EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
between
XILA COMMUNICATIONS, LLC,
Seller
and
eGIX, INC.,
Purchaser
Dated as of October 28, 2004
THIS ASSET PURCHASE AGREEMENT (this "Agreement") made this 26 day of
October, 2004, by and between XILA COMMUNICATIONS, LLC, an Indiana limited
liability company ("Seller"), and eGIX, INC., an Indiana corporation
("Purchaser").
This Agreement sets forth the terms and conditions upon which Seller
agrees to sell and Purchaser agrees to purchase substantially all of the assets
used in Seller's Business.
In consideration of the promises, representations, warranties and
agreements herein contained, the parties agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply for purposes of this Agreement (such
definitions to be equally applicable to both the singular and plural forms of
the terms defined). There are other terms defined throughout the Agreement.
1.1 "Business" means the business of operating as a telecommunications
carrier within the State of Indiana pursuant to certificates of territorial
authority issued by the IURC for facilities based and resold interexchange and
local exchange service, and providing joint tenant, dedicated access and caller
identification services to Customers.
1.2 "Closing Date" shall have the meaning given in Section 2.9.
1.3 "Contracts" means all of Seller's rights, title and interest in and to
each contract and agreement listed on Schedule 1.3, including the Shared Tenant
Agreements.
1.4 "Customers" means those persons and entities listed on Schedule 1.4
and those persons and entities receiving Services from the Seller on or after
October 1, 2004.
1.5 "Encumbrances" means, to the extent applicable, all claims, liens
(including liens for taxes), mortgages, security interests, leases, options,
rights of first refusal or first offer, easements or other similar encumbrances.
1.6 "Equipment" means all machinery, equipment, tools and other mechanical
devices of any type, parts and accessories owned by Seller on the Closing Date,
including, without limitation, the machinery, equipment, parts and accessories
set forth on Schedule 1.6.
1.7 "Excluded Assets" shall mean those assets of Seller which are not part
of the Purchased Assets, all as identified on Schedule 1.7.
1.8 "IURC" means the Indiana Utility Regulatory Commission.
1.9 "Intangible Assets" means goodwill, customer lists, trademarks, trade
names and trade name rights (including, without limitation, all the rights of
Seller to use the name "XILA Communications," any and all variations thereof,
and any logos and URLs associated therewith),
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advertising rights and materials, and telephone and facsimile numbers (to the
extent assignable) owned by Seller or which Seller has the right to use.
1.10 "Knowledge", "to Seller's Knowledge" and variations thereof shall
mean that which is actually known by Xxxx Xxxxxxxx and Xxxx Xxxxxxxxx, the
President and Chief Financial Officer of Seller, respectively.
1.11 "Material Adverse Change" or "Material Adverse Effect" means, when
used with respect to Seller or Purchaser, as the case may be, any change or
effect that is likely to be materially adverse to the assets, properties,
condition (financial or otherwise), business (including, without limitation, the
Business) or results of operations of Seller or Purchaser, as the case may be,
taken as a whole.
1.12 "Revenue" means the gross amount of xxxxxxxx invoiced by Seller to
Customers for Services rendered by Seller in a manner consistent with accounting
policies and procedures historically applied by Seller.
1.13 "Services" means the provision of telecommunications and other
services related to the Business.
1.14 "Shared Tenant Agreement" means those certain Developer Shared Tenant
Services Agreements listed on Schedule 1.3 attached hereto.
1.15 "Transaction Documents" means, collectively, this Agreement and any
other document, agreement or instrument executed and delivered by the parties in
connection herewith.
ARTICLE II
THE ASSET PURCHASE
2.1 The Asset Purchase. Upon the terms and subject to the conditions
stated herein, Seller hereby agrees to sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser hereby agrees to purchase, accept and assume
from Seller, on the Closing Date, all of Seller's right, title and interest in
and to all Contracts, Equipment, Intangible Assets and Business of Seller (the
"Purchased Assets"), but expressly excluding the Excluded Assets.
2.2 Purchase Price. The purchase price for the Purchased Assets shall be
the sum of (a) Four Hundred Sixty Four Thousand Dollars ($464,000), adjusted as
provided in Section 2.5 below; plus (b) the Assumed Obligations, as defined in
Section 2.7(a) below ("Purchase Price").
2.3 Xxxxxxx Money. Purchaser herewith delivers to Seller the sum of Twenty
Five Thousand Dollars ($25,000) (the "Xxxxxxx Money"), and Seller hereby
acknowledges receipt of the Xxxxxxx Money, subject to collection. Seller may
deposit the Xxxxxxx Money and shall hold the Xxxxxxx Money subject to the terms
and conditions of this Agreement. The Xxxxxxx Money shall be applied to the
obligations of Purchaser at Closing and shall be credited first to any portion
thereof payable in cash.
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2.4 Method of Payment. The Purchase Price payable at Closing shall be paid
as follows:
(a) By application of the Xxxxxxx Money;
(b) By delivery of One Hundred Fifty Five Thousand Dollars
($155,000) payable by bank cashier's check, or wire transfer representing
funds immediately available at Bank One, N.A.;
(c) By application of any monies paid to Seller by Purchaser that
are to be applied to a reduction of the Purchase Price pursuant to Section
2 of the Services Agreement by and between Purchaser and Seller (the
"Services Agreement"); and
(d) By delivery of a promissory note of Purchaser, in the principal
amount of Two Hundred Eighty Four Thousand Dollars ($284,000) less the
reductions to Purchase Price pursuant to Section 2.4(c) hereof, payable to
the order of Seller, in form reasonably acceptable to the parties and
their respective counsel (the "Note").
Purchaser's obligation for the balance of the Purchase Price shall be discharged
by Purchaser's payment or performance when due of the Note and of all Assumed
Obligations.
2.5 Intentionally Omitted.
2.6 Customer Lists. To the best of Seller's Knowledge, Schedule 1.4 sets
forth a current and complete list of Seller's Customers relating to the Business
as of October 1, 2004.
2.7 Assumption of Liabilities; Regulatory Approval.
(a) Assumed Liabilities. On the Closing Date, and except as
otherwise provided in Section 2.7(b) of this Agreement, Purchaser shall
assume and agree to pay, perform and discharge all of the following debts,
obligations and liabilities of the Seller:
(i) All obligations, expenses and liabilities arising on or after
October 1, 2004 in respect of, arising out of, resulting from,
or related to Customer contracts and service agreements;
(ii) All obligations, expenses and liabilities arising on or after
October 1, 2004 in respect of, arising out of, resulting from,
or relating to the Shared Tenant Agreements;
(iii) All obligations, expenses and liabilities arising on or after
October 1, 2004 in respect of, arising out of, resulting from,
or relating to the telecommunications agreements identified in
Schedule 2.7 hereto; and
(iv) All obligations, expenses and liabilities of the Seller
arising on or after October 1, 2004 as provided in the
Services Agreement, including without limitation, trade
accounts payable
("Assumed Liabilities").
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(b) General Limitation on Assumption of Liabilities. Except for the
Assumed Liabilities (i) Seller shall transfer the Purchased Assets to
Purchaser free and clear of all Encumbrances (except Encumbrances for
business tangible personal property taxes), and (ii) Purchaser shall not,
by virtue of its purchase of the Purchased Assets, be deemed to have
assumed or become responsible for any other liabilities or obligations of
Seller; and (iii) Seller shall remain liable for all obligations, expenses
and liabilities of the Seller arising on or before September 30, 2004 as
provided in the Services Agreement, including without limitation, trade
accounts payable (the "Excluded Liabilities").
(c) Offer of Employment. Except as provided in Section 2(g) of the
Services Agreement, Purchaser may offer employment to some or all of
Seller's employees prior to the Closing Date, but is under no obligation
to make any offer of employment to any person as a result of this
Agreement.
(d) Regulatory Approval. Each party shall, at all times and at its
expense, use its best efforts to: (i) secure and obtain its Required
Consents and Approvals (as hereinafter defined); (ii) deliver to the other
party pertinent updates and information regarding such Required Consents
and Approvals (including, without limitation, the IURC approval process);
and (iii) assist the other party, as soon as is reasonably practicable, to
secure and obtain such other party's Required Consents and Approvals.
2.8 Further Assurances. From and after the Closing Date, and upon written
request from Purchaser, Seller shall perform such acts and execute, acknowledge
and/or deliver to Purchaser such further deeds, assignments, transfers,
conveyances and other instruments and papers as may reasonably be required to
sell, assign, transfer, vest, convey and deliver full right, title and interest
in, and possession of, the Purchased Assets to Purchaser and to otherwise
consummate the transactions contemplated hereby.
2.9 Closing. The purchase and sale provided for in this Agreement shall be
consummated at a closing (the "Closing"), at a time and location mutually
agreeable to the parties after all the conditions contained in this Agreement
have been fulfilled or waived (the "Closing Date"), but in no event later than
February 28, 2005 (subject to the automatic extension set forth in Section 2.10
(b)), unless the parties otherwise agree in writing. At the Closing, the parties
will execute and deliver such bills of sale, assignments, documents and
instruments as are reasonably necessary to sell, convey, assign, transfer and
deliver to Purchaser the Purchased Assets, and to transfer and assume the
Assumed Liabilities.
2.10 Termination. This Agreement may be terminated (a) at any time prior
to Closing by the mutual written consent of Seller and Purchaser, (b) in the
event any of the conditions set forth herein are not satisfied or waived on or
before February 28, 2005, unless otherwise mutually agreed by Purchaser and
Seller; provided, however, that if, on such date, the only Required Consent and
Approval not yet obtained by the parties is the IURC approval to be obtained by
Seller as identified on Schedule 3.2 hereto, this Agreement shall be extended to
March 31, 2005, and Seller and Purchaser shall diligently work together using
both parties' best efforts to obtain such approvals prior to March 31, 2005, or
(c) by either Purchaser or Seller on written notice to the other in the event
the Closing Date shall not have occurred within the time prescribed in Section
2.9, provided the terminating party is not then in default in the performance of
its obligations hereunder. If this Agreement is terminated pursuant to Items
(a)-(c) above, no party
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shall have any further liability hereunder and this Agreement shall thereafter
be of no further force or effect.
In the event: (a) Purchaser or Seller shall, without legal cause, fail or
refuse to consummate the transactions contemplated hereby in accordance with the
terms, conditions, provisions, representations and warranties hereof; or (b) the
Services Agreement is terminated prior to the Closing Date pursuant to the terms
thereof; then: (x) the nondefaulting party may terminate this Agreement and,
shall have all rights and remedies available at law or in equity; (y) if Seller
is the terminating party, Seller may, at its election, and without prejudice to
its other remedies at law or in equity, declare a forfeiture of the Xxxxxxx
Money, in which event the Xxxxxxx Money and all interest thereof will be
immediately forfeited to Seller; and (z) if Purchaser is the terminating party,
the Seller shall immediately return the Xxxxxxx Money to Purchaser, and
Purchaser may maintain a suit for specific performance of this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that:
3.1 Organization. Seller is a limited liability company duly organized and
validly existing under the laws of Indiana.
3.2 Authority. Seller has the full power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby
and thereby. All acts and other proceedings required to be taken by or on the
part of Seller to authorize such execution, delivery and consummation of this
Agreement required on the part of Seller have been duly and properly taken. This
Agreement has been duly executed and delivered by Seller and constitutes a
legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by bankruptcy, insolvency or other laws affecting the enforcement
of creditor's rights in general. The execution and delivery by Seller of this
Agreement and the consummation of the transactions contemplated hereby will not
violate any applicable law, or conflict with, result in any breach of,
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or result in the creation of an Encumbrance on
any of the properties or assets of Seller pursuant to, the Articles of
Organization or Operating Agreement of Seller or any indenture, mortgage, lease,
agreement or other instrument to which Seller is a party or by which its
properties or assets are bound. Except as set forth in Schedule 3.2 attached
hereto ("Seller's Required Consents and Approvals"), no material approval,
authorization, consent or other order or action of or filing with any person,
entity or court, administrative agency or other governmental body in the United
States of America is required for the execution and delivery by Seller of this
Agreement or the consummation by Seller of the transactions contemplated hereby.
3.3 Financial Statements. Seller has delivered to Purchaser its financial
statements as of December 31, 2003 and for the nine (9) month period ending
September 30, 2004 (together, the "Financial Statements"). Except as disclosed
in Schedule 3.3 attached hereto, the Financial Statements have been prepared by
Seller in accordance with generally accepted accounting principles consistently
applied. To its Knowledge, Seller does not have any contingent or undisclosed
obligations or liabilities relating to the Business which would be required to
be
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reflected in the Financial Statements, other than obligations or liabilities (i)
that are disclosed in the Transaction Documents or the schedules thereto, or
(ii) would not have a Material Adverse Effect on the financial condition of
Seller, taken as a whole.
3.4 Retention of Customers. To its Knowledge, Seller does not have reason
to believe that any of the entities listed on Schedule 1.4, other than HDG
Xxxxxx and its affiliates, intends to terminate its relationship with Seller,
nor does Seller possess any information that any such Customer intends to
materially alter its purchase of Services from Seller.
3.5 Litigation. Seller is not a party to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator that materially affects the operation of
the Business.
3.6 Contracts. To Seller's Knowledge, each of the Contracts listed in
Schedule 1.3 is valid and binding obligation of Seller and is in full force and
effect, each party to each such Contract has performed all material obligations
required to be performed by it thereunder, and no other party to any such
Contract has taken the position that such Contract is not enforceable against
it.
3.7 Accuracy. To Seller's Knowledge, the required disclosures made in the
Schedules attached hereto are complete and accurate in all material respects and
do not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements or facts contained therein, in
light of the circumstances under which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
4.1 Organization. Purchaser is a corporation duly organized and validly
existing under the laws of the State of Indiana.
4.2 Authority. Purchaser has the full entity power and authority to
execute and deliver this Agreement and consummate the transactions contemplated
hereby and thereby. All acts and other proceedings required to be taken by or on
the part of Purchaser to authorize the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby has been duly and
properly taken. 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, except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditor's rights in general. The execution and
delivery by Purchaser of this Agreement and the consummation of the transactions
contemplated hereby will not violate any law, or conflict with, result in any
breach of, constitute a default (or an event which with notice or lapse of time
or both would become a default) under, or result in the creation of an
Encumbrance on any of the properties or assets of Purchaser pursuant to, the
organization charter or by-laws of Purchaser or
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any indenture, mortgage, lease, agreement or other instrument to which Purchaser
is a party or by which its properties or assets are bound. Except as set forth
in Schedule 4.2 attached hereto (the "Purchaser's Required Consents and
Approvals"), no material approval, authorization, consent or other order or
action of or filing with any person, entity or court, administrative agency or
other governmental body in the United States of America is required for the
execution and delivery by Purchaser of this Agreement or the consummation by
Purchaser of the transactions contemplated hereby.
4.3 No Legal Proceedings. There is no action, suit, investigation, order,
judgment or proceeding pending or, to the knowledge of Purchaser, threatened
against or affecting Purchaser that, individually or when aggregated with one or
more other actions, suits, orders, judgments or proceedings, has or might
reasonably be expected to have a Material Adverse Effect on Purchaser's ability
to perform any of its obligations hereunder or under this Agreement.
4.4 Brokers. No broker, investment banker or other person is entitled to
any broker's, finder's or similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Purchaser.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Purchaser's Obligations. The obligations of
Purchaser under this Agreement shall be subject to Purchaser receiving delivery,
upon terms and conditions satisfactory to it, of all of (a) Seller's and
Purchaser's Required Consents and Approvals, and (b) the instruments, documents
and considerations described in Article VI, the form and substance of which
shall be satisfactory in all reasonable respects to Purchaser and its counsel.
5.2 Conditions Precedent to Seller's Obligations. The obligations of
Seller under this Agreement shall be subject to Seller's receiving delivery,
upon terms and conditions satisfactory to it, of all of (a) Purchaser's and
Seller's Required Consents and Approvals, and (b) the instruments, documents and
considerations described in Article VI, the form and substance of which shall be
satisfactory in all reasonable respects to Seller and its counsel.
5.3 Notice to Customers. Upon Seller's receiving delivery, upon terms and
conditions satisfactory to it, of all of Purchaser's and Seller's Required
Consents and Approvals, Seller shall cause to be delivered to its Customers a
notice of change of telephone service provider in form reasonably acceptable to
the parties and their respective counsel, requested, approved or required by the
IURC.
ARTICLE VI
CLOSING DELIVERIES
6.1 Deliveries by Purchaser. At Closing, Purchaser shall deliver or cause
to be delivered to Seller (a) a certificate, dated as of a recent date,
evidencing the existence of Purchaser in the State of Indiana; (b) a certificate
dated the Closing Date and executed by a corporate officer of Purchaser on
behalf of Purchaser certifying the by-laws of the Purchaser and
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that the resolutions of the Board of Directors of Purchaser authorizing the
execution of this Agreement and the consummation of the transactions
contemplated herein (true, accurate and complete copies of which shall be
attached to such certificate) have been duly adopted and are in full force and
effect as of the Closing Date; (c) a certificate dated the Closing Date and
executed by an executive officer of Purchaser to the effect that (i) each of the
representations and warranties of Purchaser contained in this Agreement are true
and correct in all material respects, and (ii) all conditions precedent to this
transaction have been fulfilled or waived, on and as of such date; (d) the
payments specified in Section 2.4(a) and (b) hereof; (e) the Note, duly executed
by Purchaser; (f) an assumption agreement duly executed by Purchaser; and (g)
such other documents and instruments as Seller may reasonably request.
6.2 Deliveries by Seller. At Closing, Seller shall deliver to purchaser
(a) a certificate dated as of a recent date, evidencing the existence of Seller
in the State of Indiana; (b) a certificate dated the Closing Date and executed
by an officer of Seller certifying that resolutions of the sole member of Seller
authorizing the execution of this Agreement and the consummation of the
transactions contemplated hereby (true, accurate and complete copies of which
resolutions shall be attached to such certificate) have been duly adopted and
are in full force and effect as of the Closing Date; (c) a certificate dated the
Closing Date and executed by an executive officer of Seller to the effect that
(i) each of the representations and warranties of Seller contained in this
Agreement are true, accurate and complete in all material respects, and (ii) all
conditions precedent to this transaction have been fulfilled or waived, on and
as of the Closing Date; (d) a duly executed xxxx of sale conveying and
warranting to the Purchaser title to the Equipment; (e) assignment and
assumption agreements relative to Accounts Receivable, Contracts, Intangible
Assets and Assumed Liabilities necessary to transfer all of Seller's rights
thereunder to Purchaser; and (f) such other documents and instruments as
Purchaser may reasonably request.
6.3 Form of Documents and Instruments; Possession. All documents,
instruments and agreements contemplated by Sections 6.1 and 6.2 shall be in form
reasonably satisfactory to Purchaser and Seller and their respective counsel.
Seller shall deliver possession of the Purchased Assets to Purchaser on the
Closing Date.
ARTICLE VII
FURTHER COVENANTS AND AGREEMENTS
7.1 Access; Information; Confidentiality.
(a) Each party, covenants and agrees, and shall cause each of its
officers, employees, attorneys, accountants and other authorized
representatives, to treat all information obtained or developed by them
concerning the other party in strict confidence. Each party also covenants
and agrees to comply with all other confidentiality undertakings
heretofore agreed to between Purchaser and Seller or their representatives
relating to the parties or the transactions contemplated by this
Agreement.
(b) If at any time it is necessary that a party be furnished with
additional information, documents or records relating to the Purchased
Assets, the Business, or the transaction contemplated by this Agreement in
order properly to prepare or support its tax returns or other documents or
reports required to be filed with governmental authorities or any
securities exchanges or otherwise for any purpose in connection with the
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performance or discharge by the parties of their obligations hereunder,
and such information, documents or records are in the possession or
control of the other party, such other party agrees to use all reasonable
efforts to furnish or make available such information, documents or
records (or copies thereof).
7.2 Fees and Expenses. Each party shall bear its own expenses incurred in
connection with this transaction.
7.3 Other Post-Closing Obligations.
(a) Post-Closing Obligations of Purchaser.
(i) Purchaser shall perform fully its obligations under the
Transaction Documents in accordance with their respective
terms.
(ii) Any cash collections and other cash proceeds received by
Purchaser from any Customer shall be held in trust for the
benefit of Seller, and Purchaser shall immediately pay over
such cash collections and other cash proceeds to Seller until
all of Seller's accounts receivable existing on September 30,
2004 with respect to such Customer has been paid in full.
(iii) After Closing, Purchaser shall indemnify and save harmless and
defend Seller from and against any and all actions, suits,
proceedings, investigations, assessments, audits, fines,
judgments, liabilities, losses, claims, demands, damages,
obligations, costs, charges, reasonable counsel fees and other
expenses of every nature and character (collectively, the
"Losses"), sustained or incurred by Seller by reason of or
resulting from the nonperformance of any covenant or
obligation of this Agreement required to be performed by
Purchaser after the Closing pursuant to this Agreement.
(b) Post-Closing Obligations of Seller.
(i) Subject to any applicable statute of limitations and any valid
defenses or setoffs, from and after the Closing Date, Seller
shall timely pay, satisfy and/or discharge, in accordance with
past practice, all Excluded Liabilities, or otherwise deal
with the Excluded Liabilities in such a manner as to prevent
claims against Purchaser in respect thereof; provided,
however, that Seller shall not be obligated to pay any
Excluded Liability while and for so long as Seller is
contesting the same in good faith by appropriate proceedings.
(ii) Seller agrees that after the Closing Date, it shall not use or
employ in any manner, directly or indirectly, the name "XILA
Communications" or any derivation or variation thereof, and
that as soon as practicable after the Closing Date, it will
take and cause to be taken all necessary action in order to
officially change the Seller's name.
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(iii) Seller will terminate the Certificate of Territorial Authority
issued by the IURC in Cause No. 9810-13, Certificate of
Territorial Authority issued by the IURC in Cause No. 41308,
Certificate of Territorial Authority issued by the IURC in
Cause No. 42058 and all other licenses and rights to conduct
Business, and promptly deliver evidence of such terminations
to Purchaser.
(iv) After Closing, Seller shall indemnify and save harmless and
defend Purchaser from and against any and all Losses which are
sustained or incurred by Purchaser by reason of or resulting
from the non-performance of any covenant or obligation of this
Agreement required to be performed by Seller after the Closing
Date, including, but not limited to any Excluded Liability.
7.4 Public Announcements. Any press release or public statement with
respect to this Agreement and this transaction shall not be made without the
agreement of the parties on the content of such information release.
7.5 Sales and Transfer Taxes. Seller shall pay all income, payroll,
property, sales, use, and/or excise taxes (collectively, "Taxes") due with
respect to the Business that relate to the periods prior to the Closing Date,
and Purchaser shall pay all such Taxes that relate to any period after the
Closing Date.
7.6 Access to Books and Records. For a period of seven (7) years after the
Closing, Purchaser shall provide Seller with access to all books and records of
the Business, during normal business hours, for purposes of (a) inspecting the
same, and (b) verifying Purchaser's compliance with the terms and conditions of
Sections 7.3(a)(i) and (ii) of this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given on the date of service if delivered
personally, on the following day sent by overnight courier or telecopied (with a
confirmatory copy sent by overnight courier), or on the third day after mailing
if mailed to the party to whom notice is to be given, by certified mail, return
receipt requested, first-class, postage prepaid, to such party at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(a) If to Purchaser, to:
00000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
TX/FAX: 000.000.0000
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(b) If to Seller: to
c/o CTI Group
000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
8.2 Interpretation. When a reference is made in this Agreement of
"Section", such reference shall be to a Section of this Agreement unless
otherwise indicated, and the words "hereof," "herein" and "hereunder" and
similar terms refer to this Agreement as a whole and not to any particular
provision of this Agreement, unless the context otherwise requires. The headings
contained herein are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
8.3 Counterparts. This Agreement may be executed in counterparts, all of
which shall be considered one (1) and the same agreement and shall become
effective when one (1) or more counterparts have been signed by each of the
parties and delivered to the other parties.
8.4 Entire Agreement; No Third-Party Beneficiaries. This Agreement,
including documents the Schedules and Exhibits (if any) attached hereto,
contains the entire agreement between Seller and the Purchaser with respect to
the subject matter hereof. This Agreement is not intended to confer upon any
person other than the parties any rights or remedies hereunder.
8.5 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Indiana.
8.6 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by either of the parties without the prior
written consent of the other party hereto. Subject to the preceding sentence,
this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
8.7 Severability. If any term herein is determined to be invalid, illegal
or incapable of being enforced by any rule of law, all other provisions shall
remain in full force and effect so long as the economic or legal substance of
this transaction is not affected in any manner materially adverse to either
party hereto. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties 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 be consummated as originally contemplated to the fullest extent
possible.
8.8 Consent to Jurisdiction. In the event that any legal proceedings are
commenced in any court with respect to any matter arising under this Agreement,
the parties specifically consent and agree to the jurisdiction of the courts of
Xxxxxx County, Indiana.
8.9 Enforcement. In any action at law or in equity to enforce any of the
provisions or rights under this Agreement, the unsuccessful party to such
litigation, as determined by a court in a final judgment or decree, shall pay
the successful party all costs, expenses and reasonable
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attorneys' fees incurred by the successful party (including, without limitation,
costs, expenses and fees on any appeals), and if the successful party recovers
judgment in any such action or proceeding, such costs, expenses or attorneys'
fees shall be included as part of the judgment.
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement as
of the date first above written.
eGIX, INC. XILA COMMUNICATIONS, LLC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------ ----------------------------
Printed Name: Xxxxxx Xxxxx Printed Name: Xxxxxxx Xxxxxxxxx
Print Title: President Print Title: Chief Financial Officer
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