Exhibit 10.7
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is dated as of November 13,
2003 (the "Effective Date") by and between Multi-Tech International Corp., a
Nevada corporation (the "Company"), and AlphaCom, Inc., a Nevada corporation
("AlphaCom").
WHEREAS, the Company and AlphaCom are parties to that certain Asset
Purchase Agreement dated as of November 14, 2002 (the "Purchase Agreement")
whereby the Company purchased certain assets of AlphaCom in exchange for
shares of common stock of the Company; and
WHEREAS, the shares of common stock of the Company received by AlphaCom
were placed in escrow (the "Escrow Shares") pending the satisfaction of
certain covenants contained in the Purchase Agreement that required the
Company to receive aggregate gross cash proceeds of not less than
$10,000,000 from (i) a direct equity investment or series of investments
from an outside third party or third parties, and/or (ii) license fees
and/or royalty payments received from the license of the Intellectual
Property (as defined in the Purchase Agreement) to third party licensees
(the "Funding Condition"); and
WHEREAS, in the event that the Funding Condition was not satisfied on or
prior to November 14, 2003, the Company may refuse to execute the Release
Certificate (as defined in the Purchase Agreement) and have the Escrow
Shares returned to the Company; and
WHEREAS, the Funding Condition was not satisfied by November 14, 2003 and
each of the Company and AlphaCom desire to terminate the Purchase Agreement
and, to the extent possible, reverse the transactions contemplated thereby
and place the respective parties in the same position they were in prior to
the closing of the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto hereby agree as follows:
All capitalized terms used herein that are not otherwise defined herein
shall have the respective meanings ascribed to them in the Purchase
Agreement.
Termination of Purchase Agreement. The Company and AlphaCom agree that,
effective immediately, (i) the Purchase Agreement is hereby terminated, (ii)
the Escrow Shares shall be returned to the treasury of the Company, and
(iii) the Promissory Note shall be canceled, and none of such agreements
and/or documents will be of any further force or effect.
Assignment and Assumption. Effective as of Effective Date, the Company
hereby assigns, sells, transfers, grants, conveys, delivers, and sets over
(collectively, the "Assignment") to AlphaCom all of the Company's right,
title, benefit, privileges and interest in and to:
all of the assets, properties, and rights of every kind, and description,
real, personal and mixed, tangible and intangible wherever situated as
originally set forth with specificity on Schedule 2 to the Purchase
Agreement; and all of the Company's burdens, obligations and liabilities in
connection with each of the Unassumed Liabilities (as defined hereinbelow).
AlphaCom hereby accepts the Assignment and assumes and agrees to observe and
perform all of the duties, obligations, terms, provisions and covenants, and
to pay and discharge all of the liabilities of the Company, if any, to be
observed, performed, paid or discharged from and after the Effective Date in
connection with the Unassumed Liabilities.
Assumption of Liabilities.
On the Effective Date, the Company shall assume and agree to pay, discharge
or perform, as appropriate, when due only the liabilities accrued since the
Closing Date of the Purchase Agreement specifically identified on Schedule
4(a) attached hereto (the "Assumed Liabilities"). For purposes of the
Agreement, "Liability" means any direct or indirect liability, indebtedness,
obligation, expense, claim, loss, damage, deficiency, guaranty or
endorsement of or by any person, absolute or contingent, accrued or
unaccrued, due or to become due, liquidated or unliquidated.
Notwithstanding the provisions of Section 4(a) hereinabove or any other
provision of this Agreement, the Company is not assuming under this
Agreement any liability that is not specifically identified as an Assumed
Liability on Schedule 4(a) attached hereto, including any of the following
(each, an "Unassumed Liability"): (i) Liabilities arising out of any default
by AlphaCom of any provision of any written or oral contract, agreement,
lease, instrument, or other document or commitment, arrangement,
undertaking, practice or authorization (each a "Contract") made by AlphaCom
or the Company during the 12-month period following the Closing Date of the
Purchase Agreement (the "Post-Closing Period") and which Contracts are
hereby being transferred and assigned to AlphaCom; (ii) any product
liability or similar claim for injury to any person or property, regardless
of when made or asserted, that arises out of or is based upon any express or
implied representation, warranty, agreement or guarantee made by the
Company, or alleged to have been made by the Company, or that is imposed or
asserted to be imposed by operation of law in connection with any service
performed or product sold or leased by or on behalf of the Company during
the Post-Closing Period; (iii) any Federal, state or local income or other
tax payable with respect to the business of the Company, the assets or other
properties or operations of the Company during the Post-Closing Period;
(iv) any Liabilities under or in connection with any assets listed on
Schedule 2 to the Purchase Agreement; (v) any Liabilities arising during the
Post-Closing Period for severance, bonuses or any other form of compensation
to any employees, agents or independent contractors of the Company, whether
or not employed by the Company after the Effective Date and whether or not
arising or under any applicable law, benefit plan or other arrangement with
respect thereto; (vi) any Liabilities of the Company arising or incurred in
connection with the negotiation, preparation and execution of this Agreement
and the transactions contemplated hereby; (vii) any Liabilities to give
credits or take other remedial actions for defective goods or services
issued or sold by AlphaCom at any time or issued or sold by the Company
during the Post-Closing Period; (x) any Liabilities for money borrowed
except those that are Assumed Liabilities; (xi) any Liability of any person
employed by or affiliated with the Company based upon an act or omission of
such person during the Post-Closing Period; (xii) any Liabilities
specifically set forth on Schedule 4(b); and (xiii) any other Liabilities,
regardless of when made or asserted, that are not specifically assumed
hereunder.
Except as provided in Section 7 hereinbelow, AlphaCom assumes no Assumed
Liabilities, and the parties hereto agree that all such Assumed Liabilities
shall remain the sole responsibility of the Company.
Resignation of Officers and Directors. On or prior to the Effective Date,
the officers and directors of the Company shall submit their resignations
from any and all positions held by such persons. All former officers and
directors of the Company shall return to the Company any and all original
and duplicate copies of all files, records, calendars, books, notes,
manuals, computer disks, diskettes, and any other magnetic or other media
material in their possession or under their control belonging to the Company
to the extent that such materials are not transferred and assigned to
AlphaCom as provided hereunder, or containing confidential or proprietary
information concerning the Company, its business, operations, or customers.
Such officers shall also return to the Company any and all equipment,
identification, keys, credit cards, or any other Company property not
transferred and assigned to AlphaCom as provided hereunder.
Further Actions. Each of the parties hereto covenants and agrees, at its
own expense, to execute and deliver, at the request of the other party
hereto, such further instruments of transfer and assignment and to take such
other action as such other party may reasonably request to more effectively
consummate the assignments and assumptions contemplated by this Agreement.
Indemnification.
By AlphaCom. From and after the Effective Date, AlphaCom shall indemnify
and hold harmless the Company and (if any) its respective successors and
assigns, and their respective officers, directors, employees, stockholders,
agents, affiliates and any person who controls any of such persons within
the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), or the Exchange Act of 1934, as amended (the "Exchange Act") (each,
an "Indemnified Company Party") from and against any Liabilities, claims,
demands, judgments, losses, costs, damages or expenses whatsoever (including
reasonable attorneys', consultants' and other professional fees and
disbursements of every kind, nature and description incurred by such
Indemnified Company Party in connection therewith, including consequential
and punitive damages) (collectively, "Damages") that such Indemnified
Company Party may sustain, suffer or incur and that result from, arise out
of or relate to (a) any breach of any of the respective representations,
warranties, covenants or agreements of AlphaCom contained in this Agreement,
(b) any Unassumed Liability, (d) any Liability of the Company involving
taxes due and payable by, or imposed with respect to the Company for any all
taxable periods ending on or prior to the Effective Date (whether or not
such taxes have been due and payable), and (e) any Liability arising out of
or related to the actual or constructive termination of any employee during
the Post-Closing Period. In the case of any damages that the Company
actually sustains, suffers or incurs and that relate to any of the items
specified in any of clauses (a) through (e) above, any Indemnified Company
Party that is an equity owner of such entity shall be deemed to have
sustained, suffered or incurred such damages in an amount that is at least
equal to an amount that is proportionate to such Indemnified Company Party's
ownership interest in such entity.
By the Company. From and after the Effective Date, the Company shall
indemnify and hold harmless AlphaCom and their respective successors and
assigns, and (if any) their respective officers, directors, employees,
stockholders, agents, affiliates and any person who controls any of such
persons within the meaning of the Securities Act or the Exchange Act (each,
an "Indemnified AlphaCom Party") from and against any damages that such
Indemnified AlphaCom Party may sustain, suffer or incur and that result
from, arise out of or relate to any breach of any of the respective
representations, warranties, covenants or agreements of the Company
contained in this Agreement or as a result of any Liability that arises in
connection with the Assumed Liabilities.
Notice and Control of Litigation. If any claim or liablitiy is asserted in
writing against an Indemnified Company Party or an Indemnified AlphaCom
Party, as the case may be, that would give rise to a claim under this
Section 7, the party entitled to indemnification (the "Indemnified Party")
shall notify the person providing the indemnity ("Indemnifying Party") in
writing of the same within 15 days of receipt of such written assertion of a
claim or Liability. The Indemnifying Party shall have the right to defend a
claim and control the defense, settlement and prosecution of any litigation,
unless in the Indemnified Party's reasonable judgment a conflict of interest
between such Indemnified Party and the Indemnifying Parties exists in
respect of such claim (in which case the Indemnified Party shall have the
right to retain one separate counsel, with the reasonable fees and expenses
to be paid by the Indemnifying Party). If the Indemnifying Party, within
ten days after notice of such claim, fails to defend such claim, the
Indemnified Party will (upon further notice to the Indemnifying Party) have
the right to undertake the defense, compromise or settlement of such claim
on behalf of and for the account and risk of the Indemnifying Party, subject
to the right of the Indemnifying Party to assume the defense of such claim
at any time prior to settlement, compromise or final determination thereof.
Anything in this Section 7(c) notwithstanding, (i) if there is a reasonable
probability that a claim may materially and adversely affect the Indemnified
Party other than as a result of money damages or other money payments, the
Indemnified Party shall have the right, with the consent of the Indemnifying
Party, not to be unreasonably withheld, at its own cost and expense, to
defend, compromise and settle such claim, and (ii) the Indemnifying Party
shall not, without the written consent of the Indemnified Party, not to be
unreasonably withheld, settle or compromise any claim or consent to the
entry of any judgment which does not include as an unconditional term
thereof the giving by the claimant to the Indemnified Party a release from
all liability in respect to such claim. All parties agree to cooperate
fully as necessary in the defense of such matters. Should the Indemnified
Party fail to notify the Indemnifying Party in the time required above, this
indemnity shall terminate and be of no further force and effect with respect
to the subject matter of the required notice in the event that the
Indemnified Party's failure to notify in the time required above materially
adversely affects the Indemnifying Party's ability to defend such matter.
Successors and Assigns. This Agreement, and the rights and obligations of
the respective parties hereunder may not be assigned by any party hereto
without the prior written consent of the opposing party.
Confidentiality; Publicity. The parties agree that each will keep
confidential and will not disclose or divulge any confidential, proprietary,
or secret information that they may obtain from the other parties pursuant
to this Agreement, unless such information is known, or until such
information becomes known, to the public; provided, however, that the
parties may disclose such information (a) to their attorneys, accountants,
consultants and other professionals to the extent necessary to obtain their
services in connection with this Agreement and the transactions contemplated
hereby, (b) upon the request or demand of any governmental regulatory agency
or authority after such party has first had a reasonable opportunity to
contest or seek the modification of the request or demand, (c) that is or
becomes available to the public other than as a result of a disclosure by
the disclosing party, (d) in connection with any litigation to which a party
is or may be a party, (e) to the extent necessary in connection with the
exercise of any remedy under this Agreement or (f) to the extent otherwise
required by law. No party hereto will issue any press release or other
public announcement or disclose the terms of this Agreement (including,
without limitation, any consideration payable hereunder) without the prior
written approval of each other party, except as such disclosure may be made
in the course of normal reporting practices by a party hereto to its
stockholders or partners or as otherwise required by law, including
provisions of the Exchange Act. The provisions of this Section 9 shall
survive the closing of this Agreement.
Survival of Representations and Warranties. All agreements,
representations, warranties, and covenants contained herein shall survive
the execution and delivery of this Agreement and the closing of the
transactions contemplated hereby for a period of three years.
Notices. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be delivered by hand, sent by
fax, or nationally recognized overnight courier or mailed by first class
certified or registered mail, return receipt requested, postage prepaid:
If to the Company, at 0000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxxx, XX 00000-
2516, FAX: 000-000-0000, Attention: Xxxxx X. Xxxxxxxxx, or at such other
address or addresses as may have been furnished in writing by the Company;
or
If to AlphaCom, at 000 X Xxxxxxx Xxxx, Xxxxx, Xxxx 00000, FAX: (866) 234-
7609, or at such other address or addresses as may have been furnished in
writing by AlphaCom.
Notices provided in accordance with this Section 11 shall be deemed given
(i)when received, if sent by hand, (ii) when received, if sent by
facsimile prior to 5:00 p.m. local time at the place received (otherwise on
the next following business day), (iii) one business day after delivery to a
nationally recognized overnight courier service and (iv) five business days
after deposit in the U.S. mail first class certified or registered, postage
prepaid.
Entire Agreement. This Agreement, any exhibits and scheduled attached
hereto, the Purchase Agreement and documents, exhibits and schedules
attached thereto or referenced therein embody the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersede all prior oral or written agreements and understandings
relating to such subject matter.
Amendments and Waivers. Except as otherwise expressly set forth in this
Agreement, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the
written consent of each of the parties. No waivers of or exceptions to any
term, condition or provision of this Agreement, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such term, condition or provision.
Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which shall be
one and the same document.
Section Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit or restrict the
contractual obligations of the parties.
Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEVADA (WITHOUT GIVING EFFECT TO ANY
CONFLICTS OR CHOICE OF LAWS PROVISIONS WHICH WOULD CAUSE THE APPLICATION OF
THE DOMESTIC SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION).
Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT
IN CONNECTION WITH THIS AGREEMENT, ANY OF THE TRANSACTION DOCUMENTS, OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Fees and Expenses. Each of the Company and AlphaCom agrees to pay their
respective costs and expenses incurred by such party in connection with this
Agreement and the transactions contemplated hereby. In any action to
enforce the terms of this Agreement, the successful party shall be entitled
to recover its reasonable attorneys' fees, costs and expenses from the party
that refused or failed to perform.
Reliance on Independent Legal Advice. Each of the parties hereto further
represents and warrants to each other, as of the date hereof:
That it has received advice from its own, independent legal counsel prior to
its execution of this Termination Agreement;
That the legal nature and effect of this Termination Agreement has been
explained to it by its counsel;
That it fully understands the terms and provisions of this Termination
Agreement and the nature and effect thereof;
That it has not relied and is not relying upon any representation or
statement of any person not contained in this Termination Agreement or on
the advice of any counsel other than its own counsel; and
That it has carefully read this Termination Agreement, knows the contents
hereof, and is executing the same freely and voluntarily.
Construction. The parties have participated jointly in the negotiation
drafting of this Agreement. Any event in ambiguity or question of intent or
interpretation arises, this Agreement shall be constructed 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. Any reference to any federal, state, local,
or foreign statute or law shall be deemed also to referred to all rules and
regulations promulgated thereunder, unless the context otherwise requires.
The word "including" shall mean "including without limitation."
Incorporation of Exhibits and Schedules. The exhibits and schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
[The immediately following page contains the signatures of the parties.]
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the day and year first above written.
ALPHACOM, INC.
By: _____________/s/_________________
XXXXXX XXXXXX
President
MULTI-TECH INTERNATIONAL CORP.
By: ______________/s/________________
XXXXX X. XXXXXXXXX
President
SCHEDULE 4
ASSUMED LIABILITIES
Description of Liability Amount ($)
Auditor 10,000.00
Berkman, Henoch, Xxxxxxxx & Xxxxx 4/11 - 10/29/03 33,735.00
Borer Financial Communications, LLC 7/7/03 63.80
Xxxxx, Xxxxxx X. 6/30/03 115.00
X.X. Xxx, Inc. 7/1/03 413.00
Discovery Resources, Inc. 4/10/03 413.31
Equity Technology Group, Inc. 4/15/03 6,049.00
Xxxxxxx X. Xxxxxxxxx 9/30/03 199.00
InterSquare 4/1 - 6/1/03 166.68
Market Wire 4/1/03 50.00
Mostly Sales Corp. 6/30 - 11/6/03 4,136.12
Loan Payable to Xxxxxx X. Xxxxxxxxx 11/14/03 15,440.00
Xxxxxx X. Xxxxxxxxx 11/14/03 70,000.00
Salaries Accrued: Xxxx X. 1/1 - 11/15/03 131,250.00
Transfer Online, Transfer Agent for MLTI 11/14/03 25.00
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TOTAL 272,055.91
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SCHEDULE 4(b)
UNASSUMED LIABILITIES
Description of Liability Amount ($)
Note Payable - Xxxxxx Xxxxxx 1,600.00
Loan Payable - ITM, Ltd. 10,951.00
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TOTAL 12,551.00
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