Exhibit 2.4
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and entered into by
and between Meachim & Xxxxxx Partnership ("MRP"), with principal offices located
at 000 Xxxxxxx Xxxxxx, Xxxxxxx XX 00000 ("Assignor") and Intelligent
Communications, Inc., with principal offices located at 000 Xxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx XX 00000 ("Intellicom" or "Assignee") (collectively referred to as the
"Parties").
WITNESSETH
WHEREAS, Assignor holds VSAT licenses E960246 (as modified in File No.
152-DSE-MP/L-97), E960247 and E960248 (as modified in File No. 161-DSE-MP/L-97)
(the "VSAT Licenses"); and
WHEREAS, Assignee wishes to purchase the VSAT Licenses and all
facilities in connection therewith, and have assigned to it the license for the
VSAT Licenses; and
WHEREAS, Assignor wishes to sell to Assignee all of its right, title
and interest in and to the VSAT Licenses in compliance with Commission Rules and
policies.
NOW, THEREFORE, in consideration of the mutual promises, undertakings,
covenants, and agreements set forth herein, and for other good and valuable
consideration, receipt of which is acknowledged herein, Assignor and Assignee,
intending to be legally bound, do hereby agree as follows:
1. Transfer of FCC Authorization
Assignor hereby agrees to sell and transfer to Assignee, and Assignor
hereby agrees to purchase from Assignor, all of Assignor's right, title and
interest in and to the VSAT Licenses, upon prior FCC approval. No later than
fifteen (15) business days after the date of this Agreement, each party shall
complete, sign and transmit to Assignor for filing with the FCC the applicable
portion of Form 312, Application for Satellite Space and Earth Station
authorizations, or any other form required to be filed by the FCC Rules then in
effect. This Agreement shall be made an exhibit to the FCC assignment
application, if required.
2. Purchase Price
In consideration of the assignment of the VSAT Licenses, Assignee
agrees to pay Assignor the amount of One Dollars ($1.00), payable at closing in
the manner described below.
3. Closing
Within seven (7) days after the FCC has consented to the Application to
Assign the VSAT Licenses, which consent has become a final, nonappealable order,
Assignor will send a letter to Assignee, giving notice of the date for the
consummation of the sale contemplated herein. Closing shall occur no later than
thirty (30) days from the date upon which the FCC notice approving the
assignment of VSAT Licenses becomes final.
4. FCC Consent To Assignment
Assignor and Assignee acknowledge that assignment of the VSAT Licenses
may not take place until after FCC approval of assignment of the VSAT Licenses.
Both parties covenant and warrant that they will vigorously cooperate with each
other and with the FCC to secure final approval by the FCC of the application
for assignment of the License as promptly as possible. Final approval, as used
herein, shall mean unconditional consent and approval by the FCC with respect to
which no action, request for stay, petition or appeal is pending, and which is
no longer subject to administrative or court review or reconsideration as set
forth in the FCC Rules.
5. Effectuation of Closing
This Agreement shall be deemed effectuated and closed upon the signing
by the second of both parties of a letter of acknowledgement of closing. At
closing the Assignee will remit the purchase amount to Assignor by cashier's or
certified check or other similar form of guaranteed payment. Upon receipt of the
entire purchase amount, Assignor will execute and provide to Assignee said
letter of consummation for its signature and filing with the FCC. Upon closing,
the control of the VSAT Licenses, and all related facilities for the operation
thereof, shall pass to the Assignee.
6. Assignor's Representations and Warranties
Assignor represents, warrants, and covenants to Assignee as follows:
a. Assignor Holds Current and Valid FCC Authorizations.
Assignor has the power and authority to own, construct and operate the VSAT
Licenses and the business and properties related thereto and holds, and on the
Closing date will hold, current and valid authorizations from the FCC which are
necessary for Assignor to own, construct and operate the proposed VSAT Licenses.
No action or proceeding is pending or, to the knowledge of Assignor, threatened,
or on the Closing date will be threatened or pending, before the FCC or other
governmental or judicial body, for the cancellation, or material and adverse
modification, of the VSAT Licenses's authorizations except rulemaking
proceedings of general applicability.
b. Liens
Assignor shall not permit any liens or encumbrances to attach to the
VSAT Licenses, and shall take no actions, or fail to take any actions, which
would jeopardize the VSAT Licenses, or the rights of Assignee under this
Agreement.
c. Authority To Conduct Transaction
Assignor has the authority to enter this Agreement and the Asset
Purchase Agreement contemplated by this transaction. The execution and delivery
of this Agreement by Assignor and the performance by Assignor will not violate
or conflict with any applicable law or existing contract or agreement to which
Assignor is a party or by which Assignor is bound.
d. Disclosure
No representation or warranty made by Assignor in this Agreement, or
any statement or certificate furnished by or to be furnished by the Assignor to
Assignee pursuant hereto, or in connection with the transactions contemplated
hereby contains, or will contain any untrue statement of a material fact or
omits, or will omit, to state a material fact necessary to make the statements
contained therein not misleading.
7. Assignee's Representations and Warranties
a. FCC Qualified
Assignee is fully qualified to be an FCC licensee.
b. Authority
Assignee has all power and authority as authorized by the corporation
to consummate the transaction contemplated by this Agreement.
c. Disclosure
No representation or warranty made by Assignee in this Agreement, or
any statement or certificate furnished by or to be furnished by the Assignee to
Assignor pursuant hereto, or in connection with the transactions contemplated
hereby contains, or will contain any untrue statement of a material fact or
omits, or will omit, to state a material fact necessary to make the statements
contained therein not misleading.
8. Risk of Loss
Risk of loss, damage or destruction of the property and assets to be
sold and assigned hereunder shall be upon the Assignor until the closing date,
and after closing is consummated on the Assignee.
9. Indemnification by Assignor
Assignor shall indemnify and hold harmless Assignee against and in
respect of:
a. Operation Prior to Closing
Any and all liabilities, obligations, claims, and demands arising out
of the right to own or operate the VSAT Licenses (including, but not limited to,
claims relating to compliance with FCC Rules and regulations), any breach by
Assignor of this Agreement, or any inaccuracy in or breach of any
representation, warranty, or covenant made by Assignor herein.
b. Defense
Should any claim covered by the foregoing indemnity be asserted against
Assignee, Assignee shall notify Assignor promptly and give Assignor an
opportunity to defend the same, and Assignee shall extend reasonable cooperation
to Assignor in connection with such defense. In the event that Assignor fails to
defend the same within a reasonable time, Assignee shall be entitled to assume,
but need not assume, the defense thereof, and Assignor shall be liable to repay
Assignee for all damages suffered by Assignee and all of its expenses reasonably
incurred in connection with such defense (including, but not limited to,
reasonable attorney's fees and settlement payments).
10. Indemnification by Assignee
Assignee shall indemnify and hold harmless Assignor against and in
respect of:
a. Operation After Closing
Any and all liabilities, obligations, claims, and demands arising after
the Closing date out of the ownership or operation of the VSAT Licenses, or any
breach by Assignee of this Agreement, or any inaccuracy in or breach of any
representation, warranty, or covenant made by Assignee herein.
b. Defense
Should any claim covered by the foregoing indemnity be asserted against
Assignor, Assignor shall notify Assignee promptly and give Assignor an
opportunity to defend the same, and Assignor shall extend reasonable cooperation
to Assignee in connection with such defense. In the event that Assignee fails to
defend the same within a reasonable time, Assignor shall be entitled to assume,
but need not assume, the defense thereof, and Assignee shall be liable to repay
Assignor for all damages suffered by Assignor and all of its expenses reasonably
incurred in connection with such defense (including, but not limited to,
reasonable attorney's fees and settlement payments).
11. Conditions Precedent to Assignee's Obligation to Close
Assignee shall not be obligated to close under this Agreement unless
and until the following conditions have been met:
a. The FCC shall have given its consent in writing to the
assignment of the VSAT Licenses from Assignor to Assignee without any material
adverse conditions to the Assignee.
b. Assignor shall have performed and complied with all the
agreements, obligations, and conditions required by this Agreement to be
performed or complied with by it, prior to or as of the Closing date.
c. Assignor shall hold a valid, current, and unexpired License
for the VSAT Licenses, without any materially adverse restrictions placed
thereon.
d. The representations and warranties of Assignor set forth in
this Agreement shall be true and correct in all material respects on and as of
the Closing date with the same effect as if made on and as of the Closing date.
12. Conditions Precedent to Assignor's Obligations to Close
Assignor shall not be obligated to close under this Agreement unless
and until the following conditions have been met:
a. The FCC shall have given its consent in writing to the
assignment of the VSAT Licenses from Assignor to Assignee without any material
adverse conditions to the Assignor.
b. Assignee shall have performed and complied with all the
agreements, obligations, and conditions required by this Agreement to be
performed or complied with by it, prior to or as of the Closing date.
c. The representations and warranties of Assignee set forth in
this Agreement shall be true and correct in all material respects on and as of
the Closing date with the same effect as if made on and as of the Closing date.
13. Survival of Warranties
All representations, warranties, and covenants made by the parties in
this Agreement shall be deemed made for the purpose of inducing the other to
enter into this Agreement, and shall survive the Closing and remain operative in
full force and effect for a period of one (1) year following Closing regardless
of any investigation at any time made by either, and shall not be deemed merged
into any document or instrument executed or delivered at the Closing.
14. Notice
Any notice to be given by Assignor to Assignee under any provision of
this Agreement shall be by hand delivery or by certified mail to Xxxxx Xxxxxx,
Esq., General Counsel, Intelligent Communications, Inc., 000 Xxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx XX 00000, or such location designated by Assignee. Any notice to
be given by Assignee to Assignor under any provision of this Agreement shall be
by hand delivery or by certified mail to Xxxxx Xxxxxxx, Meachim & Xxxxxx
Partnership, 000 Xxxxxxx Xxxxxx, Xxxxxxx XX 00000, or at such other location
designated by Assignor.
15. Expenses
Each Party shall bear the costs and expenses incurred in order to carry
out each Party's own responsibilities under this Agreement.
16. Severability
The parties hereto agree that any provision of this Agreement
prohibited by the applicable law, by Rules or regulations of the FCC, or by
court decree, shall be ineffective to the extent of such prohibition, without in
any way invalidating or affecting the remaining provisions of this Agreement.
17. Further Assurances
Each of the parties hereto shall execute and deliver to the other party
such other instruments as may be reasonably required in connection with the
performance of this Agreement.
18. Entire Agreement
This Agreement supersedes all prior agreements and understandings
between the parties and may not be changed or terminated orally, and no
attempted change, termination, amendment, or waiver of any of the provisions
hereof shall be binding unless in writing and signed by both parties.
19. Counterparts
This Agreement may be executed in several counterparts, all of which
when taken together shall constitute one Agreement.
20. Binding Effect
This Agreement is binding upon the Parties hereto and their respective
executors, administrators, heirs, assigns and successors in interest.
All obligations of either Party which expressly or by their nature
survive the expiration or termination of this Agreement shall continue in full
force and effect subsequent to and notwithstanding its expiration or termination
and until they are satisfied in full or by their nature expire.
21. Governing Law
This Agreement shall be governed by and construed under the laws of the
State of California, regardless of its conflict of laws provisions.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on
the dates provided below.
Dated: February 4, 1999
MEACHIM & XXXXXX PARTNERSHIP, ASSIGNOR
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
INTELLIGENT COMMUNICATIONS, INC., ASSIGNEE
By: /s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx
