Exhibit 10.37
ASSET PURCHASE AGREEMENT
by and between
RSL COM UK LIMITED
and
INCOM (UK) LIMITED
As of August 12, 1996
ASSET PURCHASE AGREEMENT
THIS AGREEMENT, dated as of August 12, 1996 (the "Agreement"), by and
between RSL COM UK Limited, a United Kingdom limited liability company
("Purchaser"), and Incom (UK) Limited, a United Kingdom limited liability
company ("Seller").
WITNESSETH:
WHEREAS, Seller is licensed to engage in the international
telecommunications business in the United Kingdom (the "Business"); and
WHEREAS, Seller and Purchaser desire to enter into this Agreement pursuant
to which Seller proposes to sell to Purchaser, and Purchaser proposes to
purchase from Seller, all of the assets of the Business except Excluded Assets
(as defined below) and Purchaser proposes to assume certain Assumed Liabilities
(as defined below) of the Seller related to the Business.
NOW, THEREFORE, in consideration of the premises and of the mutual
convenants and agreements set forth herein, the parties hereto agree as follows:
ARTICLE 1.
ASSET PURCHASE AND SALE
Section 1.1 Agreement to Sell. Except as otherwise specifically provided
in this Article 1, Seller hereby grants, sells, conveys, assigns, transfers and
delivers to Purchaser, upon and subject to the terms and conditions of this
Agreement, all right, title and interest of Seller in and to all of the assets
of the Seller used in the Business (the "Assets") except Excluded Assets (as
hereinafter defined) as of the date hereof, free and clear of all mortgages,
liens, pledges, security interests, charges, claims, restrictions and
encumbrances of any nature whatsoever.
Section 1.2 Included Assets. The Assets of the Business to be sold to
Purchaser shall include, without limitation, the following assets, properties
and rights of Seller as of the date hereof:
(a) All machinery, equipment, business machines, vehicles,
furniture, fixture, leasehold and building improvements and other tangible
or intangible property of Seller including that listed on Schedule 1.2(a)
hereto;
(b) All right, title and interest of Seller in contracts, agreements
and other instruments including those listed on Schedule 1.2(b) hereto;
(c) All right, title and interest of Seller in customer contracts
including those listed on Schedule 1.2(c) hereto;
(d) All business licenses and permits of Seller including those
listed on Schedule 1.2(d) hereto, except as otherwise provided in Section
1.3 hereof;
(e) All customer lists, customer credit information, sales records,
database information, invoice files and correspondence files of Seller
used in or relating to the Business;
(f) All right, title and interest of Seller in the software
dedicated to or used in connection with the Business including that listed
in Schedule 1.2(f) hereto;
(g) All prepaid expenses of Seller related to the Business; and
(h) All accounts receivable, notes receivable, deposits and advances
of Seller as of the date hereof and arising after the date hereof which
are related to Purchaser or any person controlling, controlled by or
under common control with (hereinafter, an "Affiliate"), the Purchaser
(including, without limitation, ITC, ITG and Intelco Europe (as such terms
are defined below)), even if such accounts receivable relate to the
provision by Seller of products or services prior to the date hereof.
Section 1.3 Excluded Assets. Notwithstanding anything to the contrary
contained herein, it is agreed that Seller is not selling and Purchaser is not
buying the following assets of Seller (hereinafter collectively referred to as
"Excluded Assets"):
(a) Cash and cash equivalents of Seller as of the date hereof;
(b) All rights in and to the licensing, marketing and other
proprietary uses of the names "Incom (UK) Ltd." and "Incom (UK) Limited"
and related commercial marks, together with the Seller's United Kingdom
telecommunications licenses set forth on Schedule 1.3(b);
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(c) Any intangibles of Seller which by their nature are
nonassignable. and
(d) Shares of common stock of International Telecommunications
Group, Ltd. ("ITG") owned by Seller.
Section 1.4 Agreement to Purchase. Purchaser hereby purchases the Assets
from Seller, upon and subject to the terms and conditions of this Agreement and
in reliance on the representations, warranties and covenants of Seller contained
herein, in exchange for the Purchase Price (as hereinafter defined) and the
assumption of the Purchaser of the Assumed Liabilities as provided in Section
1.6 hereof.
Section 1.5 The Purchase Price. The aggregated purchase price (the
"Purchase Price") for the Assets is (i) U.S. $500,000 to be paid by Purchaser to
Seller contemporaneously with the execution and delivery of this Agreement by
certified or official bank check or wire transfer and (ii) 3,954 non-voting
shares of International Telecommunications Group Ltd., a Delaware corporation
("ITG") (representing 1.25% of the outstanding common stock of ITG on a
fully-dilutive basis) (the "Shares"), which shares are not subject to dilution
and are to be delivered to Seller within twenty-one (21) days following the date
hereof. Purchaser and Seller xxxx that within twenty-one (21) days from the date
hereof the 3,333 shares of ITG voting common stock currently owned by Seller
shall be exchanged for 3,333 shares of non-voting common stock of ITG which are
not subject to dilution.
Section 1.6 Assumption of Assumed Liabilities. Purchaser hereby assumes
and agrees to pay only the liabilities listed on Schedule 1.6 hereto in the
amounts set forth thereon (the "Assumed Liabilities").
Section 1.7 Excluded Liabilities. Notwithstanding anything to the contrary
set forth herein, other than the Assumed Liabilities, Purchaser has not assumed,
agreed to pay, discharge or perform or incurred any liability or obligation
under this Agreement or otherwise become responsible in respect of any liability
or obligation of Seller (the "Excluded Liabilities"). Without limiting the
generality of the foregoing and notwithstanding anything in Section 1.6 to the
contrary, Purchaser has not assumed and shall not be liable for any of the
following liabilities or obligations of Seller:
(a) Any federal, state, local or foreign income, capital gains,
profits, gross receipts, payroll, capital stock, franchise, employment,
withholding, social security, unemployment, disability, real property,
personal property, stamp, excise, occupation, sales, use, transfer,
mining, value-added, investment credit
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recapture, alternative or add-on minimum, environmental, estimated or
other taxes, duties or assessments of any kind, including any interest,
penalty and additions imposed with respect to such amounts (collectively,
"Taxes") levied by any national, state, regional or local taxing authority
whether or not levied in connection with the sale of the Assets to
Purchaser;
(b) Any liabilities or obligations of Seller for severance, accrued
vacation or similar payments to employees which arise as a result of
consummation of the transactions contemplated hereby and any other
liabilities or obligations of Seller which arise out of or are incurred
with respect to this Agreement and the transactions contemplated hereby
(including, without limitation, Seller's legal and accounting fees);
(c) Any liabilities or obligations of Seller directly or indirectly
incident to or arising out of or incurred with respect to the Assets;
(d) Any liabilities or obligations of Seller arising under any
governmental statute, code, rule, regulation, ordinance, decree, or other
requirement or law relating to (i) the protection of human health and
safety or the environment (collectively, "Environmental Laws") or (ii)
labor or employment with respect to the conduct of the Business or
conditions in connection with the Business prior to the date hereof; and
(e) Any accounts payable or trade payables of Seller.
Section 1.8 Prorations. All property and ad valorem taxes, business
licenses, permits, communications lines, utilities and other customarily
proratable expenses of Seller relating to the Assets payable prior or subsequent
to the date hereof and relating to the period of time both prior to and
subsequent to the date hereof will be prorated between Purchaser and Seller as
of the date hereof based on the number of days in such period, with Seller being
responsible for a proportionate share of such expenses based on the number of
days in the period prior to the date hereof and Purchaser being responsible for
a proportionate share of such expenses based on the sum of the date hereof and
the number of days in such period subsequent to the date hereof.
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ARTICLE 2.
ITEMS DELIVERED; FURTHER ASSURANCES
Section 2.1 Items Delivered. Seller from time to time after the date hereof,
at Purchaser's request, will execute, acknowledge and deliver to Purchaser such
other instruments of conveyance and transfer and will take such other actions
and execute and deliver such other documents, certifications and further
assurances as Purchaser may reasonably request in order to vest more effectively
in Purchaser, or to put Purchaser more fully in possession of, any of the
Assets, or to better enable Purchaser to complete, perform or discharge any of
the Assumed Liabilities. Each of the parties hereto will cooperate with the
other and execute and deliver to the other such other instruments and documents
and take such other actions as may be reasonably requested from time to time by
any party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller hereby represents and warrants to Purchaser as follows:
Section 3.1 Authorization, Etc. The execution and delivery of this
Agreement and each of the Seller Ancillary Documents (as hereinafter defined) by
Seller and the due consummation of the transactions contemplated hereby and
thereby have been duly authorized by all necessary corporate action on the part
of Seller. Each of this Agreement and the Seller Ancillary Documents has been
duly executed and delivered by Seller. Each of this Agreement and the Seller
Ancillary Documents constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
Section 3.2 Absence of Restrictions and Conflicts. The execution, delivery
and performance of this Agreement and each of the Seller Ancillary Documents,
the consummation of the transactions contemplated hereby and thereby, and the
fulfillment of and compliance with the terms and conditions of this Agreement
and each of the Seller Ancillary Documents do not and will not, with the passing
of time or the giving of notice or both, violate or conflict with, constitute a
breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of any obligation under, (i) any term or provision of
the Articles or
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Memorandum of Association or Byelaws or other governing instrument of Seller,
(ii) any contract, agreement, commitment or understanding to which Seller is a
party or to which Seller or any of either Seller's properties is subject, (iii)
any judgment, decree or order of any court or any national, or local
governmental authority or agency or public or regulatory unit, agency, body or
authority (collectively, a "Governmental Authority") to which Seller is a party
or by which Seller or any of Seller's properties is bound, or (iv) any statute,
law, regulation or rule applicable to Seller.
Section 3.3 Ownership of Assets and Related Matters. Seller has
transferred to Purchaser as of the date hereof good and valid title to all of
the Assets, free and clear of all liens, pledges, security interests, charges,
claims, restrictions and encumbrances of any nature whatsoever, other than such
encumbrances or imperfections of title as are set forth in Schedule 3.3 hereto.
The liens, encumbrances and restrictions described in Schedule 3.3 hereto are
hereinafter collectively referred to as "Permitted Liens." All of the Assets
that constitute tangible property are in good operating condition and repair
subject to normal wear and maintenance, are usable in the regular and ordinary
course of business and conform to all applicable laws, ordinances, codes, rules
and regulations applicable thereto.
Section 3.4 [Intentionally omitted]
Section 3.5 Litigation; Compliance With Law. Except as set forth in
Schedule 3.5 hereto, (a) the Seller is not engaged in or a party to, and is not
threatened with, any legal action or other proceeding, before any court,
arbitrator or administrative agency which would have a material adverse effect
on the Assets or the Business; and (b) Seller is not a party to or subject to
any judgment, decree or order entered in any lawsuit or proceeding brought by
any Governmental Authority or by any other person against Seller which could
have a material adverse effect on the Assets or the Business or its ability to
enter into or perform its obligations under this Agreement or any of the Seller
Ancillary Documents or to consummate the transactions contemplated hereby or
thereby. Seller is not in conflict with, or in default or violation of, any law,
rule, regulation, order, judgment or decree applicable to Seller or by which any
of the Assets is bound or affected which would have a material adverse effect on
the Assets or the Business or its ability to enter into or perform its
obligations under this Agreement or any of the Seller Ancillary Documents or to
consummate the transactions contemplated hereby or thereby.
Section 3.6 Brokers, Finders, etc. Seller has not incurred any liability
to any broker, finder or agent for any brokerage fees, finders' fees or other
like commissions with respect to the transactions contemplated by this
Agreement.
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Section 3.7 Consents. Except for the consents described in Schedule 3.7
hereto, no waiver, permit, license, approval, authorization, qualification,
order or consent of or filing with any court or Governmental Authority or any
other third party is required to be obtained or made by Seller in connection
with the execution, delivery or performance of this Agreement or any of the
Seller Ancillary Documents or the consummation of the transactions contemplated
hereby or thereby.
Section 3.8 Contracts. Except as disclosed in Schedule 3.8 each contract
to be assumed by Purchaser is in full force and effect and is valid and
enforceable in all material respects. Seller has performed in all material
respects all obligations required to be performed by it under each contract to
be assumed by Purchaser, there are no outstanding material disputes thereunder
and Seller is not in breach of any material provision thereof nor is either of
them aware of any breach thereunder by any other party thereto.
Section 3.9 Employees. Except as disclosed in Schedule 3.9 hereto, there
are no grievances or other labor disputes with respect to individuals employed
in the Business and Seller has not experienced any such labor controversy within
the past two (2) years.
Section 3.10 Payables. Seller represents, warrants and covenants that all
accounts payable or trade payables of Seller as of the date of this Agreement
have been or will be paid in full or otherwise settled by Seller.
Section 3.11 Permits and Approvals. Seller has all licenses, permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Authorities required for the conduct of the Business as presently conducted by
Seller. Within the past eighteen (18) months, Seller has not received a written
notice alleging a violation or probable violation or notice of revocation or
other written communication from or on behalf of any Governmental Authority
which violation has not been corrected or otherwise settled alleging (i) any
violation of any material license, permit, consent, approval, authorization,
qualification or order or (ii) that Seller requires any material license,
permit, consent, approval, authorization, qualification, or order not currently
held by it.
Section 3.12 Customer Contracts. Except as disclosed on Schedule 3.12, to
Seller's knowledge, none of the customers of the Business intend to terminate or
refuse to renew their customer contracts referred to in Section 1.2(c) or
otherwise modify said contracts or take any adverse action against Purchaser or
any action
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which would otherwise adversely affect Purchaser as a result of the consummation
of the transactions contemplated by this Agreement or otherwise.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
Section 4.1 Organization. Purchaser is a limited liability company duly
organized and validly existing under the laws of the United Kingdom and has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as it is now being conducted. International
Telecommunications Europe ("Intelco Europe") is duly organized, validly existing
and in good standing under the laws of the state of Delaware.
Section 4.2 Authorization. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement by Purchaser, the
performance by Purchaser of its obligations hereunder and thereunder and the
consummation of the transactions provided for herein and therein have been duly
and validly authorized by all necessary corporate action on the part of
Purchaser. This Agreement has been duly executed and delivered by Purchaser and
constitutes a valid and binding agreement of Purchaser, enforceable against
Purchaser in accordance with its terms.
Section 4.3 Absence of Restrictions and Conflicts. The execution, delivery
and performance of this Agreement, the consummation of the transactions
contemplated hereby and thereby, and the fulfillment of and compliance with the
terms and conditions hereof and thereof do not and will not, with the passing of
time or the giving of notice or both, violate or conflict with, constitute a
breach of or default under, result in the loss of any material benefit under, or
permit the acceleration of any obligation under, (i) any term or provision of
the Articles or Memorandum of Association or Byelaws of Purchaser, (ii) any
contract, agreement, commitment or understanding to which Purchaser is a party
or to which Purchaser or any of Purchaser's properties is subject, (ii) any
judgment, decree or order of any court or Governmental Authority to which
Purchaser is a party or by which Purchaser or any of Purchaser's properties is
bound, or (iv) any statute, law, regulation or rule applicable to Purchaser.
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Section 4.4 Brokers, Finders, Etc. Purchaser has not incurred any
liability to any broker, finder or agent for any brokerage fees, finder's fees
or other like commissions with respect to the transactions contemplated by this
Agreement.
Section 4.5 Consents. Except for consents described in Schedule 4.5
hereto, no waiver, permit, license, approval, authorization, qualification,
order or consent of any court or Governmental Authority or any other third party
is required to be obtained by Purchaser in connection with the execution,
delivery or performance of this Agreement or any of the Purchaser Ancillary
Documents or the consummation of the transactions contemplated hereby or
thereby.
ARTICLE 5.
CERTAIN COVENANTS AND AGREEMENTS
Section 5.1 [Intentionally omitted]
Section 5.2 No Solicitation of Employees and Customers: Non-Interference.
(a) For a period of two (2) years after the date hereof, Seller shall not,
and shall cause each of its Affiliates not to, directly or indirectly, (i)
persuade or attempt to persuade any person currently providing, or which
potentially may provide, goods or services to the Business not to do business
with the Business or to reduce the amount of business it does with the Business,
(ii) persuade or attempt to persuade any person who is or during such period
becomes a director, officer or employee of Purchaser (each a "Purchaser Person")
to terminate his relationship with Purchaser, (iii) dissuade or attempt to
dissuade any person from becoming a Purchaser Person, (iv) degrade, denigrate,
deride or otherwise disparage the competence, service, condition (financial or
otherwise), integrity or prospects of Purchaser, the Business or any Purchaser
Person, or (v) cause or attempt to cause any current customer, client,
advertiser or sponsor of Purchaser (including without limitation those persons
which are parties to the agreements listed on Schedule 1.2(c) hereof) not to
conduct business with Purchaser or to reduce the amount of business it conducts
with Purchaser, or solicit any such person to conduct business with Seller
and/or any of its Affiliates.
(b) For purposes of this Agreement, "person" shall include an individual,
corporation, joint venture, partnership or other entity.
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(c) It is the desire and intent of the parties to this Agreement that the
provisions of this Section 5.2 shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. If any particular provision or portion of this
Section 5.2 shall be adjudicated to be invalid or unenforceable, this Section
shall be deemed amended to delete thereform such provision or portion
adjudicated to be invalid or unenforceable, such amendment to apply only with
respect to the operation of such Section in the particular jurisdiction in which
such adjudication is made.
Section 5.3 V.A.T. Seller and Purchaser acknowledge that the assets are
being sold hereunder as part of the transfer of a going concern. However, Seller
will provide any required V.A.T. invoice to Purchaser in connection with the
sale of assets hereunder, if appropriate, and Purchaser will be responsible for
payment of any VAT, as appropriate.
Section 5.4 Customer Contracts and Indemnity Amount. Schedule 3.8 of this
Agreement describes certain consents and approvals required to be obtained by
Seller in connection with the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated by this
Agreement, including consents and approvals which may be required from customers
of the Business under the customer contracts described in Schedule 1.2(c)
hereto. Seller agrees to use commercially reasonable efforts to obtain all
consents required to consummate the transactions contemplated in this Agreement.
Seller hereby agrees that to the extent the transactions contemplated by this
Agreement are consummated on the date hereof without obtaining such consents,
including customer consents, Seller and Purchaser shall develop a mutually
agreeable plan for disclosing the consummation of the transactions contemplated
hereby to such customers and agree to approach each such customer or other
person or entity in accordance with such plan as promptly as practical after the
date hereof.
Section 5.5 Employees. The parties agree that, effective as of the date
hereof, the employees listed on Schedule 5.5 hereto shall cease to be employees
of Seller and shall be and become employees of Purchaser and that, except for
amounts which are described on Schedule 5.5 hereto which shall be paid by Seller
to such employees after the date hereof, Purchaser shall be responsible for all
compensation, salary, pension, severance and other employee benefits, taxes and
costs which accrue to the benefit of, or with respect to, such employees on and
after the date hereof and with respect to services provided to Purchaser on or
after the date hereof.
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Section 5.6 Access to Records. Purchaser and Seller shall provide each
other and their respective employees, counsel, accountants and other
representatives, upon reasonable prior notice, on a reasonable basis and during
normal business hours, with reasonable access to their respective books and
records with respect to periods prior to the date hereof as shall be reasonably
necessary for Purchaser or Seller to prepare any Tax return relating to the
Business or the sale thereof to Purchaser and the right to make copies and
extracts therefrom (at the cost of the party requesting access) for such
purpose. Purchaser and Seller shall cooperate with each other and their
respective employees, counsel, accountants and other representatives in these
matters.
Section 5.7 Miscellaneous Agreements.
(a) As to Intelco Europe, Purchaser will, within 15 days following
the execution and delivery of this Agreement, cause ITG to redeem all its
ownership interests in Intelco Europe so that Seller shall be the sole
owner of Intelco Europe, contribute to Intelco Europe $192,000 and release
Intelco Europe from any and all obligations it has to ITG as of the date
hereof, and Purchaser further agrees that the Federal Communications
Commission 214 facilities based license and all other assets of Intelco
Europe (except any rights to the IRU (defined below) on the PTAT fiber
optic cable system) shall remain the property of Intelco Europe. In
exchange for the foregoing, Seller hereby waives, and agrees to cause its
Affiliates to waive, any and all rights, existing now or arising after the
date hereof, it may have (A) to indefeasible rights of use ("IRU") on the
PTAT fiber optic cable system owned by Intelco Europe, and/or (B) under
that certain operating agreement between International Telecommunications
Corporation ("ITC") and Mercury Communications PLC, including any rights
of Intelco Europe pursuant to an agreement between Intelco Europe and ITC
whereby ITC has agreed to assign any of the foregoing rights to Intelco
Europe and will execute any appropriate transfer documents to Purchaser
for such IRU and operating agreement. In addition, Purchaser agrees to
cause ITC to assume the liabilities, if any, of Intelco Europe existing as
of the date hereof (including any tax liabilities, penalties and
interest), other than liabilities between or among Purchaser and/or any of
its Affiliates, on the one hand, and Seller and/or any of its Affiliates,
on the other hand. Purchaser shall assure that all tax returns will be
filed for all periods prior to the date of the redemption of ITC's
ownership interest in Intelco Europe (the "Redemption Date"), and Seller
agrees to cause all records relating to tax returns and reports of Intelco
Europe in its possession to be delivered to Seller promptly following the
Redemption Date. Copies of returns and reports filed by Purchaser will be
given to Seller. In addition, Intelco Europe agrees that, commencing upon
the Redemption Date, it will change its name and that it will no longer
use the name "Intelco" in any part of its name or otherwise.
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(b) Seller shall be permitted to utilize ITC's facilities for a
period of 180 days following the date hereof; provided, however, that
Seller shall not be permitted to exceed its current level of use of such
facilities. During such period, ITC shall waive all charges to Seller for
the use of such facilities, except that Seller shall pay to ITC
termination fees for Seller's and its Affiliates' traffic carried by ITC
at standard carrier tariffs. No later than upon the expiration of such
180-day period, Seller shall cease to utilize and shall promptly vacate
[ILLEGIBLE] therefrom) at Seller's expense but with ITC's reasonable
assistance, ITC's facilities. Purchaser agrees to use its reasonable
efforts to cause ITC to respond to customer complaints during such 180-day
period. Purchaser further agrees that, during such 180-day period, Seller
shall be permitted to utilize its own employees at ITC's facilities.
(c) Seller hereby waives its right of first refusal to purchase
2,476 shares of common stock to be sold by Xxxxxxx X. Xxxxxx ("Xxxxxx")
and Xxxxxxx X. Xxxxxxx, Xx. ("Rebetti") to RSL Communications Limited
under a Shareholders Agreement dated September 1, 1994, as amended,
between RSL Communications, Inc. ("RSL"), ITG, Seller, Xxxxxx and Xxxxxxx
pursuant to the waivers attached hereto as Schedule 5.7(c).
(d) Purchaser agrees and shall cause its Affiliates to agree that in
the event that an initial public offering [ILLEGIBLE] Purchaser or any
Affiliate thereof (the "IPO Entity") is contemplated, Seller shall have
the right (the "Option") to exchange, within 30 days following the closing
of the RSL-IPO, any shares of common stock of ITG which it then owns, for
shares of common stock of the IPO Entity equal to the fair market value of
Seller's ITG common stock on that date; provided that the Option is timely
exercised as set forth below. In connection with the exercise of the
Option, Purchaser shall notify Seller of the RSL-IPO 60 days prior to the
filing of a registration statement in connection therewith with the
Securities and Exchange Commission. Seller shall then have 45 days from
receipt of such notice to exercise the Option by providing written
notification of its intent to do so to Purchaser. In the event Seller
exercises the Option, shares of the IPO Entity's common stock shall be
valued at the RSL-IPO price to public per share, and shares of ITG's stock
owned by Seller shall be valued in writing by the Managing Underwriter of
the RSL-IPO using its best professional judgment as to the fair market
value of such shares.
(e) Seller, its officers, directors, shareholders and Affiliates
hereby release Purchaser and its officers, directors, shareholders and
Affiliates, including ITC and ITG, from any and all claims and damages
pursuant to the Release attached hereto as Schedule 5.7(e).
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(f) Purchaser, its officers, directors, shareholders and Affiliates,
hereby release Seller and its officers, directors, shareholders and
Affiliates from any and all claims and damages pursuant to the Release
attached hereto as Schedule 5.7(f).
(g) Seller hereby grants RSL Communications, Ltd., a Bermuda
corporation, the right of first refusal on the sale of any of Sellers'
shares of ITG on the same terms and conditions as offered to Seller in any
bona fide third party offer or other transfer, for a period of 30 days
after receipt by Seller of any such offer. In addition, Purchaser shall
make available to loan to Seller, within 15 days from the date hereof,
$500,000 (the "Loan"), which Loan shall be due and payable nine months
from the date on which it is made, shall accrue interest at a rate of
LIBOR plus 1% (payable quarterly in arrears), shall be secured by the
Shares as further set forth below and shall be on such other terms as
shall be mutually agreed upon by the parties hereto; provided that, prior
to the date on which the Loan is made, Seller shall have placed the Shares
in escrow pursuant to an escrow agreement in a form satisfactory to
Purchaser, which agreement shall provide that in the event the Loan is not
repaid in full within three days of the date upon which it is due and
payable, the escrow agent shall immediately transfer all of the Shares to
Purchaser, in consideration for which Purchaser shall waive receipt of
payment of the principal amount of the Loan and accrued interest thereon.
(h) Purchaser agrees to pay up to $10,000 of the fees charged by
Price Waterhouse, UK, for tax research conducted with respect to the
transactions contemplated by this Agreement, upon presentation of an
invoice for such from Price Waterhouse, UK.
(i) Purchaser and Seller shall cooperate in maintaining quality and
efficiency in telecommunications lines between London and Incom Advanced
Communications Systems Ltd. (the "IACS Traffic"). In the event Seller
reasonably determines that there has been a deterioration in the terms,
conditions, quality or level of service with respect to the IACS Traffic,
it shall so notify Purchaser in writing and if Purchaser does not
reasonably remedy the alleged deterioration within 15 business days, then
Seller may move the IACS Traffic to another supplier or otherwise deal
with the IACS Traffic.
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ARTICLE 6.
INDEMNIFICATION
Section 6.1 Indemnification Obligations of Seller. From and after the date
hereof, Seller shall indemnify and hold harmless Purchaser and its subsidiaries
and Affiliates, each of their respective officers, directors, employees, agents
and representatives and each of the heirs, executors, successors and assigns of
any of the foregoing (collectively, the "Purchaser Indemnified Parties") from,
against and in respect of any and all claims, liabilities, obligations, losses,
costs, expenses, penalties, fines and other judgments (at equity or at law) and
damages whenever arising or incurred (including, without limitation, amounts
paid in settlement, costs of investigation and reasonable attorneys' fees and
expenses) arising out of or relating to:
(a) The Excluded Liabilities;
(b) Any breach of any representation, warranty, covenant, agreement or
undertaking made by Seller in this Agreement or in any certificate, agreement,
exhibit, schedule or other writing delivered by Sellers to Purchaser pursuant to
the provisions hereof (collectively, the "Seller Ancillary Documents") or in the
performance of its obligations hereunder or thereunder; or
(c) Any fraud, willful misconduct, bad faith or any intentional breach of
any representation, warranty, covenant, agreement or undertaking made by Seller
in this Agreement or the Seller Ancillary Documents or in the performance of its
obligations hereunder.
Notwithstanding the foregoing, (i) the maximum liability of Seller in respect of
which the Purchaser Indemnified Parties shall be entitled to indemnification
pursuant to this Section 6.1 shall not exceed the Purchase Price and (ii)
Seller's indemnification obligation with respect to any of the foregoing matters
shall be governed by the terms of any Seller Ancillary Document which expressly
provides for indemnification by Seller for a specific matter which is different
from that provided in this Article 6. The claims, liabilities, obligations,
losses, costs, expenses, penalties, fines and damages of the Purchaser
Indemnified Parties described in this Section 6.1 as to which the Purchaser
Indemnified Parties are entitled to indemnification are hereinafter collectively
referred to as "Purchaser Losses."
Section 6.2 Indemnification Obligations of Purchaser. From and after the
date hereof, Purchaser shall indemnify and hold harmless Seller and its
subsidiaries, Affiliates, officers, directors, employees, agents and
representatives and
-14-
each of the heirs, executors, successors and assigns of any of the foregoing
(collectively, the "Seller Indemnified Parties") from, against and in respect of
any and all claims, liabilities, obligations, losses, costs, expenses,
penalties, fines and other judgments (at equity or at law) and damages whenever
arising or incurred (including, without limitation, amounts paid in settlement,
costs of investigation and reasonable attorneys' fees and expenses) arising out
of or relating to:
(a) The Assumed Liabilities;
(b) Any breach of any representation, warranty, covenant, agreement or
undertaking made by Purchaser in this Agreement or in any certificate,
agreement, exhibit, schedule or other writing delivered by Purchaser to Seller
pursuant to the provisions hereof or in the performance of its obligations
hereunder; or
(c) Any fraud, willful misconduct, bad faith or any intentional breach of
any representation, warranty, covenant, agreement or undertaking made by
Purchaser in this Agreement or in the performance of its obligations hereunder.
Notwithstanding the foregoing, the maximum liability of Purchaser in respect of
which the Seller Indemnified Parties shall be entitled to indemnification
pursuant to this Section 6.2 shall not exceed the Purchase Price.
The claims, liabilities, obligations, losses, costs, expenses, penalties, fines
and damages of the Seller Indemnified Parties described in this Section 6.2 as
to which the Seller Indemnified Parties are entitled to indemnification are
hereinafter collectively referred to as "Seller Losses."
Section 6.3 Indemnification Procedure.
(a) Promptly after receipt by a Purchaser Indemnified Party or a
Seller Indemnified Party (hereinafter collectively referred to as an
"Indemnified Party") of notice by a third party of any complaint or the
commencement of any action or proceeding with respect to which
indemnification is being sought hereunder, such Indemnified Party shall
notify Purchase or Seller, whichever is the appropriate indemnifying party
hereunder (the "Indemnifying Party"), of such complaint or of the
commencement of such action or proceeding; provided, however, that the
failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party from liability for such claim arising otherwise than
under this Agreement and such failure to so notify the Indemnifying Party
shall relieve the Indemnifying Party from liability which the Indemnifying
Party may have hereunder with respect to such claim if, but only if, and
only to the extent that, such failure to notify the Indemnifying Party
results in the forfeiture by the
-15-
Indemnifying Party of rights and defenses otherwise available to the
Indemnifying Party with respect to such claim. The Indemnifying Party
shall have the right, upon written notice to the Indemnified Party, to
assume the defense of such action or proceeding, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the
payment of the fees and disbursements of such counsel. In the event,
however, that the Indemnifying Party declines or fails to assume the
defense of the action or proceeding or to employ counsel reasonably
satisfactory to the Indemnified Party, in either case in a timely manner,
then such Indemnified Party may employ counsel to represent or defend it
in any such action or proceeding and the Indemnifying Party shall pay the
reasonable fees and disbursements of such counsel as incurred; provided,
however, that the Indemnifying Party shall not be required to pay the fees
and disbursements of more than one counsel for all Indemnified Parties in
any jurisdiction in any single action or proceeding. In any action or
proceeding with respect to which indemnification is being sought
hereunder, the Indemnified Party or the Indemnifying Party, whichever is
not assuming the defense of such action, shall have the right to
participate in such litigation and to retain its own counsel at such
party's own expense. The Indemnifying Party or the Indemnified Party, as
the case may be, shall at all times use reasonable efforts to keep the
Indemnifying Party or the Indemnified Party, as the case may be,
reasonably apprised of the status of the defense of any action the defense
of which they are maintaining and to cooperate in good faith with each
other with respect to the defense of any such action.
(b) No Indemnified Party may settle or compromise any claim or
consent to the entry of any judgment with respect to which indemnification
is being sought hereunder without the prior written consent of the
Indemnifying Party, unless such settlement, compromise or consent includes
an unconditional release of the Indemnifying Party from all liability
arising out of such claim. An Indemnifying Party may not, without the
prior written consent of the Indemnified Party, settle or compromise any
claim or consent to the entry of any judgment with respect to which
indemnification is being sought hereunder unless such settlement,
compromise or consent includes an unconditional release of the Indemnified
Party from all liability arising out of such claim and does not contain
any equitable order, judgment or term which in any manner affects,
restrains or interferes with the business of the Indemnified Party or any
of the Indemnified Party's respective Affiliates.
(c) In the event an Indemnified Party shall claim a right to payment
pursuant to this Agreement, such Indemnified Party shall send written
notice of such claim to the appropriate Indemnifying Party. Such notice
shall specify the basis for such claim. As promptly as possible after the
Indemnified Party has given such notice, such Indemnified Party and the
appropriate Indemnifying Party shall establish the merits and amount of
such claim (by mutual agreement, litigation, arbitration or otherwise)
and, within five (5) business days
-16-
of the final determination of the merits and amounts of such claim, the
Indemnifying Party shall deliver to the Indemnified Party immediately
available funds in an amount equal to such claim as determined hereunder.
Section 6.4 Claims Period. Except as provided in this Section 6.4, no
claim for indemnification under this Agreement may be asserted by an Indemnified
Party after the expiration of twelve (12) months after the date hereof (the
"Claims Period"). No Indemnified Party shall be entitled to make any claim for
indemnification hereunder after the appropriate Claims Period; provided,
however, that if prior to the close of business on the last day of the Claims
Period, an Indemnifying Party shall have been properly notified of a claim for
indemnity hereunder and such claim shall not have been finally resolved or
disposed of at such date, the basis of such claim shall continue to survive with
respect to such claim and shall remain a basis for indemnity hereunder with
respect to such claim until such claim is finally resolved or disposed of in
accordance with the terms hereof.
Section 6.5 Jurisdiction and Forum.
(a) By the execution and delivery of this Agreement, each
Indemnifying Party irrevocably designates and appoints each of the parties
set forth under its name below as its authorized agent upon which process
may be served in any suit or proceeding arising out of or relating to this
Agreement that may be instituted in any court with jurisdiction in the
United Kingdom.
Seller:
Incom (UK) Limited
Xxxxxxxx House
1379 High Road
Xxxxxxxxx Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attn: Managing Director
Purchaser:
RSL COM UK Limited
c/o RSL Communications, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, President
-17-
In addition, each party agrees that service of process upon the
above-designated individuals shall be deemed in every respect effective
service of process upon such Indemnifying Party in any such suit or
proceeding. Each such Indemnifying Party further agrees to take any and
all action reasonably requested by an Indemnified Party, including the
execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of the
above-designated individuals in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights of
any party to serve process in any other matter permitted by law.
(b) To the extent that any Indemnifying Party has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to
itself or its property, each Indemnifying Party hereby irrevocably waives
such immunity in respect of its obligations with respect to this
Agreement.
(c) The parties hereto hereby agree that the appropriate forum and
venue for any disputes between any of the parties hereto arising out of
this Agreement shall be the courts of the United Kingdom and each of the
parties hereto hereby submits to the personal jurisdiction of any such
court. The foregoing shall not limit the rights of any party to obtain
execution of judgment in any other jurisdiction. The parties further
agree, to the extent permitted by law, that a final and unappealable
judgment against any of them in any action or proceeding contemplated
above shall be conclusive and may be enforced in any jurisdiction within
or outside the United Kingdom by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
Section 7.1 Notices. All notices, communications and deliveries hereunder
shall be made in writing signed by the party making the same, shall specify the
Section hereunder pursuant to which it is given or being made, and shall be
deemed given or made on the date delivered if delivered in person, on the date
initially received if delivered by telecopy transmission followed by registered
or certified mail confirmation, on the date delivered if delivered by a
nationally recognized overnight courier service or on the third business day
after it is mailed if mailed by registered or certified mail (return receipt
requested) (with postage and other fees prepaid) as follows:
-18-
To Purchaser:
RSL COM UK Limited
c/o RSL Communications, Inc.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, President
Telecopy No.: (000) 000-0000
with a copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
To Seller:
Incom (UK) Limited
Xxxxxxxx House
1379 High Road
Xxxxxxxxx Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Attn: Managing Director
with a copy to:
Tunik and Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No. 972-3-695-0727
or to such other representative or at such other address of a party as such
party hereto may furnish to the other parties in writing.
Section 7.2 Computation of Time. Whenever the last day for the exercise of
any privilege or the discharge of any duty hereunder shall fall upon a Saturday,
Sunday, or any date on which banks in the United Kingdom are closed, the party
having such privilege or duty may exercise such privilege or discharge such duty
on the next succeeding day which is a regular business day.
-19-
Section 7.3 Assignment; Successors in Interest. No assignment or transfer
by Purchaser or Seller of their respective rights and obligations hereunder
after the date hereof shall be made except with the prior written consent of the
other parties hereto. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their permitted successors and assigns,
and any reference to a party hereto shall also be a reference to a permitted
successor or assign.
Section 7.4 Investigations; Representations and Warranties. The respective
representations and warranties of Purchaser and Seller contained herein or in
any certificate, or other document delivered by any party prior to the date
hereof shall not be deemed waived or otherwise affected by any investigation
made by a party hereto.
Section 7.5 Number; Gender. Whenever the context so requires, the singular
number shall include the plural and the plural shall include the singular, and
the gender of any pronoun shall include the other genders.
Section 7.6 Captions. The titles, captions and table of contents contained
in this Agreement are inserted herein only as a matter of convenience and for
reference and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof. Unless otherwise specified to
the contrary, all references to Articles and Sections of this Agreement and all
references to Exhibits are references to Exhibits to this Agreement.
Section 7.7 Controlling Law; Integration; Amendment.
(a) This Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the United Kingdom. This Agreement
supersedes all negotiations, agreements and understandings among the
parties and their Affiliates and constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof.
(b) This Agreement may be amended by the parties hereto at any time.
Without limiting the foregoing, this Agreement may not be amended,
modified or supplemented except by written agreement executed by each of
the parties hereto.
Section 7.8 Severability. Any provision hereof which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction will not
-20-
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by law, the parties hereto waive any provision of law which
renders any such provision prohibited or unenforceable in any respect.
Section 7.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts.
Section 7.10 Remedies. Each party hereto agrees that the remedies provided
in Article 6 shall constitute the sole and exclusive remedies of a party against
another party for monetary damages arising from any breach of any covenant,
agreement or undertaking of such other party in this Agreement or any Seller
Ancillary Document. Nothing in this Section 7.10 shall prevent a party hereto
from seeking and obtaining equitable relief, including, but not limited to,
injunctive relief and specific performance in respect of such breach.
Section 7.11 Enforcement of Certain Rights. Nothing expressed or implied
in this Agreement is intended, or shall be construed, to confer upon or give any
person, firm or corporation other than the parties hereto, and their successors
or assigns, any rights, remedies, obligations or liabilities under or by reason
of this Agreement, or result in such person, firm or corporation being deemed a
third party beneficiary of this Agreement.
Section 7.12 Waiver. A waiver by one party of the performance of any
covenant, agreement, obligation, condition, representation or warranty shall not
be construed as waiver of any other covenant, agreement, obligation, condition,
representation or warranty. A waiver by any party of the performance of any act
shall not constitute a waiver of the performance of any other act or an
identical act required to be performed at a later time.
Section 7.13 Arbitration. Any dispute between the parties with respect to
this Agreement or any of the terms included herein shall be resolved by an
arbitrator in accordance with the following provisions:
(a) Arbitrator. The arbitration shall be before a single arbitrator
(hereinafter, "the Arbitrator") appointed upon the mutual agreement of the
parties; provided, however, that in the event the parties cannot reach such
agreement, each of the parties shall appoint an arbitrator and such arbitrators
shall select the Arbitrator.
-21-
(b) Applicable Law and Procedures. The Arbitrator will be bound by
the substantive law of the United Kingdom but will not be bound by the laws of
evidence and procedure customary in courts of law. The Arbitrator shall be
obliged to conduct a protocol of the minutes of each session and he shall be
obliged to give the reasons for his judgment.
(c) Location. The arbitration shall take place in the United
Kingdom.
(d) Deemed Execution of Arbitration Agreement. The execution of this
Agreement shall constitute an execution of an Arbitration Agreement as well.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date first above written.
RSL COM UK Limited
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx, President
INCOM (U.K.) LIMITED
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
-22-
Schedule 1.2(A)
Assets
Pounds Sterling
1 ISDX SYSTEM [ILLEGIBLE]
2 MEGABIT XXXXX BOX 180
TEST EQUIPMENT [ILLEGIBLE]
ROOM DIVIDERS 000
XXXXXXXX XXX, TESTER 97
FAX EXTERNAL MODEM [ILLEGIBLE]
DESK + PEDESTAL 189
NEFAX FACSIMILE 1,400
JUMBO TRACKER [ILLEGIBLE]
SPORTSTER MODEM 405
COAXIAL CABLE 105
[ILLEGIBLE] PLUG [ILLEGIBLE]
KETTLE 11
MICROWAVE [ILLEGIBLE]
TELEPHONE SYSTEM 2,500
ISDX 25,773
MIXED DRIVER FOR DOS [ILLEGIBLE]
AT & T [ILLEGIBLE] [ILLEGIBLE]
FAN PURCHASE [ILLEGIBLE]
TOSHIBA LAP-TOP [ILLEGIBLE]
486SX PC [ILLEGIBLE]
HARD DISK SEAGATE [ILLEGIBLE]
FURNITURE [ILLEGIBLE]
IACS CABINET [ILLEGIBLE]
EQUIP-INCOM UK 221
COAXIAL CABLES 212
COMPUTER SOFTWARE [ILLEGIBLE]
HARD DISK IDE CONNOR [ILLEGIBLE]
2 TOSHIBA LAPTOPS 2,100
OFFICE FURNITURE 148
FURNITURE [ILLEGIBLE]
FURNITURE 244
FURNITURE 111
MEMORY-XXXXX COMPUTER [ILLEGIBLE]
X. XXXX EQUIPMENT [ILLEGIBLE]
LAPTOP PC [ILLEGIBLE]
CABLES FOR [ILLEGIBLE] [ILLEGIBLE]
PENTIUM PC BILLING SYS 1,665
PORTABLE PHONES 116
COMPUTER EQUIPMENT [ILLEGIBLE]
OFFICE FURNITURE [ILLEGIBLE]
OFFICE FURNITURE 204
COMPUTER EQUIPMENT [ILLEGIBLE]
PC 486DX, OFFICE SUPP [ILLEGIBLE]
ISDX-L 3000 SHELF KIT [ILLEGIBLE]
EARTH STN RENEWAL FEE [ILLEGIBLE]
PORTABLE COMPUTER BATERY [ILLEGIBLE]
COMP USA MS WINDOWS `89 [ILLEGIBLE] [ILLEGIBLE]
2 SPORTSTER FAX MODEMS [ILLEGIBLE]
RSS CONNOR HARD DISK [ILLEGIBLE]
ARGOS-COMPUTER TROLLEY 26
2GB CONNOR HARD DISK 1,122
[ILLEGIBLE] CONTRACT PARTITION 2,300
M2-[ILLEGIBLE] RAM FAULTY CARD 2,045
CABINET, KETTLE, RACK [ILLEGIBLE]
XXX PENTIUM 133 & 100 [ILLEGIBLE]
DANTIUM [ILLEGIBLE]P133 & P100 [ILLEGIBLE]
SPORTSTER MODEM 14.4 210
[ILLEGIBLE] PLUG 18
TECHNOMTIC 14" MONITOR [ILLEGIBLE]
[ILLEGIBLE] PHONES [ILLEGIBLE]
SOFTWARE DRIVERS 45
GREY SCREEN DIVIDER [ILLEGIBLE]
[ILLEGIBLE] IDE I/O CARD [ILLEGIBLE]
[ILLEGIBLE] BROADCAST UNIT 340
BETTERBOX BROADCAST [ILLEGIBLE]
VIKING OFFICE SCREEN 111
[ILLEGIBLE] AUTODIALLER [ILLEGIBLE]
CONFERENCE TABLE&CHAIR 182
CONFERENCE CHAIRS [ILLEGIBLE]
IKEA-CONFRNCE RM TABLE 112
BINATONE TELEPHONES [ILLEGIBLE]
COMPUTER TROLLEY [ILLEGIBLE]
ARM SET FOR CHAIRS 45
FIRE RESISTANT SAFE 277
MAN [ILLEGIBLE] NET & USER [ILLEGIBLE]
PARTITIONING 1,424
USR SPORTSTER MODEM 202
PRINTERS LASER/DESK JET [ILLEGIBLE]
CONFERENCE TABLE 101
4 MB 30 PIN [ILLEGIBLE] [ILLEGIBLE]
LASERMOON LINUX FT 71
MEMAX PIONEER QUAD X4 [ILLEGIBLE]
[ILLEGIBLE] SOFTWARE DIRECT 28
14" COLOUR SVGA MONITOR 187
VIATELL PROJECT [ILLEGIBLE] [ILLEGIBLE]
DLI CARD & BACKPLANE [ILLEGIBLE]
EDEN COMMS DLI CARD [ILLEGIBLE]
2 NOKIA 2110 [ILLEGIBLE] MOBIL [ILLEGIBLE]
IDEAL SOFTWARE CD ROM [ILLEGIBLE]
AURORA 30 PACKAGE [ILLEGIBLE]
IDEAL QUAD CD ROM [ILLEGIBLE]
PENTIUM [ILLEGIBLE] [ILLEGIBLE]
REBOOT BOX FOR [ILLEGIBLE] [ILLEGIBLE]
[ILLEGIBLE] MEMORY MANAGER 64
BASE P120T [ILLEGIBLE] PC 1,200
EQ [ILLEGIBLE] LITTLE BIGLAN [ILLEGIBLE]
DELTEC [ILLEGIBLE] KVA UPS 14,012
V. DIRECT-1 DESK 120
HP LASERJET PRINTER [ILLEGIBLE]
POWER SUPPLIERS ECHO C 2,727
2 COMPUTERS 2,810
POWER SUPPLIER ECHO CA 282
BACKPLANE, SHELF, CABL 1,200
ATC BACKPLANE 1,200
[ILLEGIBLE] RACKS 435
ATC BACKPLANE 1,200
OFFICE EXPENSES + CHAIR 121
OFFICE-DESK 120
NETWARE LITE 132
OFFICE-CUPBOARD [ILLEGIBLE]
V. DIRECT 1 CUPBOARD [ILLEGIBLE]
V. DIRECT-1 SHREDDER [ILLEGIBLE]
V. DIRECT-1 DESK 242
[ILLEGIBLE] EXPRESSS SVGA SCREEN [ILLEGIBLE]
[ILLEGIBLE] COMPONENTS EQUIPMEN [ILLEGIBLE]
[ILLEGIBLE] KEYBOARD [ILLEGIBLE]
V. DIRECT-1 CUPBOARD 111
3 DRAWER PEDASTAL 212
XXXXXX 2XDLI CARDS [ILLEGIBLE]
XXX TECH 486DX PC [ILLEGIBLE]
[ILLEGIBLE] COMPUTER SUPPLIES [ILLEGIBLE]
G & A COMPUTER [ILLEGIBLE] [ILLEGIBLE]
[ILLEGIBLE] RACKS & SHELVES [ILLEGIBLE]
[ILLEGIBLE] CHERRY KEYBOARD [ILLEGIBLE]
XXX 75MHZ PENTIUM PC [ILLEGIBLE]
AIR CONDITION CONTRACT [ILLEGIBLE]
INTERFAX-PHOTOCOPIER [ILLEGIBLE]
[ILLEGIBLE] FANCARD & CPU COOL [ILLEGIBLE]
VIKING-FILING CABINE 115
XIXIN-RACKS 413
DELL [ILLEGIBLE] BILLING PC [ILLEGIBLE]
VIKING-3 DRWR CUPBOARD [ILLEGIBLE]
OFFICE PARTITIONS 1,444
WEBTEK 16MB RAM MEMORY [ILLEGIBLE]
COST OF RLX EQPT [ILLEGIBLE]
MCDOUG [ILLEGIBLE] CARD [ILLEGIBLE]
AT & T [ILLEGIBLE] 102,745
[ILLEGIBLE] SEAGATE HARD DISK [ILLEGIBLE]
ISDN [ILLEGIBLE] ENHANCED [ILLEGIBLE]
[ILLEGIBLE] PENTIUM [ILLEGIBLE] 1,111
SPORTSTER EXT. MODEM 232
CRISTECH CALL LOG SYST [ILLEGIBLE]
[ILLEGIBLE] FAX MODEM [ILLEGIBLE]
[ILLEGIBLE] MEMORY MATTHEWPC [ILLEGIBLE]
SONY CD ROM & HARDDISK [ILLEGIBLE]
ARGOS-TELEPHONE 31
[ILLEGIBLE] E1 CARD GENEVA TEL 1,510
486DX [ILLEGIBLE] MHZ [ILLEGIBLE] GENEVA 1,411
OFFICE LIGHT INSTALLTN 255
20" EXHIBITION MONITOR 836
PRO WIN + MODEM [ILLEGIBLE]
3 ISDZ DLI CARDS [ILLEGIBLE]
72" HIGH CUPBOARD [ILLEGIBLE]
TRAILING SOCKETS [ILLEGIBLE]
ELECTROWISE 1.2 DRIVE [ILLEGIBLE]
SEAGATE 4BG SCSI HDD 1,490
PC ANYWHERE + MODEM [ILLEGIBLE]
TELEPOWER CD + MODEM [ILLEGIBLE]
[ILLEGIBLE]-SECURITYLOCK [ILLEGIBLE]
Schedule 1.2(B)
Rights and Interests in Contracts
1. Mercury Communications, BT, MFS, ITC, Viatel, Incom Advanced Communications
Systems Ltd. for line rentals and call usage.
2. City Sites for office space rental.
3. Siemens and Netrix for equipment maintenance.
Schedule 1.2(C)
Rights in Customer Contracts
1. RSS
2. Multi-Commerce
3. Israel Gov't Office
4. ITC
5. Jewish Agency
6. Econophone
7. Incom Advanced Communications Systems Ltd
8. TM Communications
9. Intelco
10. Viatel
11. Agrexco
12. LSI
13. Sapiens UK
Assignments are subject to customer consent
Schedule 1.2(D)
Business Licenses and Permits
1. Licence According to Section 7 (June 1994)
Licence granted by the Secretary of State to Incom (UK) to run
Telecommunications Systems, under Section 7 of the Telecommunications Xxx 0000.
International Simple Resale Services
Refers to telecommunications services consisting of conveyance of messages.
These include the two/way live speech, which are at present (or will be in the
future) transmitted through in the following methods:
a) Public Switched Network
b) An International Private Leased Circuit
2. Licence granted under Section 7 of the Telecommunications Act of 1984 to
Incom (UK) to build and run Infra Structure Platforms for the provision of
Satellite Telecommunications Services (November 11, 1993).
Schedule 1.2 (F)
Software
1. Billing System
Consents may be necessary
Schedule 1.6
Assumed Liabilities
Name of Supplier Contract No. Type of Service Amount per Quarter
---------------- ------------ --------------- ------------------
Mercury 56075 64K Eurolink Band 1 (pound)2.090,00
Mercury 75761 64K Eurolink Bank 1 (pound)2.090,00
Mercury 80811 64K Domestic Line (pound)806,05
Mercury 113946 64K Domestic Line (pound)806,05
Mercury 103740 1.5M Transatlantic Link (pound)32.472,50
Mercury 113878 1.5M Transatlantic Link (pound)32.472,50
Mercury 113944 1.0M Transatlantic Link (pound)21.680,00
Mercury 114082 256K (pound)1.264,00
Mercury 56082 Circuit Reference S33920 (pound)1.012,50
Mercury 66337 Circuit Reference S33919 (pound)1.012,50
Mercury 75608 Circuit Reference S33697 (pound)1.012,50
Mercury 82021 Circuit Reference S35458 (pound)1.012,50
Mercury 101983 Circuit Reference S45769 (pound)1.012,50
Mercury S34689 DASS (pound)1.012,50
Mercury S43025 DASS (pound)1.012,50
Mercury S51497 DASS (pound)1.012,50
Mercury 5000 INCM02 Rental (pound)1.505,19
Mercury Paging Paging Service (pound)63,79
Siemens MR292887E ISDX #1 Maintenance (pound)3.901,47
Siemens MR550226B ISDX #2 Maintenance (pound)1.340,30
Queensbridge Rent-Top Floor (pound)5.762,50
Queensbridge Rent-Ground Floor (pound)7.500,00
Xxxxxxx Service Charge-Top Floor (pound)1.885,00
Xxxxxxx Service Charge-Ground Floor (pound)1.830,00
LB of Barnet Rates-Top Floor Front Right (pound)1.055,15
LB of Barnet Rates-Top Floor Rear Part (pound)1.375,06
LB of Barnet Rates-Ground Floor (pound)2.104,69
ACTS Cleaning Services (pound)367,32
Answercall Answering Service (xxxxx)000,00
Xxxxxx Telecom FR-UK circuit 44,718.48 Fr
Xxxxxx Insurance Insurance for Equipment (pound)389,73
Compuserve Internet (pound)18,00
BT Circuit Ref:ANUK 104600 (pound)534,25
BT Circuit Ref:KXUK 600787 (pound)858,32
BT Circuit Ref:RLN 61197 (pound)499,45
BT Circuit Ref:KXUK 703012 (pound)890,00
BT Circuit Ref: MXUK 266476 (pound)2.692,50
BT Alarm (pound)34,17
BT Auto Dialler (pound)31,65
BT ISDN 30 (pound)4.006,20
BT 0800 International-Line Rental (pound)1.110,00
BT 0800 International-Line Rental (pound)370,00
Netrix RIO, RLX, RNET Maintenance (pound)4.885,65
Peoples Phone Mobile Phone Line Rental (pound)225,00
Vodac Mobile Phone Line Rental (pound)75,00
Incom Advanced Communication Systems Xxxxx & Mercury Line Charges (pound)31.000,00
Mercury Line Charges - one stop shopping (pound)10.245,00
Telindus RLX, RIO Maintenance 4584.75 Fr
Bladon Payroll Services (pound)51,75
Quality Street Staff Flat (pound)1.711,87
Lombard 2 Company Cars (pound)2.182,14
Databit Billing System Software - 1 time (pound)27.000,00
Xxxxx Xxxx Subcontracting (pound)2.000,00
Insurance Broker Car Insurance (pound)600,00
Call usage charges from BT, Mercury Mfs, Viatel, ITC
Above list does not include VAT
Schedule 3.3
Liens and Encumbrances on Assets
None
Schedule 3.5
Legal Actions
Tele8
Schedule 3.7
Consents
None
Schedule 3.8
Limitations on Contracts
Consents are needed from customers and suppliers as per Schedules 1.2 (b)
and 1.2 (c)
Schedule 3.9
Labor Disputes
None
Schedule 3.12
Modification of Customer Contracts
1. Received notice that Econophone is immediately terminating its rental
of a 512 kps UK - US line.
2. Received notice from LSI to immediately cancel the 64 KPS ISR - UK
line.
Schedule 4.5
Consents
None
Schedule 5.5
Listing of Employees
Name
----
Xx. X. Xxxxx Special Projects/Business Development
Mr. Y Xxxxx Operations Mngr
Xx. X. Xxxxxxx Marketing Mngr
Xx. X. Xxxxxxxxx Billing Systems
Xx. X. Xxxxx Technician
Xxxx X. Xxxxxxx Secretary
Schedule 5.7(c)
INCOM (UK) LTD.
Xxxxxxxx Xxxxx
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxx
X00 0XX
Great Britain
August 5, 1996
TELECOPY/CERTIFIED MAIL -
RETURN RECEIPT REQUESTED
Xx. Xxxxxxx X. Xxxxxxx, Xx.
c/o International Telecommunications Group, Ltd.
XXX Xxxxx, Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxx:
This letter responds to your correspondence dated August 5, 1996 (the
"Transfer Notice"). I hereby advise you that Incom (UK) Ltd. declines to
purchase any of the Eleven Thousand Five Hundred Ten (11,510) Rebetti Transfer
Shares (as defined in the Transfer Notice) offered in the Transfer Notice. Incom
(UK) Ltd. also waives any rights it may have pursuant to the Shareholder's
Agreement dated the first day of September, 1994, as amended, by and between
you, Xxxxxxx X. Xxxxxx, Incom (UK) Ltd., RSL Communications Inc. ("RSL") and
International Telecommunications Group, Ltd. in connection with the timing and
nature of transmittal of the Transfer Notice or the responses to such Transfer
Notice or the timing of the closing of the sale to RSL of the Rebetti Transfer
Shares.
Sincerely,
Incom (UK) Ltd.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
cc: Xx. Xxxxxxx X. Xxxxxx
RSL Communications Inc.
International Telecommunication Group, Ltd.
Schedule 5.7(c)
INCOM (UK) LTD.
Xxxxxxxx Xxxxx
0000 Xxxx Xxxx
Xxxxxxxxx, Xxxxxx
X00 0XX
Great Britain
August 5, 1996
HAND DELIVERY/CERTIFIED MAIL -
RETURN RECEIPT REQUESTED
Xx. Xxxxxxx X. Xxxxxx
c/o International Telecommunications Group, Ltd.
XXX Xxxxx, Xxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxx:
This letter responds to your correspondence dated August 5, 1996 (the
"Transfer Notice"). I hereby advise you that Incom (UK) Ltd. declines to
purchase any of the One Hundred Twenty Two Thousand Six Hundred Four (122,604)
Xxxxxx Transfer Shares (as defined in the Transfer Notice) offered in your
Transfer Notice. Incom (UK) Ltd. also waives any rights it may have pursuant to
the Shareholder's Agreement dated the first day of September, 1994, as amended,
by and between you, Xxxxxxx X. Xxxxxxx, Xx., Incom (UK) Ltd., RSL Communications
Inc. ("RSL") and International Telecommunications Group, Ltd. in connection
with the timing and nature of transmittal of the Transfer Notice or the
responses to such Transfer Notice or the timing of the closing of the sale to
RSL of the Xxxxxx Transfer Shares.
Sincerely,
Incom (UK) Ltd.
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Managing Director
cc: Xx. Xxxxxxx X. Xxxxxxx,, Jr.
RSL Communications Inc.
International Telecommunications Group, Ltd.
