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EXHIBIT 10.47
ASSET PURCHASE AGREEMENT
Date: December 13, 1996
Parties: Interactive Communications Inc. ("ICI" or "Seller")
0000 Xxxxxxxxxx Xxx.
Xxxxx 000
Xxxxxx, Xxxxx 00000
Xxxxxxx Communications Corporation ("MCC" or "Buyer")
0000 00xx Xxx. X.X.
Xxxxx Xxxxxx, XX 00000
Subject of Agreement:
Seller desires to sell, convey, assign, transfer and deliver the Purchased
Assets (as defined in this agreement) and to assign, convey and transfer the
Assigned Assets (as defined in this agreement) to the Purchaser and the
Purchaser desires to acquire and accept the Purchased Assets and the Assigned
Assets, upon and subject to the terms and conditions set forth in this
Agreement.
The Parties agree as follows:
1. Sale, Purchase and Assignment
1.1. Subject to terms and conditions of this Agreement, the Seller
shall sell, convey, assign, transfer and deliver to the Purchaser
the following assets (the "Purchased Assets"):
1.1.1. all rights and interest of the Seller in the Interactive
Voice Response Hardware ("IVR Hardware") owned by the Seller
which are identified in Schedule 1.1.1.
1.2. Subject to terms and conditions of this Agreement, the Seller
shall assign, transfer and deliver to the Purchaser the following
assets (the "Assigned Assets"):
1.2.1. all rights and interests of the Seller in the telephone
lines connected to IVR Hardware, which are identified in
Schedule 1.2.1;
1.2.2. all rights and interests of the Seller in the telephone
numbers assigned to the telephone lines described in 1.2.1.
above;
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1.2.3. all rights and interests of the Seller in the office lease
space in which the IVR Hardware are located, which are
identified in Schedule 1.2.3.
1.3. Subject to the terms and conditions of this Agreement, in
consideration of the sale, conveyance, assignment, transfer and
delivery of the Purchased Assets and the Assigned Assets, at
closing, the Purchaser shall deliver to the Seller the executed
"Audiotext Services Agreement" attached hereto as Exhibit A and a
payment in cash in an amount equal to $299,145.26, paid at closing.
1.4. The Purchaser is assuming no liabilities of the Seller,
provided however, that the Purchaser agrees to reimburse the Seller
for all outstanding telephone and lease costs incurred by the Seller
prior to the date that the costs are assumed by the Purchaser if not
paid by the Purchaser at closing.
1.5. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of the
Purchaser on December 10, 1996.
1.6. At the Closing the Seller shall deliver, or cause to be
delivered, to the Purchaser each of the following:
1.6.1. a counterpart of the Assignment and Assumption Agreement,
duly executed by the Seller, attached hereto as Exhibit A;
1.6.2. the certificate described in Section 2.1.3;
1.6.3. all documents reasonably requested by the Purchaser
relating to the existence of the Seller and the authority of
the Seller, all in form and substance reasonably satisfactory
to the Purchaser.
1.7. At the Closing the Purchaser shall deliver to the Seller each
of the following:
1.7.1. a counterpart of the Assignment and Assumption Agreement,
duly executed by the Purchaser, attached hereto as Exhibit A;
1.7.2. immediately available funds in an amount equal to
$299,145.26;
1.7.3. the certificate described in Section 2.2.3;
1.7.4. all documents reasonably requested by the Seller relating
to the existence of the Purchaser and the authority of the
Purchaser, all in form and substance reasonably satisfactory
to the Seller.
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1.8. The Seller agrees that from time to time after the Closing it
shall execute, deliver, acknowledge, file and record such further
bills of sale, general conveyances, endorsements, assignments and
other instruments of sale, conveyance, assignment, transfer and
delivery as the Purchaser shall reasonably request in order to
complete and perfect the sale, conveyance, assignment, transfer and
livery of the Purchased Assets and Assigned Assets upon the terms
and conditions described in this Agreement.
2. Conditions to Closing
2.1. The obligations of the Seller to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment,
prior to or concurrently with the Closing, of the following
conditions (any one or more of which may be waived, in whole or
part, by the Seller):
2.1.1. The representations and warranties of the Purchaser
contained in this Agreement shall be true and correct as of
the Closing;
2.1.2. The Purchaser shall have performed and complied with all
provisions, covenants and conditions contained in this
Agreement which are required to be performed or complied with
by it prior to or at Closing; and
2.1.3. The Purchaser shall have delivered to the Seller an
officer's certificate, dated as of the Closing, to the effect
that the conditions specified in Sections 2.1.1. and 2.1.2.
have been fulfilled.
2.2 The obligations of the Purchaser to consummate the transactions
contemplated by this Agreement shall be Subject to the fulfillment,
prior to or concurrently with the Closing, of the following
conditions (any one or more of which may be waived, in whole or part,
by the Purchaser):
2.2.1. The representations and warranties of the Seller contained
in this Agreement shall be true and correct as of the
Closing;
2.2.2. The Seller shall have performed and complied with all
provisions, covenants and conditions contained in this
Agreement which are required to be performed or complied with
by it prior to or at Closing; and
2.2.3. The Seller shall have delivered to the Purchaser an
officer's certificate, dated as of the Closing, to the effect
that the conditions specified in Sections 2.2.1. and 2.2.2.
have been fulfilled.
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2.3. Representations and Warranties of the Seller:
2.3.1. Organization and Qualification. The Seller is a corporation
duly incorporated, validly existing and in good standing
under the laws of the State of Louisiana and has all
corporate power and authority necessary to own and operate
the assets included in the Purchased Assets and to carry on
the portion of its business relating to the Purchased Assets.
The Seller is duly qualified and in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its activities in
connection with the Purchased Assets makes such qualification
necessary.
2.3.2. Authority: Binding Effect. The Seller has all necessary
corporate power and authority to enter into and perform its
obligations under this Agreement and the Assignment and
Assumption Agreement and to consummate the transactions
contemplated in the agreements. The execution and delivery
by the Seller of this Agreement and the Assignment and
Assumption Agreement, the performance by it of its
obligations hereunder and thereunder and the consummation by
it of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate
action on the part of the Seller. Each of this Agreement
and the Assignment and Assumption Agreement to which the
Seller is a party has been duly executed and delivered by the
Seller and constitutes a legal, valid and binding agreement
of the Seller, enforceable against it in accordance with the
terms hereof and thereof.
2.3.3 Absence of Conflicts. The execution and delivery by the Seller
of this Agreement and the Assignment and Assumption Agreement,
the performance by it of its obligations hereunder and
thereunder and the consummation by it of the transactions
contemplated hereby and thereby will not (I) conflict with, or
result in any violation or breach of, any provision of the
Charter or Bylaws of the Seller, (ii) result in any violation
or breach of, constitute a default under, give rise to any
right of termination or acceleration (with or without notice
or the lapse of time or both) pursuant to any term or
provision of any note, bond, mortgage, indenture, lease,
franchise, permit, license, contract, agreement or other
instrument or document to which the Seller is a party or by
which the Seller or its assets are or may be bound which
affects the portion of the business relating to the Purchased
Assets, or (iii) conflict with, or result in any violation of,
any law, ordinance, statute, rule or regulation of any
Governmental Authority or of any order, writ, injunction,
judgment or decree of any court, arbitrator or Governmental
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Authority applicable to the portion of its business relating
to the Purchased Assets.
2.3.4. Governmental Authorizations and Filings. There is no
requirement applicable to the Seller to obtain any consent,
approval or authorization of, or to make or effect any
declaration, filing or registration with, any Governmental
Authority for the valid execution and delivery by the Seller
of this Agreement or the Assignment and Assumption Agreement,
the due performance by it of its obligations hereunder and
thereunder or the lawful consummation by it of the
transactions contemplated hereby or thereby.
2.3.5. Litigation. There is no action, suit, inquire, investigation
or other proceeding pending or threatened against or affecting
the Seller or its properties or assets in any court or before
any arbitrator or any foreign or United States federal, state
or local Governmental Authority which (I) if adversely
determined, would have a material adverse effect on the
business proposed to be conducted by the Purchaser through the
Purchased Assets or (ii) draws into question the validity of
this Agreement or the Assignment and Assumption Agreement or
seeks to enjoin or prevent the consummation of the transaction
contemplated hereby and thereby.
2.3.6. Compliance with Laws and Other Requirements. The Seller is
not in breach or violation of, or default under, any term or
provision of any lease or contract or agreement included in
the Purchased Assets or of any law, ordinance, statute, rule
or regulation of any Governmental Authority applicable to the
portion of its business relating to the Purchased Assets
(including, but not limited to, the Communications Act,
TOCSIA or any statute, rule or regulation of any
Telecommunications Authority), except for any violation or
default which would not have a material adverse effect on the
business proposed to be conducted by the Purchaser through
the Purchased Assets.
2.3.7. Brokers' or Finders' Fees. The Seller has not authorized
any Person to act as a broker or finder or in any similar
capacity in connection with this Agreement or the Assignment
and Assumption Agreement or any of the transactions
contemplated hereby or thereby in such a manner as to give
rise to a valid claim against the Purchaser for any brokers'
or finders' fees or similar fees or expenses.
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2.4. Representations and Warranties of the Purchaser:
2.4.1. Organization and Qualification. The Purchaser is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of lowa and has all
corporate power and authority necessary to own and operate
the assets included in the Purchased Assets and to carry on
the portion of its business relating to the Purchased Assets.
The Purchaser is duly qualified and in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its activities in
connection with the Purchased Assets makes such qualification
necessary.
2.4.2. Authority: Binding Effect. The Purchaser has all necessary
corporate power and authority to enter into and perform its
obligations under this Agreement and the Assignment and
Assumption Agreement and to consummate the transactions
contemplated in the agreements. The execution and delivery
by the Purchaser of this Agreement and the Assignment and
Assumption Agreement, the performance by it of its
obligations hereunder and thereunder and the consummation by
it of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate
action on the part of the Purchaser. Each of the this
Agreement and the Assignment and Assumption Agreement to
which the Purchaser is a party has been duly executed and
delivered by the Purchaser and constitutes a legal, valid and
binding agreement of the Purchaser, enforceable against it in
accordance with the terms hereof and thereof.
2.4.3. Absence of Conflicts. The execution and delivery by the
Purchaser of this Agreement and the Assignment and Assumption
Agreement, the performance by it of its obligations hereunder
and thereunder and the consummation by it of the transactions
contemplated hereby and thereby will not (I) conflict with, or
result in any violation or breach of, any provision of the
Charter or Bylaws of the Purchaser, (ii) result in any
violation or breach of, constitute a default under, give rise
to any right of termination or acceleration (with or without
notice or the lapse of time or both) pursuant to any term or
provision of any note, bond, mortgage, indenture, lease,
franchise, permit, license, contract, agreement or other
instrument or document to which the Purchaser is a party or by
which the Purchaser or its assets are or may be bound which
affects the portion of the business relating to the Purchased
Assets, or (iii) conflict with, or result in any violation of,
any law, ordinance, statute, rule or regulation of any
Governmental Authority or of any order, writ, injunction,
judgment or decree of any court, arbitrator
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or Governmental Authority applicable to the portion of its
business relating to the Purchased Assets.
2.4.4. Governmental Authorization and Filings. There is no
requirement applicable to the Purchaser to obtain any
consent, approval or authorization of, or to make or effect
any declaration, filing or registration with, any
Governmental Authority for the valid execution and delivery
by the Purchaser of this Agreement or the Assignment and
Assumption Agreement, the due performance by it of its
obligations hereunder and thereunder or the lawful
consummation by it of the transactions contemplated hereby or
thereby.
2.4.5. Brokers' or Finders' Fees. The Purchaser has not authorized
any Person to act as a broker or finder or in any similar
capacity in connection with this Agreement or the Assignment
and Assumption Agreement or any of the transactions
contemplated hereby or thereby in such a manner as to give
rise to a valid claim against the Seller for any brokers' or
finders' fees or similar fees or expenses.
2.5. Covenant Not to Compete
2.5.1. The Seller hereby agrees that, for a period of three years
from and after the Closing, it will not engage, directly or
indirectly through one or more of its affiliates, in the
business of owning or leasing or operating IVR hardware or
other substantially similar telecommunications devices in
hotels.
2.6 Indemnification
2.6.1. Indemnification by the Seller. The Seller hereby agrees to
indemnify and hold harmless each of the Purchaser and its
Affiliates, directors, officers, shareholders, employees,
agents, and other representatives forma and against any and
all demands, claims, actions, causes of action, proceedings,
assessments, losses, damages, liabilities, settlements,
judgments, fines, penalties, interest, costs and expenses
(including fees and disbursements of counsel) which arise from
or relate to a breach or alleged breach by the Seller of any
of its representations, warranties, covenants or agreements
contained in this Agreement or the Assignment and Assumption
Agreement, whether or not such breach or alleged breach gives
rise to a claim by a third party. The rights to
indemnification afforded to the Purchaser hereunder shall
survive Closing and any investigation made at any time by or
on behalf of the Purchaser in connection
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with this Agreement or any of the transactions contemplated
hereby for a period of two years.
2.6.2. Indemnification by the Purchaser. The Purchaser hereby
agrees to indemnify and hold harmless each of the Seller and
its Affiliates, directors, officers, shareholders, employees,
agents and other representatives forma and against any and
all demands, claims. actions, causes of action, proceedings,
assessments, losses, damages, liabilities, settlements.
judgments, fines, penalties, interest, costs and expenses
(including fees and disbursements of counsel) which arise
from or relate to a breach or alleged breach by the Purchaser
of any of its representations, warranties, covenants or
agreements contained in this Agreement or the Assignment and
Assumption Agreement, whether or not such breach or alleged
breach gives rise to a claim by a third party. The rights to
indemnification afforded to the Seller hereunder shall
survive Closing and any investigation made at any time by or
on behalf of the Seller in connection with this Agreement or
any of the transactions contemplated hereby for a period of
two years.
Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be
given by delivery in person, by the United States mail (first
class with postage prepaid thereon) or by cable, telex or
facsimile transmission to the parties at the following
addresses (or such other address as any party shall have
furnished to the other in accordance with the terms of this
Section 2.7):
If to Seller: Interactive Communications, Inc.
X.X. Xxx 0000
Xxxxxx, XX 0000x-0000
Attention: Xxxx Xxxxx
If to Purchaser: Xxxxxxx Communications Corporation
0000 00xx Xxx. X.X.
Xxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
2.7. Entire Agreement. This Agreement (including Schedules hereto),
together with the Assignment and Assumption Agreement, constitutes
the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings,
whether written or
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oral, between the parties with respect to the subject matter hereof.
All Schedules hereto are expressly made a part of this Agreement.
2.8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Sate of Iowa, without
regard to the principles of conflicts of laws, except to the extent
that mandatory principles of conflicts of law required the
application of laws of another jurisdiction wherein any of the
Purchased Assets are located to determine the validity or effect of
the sale, conveyance, transfer, assignment and delivery thereof upon
the terms and conditions set forth in this Agreement.
2.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the date first above written.
Seller:
Interactive Communications, Inc.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Purchaser:
Xxxxxxx, Xxxxxxx & Associates, Inc.
By: /s/ Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Chief Executive Officer
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