EXHIBIT 2.3
ASSET TRANSFER AGREEMENT
This ASSET TRANSFER AGREEMENT (this "AGREEMENT") is made as of February 14,
2002, by and between TSI Networks Inc., a Delaware corporation (the
"TRANSFEREE"), and TSI Telecommunication Services Inc., a Delaware corporation
(the "BUSINESS TRANSFEROR").
PRELIMINARY STATEMENTS:
WHEREAS, TSI Telecommunication Holdings, Inc., a Delaware corporation
("HOLDINGS"), entered into an Amended and Restated Agreement of Merger with TSI
Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of
Holdings ("MERGER SUB"), and Business Transferor, dated as of January 14, 2002,
as amended (the "MERGER AGREEMENT"), pursuant to which Merger Sub shall be
merged with and into Business Transferor (the "MERGER"), in accordance with the
terms and conditions of the Merger Agreement and the relevant provisions of the
Delaware General Corporation Law, and the surviving corporation shall be
Business Transferor;
WHEREAS, in connection with and following the Merger, the Business
Transferor desires to effectuate certain internal reorganizations relating to
its SS7 Business, as set forth herein;
WHEREAS, the Transferee desires to acquire from the Business Transferor,
and the Business Transferor desires to contribute to the Transferee, all of the
Business Transferor's properties, assets, claims, rights and interests of every
kind and nature, whether tangible or intangible, real, personal or mixed, and
wherever located and by whomever possessed, owned by the Business Transferor as
of the Closing and relating to the Visibility, INLink, LNP, CNAM, LIDB, ISUP
Transport, SS7 Network Transport Service for IS41 Carriers and GSM Operators,
Links & Ports, 800 Database Service, QRS and QRE products (or such additional or
fewer products as the parties hereto may agree prior to the Closing) of the
Business Transferor (collectively, the "SS7 BUSINESS"), and, in connection with
such acquisition, the Transferee will assume all of the Business Transferor's
liabilities related to the SS7 Business and, in addition, issue to the Business
Transferor shares of the Transferee's Participating Preferred Stock and a
promissory note, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
1. THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") shall take place on a mutually agreeable date no later
than 90 days from the date hereof at the Chicago office of Xxxxxxxx & Xxxxx, or
at such other place as may be mutually determined by the parties hereto.
2. CONTRIBUTION AND DELIVERY OF THE SS7 BUSINESS ASSETS. Subject to and
upon the terms and conditions of this Agreement, at the Closing the Business
Transferor shall contribute, transfer, convey, assign and deliver to the
Transferee, and the Transferee shall acquire from the Business Transferor, all
of the Business Transferor's properties, assets, claims, rights and interests of
every
kind and nature, whether tangible or intangible, real, personal or mixed, and
wherever located and by whomever possessed, owned by the Business Transferor as
of the date of the Closing and which the parties hereto agree are related to the
SS7 Business and one (1) share of the class A common stock of Transferee
(collectively, the "ASSETS"). Notwithstanding anything to the contrary contained
in this Agreement, this Agreement shall not constitute an agreement to transfer,
contribute or otherwise assign any agreement, contract, lease, license, permit
or other agreement or arrangement which is not permitted to be assigned in
connection with the transactions contemplated herein (collectively, the
"UNASSIGNED CONTRACTS"). The beneficial interest in and to each Unassigned
Contract shall in any event pass to the Transferee on the date hereof, and the
Business Transferor covenants and agrees to cooperate with the Transferee in any
lawful and economically feasible arrangement to provide the Transferee with the
Business Transferor's entire interest in the benefits under each of the
Unassigned Contracts. If the other party(ies) to an Unassigned Contract
subsequently consent to the assignment of such contract to the Transferee, such
Unassigned Contract shall then be deemed an Asset hereunder.
3. CONSIDERATION. In consideration of the Assets, the Transferee shall
issue to the Business Transferor (i) a promissory note in favor of the Business
Transferor, in the form of the intercompany note set forth in the credit
agreement among Business Transferor and the other parties thereto, in a
principal amount to be agreed upon by the parties and (ii) a number of shares of
the Transferee's Participating Preferred Stock equal to (x) the value of the
Assets MINUS the principal amount of the Note MINUS the price paid by TSI
Telecommunication Holdings, LLC for the Class B Common Stock of Transferee,
divided by (y) $10,000.00
4. DELIVERIES AT CLOSING. At the Closing, the following deliveries shall
occur:
(a) the Business Transferor shall deliver to the Transferee a Xxxx of
Sale, substantially in the form attached hereto as EXHIBIT A, pursuant to which
the Business Transferor shall convey to the Transferee (i) the Assets known to
the parties hereto as of the Closing, which shall be identified on Schedule 1 to
the Xxxx of Sale, and (ii) the beneficial interest in and to the Unassigned
Contracts known to the parties as of the Closing, each of which shall be
identified on Schedule 2 to the Xxxx of Sale;
(b) the Transferee shall execute and deliver an Instrument of Assumption,
substantially in the form attached hereto as EXHIBIT B, pursuant to which it
shall assume and agree to perform, pay and discharge all of the liabilities,
obligations and commitments of the Business Transferor relating to the SS7
Business (the "ASSUMED LIABILITIES");
(c) the Transferee shall execute and deliver the Note;
(d) the Business Transferor shall deliver to the Transferee a
fully-executed Letter Agreement, substantially in the form attached hereto as
EXHIBIT C, between Business Transferor and TSI Telecommunication Holdings, LLC;
(e) the Business Transferor shall deliver to the Transferee a schedule of
employees of the SS7 Business to be transferred to the Transferee (the
"TRANSFERRED EMPLOYEES");
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(f) the Business Transferor shall deliver to the Transferee the
certificate representing one (1) share of the class A common stock of
Transferee, properly endorsed for transfer to Transferee or accompanied by a
duly executed stock power in favor of Transferee;
(g) in consideration for its receipt of the Assets, the Transferee shall
deliver to the Business Transferor a properly executed and authorized stock
certificate representing the shares of Participating Preferred Stock; and,
(h) any and all other agreements, contracts, instruments of other
documents reasonably necessary to effectuate the transactions contemplated
herein.
5. EMPLOYEES. At the Closing, the Transferred Employees of the Business
Transferor shall be deemed terminated as of such date by the Business Transferor
and the Transferee shall be deemed to issue offers of employment to such
employees. Nothing in this Agreement shall limit the Transferee's ability to
terminate the employment of any employee deemed hired pursuant to this SECTION
5.
6. PRE-CLOSING PERIOD. Each of the parties will use its reasonable best
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement, including but not limited to the identification of customer and
vendor contracts, physical assets and employees related to the SS7 Business to
be transferred or assigned.
7. FURTHER ASSURANCES. At any time and from time to time after the
Closing, at the Transferee's request and without further consideration, the
Business Transferor shall promptly execute and deliver such instruments of sale,
transfer, conveyance, assignment and confirmation, and take such other action,
as the Transferee may reasonably request to transfer, convey and assign to the
Transferee, and to confirm the Transferee's title to, all of the Assets, to put
the Transferee in actual possession and operating control thereof, to assist the
Transferee in exercising all rights with respect thereto and to carry out the
purpose and intent of this Agreement.
8. NO REPRESENTATIONS OR WARRANTIES. The Assets to be contributed
pursuant to and in accordance with this Agreement are to be contributed "as is",
and no party hereto is making any express or implied representation or warranty
as to the Assets, their condition, the Assumed Liabilities, or as to any other
matter.
9. TERMINATION. The Transferee and the Business Transferor may terminate
this Agreement by mutual written consent at any time prior to the Closing.
10. TRANSFER AND SALES TAX. Notwithstanding any provisions of law, the
Business Transferor shall be responsible for and shall pay (a) all sales, use
and transfer taxes, and (b) all governmental charges, if any, upon the
contribution of any of the Assets hereunder.
11. NOTICES. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or sent by federal
express or other reputable
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overnight courier, registered or certified mail, postage prepaid, addressed as
follows or to such other address of which the parties may have given notice:
To the Business Transferor: TSI Telecommunication Services Inc.
000 X. Xxxxxxxx Xx., 0xx Xxxxx
Xxxxx, XX 00000
Attn: General Counsel
To the Transferee: TSI Networks Inc.
c/o TSI Telecommunication Services, Inc.
000 X. Xxxxxxxx Xx., 0xx Xxxxx
Xxxxx, XX 00000
Attn: General Counsel
With copies to: GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx
Attn: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Unless otherwise specified herein, such notices or other communications shall be
deemed received (a) on the date delivered, if delivered personally; (b) one
business day after delivery to an overnight courier, if sent by overnight
courier; or (c) three business days after being sent, if sent by registered or
certified mail.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns, except that the parties hereto may not assign their respective
obligations hereunder without the prior written consent of each of the other
parties hereto.
13. ENTIRE AGREEMENT; AMENDMENTS; ATTACHMENTS
(a) This Agreement, the Exhibits hereto, and all agreements and
instruments to be delivered by the parties pursuant hereto represent the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between such
parties. The parties hereto may amend or modify this Agreement, in such manner
as may be agreed upon, by a written instrument executed by the parties hereto.
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(b) If the provisions of any Exhibit to this Agreement are inconsistent
with the provisions of this Agreement, the provisions of the Agreement shall
prevail. The Exhibits attached hereto or to be attached hereafter are hereby
incorporated as integral parts of this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the laws
that might be applicable under conflict of laws principles.
15. 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.
16. 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.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including by means of telecopied signature pages), each of which
shall be deemed to be an original, but all of which shall be one and the same
document.
* * * * * * *
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of and on the date first above written.
BUSINESS TRANSFEROR:
TSI TELECOMMUNICATION SERVICES INC.
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Title: Chief Executive Officer
TRANSFEREE:
TSI NETWORKS INC.
By: /s/ G. Xxxxxx Xxxxx
Name: G. Xxxxxx Xxxxx
Title: Chief Executive Officer
