EXHIBIT NO. 2.11
[EXECUTION COPY]
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EQUIPMENT PURCHASE AGREEMENT
by and among
TRANSWEST, INC.,
TRANSWESTSOUTH, INC.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ DOING BUSINESS AS
DEALER UNDER THE NAME TRANSWEST,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ DOING BUSINESS AS
DEALER UNDER THE NAME TRANSWEST,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.,
and
COMMUNICOR TELECOMMUNICATIONS, INC.
Dated as of May 10, 2000
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TABLE OF CONTENTS
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ARTICLE I
CERTAIN DEFINITIONS................................................. 1
1.1 Definitions............................................. 1
ARTICLE II
PURCHASE AND SALE OF THE PURCHASED ASSETS........................... 3
2.1 Purchased Assets........................................ 3
2.2 Assumed Liabilities..................................... 3
2.3 Closing Transactions.................................... 3
2.4 Purchase Price.......................................... 4
2.5 Allocation of the Purchase Price............................ 4
ARTICLE III
CONDITIONS TO CLOSING............................................... 4
3.1 Conditions to Buyer's Obligations....................... 4
3.2 Conditions to the Sellers' Obligations.................. 5
ARTICLE IV
[Intentionally Omitted]............................................. 6
ARTICLE V
REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLER................. 6
5.1 Capacity, Organization and Power....................... 6
5.2 Authorization; Noncontravention......................... 6
5.3 Title to Assets......................................... 7
5.4 Litigation.............................................. 7
5.5 Disclosure.............................................. 7
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER............................. 8
6.1 Organization and Power.................................. 8
6.2 Authorization........................................... 8
6.3 No Violation............................................ 8
6.4 Governmental Authorities and Consents................... 8
6.5 Litigation.............................................. 8
ARTICLE VII
[Intentionally Omitted]............................................. 9
ARTICLE VIII
ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING...................... 9
8.1 Survival of Representations and Warranties.............. 9
8.2 Indemnification......................................... 10
8.3 Expenses................................................ 10
8.4 Specific Performance.................................... 10
8.5 Arbitration Procedure................................... 10
8.6 Further Assurances...................................... 11
8.7 Confidentiality......................................... 11
8.8 Sales and Transfer Taxes................................ 12
ARTICLE IX
MISCELLANEOUS....................................................... 12
9.1 Amendment and Waiver.................................... 12
9.2 Notices................................................. 12
9.3 Successors and Assigns.................................. 14
9.4 Severability............................................ 14
9.5 Interpretation.......................................... 15
9.6 Captions................................................ 15
9.7 No Third-Party Beneficiaries............................ 15
9.8 Complete Agreement...................................... 15
9.9 Counterparts............................................ 15
9.10 Delivery by Facsimile................................... 15
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9.11 Governing Law........................................... 16
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SCHEDULES
Purchased Assets Schedule
Liens to be Paid from Seller Proceeds Schedule
Purchase Price Allocation Schedule
Qualifications Schedule
Restrictions Schedule
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EQUIPMENT PURCHASE AGREEMENT
THIS EQUIPMENT PURCHASE AGREEMENT (this "AGREEMENT") is made
and entered into as of May 10, 2000, by and among Transwest, Inc., a Minnesota
corporation ("TRANSWEST"), Transwestsouth, Inc., a North Carolina corporation
("TRANSWESTSOUTH"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, individually and doing business as
dealer under the name Transwest, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, individually and doing
business as dealer under the name Transwest (together, the "DEALERS"), ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇. ("▇▇▇▇▇▇" and together with ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, the "STOCKHOLDERS") and
Communicor Telecommunications, Inc. a Delaware corporation ("BUYER"). Transwest,
Transwestsouth and Dealers are referred to collectively herein as the Sellers.
WHEREAS, Buyer has entered into an Asset Purchase Agreement
("COMPANY ACQUISITION AGREEMENT") dated of even date herewith by and among
Communicor Corporation-USA, an Arizona corporation (the "COMPANY"), and the
other parties named therein pursuant to which Buyer shall purchase certain
assets related to the business of the Company; and
WHEREAS, the Stockholders own all of the issued and
outstanding capital stock of Transwest and Transwestsouth;
WHEREAS, subject to the terms and conditions set forth in
this Agreement, Buyer desires to purchase from the Sellers and the Sellers
desires to sell to Buyer certain equipment that is currently used by the
Company in conducting its business.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and understandings contained herein and intending to be legally
bound, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 DEFINITIONS. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed thereto in the
Company Acquisition Agreement. For purposes of this Agreement, where portions
of the Company Acquisition Agreement are incorporated herein by reference,
all references to "Seller" in the Company Acquisition Agreement shall be
deemed to be references to the Sellers as defined herein, all references to
"Principals" in the Company Acquisition Agreement shall be deemed to be
references to the Stockholders as defined herein, all references to "Seller
Parties" in the Company Acquisition Agreement shall be deemed to be
references to the Sellers and the Stockholders as defined herein, and all
references to Buyer or Buyer Parties in the Company Acquisition Agreement
shall be deemed to be references to Buyer as
defined herein. For the purposes of this Agreement, the following terms have
the meanings set forth below:
"AFFILIATE" of any particular Person means any other Person
controlling, controlled by or under common control with such Person. For
purposes of this definition, "control" (including the terms "controlling,"
"controlled by" and "under common control with") means the possession, direct
or indirect, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities,
by contract or otherwise, and such "control" will be presumed if any Person
owns 10% or more of the voting capital stock or other ownership interests,
directly or indirectly, of any other Person.
"AFFILIATED GROUP" means an affiliated group as defined in
Section 1504 of the Code (or any analogous combined, consolidated or unitary
group defined under state, local or foreign income Tax law) of which the
Sellers or any of their Subsidiaries is or has been a member.
"CONFIDENTIAL INFORMATION" means all information of a
confidential or proprietary nature (whether or not specifically labeled or
identified as "confidential"), in any form or medium, that relates to the
business, financial condition and results (whether historical or projected),
products, services or research or development of the Sellers or their
Subsidiaries or their respective suppliers, distributors, customers,
independent contractors or other business relations. Confidential Information
includes, but is not limited to, the following: (i) internal business
information (including information relating to strategic and staffing plans
and practices, business, training, marketing, promotional and sales plans and
practices, cost, rate and pricing structures and accounting and business
methods); (ii) identities of, individual requirements of, specific
contractual arrangements with, and information about, the Sellers' or any of
their Subsidiaries' suppliers, distributors, customers, independent
contractors or other business relations and their confidential information;
(iii) trade secrets, know-how, compilations of data and analyses, techniques,
systems, formulae, recipes, research, records, reports, manuals,
documentation, models, data and data bases relating thereto; (iv) inventions,
innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether or not
patentable); and (v) other intellectual property rights.
"TAX" means any (i) federal, state, local or foreign
income, gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, excise, natural
resources, severance, stamp, occupation, premium, windfall profit,
environmental, customs, duties, real property, personal property, capital
stock, social security, unemployment, disability, payroll, license, employee
or other withholding, or other tax, of any kind whatsoever, including any
interest, penalties or additions to tax or additional amounts in respect of
the foregoing; (ii) liability of the Sellers or any of their Subsidiaries for
the payment of any amounts of the type described in clause (i) above arising
as a result of being (or ceasing to be) a member of any Affiliated Group (or
being included (or required to be included) in any Tax Return relating
thereto); and (iii)
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liability of the Sellers or any of their Subsidiaries for the payment of any
amounts of the type described in clause (i) above as a result of any express
or implied obligation to indemnify or otherwise assume or succeed to the
liability of any other Person.
"TAX RETURNS" means returns, declarations, reports, claims
for refund, information returns or other documents (including any related or
supporting schedules, statements or information) filed or required to be
filed in connection with the determination, assessment or collection of any
Taxes of any party or the administration of any laws, regulations or
administrative requirements relating to any Taxes.
ARTICLE II
PURCHASE AND SALE OF THE PURCHASED ASSETS
2.1 PURCHASED ASSETS. On the terms and subject to the conditions set
forth in this Agreement, Buyer shall purchase from each of the Sellers, and
each of the Sellers shall sell, convey, assign, transfer and deliver to Buyer
on the Closing Date, all of the Sellers' right, title and interest in the
equipment listed on the attached PURCHASED ASSETS SCHEDULE (the "PURCHASED
ASSETS"), free and clear of all liens, charges, encumbrances and restrictions
of whatever nature.
2.2 ASSUMED LIABILITIES. Notwithstanding anything to the contrary in
this Agreement, Buyer shall not assume, or in any way become liable for any
debts, liabilities or obligations of any nature whatsoever of the Sellers,
whether accrued, absolute, contingent or otherwise, whether known or unknown,
whether due or to become due, whether related to the Purchased Assets and
whether disclosed on the Schedules attached hereto, and regardless of when or
by whom asserted.
2.3 CLOSING TRANSACTIONS.
(a) CLOSING. The closing of the transactions contemplated
by this Agreement shall take place as set forth in Section 2.3 of the Company
Acquisition Agreement.
(b) DELIVERIES. At the Closing:
(i) Buyer shall pay to the Sellers and make payments
on behalf of the Sellers to the Persons listed on the attached LIENS TO
BE PAID FROM SELLER PROCEEDS SCHEDULE an aggregate amount equal to the
Purchase Price (as defined in Section 2.4(a) below) by wire transfer of
immediately available funds to the accounts designated by the Sellers;
(ii) the Sellers shall convey all of the Purchased
Assets to Buyer and shall deliver to Buyer such appropriately executed
instruments of sale, transfer, assignment,
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conveyance and delivery, transfer tax declarations and all other instruments
of conveyance which are necessary or desirable to effect the transfer to
Buyer of good and marketable title to the Purchased Assets (free and clear of
all liens, charges, security interests, encumbrances and restrictions of
whatever nature); and
(iii) each of the Sellers and Buyer, as applicable,
shall deliver the certificates and other documents and instruments
required to be delivered by or on behalf of such party under Article
III below.
2.4 PURCHASE PRICE.
(a) The aggregate purchase price to be paid for the
Purchased Assets (the "PURCHASE PRICE") shall be an amount equal to
$2,479,310.
(b) At the Closing, Buyer shall pay to the Sellers in the
manner described in clause (i) of Section 2.3(b) above an amount equal to the
Purchase Price.
2.5 ALLOCATION OF THE PURCHASE PRICE. Buyer shall in good faith
determine the fair market value of the Purchased Assets with the consent of
the Sellers (which consent shall not be unreasonably withheld) and shall set
forth such fair market values on a PURCHASE PRICE ALLOCATION SCHEDULE which
shall be deemed to be part of this Agreement. For tax purposes, the Purchase
Price shall be allocated among the Purchased Assets consistent with the fair
market values thereof set forth on the PURCHASE PRICE ALLOCATION SCHEDULE and
in accordance with Section 1060 of the Code. Neither Buyer nor any of the
Sellers, nor any of their respective Affiliates, shall take any position in
any income tax return or income tax audit which is inconsistent with the
PURCHASE PRICE ALLOCATION SCHEDULE unless required to do so by Section 1060
of the Code, and any similar state statute that is applicable.
ARTICLE III
CONDITIONS TO CLOSING
3.1 CONDITIONS TO BUYER'S OBLIGATIONS. The obligation of Buyer to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of all of the following conditions on or prior to the Closing
Date:
(a) Satisfaction of all of the conditions listed in Section
3.1 of the Company Acquisition Agreement;
(b) The representations and warranties in Article V hereof
that are subject to materiality qualifications shall be true and correct in
all respects at and as of the Closing and the representations and warranties
contained in Article V hereof that are not subject to materiality
qualifications shall be true and correct in all material respects at and as
of the Closing, and each of the
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Sellers shall have performed in all material respects all of the covenants
and agreements required to be performed by each of the Sellers hereunder
prior to the Closing;
(c) No suit, action or other proceeding shall be pending or
threatened before any court or governmental or regulatory official, body or
authority or any arbitrator wherein an unfavorable injunction, judgment,
order, decree, ruling or charge would (i) prevent the performance of this
Agreement or the consummation of any of the transactions contemplated hereby
or declare unlawful any of the transactions contemplated hereby, (ii) cause
any of the transactions contemplated by this Agreement to be rescinded
following consummation, or (iii) affect adversely the right of Buyer to own
the Purchased Assets, and no such injunction, judgment, order, decree or
ruling shall have been entered or be in effect; and
(d) At the Closing, the Sellers shall have delivered to
Buyer (i) a certificate signed by each of the Sellers, dated the date of the
Closing, stating that the conditions specified in subsections (a) through (c)
above have been satisfied as of the Closing; (ii) certified copies of the
resolutions of each of the Seller's board of directors and stockholders
authorizing the execution, delivery and performance of this Agreement and the
other agreements contemplated hereby and the consummation of the transactions
contemplated hereby and thereby; and (iii) such other documents or
instruments as are required to be delivered by the Sellers at the Closing
pursuant to the terms hereof or that Buyer reasonably requests prior to the
Closing Date to effect the transactions contemplated hereby.
All proceedings to be taken by the Sellers in connection
with the consummation of the transactions contemplated hereby and all
certificates, opinions, instruments and other documents required to effect
the transactions contemplated hereby reasonably requested by Buyer shall be
reasonably satisfactory in form and substance to Buyer and its special
counsel. Any condition specified in this Section 3.1 may be waived by Buyer
if such waiver is set forth in a writing duly executed by Buyer.
3.2 CONDITIONS TO THE SELLERS' OBLIGATIONS. The obligation of the
Sellers to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following conditions at or prior to the
Closing:
(a) The representations and warranties made in Article VI
hereof shall be true and correct in all material respects at and as of the
Closing, and Buyer shall have performed in all material respects all the
covenants and agreements required to be performed by Buyer hereunder prior to
the Closing;
(b) Satisfaction of all of the conditions listed in Section
3.2 of the Company Acquisition Agreement;
(c) No suit, action or other proceeding shall be pending
before any court or governmental or regulatory official, body or authority
wherein an unfavorable injunction, judgment, order, decree or ruling would
(i) prevent consummation of the transactions contemplated by this
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Agreement or (ii) cause the transactions contemplated by this Agreement to be
rescinded following consummation, and no such injunction, judgment, order,
decree or ruling shall be in effect; and
(d) At the Closing, Buyer shall have delivered to the
Sellers (i) a certificate signed by Buyer, dated the date of the Closing,
stating that the conditions specified in subsection (a) above have been
satisfied, (ii) certified copies of the resolutions of Buyer's board of
directors authorizing the execution, delivery and performance of this
Agreement and the other agreements contemplated hereby and the consummation
of the transactions contemplated hereby and thereby, (iii) good standing
certificates for Buyer for each jurisdiction in which Buyer is qualified to
do business as a foreign corporation, in each case dated as of a recent date
prior to the Closing Date, and (iv) such other documents or instruments as
are required to be delivered by Buyer at the Closing pursuant to the terms
hereof or that the Sellers reasonably request prior to the Closing Date to
effect the transactions contemplated hereby.
All proceedings to be taken by Buyer in connection with the
consummation of the transactions contemplated hereby and all documents
required to be delivered by Buyer to effect the transactions contemplated
hereby reasonably requested by the Sellers shall be reasonably satisfactory
in form and substance to the Sellers. Any condition specified in this Section
3.2 may be waived if such waiver is set forth in a writing duly executed by
the Sellers.
ARTICLE IV
[Intentionally Omitted]
ARTICLE V
REPRESENTATIONS AND WARRANTIES
CONCERNING THE SELLER
As a material inducement to Buyer to enter into this Agreement and
consummate the transactions contemplated hereby, each of the Sellers and the
Stockholders hereby jointly and severally represents and warrants to Buyer
that:
5.1 CAPACITY, ORGANIZATION AND POWER. Each of the Sellers has full
power, authority and legal capacity to enter into this Agreement and the
other documents contemplated hereby to which such Seller is a party and to
perform its obligations hereunder and thereunder. Each of the Sellers (other
than the Dealers) is duly organized, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation, and, each of the
Sellers, except as set forth on the QUALIFICATIONS SCHEDULE, is qualified to
do business in every jurisdiction in which it is required to be qualified,
and is not in default under or in violation with any provision of its charter
documents or by-laws, as applicable.
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5.2 AUTHORIZATION; NONCONTRAVENTION. The execution, delivery and
performance of this Agreement and all of the other agreements and instruments
contemplated hereby to which any Seller is a party has been duly authorized
by such Seller, and no other corporate act or other proceeding on the part of
any Seller or its board of directors or stockholders is necessary to
authorize the execution, delivery or performance of this Agreement or the
other agreements contemplated hereby and the consummation of the transactions
contemplated hereby or thereby. This Agreement has been duly executed and
delivered by each of the Sellers and constitutes a valid and binding
obligation of each of the Sellers, enforceable in accordance with its terms,
and each of the other agreements and instruments contemplated hereby to which
any Seller is a party, when executed and delivered by the Seller, as
applicable, in accordance with the terms hereof and thereof, shall each
constitute a valid and binding obligation of such Person, enforceable in
accordance with its respective terms. Except as set forth on the RESTRICTIONS
SCHEDULE, the execution and delivery by the Sellers of this Agreement and all
of the other agreements and instruments contemplated hereby to which such
Seller is a party and the fulfillment of and compliance with the respective
terms hereof and thereof by such Seller does not and shall not (a) conflict
with or result in a breach of the terms, conditions or provisions of, (b)
constitute a default under (whether with or without the passage of time, the
giving of notice or both), (c) result in the creation of any Lien upon any
Purchased Assets pursuant to, (d) give any third party the right to modify,
terminate or accelerate any obligation under, (e) result in a violation of,
or (f) require any authorization, consent, approval, exemption or other
action of or by or notice or declaration to, or filing with, any third party
or any court or administrative or governmental body or agency pursuant to,
any Seller's charter documents, by-laws or other constituent documents, or
any law, statute, rule or regulation to which the Seller is subject, or any
agreement, instrument, license, permit, order, judgment or decree to which
any Seller is subject. None of the Sellers is a party to or bound by any
written or oral agreement or understanding with respect to the sale or
disposition of any of the Purchased Assets, and each such Person has
terminated all discussions with third parties (other than with Buyer and its
Affiliates) regarding the sale or disposition of any of the Purchased Assets.
5.3 TITLE TO ASSETS. The Sellers have good and marketable title to
each of the Purchased Assets, free and clear of all Liens. The Purchased
Assets are in good condition and repair (ordinary wear and tear excepted) and
are fit for use in the ordinary course of the Business as presently
conducted. All Purchased Assets have been installed and maintained in all
material respects in accordance with all applicable laws, regulations and
ordinances.
5.4 LITIGATION. There are no actions, suits, proceedings, orders or
investigations pending or, to any Seller's knowledge, threatened against or
affecting any Seller, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, which would adversely affect
any of the Purchased Assets, the Sellers' performance under this Agreement or
the consummation of the transactions contemplated hereby.
5.5 DISCLOSURE. Neither this Article V or any of the Exhibits or
Schedules attached hereto nor any of the written statements, documents,
certificates or other items prepared and supplied to Buyer or its Affiliates
by or on behalf of the Sellers in connection with the transactions
contemplated
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hereby, when taken together as a whole, contain any untrue statement of a
material fact or omit a material fact necessary to make each statement
contained herein or therein, in light of the circumstances in which they were
made, not misleading. There is no fact which any of the Sellers has not
disclosed to Buyer in writing and of which any of the Sellers' shareholders,
officers, directors or executive employees is aware which has had or would
reasonably be expected to have a material adverse effect.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
As an inducement to the Sellers to enter into this Agreement and
consummate the transactions contemplated hereby, Buyer hereby represents and
warrants to the Sellers and the Stockholders as follows:
6.1 ORGANIZATION AND POWER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. Buyer is qualified to do business in every jurisdiction in which
its ownership of properties or conduct of business requires it to qualify,
except for those jurisdictions where the failure to be so qualified, would
not have a material adverse effect on Buyer. Buyer has all requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder.
6.2 AUTHORIZATION. The execution, delivery and performance by Buyer
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by Buyer and no other corporate
act or proceeding on the part of Buyer, its board of directors or
stockholders is necessary to authorize the execution, delivery or performance
of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Buyer and this
Agreement constitutes a valid and binding obligation of Buyer, enforceable in
accordance with its terms.
6.3 NO VIOLATION. Buyer is not subject to nor obligated under its
certificate of incorporation or by-laws, or any applicable law, rule or
regulation of any governmental authority, or any agreement, instrument,
license or permit, or subject to any order, writ, injunction or decree, which
would be breached or violated by its execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby.
6.4 GOVERNMENTAL AUTHORITIES AND CONSENTS. No permit, consent,
approval or authorization of, or declaration to or filing with, any
governmental or regulatory authority or any other Person is required in
connection with the execution, delivery or performance of this Agreement by
Buyer or the consummation by Buyer of the transactions contemplated hereby.
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6.5 LITIGATION. There are no actions, suits, proceedings, orders or
investigations pending or, to Buyer's knowledge, threatened against or
affecting Buyer, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which would adversely affect Buyer=s
performance under this Agreement or the consummation of the transactions
contemplated hereby.
ARTICLE VII
[Intentionally Omitted]
ARTICLE VIII
ADDITIONAL AGREEMENTS; COVENANTS AFTER CLOSING
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties in this Agreement and the Schedules attached hereto or in any
writing delivered by any party to another party in connection with this
Agreement shall survive the Closing as follows:
(a) the representations and warranties in the first two and
last sentences of Section 5.2 (Authorization; Noncontravention), Section 5.3
(Title to Assets), and the last sentence of Section 6.2 (Authorization) shall
not terminate; and
(b) all other representations and warranties in this
Agreement and the Schedules attached hereto or in any writing delivered by
any party to another party in connection with this Agreement shall terminate
on the second anniversary of the Closing;
PROVIDED THAT any representation or warranty in respect of which indemnity
may be sought under Section 8.2 below, and the indemnity with respect
thereto, shall survive the time at which it would otherwise terminate
pursuant to this Section 8.1 if notice of the inaccuracy or breach or
potential inaccuracy or breach thereof giving rise to such right or potential
right of indemnity shall have been given to the party against whom such
indemnity may be sought prior to such time (regardless of when the Losses in
respect thereof may actually be incurred). The representations and warranties
in this Agreement and the Schedules attached hereto or in any writing
delivered by any party to another party in connection with this Agreement
shall survive for the periods set forth in this Section 8.1 and shall in no
event be affected by any investigation, inquiry or examination made for or on
behalf of any party, or the knowledge of any party's officers, directors,
stockholders, employees or agents or the acceptance by any party of any
certificate or opinion hereunder. The parties acknowledge that
indemnification hereunder with respect to the breach of any covenant or
agreement contained herein, including any breach of any covenant or agreement
contained in this Article VIII, shall not be subject to any time or other
limitations.
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8.2 INDEMNIFICATION. All indemnification under this Agreement with
respect to the breach of any of the representations, warranties, covenants or
agreements contained herein shall be governed by Section 8.2 of the Company
Acquisition Agreement.
8.3 EXPENSES. Except as otherwise provided herein, each of the
Sellers, the Stockholders and Buyer shall pay all of their own respective
fees, costs and expenses (including fees, costs and expenses of legal
counsel, investment bankers, brokers or other representatives and consultants
and appraisal fees, costs and expenses) incurred in connection with the
negotiation of this Agreement, the performance of his or its obligations
hereunder and the consummation of the transactions contemplated hereby.
8.4 SPECIFIC PERFORMANCE. Each of the Sellers, the Stockholders and
Buyer acknowledges and agrees that the other parties would be damaged
irreparably in the event any of the provisions of this Agreement is not
performed in accordance with its specific terms or is otherwise breached.
Accordingly, each of the Sellers, the Stockholders and Buyer agrees that the
other parties shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court in the United States or in any state having jurisdiction over the
parties and the matter in addition to any other remedy to which they may be
entitled pursuant hereto.
8.5 ARBITRATION PROCEDURE.
(a) Each of Buyer, the Sellers and the Stockholders agrees
that the arbitration procedure set forth below shall be the sole and
exclusive method for resolving and remedying claims for money damages arising
out of the provisions of this Article VIII (the "DISPUTES") following the
Closing; PROVIDED THAT nothing in this Section 8.5 shall prohibit a party
hereto from instituting litigation to enforce any Final Determination (as
defined below). The parties hereby acknowledge and agree that, except as
otherwise provided in this Section 8.5 or in the Rules for Non-Administered
Arbitration of Business Disputes (the "RULES") promulgated by the Center for
Public Resources Institute for Dispute Resolutions (the "INSTITUTE") as in
effect from time to time, the arbitration procedures and any Final
Determination hereunder shall be governed by, and shall be enforced pursuant
to, the United States Arbitration Act, 9 U.S.C. Section 1 ET. SEQ.
(b) In the event that any party asserts that there exists a
Dispute, such party shall deliver a written notice to each other party
involved therein specifying the nature of the asserted Dispute and requesting
a meeting to attempt to resolve the same. If no such resolution is reached
within ten business days after the delivery of such notice, the party
delivering such notice of Dispute (the "DISPUTING PERSON") may thereafter
commence arbitration hereunder by delivering to each other party involved
therein a notice of arbitration (a "NOTICE OF ARBITRATION"). Such Notice of
Arbitration shall specify the nature of any Dispute and any other matters
required by the Rules as in effect from time to time to be included therein.
The Arbitrator shall permit and facilitate such discovery as the party
initiating such claim shall reasonably request. Buyer and the Sellers shall
mutually agree upon
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one arbitrator to resolve any Dispute pursuant to the procedures set forth in
this Section 8.5 and the Rules.
(c) The arbitrator selected pursuant to Section 8.5(b) will
determine the allocation of the costs and expenses of arbitration based upon
the percentage which the portion of the contested amount not awarded to each
party bears to the amount actually contested by such party. For example, if
Buyer submits a claim for $1,000 and if the Sellers contests only $500 of the
amount claimed by Buyer, and if the arbitrator ultimately resolves the
dispute by awarding Buyer $300 of the $500 contested, then the costs and
expenses of arbitration will be allocated 60% (i.e., 300 DIVIDED BY 500) to
the Sellers and 40% (i.e., 200 DIVIDED BY 500) to Buyer.
(d) The arbitration shall be conducted in Washington, D.C.
under the Rules as in effect from time to time. The arbitrator shall conduct
the arbitration so that a final result, determination, finding, judgment
and/or award (the "FINAL DETERMINATION") is made or rendered as soon as
practicable, but in no event later than 90 business days after the delivery
of the Notice of Arbitration nor later than 10 days following completion of
the arbitration. The Final Determination shall be final and binding on all
parties and there shall be no appeal from or reexamination of the Final
Determination, except for fraud, perjury, evident partiality or misconduct by
an arbitrator prejudicing the rights of any party and to correct manifest
clerical errors.
(e) Buyer or the Sellers may enforce any Final
Determination in any state or federal court of competent jurisdiction. For
the purpose of any action or proceeding instituted with respect to any Final
Determination, each party hereto hereby irrevocably submits to the
jurisdiction of such courts, irrevocably consents to the service of process
by registered mail or personal service and hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may have or hereafter
have as to personal jurisdiction, the laying of the venue of any such action
or proceeding brought in any such court and any claim that any such action or
proceeding brought in any court has been brought in an inconvenient forum.
8.6 FURTHER ASSURANCES. In the event that at any time after the
Closing any further action is necessary or desirable to carry out the
purposes of this Agreement, each of the parties hereto will take such further
action (including the execution and delivery of such further instruments and
documents) as any other party hereto reasonably may request. The Sellers and
the Stockholders acknowledge and agree that, from and after the Closing,
Buyer will be entitled to possession of all documents, books, records
(including Tax records), agreements and financial data of any sort relating
to the Purchased Assets.
8.7 CONFIDENTIALITY. Each of the Sellers agrees not to disclose or
use at any time (and the Sellers shall cause each of its Affiliates not to
use or disclose at any time) any Confidential Information, except to the
extent that such disclosure or use is required by law. Each of the Sellers
further agrees to take all appropriate steps (and to cause each of his
Affiliates to take all appropriate steps) to safeguard such Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. In the event the any of the Sellers or their Affiliates is required by
law to
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disclose any Confidential Information, the Sellers shall promptly notify
Buyer in writing, which notification shall include the nature of the legal
requirement and the extent of the required disclosure, and the Sellers shall
cooperate with Buyer to preserve the confidentiality of such information
consistent with applicable law.
8.8 SALES AND TRANSFER TAXES. All sales, use, excise, value-added,
goods and services, transfer, recording, documentary, registration,
conveyancing, withholding and similar taxes that may be imposed on the sale
and transfer of the Purchased Assets (including any stamp, duty or other tax
chargeable in respect of any instrument transferring property), together with
any and all penalties, interest and additions to tax with respect thereto,
shall be paid by the Sellers. Buyer and the Sellers shall cooperate in timely
making all filings, returns, reports and forms as may be required to comply
with the provisions of applicable law in connection with the payment of any
such taxes described in the immediately preceding sentence. Buyer and the
Sellers shall cooperate in providing each other with appropriate resale
exemption certification and other similar tax and fee documentation.
ARTICLE IX
MISCELLANEOUS
9.1 AMENDMENT AND WAIVER. This Agreement may be amended, and any
provision of this Agreement may be waived; PROVIDED THAT any such amendment
or waiver will be binding upon any Seller only if such amendment or waiver is
set forth in a writing executed by such Seller, and any such amendment or
waiver will be binding upon the Buyer only if such amendment or waiver is set
forth in a writing executed by Buyer. No course of dealing between or among
any Persons having any interest in this Agreement shall be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or
obligations of any Person under or by reason of this Agreement. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver.
9.2 NOTICES. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (i) when
personally delivered, sent by telecopy (with hard copy to follow) or sent by
reputable overnight express courier (charges prepaid), or (ii) five days
following mailing by certified or registered mail, postage prepaid and return
receipt requested. Unless another address is specified in writing, notices,
demands and communications to the Sellers, the Stockholders and Buyer shall
be sent to the addresses indicated below:
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NOTICES TO THE SELLERS OR THE STOCKHOLDERS:
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ fax
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
WITH A COPY TO (WHICH SHALL NOT CONSTITUTE NOTICE TO THE SELLERS OR THE
STOCKHOLDERS)
Transwest
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Murnane, Conlin, White & ▇▇▇▇▇▇
1800 ▇▇▇▇▇ ▇▇▇▇▇▇▇ Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ & Bird LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NOTICES TO THE BUYER:
Communicor Telecommunications, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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WITH COPIES TO (WHICH SHALL NOT CONSTITUTE NOTICE TO THE BUYER):
First Chicago Equity Capital
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
E. ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
9.3 SUCCESSORS AND ASSIGNS. This Agreement and all of the covenants
and agreements contained herein and rights, interests or obligations
hereunder, by or on behalf of any of the parties hereto, shall bind and inure
to the benefit of the respective heirs, successors and assigns of the parties
hereto whether so expressed or not, except that neither this Agreement nor
any of the covenants and agreements herein or rights, interests or
obligations hereunder may be assigned or delegated by the Sellers prior to or
after the Closing, without the prior written consent of Buyer. Buyer may
assign its rights and obligations hereunder (including its right to purchase
the Purchased Assets), in whole or in part, to any of its Affiliates without
the consent of any of the other parties hereto. In addition, Buyer may assign
its rights and obligations pursuant to this Agreement, in whole or in part,
in connection with any disposition or transfer of all or any portion of the
Purchased Assets in any form of transaction without the consent of any of the
other parties hereto. Buyer may assign any or all of its rights pursuant to
this Agreement, including its rights to indemnification, to any of its
lenders as collateral security.
9.4 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
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9.5 INTERPRETATION. The headings and captions used in this
Agreement, in any Schedule hereto, in the table of contents or in any index
hereto are for convenience of reference only and do not constitute a part of
this Agreement and shall not be deemed to limit, characterize or in any way
affect any provision of this Agreement or any Schedule hereto, and all
provisions of this Agreement and the Schedules hereto shall be enforced and
construed as if no caption or heading had been used herein or therein. Any
capitalized terms used in any Schedule attached hereto and not otherwise
defined therein shall have the meanings set forth in this Agreement. Each
defined term used in this Agreement shall have a comparable meaning when used
in its plural or singular form. The use of the word "including" herein shall
mean "including without limitation" and, unless the context otherwise
required, "neither," "nor," "any," "either" and "or" shall not be exclusive.
The parties hereto intend that each representation, warranty and covenant
contained herein shall have independent significance. If any party has
breached any representation, warranty or covenant contained herein in any
respect, the fact that there exists another representation, warranty or
covenant relating to the same subject matter (regardless of the relative
levels of specificity) which such party has not breached shall not detract
from or mitigate the fact that such party is in breach of the first
representation, warranty or covenant. The parties have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
9.6 CAPTIONS. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement
and shall not be deemed to limit, characterize or in any way affect any
provision of this Agreement, and all provisions of this Agreement shall be
enforced and construed as if no caption had been used in this Agreement.
9.7 NO THIRD-PARTY BENEFICIARIES. Nothing herein expressed or
implied is intended or shall be construed to confer upon or give to any
Person other than the parties hereto and their respective permitted
successors and assigns, any rights or remedies under or by reason of this
Agreement.
9.8 COMPLETE AGREEMENT. This Agreement and the agreements and
documents referred to herein contain the entire agreement and understanding
between the parties with respect to the Purchased Assets and supersede all
prior agreements and understandings, whether written or oral, relating to
such subject matter in any way.
9.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature pages), all of which
taken together shall constitute one and the same instrument.
9.10 DELIVERY BY FACSIMILE. This Agreement and any signed agreement
or instrument entered into in connection with this Agreement, and any
amendments hereto or thereto, to the extent signed and delivered by means of
a facsimile machine, shall be treated in all manner and respects as an
original agreement or instrument and shall be considered to have the same
binding legal effect as if it were the original signed version thereof
delivered in person. At the request of any party hereto
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or to any such agreement or instrument, each other party hereto or thereto
shall re-execute original forms thereof and deliver them to all other
parties. No party hereto or to any such agreement or instrument shall raise
the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through
the use of a facsimile machine as a defense to the formation of a contract
and each such party forever waives any such defense.
9.11 GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed
by the internal law of the State of Minnesota without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of
Minnesota or any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of Minnesota.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Equipment Purchase Agreement on the date first written above.
COMMUNICOR TELECOMMUNICATIONS, INC.
By:_________________________________
Name:
Title:
TRANSWEST, INC.
By:________________________________
Name:
Title:
TRANSWESTSOUTH, INC.
By:________________________________
Name:
Title:
___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, individually and doing business
as dealer under the name Transwest
___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, individually and doing business
as dealer under the name Transwest
___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
