board of directors and shareholders
authorizing the transaction contemplated by this
Agreement.
(viii) Releases of all Security Agreements and UCC filings
against the Assets.
(ix) Written consent of US West to the assignment of the
following agreements from Seller to Buyer:
(1) "US West Intrastate Network Service Master
Agreement Between Total Communication Service, Inc.
and US West Communications, Inc." dated October
6, 1994; and
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(2) "Settlement Agreement" between U S WEST
Communications, Inc. and Total Commununication
Services, Inc. dated April 30, 1996.
Such consent shall state that U S West will honor the
Iowa Utility Board's approval of Seller's request to
discontinue service, and specifically acknowledge the
transition of Seller's customers to Buyer's network
and billing system.
(x) All necessary governmental approvals, including any
certificate of convenience and necessity.
(xi) Documentation substantiating that Seller has made
payment for accrued services related to customer
telephone numbers being purchased by Buyer.
(c) At Closing, the parties listed in Exhibit B shall deliver to
Buyer a Covenant not to Compete Agreement in a form identical to that attached
hereto as Exhibit C, restricting all such parties' activities relating to the
resale of Centrex and local land line services for a period of three (3) years
in all cities or towns in which any affiliate of the Buyer currently conducts
business or proposes to conduct business within the State of Iowa as shown on
Exhibit D, except such activities which relate to Seller's provision of T-1s and
DS-3s as necessary to companies that are associated with the "Link" or "Link of
Iowa" group that now, or in the future, may have offices located in the
communities listed on Exhibit D, but only for the purpose of providing
telemarketing services.
(d) At the Closing, Buyer will deliver to Seller with delivery of
the items referred to in subparagraphs (b) and (c) above, its certified check
or cashier's check payable to Seller in the amount of the Final Purchase Price,
reduced by the amount of Escrow Funds.
6. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents
and warrants as follows:
(a) Existence; Good Standing; Corporate Authority; Compliance With
Law. Seller is a corporation duly organized, validly existing
and in good standing under the laws of the State of Iowa and
has the corporate power to own its property and carry on its
business as it is now being conducted and is duly qualified to
do business and is in good standing in each jurisdiction in
which the character of its properties owned by it therein or
in which the transaction of its business makes such
qualification necessary. Seller is not in default with
respect to any order of any court, governmental authority or
arbitration board or tribunal to which Seller is a party or is
subject, and to its knowledge, Seller is not in violation of
any laws, ordinances, governmental rules or regulations to
which it is subject.
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(b) Authority. Seller has full power, right and authority to
enter into, and perform its obligations under, this Agreement.
The execution, delivery and performance of this Agreement by
Seller have been duly and properly authorized by proper
corporate action in accordance with applicable law and with
the Articles of Incorporation and By-laws of Seller and this
Agreement constitutes a valid and binding obligation of
Seller, enforceable against it in accordance with its terms.
(c) Seller's Title. Seller holds good, valid and marketable title
to all of the Assets free and clear of any liens, mortgages,
charges and encumbrances of every kind, nature and description
(except those liens and encumbrances that will be released
prior to or at Closing), and has the full power, right and
authority to sell the Assets in accordance with the terms of
this Agreement.
(d) Receivables. The Receivables are valid, genuine and existing,
arose out of the performance of services, are collectible in
the ordinary course of business and are subject to no
defenses, set-offs or counterclaims.
(e) Customer Service and Notification. Seller shall continue to
provide adequate and reliable service to the customers listed
on Exhibit A until regulatory approval for discontinuance of
service is obtained from the Iowa Utilities Board. At Closing
Seller and Buyer shall agree upon a letter to be sent to the
customers identified on Exhibit A which will be signed by both
Buyer and Seller.
(f) Licenses, Permits and Assessments. Seller has obtained all
licenses, permits, governmental approvals and other
authorizations, and has taken all actions required by
applicable laws or governmental regulations, necessary or
appropriate in the conduct of its business. Seller has
complied in all material respects with and has not violated
any law or regulation applicable to the conduct of its
business, and has filed all reports and paid all regulatory
fees and assessments attributable to Seller's business
operations involving the Assets which are due or accrue prior
to the date of Closing.
(g) Transaction Not a Breach. Neither the execution and delivery
of this Agreement nor its performance will conflict with or
result in a breach of the terms, conditions or provisions of
the Articles of Incorporation or By-laws of Seller or any
contract, agreement, mortgage, trust deed, note, bond
indenture or other instrument or obligation of any nature to
which Seller is a party or by which Seller is bound or by
which Seller, the business, or the Assets may be affected.
(h) Customer Lists and Other Data. All customer lists, receivable
listings, and other data provided to Buyer are, in all
material respects, true, correct and
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accurate as of the date of Closing. The customer base listed
on Exhibit A only reflects customers and lines located in Iowa
and/or Illinois, and such customer accounts are current,
active and have not been terminated nor does Seller have any
knowledge of any intent of any such customer to modify or
terminate the current contract. There are no duplicate
numbers in the customer lists, 800/888 telephone numbers or
the calling cards which comprise the Assets.
(i) Liabilities. With respect to the Assets, Seller has not
incurred any debts, liabilities or obligations of any nature
whether accrued, absolute, contingent, direct, indirect,
perfected or otherwise and whether due or to become due except
liabilities incurred for services rendered or goods supplied
in the ordinary course of business, liabilities on account of
taxes and governmental charges and obligations or liabilities
incurred by virtue of the execution of this Agreement.
(j) Tax Returns. Seller has filed all federal, state, county, and
local tax returns which it is required to have filed, and such
returns are true and correct. Seller has paid or made adequate
provision for the payment of all taxes, interest, penalties,
assessments, or deficiencies which have, or may become due
pursuant to said returns, or pursuant to any assessment
received with respect thereto.
(k) Litigation. To the knowledge of Seller, there is no suit,
action, arbitration proceeding, or investigation pending or
threatened against Seller, or to which Seller is otherwise a
party, and which may affect the Assets, before any court, or
before any governmental department (including OSHA),
commission, board, agency, or instrumentality.
(1) Trade Secrets. To the knowledge of the Seller, the Seller has
the right to use, free and clear of any claims or rights of
others, all trade secrets and client lists employed in
carrying on the Seller's business in the manner presently
conducted. To the knowledge of the Seller, Seller is not
using or in any way making use, without appropriate
permission, of any confidential information, confidential
formula, computer programs, or trade secrets of any third
party, including, without limitation, any former employer of
any present or past employee of Seller or of any former or
present employee of Seller.
(m) Services. Seller shall pay for all services provided in
connection with the Assets, whether actually billed or accrued
and unbilled, prior to Closing. Seller shall provide Buyer
documentation that payments have been made for accrued
services related to the Assets. Buyer and Seller shall
mutually agree to the process to be utilized to determine
customer billing cut-off dates consistent with the date of
Closing, taking into account that a portion
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is billed in advance and a portion is billed in arrears, and
to allocate revenues to Seller and Buyer in an efficient
manner which is fairly consistent with the payment for
services made by Seller pursuant to this Agreement.
(n) ERISA. Seller currently sponsors or maintains no "employee
pension benefit plans" as that term is defined in Section 3(2)
of ERISA; and has not, at any time in the past, sponsored or
maintained any such plan or terminated any such plan.
(o) Seller's Local Service. For a period of six (6) months after
Closing, Seller shall keep at least 33 of the Seller's local
lines with Buyer's local service program, but only if Seller
is still located in Buyer's service area.
The foregoing representations and warranties of Seller shall survive
the Closing for period of two (2) years.
7. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer hereby
represents and warrants as follows:
(a) Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Iowa and has the corporate power to own its property and carry
on its business as it is now being conducted and is duly
qualified to do business and is in good standing in each
jurisdiction in which the character of its properties owned by
it therein or in which the transaction of its business makes
such qualification necessary.
(b) Authority. Buyer has full power, right and authority to enter
into, and perform its obligations under, this Agreement. The
execution, delivery and performance of this Agreement by Buyer
have been duly and properly authorized by proper corporate
action in accordance with applicable law and with the Articles
of Incorporation and By-laws of Buyer and this Agreement
constitutes a valid and binding obligation of Buyer,
enforceable against it in accordance with its terms.
(c) No Breach. Neither the execution and delivery of this
Agreement nor its performance will conflict with or result in
a breach of the terms, conditions or provisions of any
contract, agreement, mortgage or other instrument or
obligation of any nature to which Buyer is a party or by which
Buyer is bound.
(d) Services. Buyer shall pay for all services related to the
customer telephone numbers listed on Exhibit A which are
incurred on the date of Closing or thereafter.
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. All obligations
of Buyer under this Agreement with respect to the Closing are subject to the
fulfillment of each of the following conditions:
(a) Each and every representation and warranty of Seller contained
in this Agreement shall be true in all material respects at
the Closing.
(b) Seller shall have performed and complied in all material
respects with all covenants and conditions required by this
Agreement to be performed or complied with by it prior to or
at the Closing, including, but not limited to, the approval of
the transaction contemplated by this Agreement by Seller's
Board of Directors in a manner consistent with the Iowa
Business Corporation Act.
(c) The execution of the Covenant not to Compete Agreement
referred to in paragraph 5(c) above.
(e) Iowa Utilities Board approval of the Transfer of the
Certificate and Seller's discontinuance of service.
(f) Release of any and all liens against the Assets.
(g) Buyer shall have been furnished with a certificate executed by
the President and Secretary of Seller dated as of the Closing
restating and reconfirming as of the date of Closing all
Seller's warranties and representations set forth in this
Agreement and otherwise certifying the fulfillment of the
conditions set forth in Paragraphs (a) and (b) hereof.
(h) No suit or action by any party nor any investigation, inquiry
or proceeding by any governmental authority nor any legal or
administrative proceeding shall have been instituted or
threatened on or before the Closing which:
(i) questions the validity or legality of any transaction
contemplated hereby or
(ii) seeks to enjoin any transaction contemplated hereby
or
(iii) seeks material damages on account of the consummation
of any transaction contemplated hereby.
(i) Written consent of US West to the assignment of the following
agreements from Seller to Buyer:
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(1) "U S West intrastate Network Service Master
Agreement Between Total Communication Service, Inc.
and U S West Communications, Inc." dated October
6, 1994; and
(2) "Settlement Agreement" between U S West
Communications, Inc. and Total Communication
Services, Inc. dated April 30, 1996.
Such consent shall state that U S West will honor the Iowa
Utility Board's approval of Seller's request to discontinue
service, and specifically acknowledge the transition of
Seller's customers to Buyer's network and billing system.
(j) Approval of any necessary governmental authorities, including,
but not limited to, the Iowa Utilities Board, the Federal
Trade Commission and the United States Department of Justice.
The cost and expense of obtaining such approval (except for
the cost and expense of obtaining the transfer of the
Certificate) shall be paid by Buyer.
In the event that any of the conditions set forth in this Paragraph 8
have not been fulfilled as of the Closing, Buyer, may, at its option, by
written notice to Seller render its obligations hereunder null and void, and
thereupon this Agreement shall be of no further force or effect whatsoever. By
proceeding with the Closing, Buyer shall be conclusively deemed to have
accepted or waived fulfillment of all of said conditions, but shall not be
deemed to have waived the requirement that Seller's representations and
warranties shall survive the Closing.
9. ADDITIONAL REPRESENTATIONS OF SELLER. Seller further
represents that it will not, between the date of this Agreement and the
Closing, except with the prior written consent of Buyer, which consent will not
be unreasonably withheld:
(a) Change materially or adversely the general character of the
Assets.
(b) Create, incur or permit any mortgage, pledge, lien, charge or
encumbrance of any kind on the Assets now owned or hereafter
acquired.
(c) Enter into, engage in, or become a party to, directly or
indirectly, any transaction with respect to the Assets other
than in the ordinary course of business.
(d) Perform or omit to perform any act, which act or omission
would cause any of Seller's warranties and representations in
this Agreement to be untrue if made as of the Closing.
(e) Seller further represents that between the date of this
Agreement and the Closing that it will:
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(f) Give to Buyer and its representatives full access to all of
the properties, contracts, records, books, and accounts
relating to the Assets and furnish to Buyer and its said
representatives such information relative to the Assets as
they shall at any time, or from time to time, reasonably
request.
(g) Use its best efforts to continue to operate the business with
respect to the Assets in the ordinary course and maintain the
goodwill of each of Seller's customers.
(h) Maintain its books and records in the usual, regular and
ordinary manner on a basis consistent with prior years.
(i) Use its best efforts to cause fulfillment of all of the
conditions to which the obligations of the parties hereto are
subject, if, any.
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. All of the
obligations of Seller hereunder are subject to the fulfillment of each of the
following conditions:
(a) Each and every representation and warranty of Buyer contained
in this Agreement shall be true in all respects at the
Closing.
(b) Buyer shall have performed or complied with all covenants and
conditions required by this Agreement to be performed or
complied with by it prior to or at Closing.
(c) Seller shall have been furnished with a certificate executed
by Buyer dated as of the Closing restating and reaffirming as
of the date of Closing all Buyer's warranties and
representations set forth in this Agreement and otherwise
certifying the fulfillment of the conditions set forth in
paragraphs (a) and (b) hereof.
(d) No suit or action by any party nor any investigation, inquiry
or proceeding by any governmental authority nor any legal or
administrative proceeding shall have been instituted or
threatened on or before the Closing which:
(i) questions the validity or legality of any transaction
contemplated hereby or
(ii) seeks to enjoin any transaction contemplated hereby
or
(iii) seeks material damages on account of the consummation
of any transaction contemplated hereby.
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(e) Approval of any necessary governmental authorities, including,
but not limited to, the Iowa Utilities Board, the Federal
Trade Commission and the United States Department of Justice.
The cost and expense of obtaining such approval (except for
the cost and expense of obtaining the transfer of the
Certificate) shall be paid by Buyer.
In the event that any of the conditions set forth in this Paragraph 10
have not been fulfilled as of the Closing, Seller may at its option, by
written notice to Buyer, render its obligations hereunder null and void. By
proceeding with the Closing, Seller shall be conclusively deemed to have
accepted or waived fulfillment of all of said conditions.
11. INDEMNIFICATION.
(a) Seller agrees to defend, indemnify and hold Buyer forever
harmless from and against any and all liabilities, demands, claims, actions, or
causes of action, assessments, losses, costs, damages or expenses, including
reasonable attorneys' fees, sustained or incurred by the Buyer resulting from
or arising out of or by virtue of:
(i) Any material inaccuracy in any representation or warranty made
herein by Seller or non-compliance with or breach by Seller of
any of the covenants, undertakings or obligations of this
agreement to be performed by Seller;
(ii) Any claims, liability or obligation of Seller of any kind or
nature currently existing or incurred by Seller at any time in
the future, including, but not limited to, Seller's bank debt,
trade accounts payable, accrued salary and vacation, and any
actual or contingent liabilities (known or unknown) associated
with the conduct of Seller's business arising from acts
occurring prior to or continuing after Closing, including but
not limited to commission payments and billing disputes.
(b) Buyer hereby agrees to defend, indemnify and hold Seller
forever harmless from and against any and all liabilities, claims, demands,
actions or causes of action, assessments, losses, costs, damages or expenses,
including reasonable attorneys' fees sustained or incurred by Seller resulting
from or arising out of or by virtue of
(i) any material inaccuracy in any representation or warranty
made herein by Buyer or non-compliance with or breach by
Buyer of any of the covenants of this Agreement to be
performed by Buyer;
(ii) Buyer's ownership, operation, or use of the Assets following
the Closing, excluding any claims, liability or obligation of
Seller of any kind or nature currently existing or incurred by
Seller at any time in the future, including, but not limited
to, Seller's bank debt, trade accounts payable, accrued salary
and vacation, and any actual or contingent liabilities (known
or unknown) associated with the Assets and/or conduct of
Seller's business arising from
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acts occurring prior to or continuing after Closing, including
but not limited to commission payments and billing disputes.
(c) In the event that subsequent to the Closing any claim is
asserted against a party hereto as to which such party is entitled to
indemnification hereunder, such party (the "indemnified party") shall within
ten (10) days after learning of such claim notify the party obligated to
indemnify it (the "indemnifying party") thereof in writing. The indemnifying
party shall have the right, upon written notice to the indemnified party within
ten (10) days after receipt from the indemnified party of notice of such claim,
to conduct at its expense the defense against such claim in its own name, or if
necessary in the name of the indemnified party. In the event that the
indemnifying party shall fail to give such notice, it shall be deemed to have
elected not to conduct the defense of the subject claim, and in such event the
indemnified party shall have the right to conduct such defense and to
compromise and settle the claim without prior consent of the indemnifying
party. In the event that the indemnifying party does elect to conduct the
defense of the subject claim, the identified party will cooperate with and make
available to the indemnifying party such assistance and materials as may be
reasonably requested by it, all at the expense of the indemnifying party, and
the indemnified party shall have the right at its expense to participate in the
defense, provided that the indemnified party shall have the right to compromise
and settle the claim only with the prior written consent of the indemnifying
party. Any judgment entered or settlement agreed upon in the manner provided
herein shall be binding upon the indemnifying party, and shall conclusively be
deemed to be an obligation with respect to which the indemnified party is
entitled to indemnification hereunder.
12. MISCELLANEOUS.
(a) Any notices from Buyer to Seller hereunder shall be deemed
sufficiently given upon delivery, refusal by addressee or notice to Buyer from
the Post Office that such notice is undeliverable, if such notice has been
mailed by United States registered or certified mail, postage prepaid,
addressed to:
Total Communication Services, Inc.
X.X. Xxx 00
000 Xxxx Xxxxxx
Xxx Xxxxx, XX 00000-0000
Attn: Xxx Xxxxxxx
Copy to: Xxxxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
or at such other, address or addresses as Seller may from time to time specify
by notice in writing to Buyer, given in the manner provided in this paragraph.
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(b) Any notice from Seller to Buyer hereunder shall be deemed
sufficiently given upon delivery, refusal by addressee or notice to Seller
from the Post Office that such notice is undeliverable if such notice has been
mailed by United States registered or certified mail, postage prepaid,
addressed to:
XxXxxx Telemanagement, Inc.
Town Centre, Suite 500
000 Xxxxx Xxxxxx X.X.
Xxxxx Xxxxxx, XX 00000
ATTN: Xxxxx Xxxxx, General Counsel
or at such other address or addresses as Buyer may from time to time specify by
notice in writing to Seller, given in the manner provided in this paragraph.
(c) Severability. The unenforceability or invalidity of any
provision of this Agreement shall not affect the enforceability or validity of
any other provision.
(d) Successors. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, assigns,
heirs and personal representatives.
(e) Confidentiality. In the event that the transaction which is
the subject of this Agreement is not consummated, Buyer agrees that it will
return to Seller and Seller agrees that it will return to Buyer all records and
other documents of the other then in that party's possession and will not
itself use, or disclose, directly or indirectly, to any person any Business
Information with respect to the other party or the business learned by that
party during the period between the date hereof and termination of this
agreement. The term "Business Information" as used herein means all
information of a business or technical nature relevant to Seller's business
which is not generally known to or by those persons generally knowledgeable
about the Seller's type of business. The Seller and Buyer further agree that
all terms and conditions of the transaction contemplated by this Agreement,
including, but not limited to, the Purchase Price and other consideration,
shall remain confidential, except to the extent disclosure is required by law.
The remaining terms, conditions, and obligations of a certain Confidentiality
Agreement entered into by Seller and Buyer and dated on or about May 16, 1994,
shall survive the Closing.
(f) Entire Agreement. This agreement sets forth the entire
understanding of the parties and may be modified only by instruments signed by
both of the parties hereto. This Agreement supersedes and hereby cancels the
letter of intent dated as of August 14, 1996, by and between the parties.
(g) Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
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(h) Expenses. Each party shall pay its own legal and accounting
costs and expenses incurred in negotiating and preparing this agreement and in
closing and carrying out the transactions contemplated by this Agreement.
(i) Governing Law. This agreement shall be construed and governed
in accordance with the laws of the State of Iowa.
(j) Headings. The subject headings of paragraphs and
subparagraphs of this agreement are included for purposes of convenience only
and shall not affect the construction or interpretation of any of its
provisions.
(k) Further assurances. Each party hereto shall cooperate, shall
take such further action and shall execute and deliver such further documents
as may be reasonably requested by any other party in order to carry out the
provisions and purposes of this Agreement, including but not limited to the
endorsement of checks received after Closing in payment of the Accounts
Receivable being purchased by Buyer.
(l) Arbitration. Any disputes relating to the interpretation of
this Agreement or the duties and obligations of either party hereunder shall be
resolved by arbitration in accordance with the rules and procedures of the
American Arbitration Association.
(m) Release of Information. Neither party shall disclose any of the
terms of the transaction contemplated by this Agreement, except as may be
required by law, and the contents of any press releases concerning the
transaction contemplated by this Agreement shall be determined by mutual
agreement of the parties.
(n) Media Inquiries. All media inquiries relating to this
Agreement and the transactions contemplated shall all be referred to Buyer and
all responses and comments shall be provided solely by Buyer, except that any
reference to Seller or information regarding Seller will be submitted to and
subject to the prior review by Seller. Seller may respond to media inquiries
relative to the transaction contemplated by this Agreement by indicating that
the Seller shall continue other lines of business and limit any further
response to Seller's other lines of business.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
TOTAL COMMUNICATION SERVICES, XXXXXX TELEMANAGEMENT, INC.
INC. ("SELLER") ("BUYER")
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXX
-------------------------- --------------------------
Its: Board Chairman Its: President
------------------------- -------------------------
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The shareholders and management of Seller listed on the attached Exhibit "B"
execute this Agreement for the limited purpose of agreeing to execute a
Non-Competition Agreement pursuant to the terms of this Agreement:
/s/ XXXXXX XXXXXXX /s/ XXXXXXX XXXXXX
--------------------------- ----------------------------
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx
/s/ XXXX XXXXX /s/ XXXXX XXXXXX
--------------------------- ----------------------------
Xxxx Xxxxx Xxxxx Xxxxxx
/s/ XXXXX XXXXXXXXXXX
--------------------------- ----------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxx
I.S.H., INC. XXXXXX MARKETING GROUP, L.C.
By: By:/s/ XXXXXX X. XXXXXXX
------------------------ -------------------------
Its: Its: Chairman
----------------------- ------------------------
ATTACHED EXHIBITS
Exhibit A List of Assets
Exhibit B List of Parties Executing Non-Competition Agreement
Exhibit C Non-Competition Agreement
Exhibit D Non-Competition Area
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The shareholders and management of Seller listed on the attached Exhibit "B"
execute this Agreement for the limited purpose of agreeing to execute a
Non-Competition Agreement pursuant to the terms of this Agreement
--------------------------- ----------------------------
Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx
--------------------------- ----------------------------
Xxxx Xxxxx Xxxxxx Xxxxxx
/s/ XXXXXXX XXXXXX
--------------------------- ----------------------------
Xxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxx
I.S.H., INC. XXXXXX MARKETING GROUP, L.C.
By: [SIG] By:
------------------------ -------------------------
Its: President Its:
----------------------- ------------------------
ATTACHED EXHIBITS
Exhibit A List of Assets
Exhibit B List of Parties Executing Non-Competition Agreement
Exhibit C Non-Competition Agreement
Exhibit D Non-Competition Area
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