EXHIBIT 99.3
ASSIGNMENT AND ASSUMPTION AGREEMENT (CANADA)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement"), dated as of
January 21, 2005, is entered into by and between MCK Canada Operations Inc., a
corporation organized under the laws of British Columbia ("Purchaser"), and
Verso Technologies, Inc., a Minnesota corporation, MCK Communications, Inc., a
Nevada corporation, MCK Communications, Inc., a Delaware corporation, MCK
Telecommunications Inc., a Yukon Territory corporation, and Digital Techniques,
Inc., a Texas corporation (collectively, "Sellers"), pursuant to the Asset
Purchase Agreement (as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Asset Purchase Agreement"), dated as of
January 21, 2005, by and among Purchaser, Sellers, Citel Technologies, Inc.,
company number 02459517, a corporation organized under the laws of England and
Wales, and Citel Technologies, Inc., a Delaware corporation. Each of the
Purchaser and Sellers is referred to herein individually as a "Party" and
together as the "Parties." Capitalized terms used herein but not defined herein
shall have the meanings set forth in the Asset Purchase Agreement.
RECITALS:
WHEREAS, pursuant to Section 2.1(j) of the Asset Purchase Agreement,
Sellers and Purchaser have agreed that the Purchaser shall purchase, acquire,
accept and assume from Sellers, all of each Seller's right, title and interest
in, to and under, and all obligations under or relating to, the Contracts set
forth on Annex A hereto (the "Assigned Contracts"); and
WHEREAS, pursuant to Section 3.1 of the Asset Purchase Agreement and
subject to Section 3.2 thereto, Sellers and Purchaser have agreed that the
Purchaser shall assume and become liable for each of the Liabilities set forth
on Annex B hereto (the "Assumed Liabilities").
NOW THEREFORE, in consideration of the mutual promises and covenants set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged and accepted, each Party
hereby agrees as follows:
1. Assignment and Assumption of Assigned Contracts. Upon the terms and
subject to the condition set forth in the Asset Purchase Agreement from and
after the Closing, (a) each Seller does hereby assign and delegate to Purchaser
all of such Seller's right, title and interest in, to and under, and all
obligations under or relating to, the Assigned Contracts and (b) Purchaser does
hereby assume and agrees to pay, defend, discharge and perform as and when due
all Liabilities and obligations to perform arising under or relating to each of
the Assigned Contracts, except Liabilities, even if arising post-Closing, for
performance under the Assigned Contracts prior to Closing.
2. Assumption of Assumed Liabilities. Upon the terms and subject to the
condition set forth in the Asset Purchase Agreement, Purchaser does hereby
assume, and from and after the Closing shall be obligated to pay, perform and
discharge when due the Assumed Liabilities. Purchaser assumes no Excluded
Liabilities, and the parties hereto agree that all such Excluded Liabilities
shall remain the sole responsibility of Sellers.
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3. Relationship to Asset Purchase Agreement. Sellers make no express or
implied representations or warranties in this Agreement of any kind whatsoever
with respect to the Assigned Contracts. This Agreement in no way defeats,
limits, alters, impairs, enhances or enlarges any right, obligation, claim or
remedy under the Asset Purchase Agreement, including any rights the Parties may
have under the representations, warranties and indemnities set forth therein. If
any provision of this Agreement is construed to conflict with a provision of the
Asset Purchase Agreement, the provision in the Asset Purchase Agreement shall be
deemed controlling.
4. Governing Law; Waiver of Jury Trial. This Agreement shall be governed
by, and interpreted in accordance with, the laws of the State of New York
applicable to contracts made and to be performed entirely within that State,
without reference to its conflict of laws rules. Each of the Sellers and
Purchaser irrevocably consents to the service of process in any action or
proceeding hereunder by the mailing of copies thereof by registered or certified
airmail, postage prepaid, to the address specified in Section 15.4 of the Asset
Purchase Agreement. The foregoing shall not limit the rights of any Party to
serve process in any other manner permitted by applicable law or regulation or
to obtain execution of judgment in any other jurisdiction.
5. Binding Effect; Assignment: No Third Party Beneficiary. Except as
otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon, each of the Sellers and Purchaser and its
respective successors and assigns. Neither this Agreement nor any rights
hereunder shall be assignable by any Party without the prior written consent of
the other Party. This Agreement is for the sole benefit of the Parties and their
respective successors and permitted assigns and nothing herein, express or
implied, is intended or shall confer upon any other person or entity any legal
or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to constitute an original, but all
of which together shall constitute one and the same document.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have caused this Assignment and Assumption
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
SELLERS:
Verso Technologies, Inc. MCK Communications, Inc. (NV)
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
Title: Executive Vice President and Title: Vice President
Chief Financial Officer ----------------------------
----------------------------
MCK Communications, Inc. (DE) MCK Telecommunications Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------ ------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
---------------------------- -----------------------------
Title: Vice President Title: President
--------------------------- -----------------------------
Digital Techniques, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
----------------------------
PURCHASER:
MCK Canada Operations Inc.
By: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxxx
---------------------------
Title: Chief Financial Officer
--------------------------
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ANNEX A
ASSIGNED CONTRACTS
SCHEDULE 2.1(c)/ SCHEDULE 2.1(j) LEASEHOLD INTERESTS
That lease between MCK Communications Ltd. and BECA Corporation made the 1st day
of November, 2000 for approximately 11,440 square feet of net rentable office
area and 1,099 square feet of net rentable storage area located on certain lands
situated at 0000 Xxxxxxx Xxxx XX, Xxxxxxx Xxxxxxx, X0X 0X0, legally described as
Plan 7610566 Maintenance Site Right of Way B, for a term of term of five years
commencing November 1, 2000 and ending on October 31, 2005.
CURRENT
SQUARE EXPIRATION CONSENT MONTHLY
PARCEL LESSOR FOOTAGE DATE REQUIRED CND $
------------------------------------------------------------------------------------------------------------------
0000 Xxxxxxx Xxxx XX, XXXX Net Rentable October 31, Yes Net Rentable Office
Calgary Alberta, T3B 3R7 Corporation Office Area: 2005. Area: $12.00 per
Legal Description: Plan 11,440 square feet square foot
7610566 Maintenance Net Rentable Net Rentable Storage
Site Right of Way B Storage Area: Area: $5.00 per
1,099 square feet square foot
SCHEDULE 2.1(d) TANGIBLE PERSONAL PROPERTY/ SCHEDULE 2.1(j): CONTRACTS
The following items of tangible personal property are leased to Sellers.
Sellers' ownership of title to this property is subject to the respective
leases.
Products leased to Sellers by Avaya, pursuant to a single lease which Sellers
have provided to the Buyers:
Product Quantity Lease
Avaya Definity G3SI 1 Lease to own w/ $3800.00 buyout option
Avaya Intuity Voice Mail 1 Lease to own
Avaya 8410D sets 39 Lease to own
Avaya 302 Attd Console 1 Lease to own
Sellers lease certain products from Pitney Xxxxxx. Sellers have not
provided to Buyers a copy of such lease but have provided to Buyers a copy
of the most recent invoice pursuant to such lease dated October 13, 2004.
SCHEDULE 2.1(i): RIGHTS OF INDEMNITY
Certain contracts between certain of the Sellers and their customers and
vendors contain indemnity provisions. Purchaser will obtain the rights to such
indemnity provisions for contracts that are duly assigned to or assumed by
Purchaser.
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ANNEX B
ASSUMED LIABILITIES
Any Liability arising after the Closing Date under the Contracts that are
included among the Assets in Annex A, other than any Liability arising out of or
relating to a Seller's breach of such Contract that occurred on or before the
Closing Date.
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