ASSET PURCHASE AGREEMENT
THIS AGREEMENT, made and entered into as of May 20, 1992, by and
between DIGITEL, INC., a Colorado corporation ("Seller"), and WESTERN
COMMUNICATIONS, INC., a Nevada corporation;
WHEREAS, Seller is engaged in the telephone interconnect business; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from
seller, the assets and business of Seller;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants, and agreements, and upon the terms and subject to the
conditions hereinafter set forth, the parties do hereby agree as follows:
ARTICLE I: TERMS OF PURCHASE AND SALE
1.01 Purchase and Sale. On the Closing Date, as hereinafter defined, on
the terms and subject to the conditions set forth in this Agreement, Seller
shall sell, convey, transfer, assign, and deliver to Buyer, and Buyer shall
purchase and acquire from Seller all of Seller's right, title, and interest in
and to the assets and business of Seller, whether now owned or hereafter
acquired by Seller prior to the Closing Date, and Whether tangible or
intangible, which are used exclusively in connection with the conduct of
Seller's telephone interconnect business (the "Assets"), including, without
limitation, the following:
(a) Substantially all of the machinery, equipment, vehicles, office
furniture, tools, and other tangible property owned by Seller and used
exclusively in connection with the conduct of Seller's telephone interconnect
business;
(b) All supplies and inventories used exclusively in connection with
the conduct of Seller's telephone interconnect business;
(c) All accounts receivable;
(d) Subject to Section 4.01 hereof, all of Seller's rights under the
Commitments (as defined in Section 2.05 hereof), pertaining exclusively to the
conduct of Seller's telephone interconnect business, including, but not limited
to, any contracts for services and supplies, permits, licenses and approvals to
operate the business;
(e) All sales and promotional literature, and all books, records, files
and data (including customer and supplier lists), or copies thereof, pertaining
exclusively to the conduct of Seller's telephone interconnect business, except
for personnel records and files, copies of which will be provided to Buyer to
the extent permitted by law (the "Books and Records");
(f) All trade names and trademarks used exclusively in connection with
the conduct of Seller's telephone interconnect business, including, without
limitation, Seller's right, title, and interest in and to the name "DIGITEL";
(g) All cash, cash deposits, other cash equivalent investments, cash
refunds, insurance policies, and security bonds or deposits; and
(h) The business of Seller as a going concern and goodwill, if any.
Specifically excluded from the Assets are the items listed on Schedule
A to this Agreement.
1.02 The Closing. The closing of the transactions contemplated hereby
(the "Closing") shall take place at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, #▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇. as of the close of business on June 15, 1992 (the "Closing Date").
1.03 Purchase Price and Payment. Inasmuch as the liabilities to be
assumed exceed the assets to be acquired, there shall be no cash paid to Seller.
1.04 Payment of Taxes and Other Charges. Buyer shall pay, at the
closing, or if due thereafter promptly when due, all transfer taxes, sales
taxes, stamp taxes, and any other taxes (other than income taxes payable by
Seller) payable in connection with the transactions contemplated hereby.
1.05 Instruments of Transfer. On the Closing Date, Seller shall deliver
to Buyer duly executed instruments of transfer assignment of the Assets
sufficient to vest in Buyer the interests in the Assets being conveyed in
accordance with the terms of this Agreement.
1.06 Assumption. Buyer understands and agrees that, from and after the
Closing, except for those liabilities listed on Schedule B hereto and as
specifically provided in Sections 1.04, 6.01 (a), and 9.03 (a), hereof to the
contrary, neither Seller nor any of its affiliates shall have any liability or
responsibility for any liability or obligation of or arising out of or relating
to the Assets (including any Commitments included in the Assets) or Seller's
telephone interconnect business of whatever kind or nature, whether contingent
or absolute, whether arising prior to or on or after, and whether determined or
interminable on, the Closing Date, and whether or not specifically referred to
in this Agreement (such liabilities and obligations, except set forth in
Sections 1.04, 6.01 (a), and 9.03 (a), hereof, being collectively referred to as
the "Liabilities"). Accordingly, Buyer agrees that, effective upon the Closing,
Buyer shall assume and shall thereafter pay, perform, and discharge and,
effective as of the Closing, Buyer does hereby assume the Liabilities, and
further agrees that it shall indemnify Seller and its affiliates and hold each
of them harmless against any liability, loss, damage, claim, costs, or expense
(collectively, a "Loss") incurred or suffered by any of them arising out of (i)
any of the Liabilities of (ii) any breach by Buyer of, or failure by Buyer to
comply with, any of the provisions of this Agreement.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
2.01 Organization. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Colorado, and has
the requisite corporate power and authority to execute, deliver, and perform
this Agreement and to consummate the transactions contemplated hereby.
2.02 Financial Statements. Seller has delivered to Buyer balance sheet
information as of May 31, 1992 (the "Balance Sheet") and a schedule of
operations for the 12-month period ending May 31, 1992 (the "Financial
Statements"), copies of which are attached as Exhibit A to this Agreement. The
Financial Statements fairly present the net assets and results of operations of
Seller as of May 31, 1992 and for the 12-month period ending on the basis of
accounting described in the footnotes thereto.
2.03 Absence of Certain Changes or Events. Since the date of the
Balance Sheet, the Seller has not (a) suffered any damage, destruction, or
casualty loss to its physical properties materially and adversely affecting the
business or financial condition of Seller; (b) incurred or discharged any
obligation or liability except in the ordinary course of business and except
obligations or liabilities that are not individually or in the aggregate
material to the business or financial condition of Seller; or (c) entered into
any transaction not in the ordinary course of its business except as permitted
in or contemplated by other sections of this Agreement.
2.04 Physical Properties. Seller has good title to all of the assets
and properties which it purports to own (including those reflected on the
Balance Sheet, except for assets and properties sold, consumed, or otherwise
disposed of in the ordinary course of business since the date of the Balance
Sheet) and which are material to the business financial condition of Seller,
free and clear of all liens, security interest, or other encumbrances
("encumbrances"), except (a) as set forth in Schedule C attached hereto, (b)
liens of current taxes not yet due or being contested in good faith by
appropriate proceedings, and (c) Encumbrances which individually or in the
aggregate do not have a material adverse effect on the business or financial
condition of Seller.
2.05 Commitments. Schedule D attached hereto contains a list of each
contract, agreement, or understanding (including each governmental license,
permit, or other governmental authorization) whether written or oral (inclluding
any and all amendments thereto) to which Seller is a party, or by which it may
be bound, which relates to the ownership of the Assets or the conduct of the
business ( collectively, the "Commitments") and which is material to the
business or financial condition of Seller. Except as disclosed in Schedule D,
Seller's knowledge, Seller is not in default under any of the commitments, which
default would have a material adverse effect on the business or financial
condition of Seller.
2.06 Litigation. Except as set forth in Schedule E attached hereto,
there is no action or proceeding in any court or before any governmental
authority ("Litigation") pending (a) to Seller's knowledge against Seller in
connection with the ownership of the Assets or the conduct of Seller's business,
with respect to which there is a reasonable likelihood of a determination which
would have a material adverse effect on the business or financial condition of
Seller, or (b) which seeks to enjoin or obtain damages in respect of the
consummation of the transactions contemplated hereby.
2.07 Compliance with Laws. To the best of Seller's knowledge, Seller is
in compliance with all laws, rules, regulations, and orders applicable to its
business ( including, without limitation, those relating to environmental
protection, occupational safety and health, and equal opportunity employment
practices) except where the failure to comply therewith does not have a material
adverse effect on the business or financial condition of Seller.
2.08 Corporate Power and Authority; Effect of Agreement. The execution,
delivery, and performance by Seller of this Agreement and the consummation by
Seller of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Seller. This Agreement has been duly
and validly executed and delivered by Seller and constitutes the valid and
binding obligation of Seller, enforceable in accordance with its terms, subject
to (a) applicable bankruptcy, insolvency, or other similar laws relating to
creditors' rights generally, and (b) general principles of equity. The
execution, delivery, and performance by Seller of this Agreement and the
consummation by Seller of the transactions contemplated hereby will not, with or
without the giving of notice or the lapse of time, or both, subject to obtaining
any required consents, approvals, authorizations, exemptions or waivers, (i)
violate any provision of law, rule, or regulation to which Seller is subject,
(ii) violate any order, judgment, or decree applicable to Seller, or (iii)
conflict with, or result in a breach or default under, any term or condition of
the Articles of Incorporation or the Bylaws of Seller or any agreement or other
instrument to which Seller is a party or by which Seller may be bound; except in
each case, for violations, conflicts, breaches, or defaults which in the
aggregate would not materially hinder or impair the consummation of the
transactions contemplated hereby.
2.09 Employee Benefit Plans. Schedule F lists all of Seller's Benefit
Plans and Benefit Arrangements (each as defined in Section(9.01 hereof)). Each
Benefit Plan and Benefit Arrangement has been maintained and administered in all
material respects in accordance with applicable law.
2.10 Consents. Except as set forth, no consent, approval, authorization
of, exemption by, or filing with, any governmental or regulatory authority is
required in connection with the execution, delivery, and performance by Seller
of this Agreement or the taking of any other action contemplated hereby,
excluding, however, consents, approvals, authorizations, exemptions, and
filings, if any, which Buyer is required to obtain or make.
2.11 Disclaimer. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, EXCEPT
AS SET FORTH IN THIS ARTICLE II. IN ANY EVENT, SELLER MAKES NO WARRANTY OF
MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR QUALITY,
AS TO THE ASSETS, OR ANY PART THEREOF, OR AS TO THE CONDITION OR WORKMANSHIP
THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT
BEING UNDERSTOOD THAT THE ASSETS ARE TO BE CONVEYED HEREUNDER "AS IS" ON THE
CLOSING DATE, AND IN THEIR THEN PRESENT CONDITION, AND BUYER SHALL RELY UPON ITS
OWN EXAMINATION THEREOF.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.01 Organization. Buyer is a corporation duly organized, validly
existing, and good standing under the laws of Nevada and has the requisite
corporate power and authority to carry on its business as it is now being
conducted, and to execute, deliver, and perform this Agreement and to consummate
the transaction contemplated hereby.
3.02 Corporate Power and Authority; Effect of Agreement. The
execution, delivery, and performance by Buyer of this Agreement and the
consummation by Buyer of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement has been duly and validly executed and delivered by Buyer and
constitute the valid and binding obligation of Buyer, enforceable in accordance
with its terms, subject to (a) applicable bankruptcy, insolvency, or other
similar law relating to creditors' rights generally, and (b) general principles
of equity. The execution, delivery, and performance by Buyer of this Agreement
and the consummation by Buyer of the transactions contemplated hereby will not,
with or without the giving of notice or the lapse of time, or both, subject to
obtaining any required consents, approvals, authorizations, exemptions or
waivers, (i) violate any provision of law, rule, or regulation to which Buyer is
subject, (ii) violate any order judgement, or decree applicable to Buyer, or
(iii) conflict with, or result in a breach or default under, any term or
condition of the Articles of Incorporation or the Bylaws of Buyer or any
agreement or other instrument to which Buyer is a party or by which Buyer may be
bound; except in each case, for violations, conflicts, breaches, or default
which in the aggregate would not materially hinder or impair the consummation of
the transactions contemplated hereby.
3.03 Consents. Except as set forth herein, no consent, approval, or
authorization of, or exemption by, or filing with, any governmental or
regulatory authority is required in connection with the execution, delivery, and
performance by Buyer of the Agreement or taking of any other action contemplated
hereby, excluding, however, consents, approvals, authorizations, exemptions, and
filings, if any, which Seller is required to obtain or make.
3.04 Litigation. There is no litigation pending (i) to Buyer's
knowledge against Buyer with respect to which there is a reasonable likelihood
of a determination which would have a material adverse effect on the ability of
Buyer to perform its obligations under this Agreement, or (ii) which seeks to
enjoin or obtain damages in respect of the consummation of the transactions
contemplated hereby.
ARTICLE IV: COVENANTS OF SELLER
Seller hereby covenants and agrees with Buyer as follows:
4.01 Cooperation and Assignments. Seller will use its best efforts, and
will cooperate with Buyer, to secure all necessary consents, approvals,
authorizations, exemptions, and waivers from third parties as shall be required
in order to enable Seller to effect the transactions contemplated hereby and
will otherwise use its best efforts to cause the consummation of such
transaction in accordance with the terms and conditions hereof. Notwithstanding
anything herein to the contrary, to the extent the assignment of any right to be
assigned to Buyer pursuant to the provisions hereof shall require the consent of
any other party, this Agreement shall not constitute a breach thereof or create
rights in others not desired by Buyer. If any such consent is not obtained,
Seller shall, at Buyer's expense, cooperate with Buyer in any reasonable
arrangement designed to provide for Buyer the benefit of any such right,
including enforcement of any and all rights of Seller against the other party to
any Commitment arising out of the breach or cancellation thereof by such party
or otherwise
4.02 Conduct of Business. Except as may be otherwise contemplated by
this Agreement or required by any of the documents listed in Schedule D, or
except as Buyer may otherwise consent to in writing (which consent shall not be
unreasonably withheld), between the date hereof and the Closing Date, Seller
will (a) in all material respects, operate its business only in the ordinary
course; (b) use its best efforts to preserve the business organization intact;
(c) maintain its properties, machinery, and equipment in sufficient operation
condition and repair to enable it to operate in all material respects its
business in the manner in which it was operated during the 12-month period
immediately prior to the date hereof; (d) continue all material existing
policies of insurance (or comparable insurance) of or relating t Seller's
business in full force and effect; (e) use its best efforts to keep available
the services of its present officers, employees, and agent (as a group); and (f)
use its best efforts to preserve its relationships with its material lenders,
suppliers, customers, licensors and licensees, and other having material
business dealings with is such that its business will not be substantially
impaired.
4.03 Access. Between the date hereof and the Closing, Seller shall
provide Buyer with such information as Buyer may from time to time reasonably
request with respect to the transactions contemplated by this Agreement, and
shall provide Buyer and its representatives reasonable access during regular
business hours and upon reasonable notice to the Books and Records and the
properties of Seller, as Buyer may from time to time reasonably request;
provided that Seller shall not be obligated to provide Buyer with any
information relating to trade secrets. Any disclosure whatsoever to Buyer shall
not constitute an enlargement of or additional warranties or representations of
Seller beyond those specifically set forth in this Agreement.
4.04 Right of Endorsement. From and after the Closing Date, Buyer shall
have the right and authority to endorse, without recourse, the name of Seller on
any check or any other evidence of indebtedness received by Buyer and to which
it is entitled on account of any receivable or other Asset transferred by Seller
pursuant hereto, and Seller shall deliver to Buyer at the Closing documents
sufficient to permit Buyer to deposit such checks or other evidences of
indebtedness in bank accounts in the name of Buyer.
4.05 Accounts Receivable. Seller shall remit in cash to Buyer, promptly
upon the receipt of the cash, the proceeds of all checks and other payments for
accounts receivable purchased by Buyer under this Agreement and coming into the
possession of Seller.
4.06 Further Assurances. At any time from time to time after the
Closing Date, Seller shall, at the request of Buyer and at Buyer's expense,
execute and deliver any further instruments or documents and take all such
further action as Buyer may reasonably request in order to evidence the
consummation of the transaction contemplated hereby.
ARTICLE V: COVENANTS OF BUYER
Buyer hereby covenants and agrees with Seller as follows:
5.01 Cooperation and Assumption. Buyer will use its best efforts, and
will cooperate with Seller, to secure all necessary approvals, authorizations,
exemptions, and waivers from third parties as shall be required in order to
enable Buyer to effect the transactions contemplated hereby, and will otherwise
use its best efforts to cause the consummation of such transactions in
accordance with the terms and conditions hereof.
5.02 Books and Records; Personnel. For a period of seven years from the
Closing Date:
(a) Buyer shall neither dispose nor destroy any of the Books and
Records without first offering to turn over possession thereof to Seller by
written notice to Seller at least 30 days prior to the proposed date of such
disposition or destruction.
(b) Buyer shall allow Seller and its agents access to all Book and
Records during normal working hours at Buyer's principal places of business or
at any location where any Books and Records are stored, and Seller shall have
the right, at its own expense, to make such copies of any Books and Records;
provided, however, that any such access or coping shall be had or done in such a
manner so as not to interfere with the normal conduct of Buyer's business.
(c) Buyer shall make available to Seller upon written request and at
Seller's expense, but consistent with Buyer's business requirements, (i) Buyer's
personnel to assist Seller in locating and obtaining the Books and Records and
(ii) and of Buyer's personnel whose assistance or participation is reasonably
required by Seller in anticipation of, or in preparation for, existing or future
litigation, tax returns, or other matters in which Seller is involved.
(d) The foregoing provisions of this Section 5.02 shall be in addition
to the obligations of Buyer under Section 6.01 hereof.
5.03 Buyer's Knowledge of Business; Seller's Representations Modified
by Buyer's Knowledge. To the knowledge of Buyer, Seller's representations and
warranties made in this Agreement are true and correct. Buyer hereby agrees that
to the extent any representation or warranty of Seller made herein is, to the
knowledge of Buyer acquired prior to the Closing, untrue or incorrect, if Buyer
elects to close, (a) Buyer shall have no rights under this Agreement by reason
of such untruth or inaccuracy, and (b) any such representation or warranty by
Seller shall be deemed t be amended to the extent necessary to render it
consistent with such knowledge of Buyer.
5.04 Further Assurances. At any time or from time to time after the
Closing Date, Buyer shall, at the request of Seller and at Seller's expense,
execute and deliver any further instruments or documents and take all such
further action as Seller may reasonably request in order to evidence the
consummation of the transactions contemplated hereby.
ARTICLE VI: ADDITIONAL COVENANTS
6.01 Taxes.
(a) Seller shall be liable for all income and franchise taxes payable
as a result of the operations of Seller prior to the Closing. Buyer shall be
liable for all income and franchise taxes payable as a result of the operation
of the business acquired hereunder from and after the Closing.
(b) After the Closing Date, Buyer and Seller shall make available to
the other, as reasonably requested, and to any taxing authority, all
information, records, or documents relating to tax liabilities or potential tax
liabilities of or relating to Seller for all periods prior t or including the
Closing Date and shall preserve all such information, records, and documents
until the expiration of any applicable statute of limitations or extensions
thereof. Buyer shall prepare and provide to Seller any federal, state, local, or
foreign tax information package requested by Seller for Seller's use in
preparing its tax returns. Such tax information packages shall be completed by
Buyer and provided to Seller within 90 days after the Closing. Each party shall
bear its own expenses in complying with the foregoing provisions.
(c) Buyer shall promptly notify Seller in writing upon receipt by Buyer
or any affiliate of Buyer of notice of any pending or threatened federal, state,
local, or foreign income or franchise tax audits or assessments of or relating
Seller's business for taxable periods ending prior to or including the Closing
Date. Seller shall have the sole right to represent its interests in any tax
audit or administrative or court proceeding relating to taxable period for which
Seller is responsible for the payment of taxes, and to employ counsel of its
choice at its expense. Buyer agrees that it will cooperate fully with Seller and
its counsel in the defense against or compromise of any claim in any said
proceeding.
ARTICLE VII: CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to purchase the Assets and assume the
Liabilities shall be subject to the satisfaction (or waiver) on or prior to the
Closing Date of all of the following conditions.
7.01 Representations, Warranties, and Covenants of Seller. Seller shall
have complied in all material respects with all of its agreements and covenants
contained herein to be performed at or prior to the Closing Date, and all the
representations and warranties of Seller contained herein shall be true in all
material respects on and as of the Closing Date with the same effect as though
made on and as of the Closing Date, except otherwise contemplated hereby, and
except to the extent that such representations and warranties were made as of a
specified date and as to such representations and warranties the same shall
continue on the Closing Date to have been true as of the specified date, and
except to the extent that any failure of such representations and warranties to
be true as aforesaid when taken in the aggregate would not have a material
adverse effect on the business or financial condition of Seller. Buyer shall
have received a certificate of Seller, dated as of the Closing Date and signed
by an officer of Seller, certifying as to the fulfillment of the condition set
forth in this Section 7.01.
7.02 No Prohibition. No statute, rule, or regulation or order of any
court or administrative agency shall be in effect which restrains or prohibits
Buyer from consummating the transactions contemplated hereby.
7.03 Further Action. All consents, approvals, authorizations,
exceptions, and waivers from third parties that shall be required in order t
enable Buyer t consummate the transactions contemplated hereby shall have been
obtained (except for such consents, approvals, authorizations, exemptions, and
waivers the absence of which would not render such consummation illegal).
ARTICLE VIII: CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to sell the Assets shall be subject to the
satisfaction (or waiver) on or prior to the Closing Date of all of the following
conditions:
8.01 Representations, Warranties, and Covenants of Buyer. Buyer shall
have complied in all material respects with all of its agreements and covenants
contained herein to be performed at or prior to the Closing Date, and all of the
representations and warranties of Buyer contained herein shall be true in all
material respects on and as of the Closing Date with the same effect as though
made on and as of the Closing Date, except as otherwise contemplated hereby, and
except to the extent that such representations and warranties were made as of a
specified date and as to such representations and warranties the same shall
continue on the Closing Date to have been true as of the specified date, and
except to the extent that any failure of such representations and warranties to
be true as aforesaid when taken in the aggregate would not have a material
adverse effect on the business or financial condition of Buyer. Seller shall
have received a certificate of Buyer, dated as of the Closing Date and signed by
an officer of Buyer, certifying as to the fulfillment of the condition set forth
in this Section 8.01.
8.02 No Prohibition. No statute, rule, or regulation or order of any
court or administrative agency shall be in effect which restrains or prohibits
Seller from consummating the transactions contemplated hereby.
8.03 Further Action. All consents, approvals, authorizations,
exemptions, and waivers from third parties that shall be required in order to
enable Seller to consummate the transactions contemplated hereby shall have been
obtained (except for such consents, approval, authorizations, exemptions, and
waivers the absence of which would not render such consummation illegal).
ARTICLE IX: EMPLOYMENT AND EMPLOYEE BENEFITS ARRANGEMENTS
9.01 Definitions.
(a) The term "Employees" shall mean all current employees ( including
those on lay-off or leave of absence, whether paid or unpaid), former employees
and retired employees of Seller;
(b) The term "Company Benefit Plans" shall mean each and all "employee
benefit plans" as defined in Section 3 (3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") maintained or contributed to by
Seller and covering Employees, including (i) any such plans that are "employee
welfare benefit plans" as defined in Section 3 (1) of ERISA and (ii) any such
plans that are "employee pension benefit plans" as defined in Section 3 (2) of
ERISA;
(c) The term "Benefit Arrangements" shall mean life and health
insurance, hospitalization, savings, bonus, deferred compensation, incentive
compensation, holiday, vacation, severance pay, sick pay, sick leave,
disability, tuition refund, service award, company car, scholarship, relocation,
patent award, fringe benefit, and other employee benefit plans, contracts (
other than individual employment, consultancy, or severance contracts), policies
or practices of Seller providing employee or executive compensation or benefits
to Employees, other than the Company Benefit Plans.
9.02 Employment. As of the Closing Date, Buyer shall offer to all
current Employees employment at the same salaries and wages ( including
commission and sales incentive programs) and on substantially the same or better
terms and conditions as those in effect immediately prior to the Closing Date.
9.03 Pension and Other Plans.
(a) As of the Closing Date, Seller shall terminate the Digitel, Inc.
Employee Profit Sharing and Stock Ownership Plan and Trust and distribute
account balances to all Employees who are participants in such Plan in
accordance with the provisions of such Plan and applicable law.
(b) As of the Closing Date, Buyer shall adopt and become the successor
sponsor of the Digitel, Inc. 401(k) Profit Sharing Plan and Trust ( the "401(k)
Plan"). As of the Closing Date, Buyer shall assume all of the Seller's
liabilities and obligations with respect to the 401(k) Plan, including without
limitation all obligations to make contributions required to be made to the
401(k) Plan after the Closing Date.
9.04 Other Benefit Plans. With respect t Employees, Buyer agrees to
assume and maintain for a period of two years commencing on the Closing Date
those Company Benefit Plans (other than those Company Benefit Plans which are
covered by Section 9.03 hereof) and Benefit Arrangements maintained or sponsored
by Seller immediately Prior to the Closing Date solely for Employees, and to
establish employee benefit plans providing benefits which are equivalent to or
better than the benefits provided to Employees under each other Company Benefit
Plan ( other than those Company Benefit Plans which are covered by Section 9.03
hereof) and Benefit Arrangements. Buyer shall grant all Employees after the
Closing Date credit for all service with Seller, its affiliates, and their
respective predecessors prior to the Closing Date for all purposes for which
such service was credited to Employees by Seller, its affiliates, and their
perspective predecessors. Buyer shall assume all liabilities and obligations of
Seller and its affiliates under the Company Benefit Plans (other than those
Company Benefit Plans which are covered by Section 9.03 hereof), Benefit
Arrangements and workers compensation arrangements with respect to the Employees
and their dependants, including, but not limited to, (i) liabilities and
obligations for benefits, compensation, contributions, insurance premiums, and
administrative expenses, whether incurred or accrued before, on, or after the
Closing Date and whether or not reported as of the Closing Date, (ii)
liabilities and obligations arising under the continuation coverage requirements
of Section 162(k) of the code and Section 601 of ERISA with respect to all
Employees (or any beneficiary or dependent of any Employee) who, as of the
Closing Date, have exercised or are eligible to exercise their right to such
continuation coverage and (iii) liabilities and obligations to provide
post-retirement health and life insurance benefits to Employees (whether or not
currently retired), and Buyer shall indemnify Seller and its affiliates and hold
each of them harmless for any loss which any of them may incur in respect of any
of the foregoing.
ARTICLE X: TERMINATION PRIOR TO CLOSING
10.01 Termination. This Agreement may be terminated at any time prior
to the Closing:
(a) By the mutual written consent of Buyer and Seller, or
(b) By either Seller or Buyer in writing, without liability to the
terminating party on account of such termination (provided the termination party
is not otherwise in default or in breach of this Agreement), if the Closing
shall not have occurred on or before June 15, 1992; or
(c) By either Seller or Buyer in writing, without liability to the
terminating party on account of such termination (provided the terminating party
is not otherwise in default or in breach of this Agreement), if the other party,
as the case may be, shall (i) fail to perform in any material respect its
agreements contained herein required to be performed prior to the Closing Date,
or (ii) material breach any of its representations, warranties, or covenants
contained herein.
10.02 Effect on Obligations. Termination of this Agreement pursuant to
this Article shall terminate all obligations of the parties hereunder, except
for the obligations under Sections 11.08 and 11.09 and the last sentence of
Section 4.03; provided, however, that termination pursuant to paragraph (b) or
(c) of Section 10.01 shall not relieve the defaulting or breaching party from
any liability to the other party hereto.
ARTICLE XI: MISCELLANEOUS
11.01 No Survival. The representations and warranties made in this
Agreement or in any certificate or other document delivered pursuant hereto or
in connection herewith and the covenants and agreements contained herein to be
performed or complied with at or prior to the Closing shall not survive the
Closing (except for the representations and warranties of Seller contained in
Section 2.04 hereof which shall survive the Closing and shall thereupon expire
(except to the extent a written notice asserting a claim for breach of such
Section shall have been given to Seller prior to such first anniversary date)).
The covenants and agreements contained herein to be performed or complied with
after the Closing shall survive without limitation as to time, unless the
covenant or agreement specifies a term, in which case such covenant or agreement
shall survive for a period of one year following the expiration of such
specified term and shall thereupon expire (except to the extent a written notice
asserting a claim for breach of such covenant or agreement shall have been given
to the party alleged to have committed such breach prior to the end of such
one-year period).
11.02 Entire Agreement. This Agreement (including the Exhibits and
Schedules) constitute the sole understanding of the parties with respect to the
subject matter hereof. Matters disclosed by Seller to Buyer pursuant to any
Section of this Agreement shall be deemed to be disclosed with respect to all
Sections of this Agreement.
11.03 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors of the parties hereto; provided, however, that this Agreement may not
be assigned by any party without the prior written consent of the other party
hereto. If this Agreement is assigned with such consent, the terms and
conditions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective assigns; provided, however, that no
assignment of this Agreement or any of the frights or obligations hereof shall
relieve the assignor of its obligations under this Agreement.
11.04 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11.05 Headings. The headings of the Articles, Sections, and paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof.
11.06 Modification and Waiver. No amendment, modification, or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties hereto, except
that any of the terms or provisions of this Agreement may be waived in writing
at any time by the party which is entitled to the benefits of such waived terms
or provisions. No waiver of any of the provisions of this Agreement shall be
deemed to or shall constitute a waiver of any other provision hereof (whether or
not similar). No delay on the part of any party in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof.
11.07 Broker's Fees. Each of the parties hereto (i) represents and
warrants that it has not taken and will not take any action that would cause the
other party hereto to have any obligation or liability to any person for a
finder's fee or broker's fee, and foregoing representation and warranty, whether
or not the Closing occurs.
11.08 Expenses. Seller and Buyer shall each pay all costs and expenses
incurred by it or on its behalf in connection with this Agreement and the
transactions contemplated hereby, including, without limited the generality of
the foregoing, fees, and expenses of its own financial consultants, accountants,
and counsel.
11.09 Notices. Any notice, request, instruction, or other document to
be given hereunder by either party hereto to the other party shall be in writing
and delivered personally or sent by registered or certified mail, postage
prepaid,
If to Seller: Digitel, Inc.
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If to Buyer: Western Communications, Inc.
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or at such other address for a party as shall be specified by like notice. Any
notice which is delivered personally in the manner provided herein shall be
deemed to have been duly given to the party to whom it is directed upon actual
receipt by such party. Any notice which is addressed and mailed in the manner
herein provided shall be conclusively presumed to have been duly given to the
party to which it is addressed at the close of business, local time of the
recipient, on the third day after the day it is so placed in the mail.
11.10 Governing Law. This Agreement shall be constructed in accordance
with and governed by the laws of the State of Nevada applicable to agreements
made to be performed wholly within such jurisdiction.
11.11 Public Announcements. Neither Seller nor Buyer shall make any
public statements, including, without limitation, any press releases, with
respect to this Agreement and the transactions contemplated hereby without the
prior written consent of the other party (which consent may not be unreasonably
withheld) except as may be required by law.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
"Seller"
DIGITEL, INC.
By:/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
"Buyer"
WESTERN COMMUNICATIONS, INC.
By:/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President