ASSET PURCHASE AGREEMENT between GLOBALTEL IP, INC. and INTERACTIVE MEDIA TECHNOLOGIES, INC.
Exhibit 10.18
between
and
INTERACTIVE MEDIA TECHNOLOGIES, INC.
This Asset Purchase Agreement (this “Agreement”) is entered into this 6th day of August 2007, by and between GLOBALTEL IP, INC., a Florida corporation, (“XXXX”) and INTERACTIVE MEDIA TECHNOLOGIES, INC., a Florida corporation (“IMT”).
W I T N E S S E T H:
WHEREAS, XXXX has acquired certain assets from IMT that are used in connection with XXXX’x Voice Over Internet Protocol (“VoIP”) business and which are described in Schedule A attached hereto (the “Legacy Assets”); and
WHEREAS, IMT desires to purchase the Legacy Assets from XXXX upon the terms and conditions contained herein; and
WHEREAS, XXXX desires sell the Legacy Assets to IMT upon the terms and conditions contained herein;
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the parties hereto covenant and agree as follows:
1.
Assets, Properties and Rights to be Purchased. On the terms and subject to the conditions set forth herein, effective on the Closing Date (as defined below), XXXX shall sell, assign, convey, transfer and deliver to IMT, its successors and assigns, and IMT shall purchase and acquire from XXXX, the Legacy Assets free and clear of any and all liens, claims and encumbrances other than any liens, claims and encumbrances in existence upon XXXX’x purchase of the Legacy Assets from IMT.
2.
Consideration. In full consideration of the sale and transfer of the Legacy Assets, IMT shall cancel and irrevocably release all obligations of XXXX to IMT on and as of the Effective Date and the Closing Date, whether actual, contingent or accrued, including, but not limited to, obligations for termination services, rent, co-location charges, software support, services provided by Xxxx Nurse, health insurance premiums paid by IMT and any and all other obligations that XXXX may then have to IMT or any of its subsidiaries or affiliates.
3.
Cancellation of Agreements. On and as of the Closing Date, the agreements described in Schedule B attached hereto shall be cancelled and shall have no further force or effect and neither IMT nor XXXX shall have any further obligation to the other pursuant to such agreements.
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4.
Liabilities Not Assumed. IMT does not assume or agree to pay or discharge any debts, liabilities or obligations of XXXX.
5.
Accounts Receivable of XXXX. XXXX shall own and be entitled to collect all accounts receivable as of the Closing Date and IMT agrees to forward any payments made to IMT for accounts receivable owned to XXXX immediately to XXXX upon receipt thereof by IMT.
6.
Deferred Revenue and Agent Deposits. Within thirty days subsequent to the Closing Date, XXXX shall remit to IMT the amount of $
*______*
20,802.88, which represents certain deposits made by XXXX’x agents that utilize the Legacy Assets.
7.
Effective Date and Closing Date. The Effective Date of this Agreement shall be the date this Agreement is executed by all parties. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place as of the close of business at the offices of XXXX at 0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 not more than five days from the date hereof (the date on which the Closing takes place being the “Closing Date”) or at such other time and place as the parties hereto shall agree writing. If the Closing has not occurred on or before August 31, 2007, each party shall have the right to terminate this Agreement as hereinbelow provided.
8.
Execution and Delivery of Closing Documents. At the Closing, XXXX will deliver to IMT such assignments, consents to assignments and good and sufficient instruments of transfer and conveyance as shall be necessary to transfer, assign and convey to, and to vest in, IMT good and merchantable title to the Legacy Assets, free and clear of all liens, claims and encumbrances and such lists and descriptions of the Legacy Assets other than any liens, claims and encumbrances in existence upon XXXX’x purchase of the Legacy Assets from IMT and such other documents as IMT may reasonably request. At the Closing, each party also will execute and deliver such other appropriate and customary documents as the other party reasonably may request for the purpose of consummating the transactions contemplated by this Agreement. All actions taken at the Closing will be deemed to have been taken simultaneously at the time the last of any such actions is taken or completed.
9.
Covenant to Defend Title. Effective as of the Closing Date, XXXX hereby binds itself, and its successors and assigns, at XXXX’x sole cost and expense, to warrant and defend title to the Legacy Assets unto IMT, and its successors and assigns against every person whomsoever lawfully claiming the same or any part thereof other than those arising from any liens, claims and encumbrances in existence upon XXXX’x purchase of the Legacy Assets from IMT.
10.
Further Assurances. After the Closing, the parties hereto shall execute and deliver such additional documents and take such additional actions as either party may reasonably deem to be practical and necessary or advisable in order to consummate the transactions contemplated by this Agreement and to vest more fully in IMT the ownership of and rights to the Legacy Assets granted hereunder as they existed immediately prior to the Closing.
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11.
Representations and Warranties of XXXX. XXXX represents and warrants to IMT as of the Effective Date and the Closing Date as follows, which representations and warranties shall survive the Closing:
a.
Organization and Good Standing of XXXX. XXXX is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida.
b.
Power and Authority. XXXX has the corporate power and authority to own, lease and operate the Legacy Assets.
c.
Authorization and Validity. XXXX has the corporate power and authority to execute, deliver and perform its obligations under this Agreement and any other documents executed or required to be executed by it in connection with this Agreement. This Agreement and the other documents executed or required to be executed by XXXX in connection with this Agreement have been or will be duly authorized by all necessary corporate action.
d.
Binding Effect. This Agreement and the other documents executed or required to be executed by XXXX in connection with this Agreement have been or will have been duly executed and delivered by XXXX and are or will be, when executed and delivered, the legal, valid and binding obligations of XXXX enforceable in accordance with their terms except to the extent that:
i.
enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights;
ii.
the availability of equitable remedies may be limited by equitable principles of general applicability; and
iii.
rights to indemnification may be limited by considerations of public policy.
e.
No Violation. Neither the execution and performance of this Agreement or the agreements described herein nor the consummation of the transactions described herein or therein will:
i.
result in a violation or breach of (a) the articles of incorporation or by-laws of XXXX; or (b) any material agreement or other material instrument under which XXXX is bound or to which any of the Assets are subject, or result in the creation or imposition of any lien, charge or encumbrance upon any of the Assets, or
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ii.
violate, in any material respect, any applicable law or regulation or any judgment or order of any court or governmental agency.
f.
Title to Legacy Assets. At the Closing, XXXX will own the Legacy Assets free and clear of all liens, claims and encumbrances other than any liens, claims and encumbrances in existence upon XXXX’x purchase of the Legacy Assets from IMT. Upon consummation of the transactions contemplated hereby, IMT shall receive good and valid title to the Legacy Assets, free and clear of all liens, claims and encumbrances other than any liens, claims and encumbrances in existence upon XXXX’x purchase of the Legacy Assets from IMT.
g.
Consents. No authorization, consent, approval, permit or license of, or filing with, any governmental or public body or authority, any lender or lessor or any other person or entity is required to authorize, or is required in connection with, the execution, delivery and performance of this Agreement or the agreements or transactions contemplated hereby on the part of XXXX other than a release of a security interest held by Xxxxxx Holding LTD.
h.
Litigation. No legal or administrative or other adversary proceeding or investigation is currently pending against XXXX and, to the best knowledge of XXXX, none is threatened or contemplated by any governmental agency or other third party with respect to the Legacy Assets. XXXX is not subject to any continuing court or administrative order, writ, injunction or decree applicable specifically to the Legacy Assets which would affect the obligations of XXXX or the rights of IMT hereunder.
i.
Full Disclosure. There are no facts pertaining to the Legacy Assets that are reasonably likely to have a material adverse effect on them that have not been disclosed by XXXX to IMT.
j.
Liens on Assets. There are no liens held by any party on the Legacy Assets other than a security interest held by Xxxxxx Holding LTD. At or prior to the Closing, Xxxxxx Holding LTD shall have released its security interest in the Legacy assets.
12.
IMT represents and warrants to XXXX as of the Effective Date and the Closing Date as follows, which representations and warranties shall survive the Closing:
a.
Organization and Good Standing. IMT is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida..
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b.
Power and Authority. IMT has the corporate power and authority to issue the IMT Shares as herein provided.
c.
Authority and Validity. IMT has the corporate power and authority to execute, deliver and perform its respective obligations under this Agreement and the other documents executed or required to be executed by it in connection with this Agreement, and this Agreement and the other documents executed or required to be executed by IMT in connection with this Agreement have been duly authorized by all necessary corporate action of IMT.
d.
Binding Effect. This Agreement and the other documents executed or required to be executed by IMT in connection with this Agreement have been or will have been duly authorized, executed and delivered by IMT and are or will be, when executed and delivered, the legal, valid and binding obligations of IMT enforceable in accordance with their terms except to the extent that:
i.
enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights;
ii.
the availability of equitable remedies may be limited by equitable principles of general applicability; and
iii.
rights to indemnification may be limited by considerations of public policy.
e.
No Violation. Neither the execution and performance of this Agreement or the agreements described herein nor the consummation of the transactions described herein or therein will:
i.
result in a violation or breach of (a) the articles of incorporation or by-laws of IMT or (b) any material agreement or other material instrument under which IMT is bound or to which the assets of IMT are subject, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets or properties of IMT; or
ii.
violate, in any material respect, any applicable law or regulation or any judgment or order of any court or governmental agency.
f.
Consents. No authorization, consent, approval, permit or license of, or filing with, any governmental or public body or authority, any lender or lessor or any other person or entity is required to authorize, or is required in connection with, the execution, delivery and performance of this Agreement or the agreements or transactions contemplated hereby on the part of IMT.
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13.
Termination by Agreement of XXXX and IMT. XXXX and IMT may terminate this Agreement at any time by their mutual written consent.
14.
Damages. If this Agreement is terminated, the parties shall retain any rights they may have against each other for any breach of any of the terms and conditions of this Agreement.
15.
Expenses. Each party hereto shall pay its own expenses incurred in connection with this Agreement and the transactions contemplated hereby.
16.
Entire Agreement. This Agreement and the exhibits hereto contain the complete agreement among the parties with respect to the transactions contemplated hereby and supersede all prior agreements and understandings among the parties with respect to such transactions.
17.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original.
18.
Notices. All notices, demands, requests, or other communications that may be or are required to be given, served or sent by any party to any other party pursuant to this Agreement shall be deemed to have been made when delivered and addressed to the respective party as follows:
If to IMT:
Interactive Media Technologies, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
If to XXXX:
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request or communication that is mailed, delivered or transmitted in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee, with the return receipt, the delivery receipt, the affidavit of messenger, or (with respect to a telecopy or telex) the answerback or confirmation of receipt being deemed conclusive evidence of such delivery, or at such time as delivery is refused by the addressee upon presentation
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.
19.
Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, the provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision were never a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
20.
Successors and Assigns. This Agreement and the rights, interests and obligations hereunder shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
21.
Governing Law and Venue. This Agreement and the rights and obligations of the parties hereto shall be governed, construed and enforced in accordance with the laws of the State of Florida and exclusive venue shall lie in the state and federal courts in the State of Florida.
22.
Amendment, Waiver and Other Action. This Agreement may be amended, modified or supplemented only by a written instrument executed by the parties against which enforcement of the amendment, modification or supplement is sought.
23.
Legal Representation. All of the parties to this Agreement acknowledge that they have been advised that they should seek and have had the opportunity to seek counsel to review this Agreement and to obtain the advice of such counsel relating thereto.
24.
Assignment. Neither this Agreement nor any right created hereby shall be assignable by either party hereto without the consent of the other party, which consent shall not be unreasonably withheld, provided that IMT may assign this Agreement to a wholly owned subsidiary which has not yet been formed.
25.
Confidentiality. Other than as required by law, each party shall maintain the confidentiality of, and not divulge or disclose to any other person, the existence of or any terms and conditions of this Agreement or any of the financial or other information provided to it by the other party to this Agreement.
26.
Captions. The captions in this Agreement are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions hereof.
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27.
Number and Gender. Whenever the context requires, references in this Agreement to the singular number shall include the plural; the plural number shall include the singular; and words denoting gender shall include the masculine, feminine, and neuter.
28.
Public Announcements. Except to the extent that XXXX or IMT believes on the advice of counsel that public disclosure is required by law, no party to this Agreement shall make, or cause to be made, any press release or public announcement in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without prior notification to the other parties. The parties shall cooperate as to the time and contents of any such press release or public announcement, but if they are unable to reach an agreement as to the time and contents of such press release or public announcement, each shall be free to make such press release or public announcement as it deems necessary.
29.
Survival of Representations and Warranties. The representations and warranties of the respective parties shall survive the Closing or termination of this Agreement, as the case may be.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year set forth above.
/s/ Xxxxx X. Xxxx
By: _________________________________
Name: XXXXX X. XXXX
Title:
PRESIDENT
INTERACTIVE MEDIA TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxxxxx
By: _________________________________
Name: XXXXXX X. XXXXXXXX
Title: PRESIDENT
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