ASSET PURCHASE AGREEMENT
Exhibit 2.2
This ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of March
5th, 2010, and effective as of February 28, 2010 (the “Effective Date”), by and
among Carrier to Carrier Telecom Holdings Limited, a limited liability company incorporated under
the laws of Gibraltar with commercial register number 97853 (the “Parent”), Evocomm
Communications Limited (“Evocomm”), a limited liability company incorporated under the laws
of the British Virgin Islands and a wholly-owned subsidiary of the Parent, and Globecomm (BVI) Ltd
(the “Buyer”), a limited liability company incorporated under the laws of the British
Virgin Islands, and an indirectly wholly-owned subsidiary of Globecomm Systems Inc.
(“Globecomm”), a company incorporated under the laws of the State of Delaware.
WHEREAS, the Parent, Globecomm, the Buyer and Globecomm Netherlands B.V. are parties to that
certain acquisition agreement (the “Master Acquisition Agreement”) dated as of the date
hereof;
WHEREAS, in connection with a series of transactions contemplated under the Master Acquisition
Agreement, the Master Acquisition Agreement provides that the Buyer shall acquire the Evocomm
Assets; and
WHEREAS, the parties hereto desire to set forth more fully the terms on which the Buyer shall
acquire the Evocomm Assets from Evocomm;
NOW THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set
forth herein, and benefits to accrue to the parties, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used in this Agreement that are not defined
elsewhere herein shall have the meanings set forth in the Master Acquisition Agreement.
2. Sale and Purchase of Assets.
(a) Assets to be Purchased by the Buyer. Upon and subject to the terms and conditions
of this Agreement, and based upon the representations and warranties contained in the Master
Service Agreement and herein, at the Closing, Evocomm shall sell, convey, transfer, assign and
deliver to the Buyer, and the Buyer shall purchase and assume from Evocomm, all of Evocomm’s right,
title and interest in and to all assets used, useable and/or necessary to conduct its business (the
“Evocomm Business”), including, without limitation, the assets identified on Schedule
2(a) hereto (the “Evocomm Assets Schedule”) and including, without limitation, the
following assets, free and clear of any Liens (collectively, the “Evocomm Assets”):
(i) all accounts and notes receivable (whether current or noncurrent) as of the
Effective Date;
(ii) all prepayments, prepaid expenses, deferred charges, advance payments, utility and
other security deposits as of the Effective Date;
(iii) all raw materials, works-in-process, inventory and other materials of Evocomm
wherever located (and, to the extent applicable, all inventory in transit or on order and
not yet delivered), and all rights with respect to the processing and completion of any
works-in-
process of Evocomm, including the right to collect and receive charges for services
performed by Evocomm with respect thereto;
(iv) all supplies, property, plant, equipment, furniture, fixtures, machinery,
fittings, automobiles, trucks, and other motor vehicles, tools, spare parts, leasehold
improvements and other tangible property, whether owned or leased (including, without
limitation, items which have been fully depreciated or expensed);
(v) all other current assets of Evocomm;
(vi) all of Evocomm’s right, title and interest in and to its Contracts, leases,
licenses, agreements, permits, supply and distribution arrangements, sales and purchase
agreements and orders, consignment arrangements, warranties, consents, orders,
registrations, privileges, franchises, memberships, certificates, approvals or other similar
rights, and all other agreements, arrangements and understandings, whether or not documented
in writing;
(vii) the right to receive all mail and other communications addressed to Evocomm in
respect of the Evocomm Business (including, without limitation, mail and communications from
customers, suppliers and agents);
(viii) all intangible assets and Intellectual Property of Evocomm and all
continuations, renewals and extensions, and all income and royalties for any of the
Intellectual Property, and all damages, payments and rights to xxx for or relating to past,
present or future infringements thereof, and all other general intangibles;
(ix) all lists and records pertaining to Evocomm’s customers, suppliers, distributors,
inventors, endorsers, vendors and related databases;
(x) the Evocomm Business as a going concern and all goodwill with respect thereto and
Evocomm’s Permits and other authorizations of governmental authorities (to the extent such
Permits and other authorizations of governmental authorities are transferable) and third
parties, world wide web addresses, URLs, email addresses, domain names, websites, licenses,
telephone numbers, property addresses, listings pertaining to Evocomm in all telephone books
and other directories and other communications media, customer lists, vendor lists, referral
lists and contracts, advertising materials and data, restrictive covenants, choses in
action, claims, refunds, causes of action, rights of recovery, rights of set-off and similar
obligations owing to Evocomm from all Persons including, but not limited to, their present
and former members, officers, employees and agents, together with all books, databases,
operating data and records (including financial, accounting and credit records), files,
papers, records and other data of Evocomm;
(xi) all initiatives and planned projects that have been, are being or will be
developed by Evocomm in relation to the Evocomm Business; and
(xii) all other assets, if any, used in the Evocomm Business (other than the Excluded
Assets (as defined herein)) not covered under clauses (i) — (xi) above.
The parties agree that Evocomm Assets identified on the Evocomm Asset Schedule is not an
exclusive list and that the purpose of the Evocomm Asset Schedule is to specifically identify
certain of the Evocomm Assets. The parties also agree that the Evocomm Assets do not include the
Excluded Assets and that the Excluded Assets will be retained by Evocomm. If it becomes known after
the Closing
by any party hereto that one or more assets of Evocomm is missing from the Evocomm Asset Schedule
but should have been included therein, such omission shall be deemed to be a mistake and the
parties will, in good faith, take such actions as are reasonably necessary to transfer title and
ownership to such asset to the Buyer as if the same were on the schedule as of the Closing and part
of the Evocomm Assets included hereunder.
Notwithstanding anything contained herein to the contrary, this Agreement shall not constitute
an assignment of any claim, contract, license, franchise, lease, commitment, sales order, sales
contract, supply contract, service agreement, purchase order or purchase commitment if an attempted
assignment thereof without the consent of a third party thereto, to the extent required, would
constitute a breach thereof or in any way adversely affect the rights of the Buyer thereunder. If
such consent, to the extent required, is not obtained at or prior to the Closing, or if any attempt
at an assignment thereof would be ineffective or would affect the rights of Evocomm thereunder so
that the Buyer would not in fact receive all such rights, the Parent and Evocomm shall cooperate
with Globecomm and the Buyer to the extent necessary to obtain such consent as promptly as
reasonably practicable following the Closing and, until such consent has been obtained, provide the
Buyer with the benefits under such claim, contract, license, franchise, lease, commitment, sales
order, sales contract, supply contract, service agreement, purchase order or purchase commitment,
including enforcement for the benefit of the Buyer of any and all rights of Evocomm against a third
party thereto arising out of the breach or cancellation by such third party or otherwise.
Evocomm hereby constitutes and appoints the Buyer as its true and lawful agent and attorney in
fact, with full power of substitution and resubstitution, in whole or in part, in the name and
stead of Evocomm but on behalf and for the benefit of the Buyer and its successors and assigns,
from time to time, to do all things legally permissible, required or reasonably deemed by the Buyer
to be required to recover and collect the Evocomm Assets and to use Evocomm’s name in such manner
as the Buyer may reasonably deem necessary for the collection and recovery of the same. Evocomm
hereby declares that the foregoing powers are coupled with an interest and are and shall be
irrevocable by Evocomm.
(b) Excluded Assets. The parties hereto agree that the Evocomm Assets do not include:
(i) the Evosat Sale Shares;
(ii) that portion of the Initial Purchase Price payable by Globecomm to Evocomm in
respect of the sale and purchase of the Evosat Sale Shares in the manner as contemplated
pursuant to the terms of the Master Acquisition Agreement;
(iii) the corporate books and records of Evocomm; and
(iv) any Tax refunds that relate to the Evocomm Assets or Evocomm’s Business
originating during or attributable to the period up to the Effective Date,
(collectively the “Excluded Assets”).
(c) Assumed Liabilities. Except as otherwise specifically provided herein or in
Section 2(e), at the Closing, the Buyer shall assume and agree to pay, discharge or
perform, as appropriate, all liabilities and obligations of Evocomm incurred solely in connection
with the Evocomm Assets, as included on the Balance Sheets, other than the Retained Liabilities
(the “Assumed Liabilities”).
(d) Retained Liabilities. The liabilities and obligations not to be assumed by the
Buyer and to be retained by Evocomm (the “Retained Liabilities”) include, without limiting
the generality of the foregoing, and whether or not incurred in the ordinary and usual course of
business:
(i) any liability or obligation of Evocomm for any Taxes which relate to the Evocomm
Assets or the Evocomm Business originating during or attributable to the period up to the
Effective Date, including, without limitation, all sales and use taxes and taxes on income
or which are measured by income derived during or attributable to the period up to the date
hereof;
(ii) any liability or obligation of Evocomm relating to the Excluded Assets;
(iii) any liability or obligation to an employee, former employee or consultant of
Evocomm compensable under any applicable workers’ compensation or similar law arising from
or relating to an accident, event or other occurrence prior to the Effective Date;
(iv) any liability or obligation to an employee, former employee or consultant of
Evocomm under any employee benefit plans with respect to periods prior to the Effective
Date;
(v) any liability or obligation to an employee, former employee or consultant of
Evocomm for compensation, vacation pay, severance pay or other compensation or benefits with
respect to periods prior to the Effective Date; and
(vi) any liability or obligation whatsoever or howsoever arising of Evocomm to Xxxxxx Xxxxxxxx
for services performed by him for the benefit of Evocomm or otherwise.
3. Purchase Price; Allocation.
(a) Purchase Price. In consideration for the purchase of the Evocomm Assets and the
assumption of the Assumed Liabilities, at the Closing, Globecomm shall pay Evocomm a purchase price
of $3,588,704 (the “Evocomm Assets Purchase Price”), which Evocomm Assets Purchase Price
shall be paid pursuant to the terms of the Master Acquisition Agreement.
(b) Allocation. The Evocomm Assets Purchase Price (taking into account the Assumed
Liabilities) shall be allocated among the Evocomm Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended (the “Allocation”). The Allocation will be
used by the parties in preparing all applicable tax returns and shall be binding upon the parties
and upon each of their successors and assigns, and the parties shall report the transaction herein
in accordance with the Allocation and shall not take any position or action inconsistent with the
Allocation.
4. Closing; Deliverables.
(a) The closing of the purchase and sale of the Evocomm Assets and the assumption of the
Assumed Liabilities shall take place as part of the Closing as contemplated pursuant to the terms
of the Master Acquisition Agreement.
(b) In addition to the delivery of the Evocomm Purchase Price to Evocomm, at the Closing the
Buyer shall deliver to Evocomm a counterpart signature page to this Agreement and the Assignment,
Xxxx of Sale and Assumption Agreement in the form attached as Exhibit A hereto (the
“Xxxx of Sale”), in each case duly executed by an authorized officer of the Buyer.
(c) At the Closing Evocomm shall deliver to the Buyer a counterpart signature page to this
Agreement and the Xxxx of Sale in each case duly executed by an authorized officer of Evocomm,
together with such other deeds, endorsements, assignment and assumption agreements, and other good
and sufficient instruments of conveyance and transfer as the Buyer may reasonably request, to vest
in the Buyer all the right, title and interest of Evocomm in, to and under any or all of the
Evocomm Assets, free and clear of all Liens.
5. Representations and Warranties of the Parent and Evocomm. The Parent and Evocomm,
jointly and severally, represent and warrant to Globecomm and the Buyer as follows:
(a) Organization and Good Standing. Evocomm is a corporation duly organized, validly
existing and in good standing under the laws of the British Virgin Islands with full corporate
power and authority to conduct the Evocomm Business as it is now being conducted and to own, lease
and use its properties and the Evocomm Assets.
(b) Authorization. Evocomm has full power, authority and legal right to execute,
deliver and perform its obligations under this Agreement, and has taken all necessary corporate
action to authorize and approve the execution, delivery and performance of this Agreement. This
Agreement has been duly executed by Evocomm and constitutes a legal, valid and binding obligation
of Evocomm, enforceable against Evocomm in accordance with its terms.
(c) No Conflicts. Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, nor the compliance with the terms and
provisions hereof will:
(i) contravene, conflict with, or result in a violation of any provision of the
articles of incorporation or by-laws of Evocomm; or
(ii) contravene, conflict with, or result in a violation of any of the terms or
requirements of, any law, statute, judgment, decree or order applicable to Evocomm or by
which any of its properties are bound; or
(iii) contravene, conflict with, or result in a violation or breach of any provision
of, or give any Person the right to declare a default or exercise any remedy under, or to
accelerate the maturity or performance of or create any event which with notice or lapse of
time or both could become a default under or result in the loss of a material benefit under,
or to cancel, terminate, or modify, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation to which
Evocomm is a party or by which any of its properties are bound.
6. Representations and Warranties of the Buyer. The Buyer represents and warrants to
Evocomm as follows:
(a) Organization and Good Standing. The Buyer is a corporation validly existing and
in good standing under the laws of the British Virgin Islands. The Buyer has the requisite
corporate power and authority to carry on its business as presently conducted.
(b) Authorization. The Buyer has full power, authority and legal right to execute and
deliver, and perform its obligations under, this Agreement, and has taken all necessary corporate
actions to authorize and approve the execution, delivery and performance of this Agreement. This
Agreement
has been duly executed by the Buyer and constitutes a legal, valid and binding obligation of
the Buyer, enforceable against the Buyer in accordance with its terms.
(c) No Conflicts. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the compliance with the terms and
provisions hereof will:
(i) contravene, conflict with, or result in a violation of any provision of their
articles of incorporation or bylaws of the Buyer; or
(ii) contravene, conflict with, or result in a violation of any of the terms or
requirements of, any law, statute, judgment, decree or order applicable to the Buyer; or
(iii) contravene, conflict with, or result in a violation or breach of any provision
of, or given any Person the right to declare a default or exercise any remedy under, or
create any event which with notice or lapse of time or both could become a default under or
result in the loss of a material benefit under, or to accelerate the maturity or performance
of, note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation or to cancel, terminate, or modify, any material contract
to which the Buyer is a party or by it or any of its properties are bound or affected; or
(iv) result in the imposition or creation of any Lien upon or with respect to any of
the properties or assets owned or leased by the Buyer.
7. Miscellaneous.
(a) Transfer Taxes and Expenses. Evocomm shall be solely responsible for and
shall pay all transfer taxes, license and registration fees and expenses, if any, and all other
taxes, fees or other charges of any Governmental Authority required to be paid (regardless of who
has the obligation to collect such tax, fee or charge) on or after the date hereof as a result of
the sale, assignment, conveyance and delivery of the Evocomm Assets to the Buyer. Each party shall
pay any accounting, legal or similar expenses incurred by such party or to be incurred by it in
negotiating, closing and carrying out this Agreement and the transactions contemplated hereby.
(b) Sales and Personal Property Taxes. Any and all gross receipts, sales or use taxes
assessed, measured or payable with respect to the operation or activities of Evocomm’s business or
the Evocomm Assets up to the Effective Date shall be the sole responsibility of, and shall be paid
in full by, Evocomm. Any and all personal property taxes assessed, measured or payable at any time
up to the date hereof shall be the sole responsibility of, and shall be paid in full by, Evocomm.
Any and all gross receipts, sales or use taxes assessed, measured or payable with respect to the
operation or activities of Evocomm’s business or the Evocomm Assets from and after the Effective
Date shall be the sole responsibility of, and shall be paid in full by, the Buyer. Any and all
personal property taxes assessed, measured or payable at any time from and after the date hereof
shall be the sole responsibility of, and shall be paid in full by, the Buyer.
(c) Governing Law. This Agreement shall be governed by the laws of the State of New
York applicable to agreements made and to be performed entirely within such State without reference
to conflict of laws principles.
(d) Amendments. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties hereto.
(e) Waivers; Consents. Any failure of the Buyer, on the one hand, or the Parent and
Evocomm, on the other hand, to comply with any obligation, covenant, agreement or condition herein
may be waived by the Parent and Evocomm or by the Buyer, respectively, only by written instrument
signed by the party granting such waiver and delivered to the other parties. The waiver by a party
of any breach hereof or failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not be deemed to constitute a waiver of, or estoppel with respect to,
any other breach or default or any subsequent breach or default. Whenever this Agreement requires
or permits consent by or on behalf of any party hereto, such consent shall be given in writing in a
manner consistent with the requirements for a waiver as set forth in this Section 7(e).
(f) Severability. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law, rule or regulation, such provision shall be fully
severable and this Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision has never comprised a part hereof. The remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as a part of this Agreement
a legal, valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
(g) Assignment; Successors and Assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned or transferred (whether consensually,
non-consensually, by operation of law or otherwise) by any of the parties hereto without the prior
written consent of the other party, except that Globecomm and the Buyer may assign this Agreement
and all rights, interests or obligations hereunder to an Affiliate upon written notice to Evocomm
and/or the Parent. This Agreement and all of the provisions hereof shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted successors and assigns.
(h) Injunctive Relief. The parties agree and acknowledge that money damages alone will
not adequately compensate the Buyer for breach of any of the Parent’s or Evocomm’s covenants or
agreements in this Agreement, and the Parent and Evocomm agree that in the case of any breach or
threatened breach of any such covenant or agreement, in addition to all other remedies available to
such party at law, in equity or otherwise, the Buyer shall be entitled to injunctive relief,
compelling specific performance of, or other compliance with, the terms of this Agreement.
(i) Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed, then delivered or transmitted by facsimile, shall be deemed to be an
original and all of which taken together shall constitute but one and the same instrument.
(j) No Third Party Beneficiaries. Except as expressly provided herein, this Agreement
is not intended to, and does not, provide or create any rights or benefits of any Person other than
the parties hereto.
(k) Further Assurances. At any time and from time to time following the Closing,
Evocomm shall deliver to the Buyer such other instruments of conveyance and transfer as the Buyer
may request or as may be otherwise necessary to more effectively convey and transfer to, and vest
in the Buyer and put the Buyer in full possession of, the Evocomm Assets free and clear of all
Liens.
[signature page follows]
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written
above.
| EVOCOMM COMMUNICATIONS LIMITED |
||||
| By: | /s/ X. Xxxxxxxx | |||
| Name: X. Xxxxxxxx | ||||
| Title: Secretary | ||||
| CARRIER TO CARRIER TELECOM HOLDINGS LTD |
||||
| By: | /s/ X.X. Xxxxxxx | |||
| Name: Xxxx Xxxxxxx | ||||
| Title: Authorized Signatory | ||||
| GLOBECOMM (BVI) LTD |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: Xxxxx X. Xxxx | ||||
| Title: Director | ||||
| GLOBECOMM SYSTEMS INC. |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: Xxxxx X. Xxxx | ||||
| Title: President and Chief Operating Officer | ||||
