Ex. 10.1
ASSET PURCHASE AGREEMENT
The ASSET PURCHASE AGREEMENT (the "Agreement") dated as of October
30th, 2006,
between Gotham Financial, LLC, a Delaware limited liability
corporation (the
"Buyer"), and GlobeTel Communications Corp., a Delaware corporation
("Seller").
W I T N E S S E T H:
WHEREAS, Seller has developed a Stored Value Program and a
Financial Processing
Switch and has contracts for the utilization of the Stored Value
Program and the
Financial Processing Switch (collectively "the Division"); and
WHEREAS, the Buyer wishes to purchase or acquire (directly or
indirectly through
subsidiaries) from Seller, and Seller wishes to sell, assign and
transfer to the
Buyer, substantially all of the assets and properties held in
connection with,
necessary for, or material to the business and operations of the
Division (the
"Business"), and the Buyer has agreed to assume (directly or
indirectly through
its subsidiaries) the Assumed Liabilities, all for the purchase
price and upon
the terms and subject to the conditions hereinafter set forth.
This Asset Purchase Agreement is subject to the condition that all
required due
diligence on part of Buyer, to be completed not later than November
3, 2006 and
the proper approval of Grupo Ingedigit. Additionally, post-closing,
there will
be technical continuity coordinated by Joseph Seroussi. In the
event that the
Buyer is not, in its sole discretion, satisfied with its due
diligence or the
Grupo Ingedigit approval is not obtained on or before November 3,
2006, the
Buyer may, without liability to the Seller, rescind and cancel this
Agreement
upon notice to the Seller and, upon providing such notice, this
Agreement shall
be deemed to be rescinded and cancelled and of no further force or
effect. In
such event, neither party shall have any further obligations or
liabilities to
the other hereunder.
NOW, THEREFORE, in consideration of the mutual covenants,
representations and
warranties made herein, and of the mutual benefits to be derived
hereby, the
parties hereto agree as follows:
ARTICLE 1
SALE AND PURCHASE OF THE ASSETS
1.1.
Assets. Subject to and upon the terms and conditions set forth
in
this Agreement, at the Closing, the Seller will sell, transfer,
convey, assign
and deliver to the Buyer, and the Buyer will purchase or acquire
from the Seller
all right, title and interest of the Seller in and to (i) the
Specified Assets
and (ii) the properties, assets and rights of every nature, kind
and
description, tangible and intangible (including goodwill), whether
real,
personal or mixed, whether accrued, contingent or otherwise and
whether now
existing or hereinafter acquired primarily relating to or used or
held for use
in connection with the Business as the same may exist on the
Closing Date (items
(i) and (ii) collectively, the "Assets"), including without
limitation all those
items in the following categories that conform to the definition of
the term
"Assets":
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(a)
all machinery, equipment, computers, switches, and parts and
similar property (including, but not limited to, any of the
foregoing purchased
subject to any conditional sales or title retention agreement in
favor of any
other person);
(b) all inventories of work in process, finished products,
goods,
spare parts, replacement and component parts (collectively, the
"Inventories"),
including Inventories;
(c) all rights in and to products sold or leased including, but
not
limited to, products hereafter returned or repossessed and unpaid
sellers'
rights of rescission, replevin, reclamation and rights to stoppage
in transit;
(d) all rights(including but not limited to any and all
Intellectual
Property rights) in and to the products sold or leased and in and
to any
products or other Intellectual Property rights under research or
development
prior to or on the Closing Date;
(e) all of the rights of the Seller under all contracts,
arrangements, licenses, leases and other agreements, including,
without
limitation, any right to receive payment for products sold or
services rendered,
and to receive goods and services, pursuant to such agreements and
to assert
claims and take other rightful actions in respect of breaches,
defaults and
other violations of such contracts, arrangements, licenses, leases
and other
agreements and otherwise;
(f) all credits, prepaid expenses, deferred charges, advance
payments, security deposits and prepaid items;
(g) all rights, title
and interest in the fifty one percent (51%)
ownership in GlobeTel Ingedigit Financial Processing Corp., d.b.a.
-
Power2Process (Financial Processing Switch).
(h) all Intellectual Property and all rights there under or in
respect thereof primarily relating to or used or held for use in
connection with
the Business, including, but not limited to, rights to sue for and
remedies
against past, present and future infringements thereof, and rights
of priority
and protection of interests therein under the laws of any
jurisdiction worldwide
and all tangible embodiments thereof (together with all
Intellectual Property
rights included in the other clauses of this Section 1.1, (the
"Intellectual
Property Assets");
<PAGE>
(i) all books,
records, manuals and other materials (in any form or
medium), including, without limitation, all records and materials
maintained at
the headquarters of Seller, advertising matter, catalogues, price
lists,
correspondence, mailing lists, lists of customers, distribution
lists,
photographs, production data, sales and promotional materials and
records,
purchasing materials and records, personnel records, manufacturing
and quality
control records and procedures, blueprints, research and
development files,
records, data and laboratory books, Intellectual Property
disclosures, media
materials and plates, accounting records, sales order files and
litigation files
(j) to the extent their transfer is permitted by law, all
Governmental Approvals, including all applications therefore;
(k) all Real Property and all licenses, permits, approvals and
qualifications relating to any Real Property issued to any Seller
by any
Governmental Authority;
(l) all rights to causes of action, lawsuits, judgments, claims
and
demands of any nature available to or being pursued by the Sellers
with respect
to the Business or the ownership, use, function or value of any
Asset, whether
arising by way of counterclaim or otherwise; and
(m) all guarantees, warranties, indemnities and similar rights
in
favor of the Seller with respect to any Asset.
The term
"Specified Assets" shall mean all Real Property set forth on
Schedule 1 and Schedule 1A hereto and the Intellectual Property set
forth on
Schedule 2 hereto. At Closing, the Assets shall be transferred or
otherwise
conveyed to the Buyer free and clear of all liabilities,
obligations, liens and
encumbrances excepting only Assumed Liabilities listed on Schedule
3, and
Permitted Liens.
The term
"Excluded Assets" shall mean the name and mark "GlobeTel", the
name and mark "GlobeTel", in whole or in part and any name or mark
derived from
or including any of the foregoing shall be retained and not sold by
the Seller.
ARTICLE 2
THE CLOSING
2.1. Place
and Date. The closing of the sale and purchase of the Assets
(the "Closing") shall take place at 6:00 P.M. local time on the
30th day of
October, 2006 at the offices of the Seller at 9050 Pines Boulevard,
Pembroke
Pines, Florida 33024, or such other time and place upon which the
parties may
agree. The day on which the Closing actually occurs is herein
sometimes referred
to as the "Closing Date".
2.2. Purchase Price.
On the terms and subject to the conditions set forth
in this Agreement, the Buyer agrees to pay or cause to be paid to
Seller an
amount up to but not more than U.S.$ 4,000,000 (FOUR MILLION US
DOLLARS) over a
period of three (3) years from the date of the closing of this
Agreement (the
"Purchase Price") and to assume Assumed Liabilities as provided in
Section 2.4.
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(a) The Purchase Price shall be paid as follows over the three
(3)
years from the date of Closing. The Purchase Price shall only be
payable as and
when paid transactions described under subparagraph (a) hereof
occur. The actual
amount of Purchase Price that shall be due and payable from the
Buyer shall be
based solely on the number of transactions of the type described
below in (a)(i)
and (a)(ii) that occur. If no transactions of these types occur
during the three
year period, with extensions as provided in (a) (iii) below, from
the date
hereof, then no Purchase Price shall be paid from the Buyer to the
Seller. :
(i) [***](1) per Stored Value Card transaction. A Stored Value
Card transaction shall mean only any transaction under Seller's
currently closed
and/or committed contracts including a contract with a party with
whom Seller
has been in negotiation with at the time hereof, or as result of
the signed or
committed contracts, as listed in Schedule 4, that involves the
loading of funds
onto a card, the transfer of funds from such card, or any ATM, POS
or other
transaction utilizing such card.
(ii) [***] per financial processing transaction that utilizes
the Financial Processing Switch, regardless of the origin of the
transaction.
(iii) For the avoidance of doubt, a Stored Value Card
transaction may also result in a Financial Switch Processing
transaction thereby
requiring the payment of a fee under subsection (i) and (ii)
above.
(b) The Fees shall be paid thirty (30) calendar days after the
end
of each fiscal quarter with the first payment date being January
31, 2007.
(c) Should the Buyer fail to make payments in the minimum
amounts
listed below in any year, except in the case where the full
Purchase Price
($4,000,000) is paid by the end of Year 3, then the payment term
shall be
extended by one year for each missed minimum payment or until the
Purchase Price
is paid in full, whichever is sooner:
(1) Minimum Payment in Year 1: [***]
(2) Minimum Payment in Year 2: [***]
(3) Minimum Payment in Year 3: [***]
(d) Under no circumstance shall the Buyer be obliged to pay the
Seller more than $4,000,000 hereunder and in no case shall payment
of fees be
made after 6 (six) years from the closing date; after 6 (six) years
any
remaining obligation is extinguished.
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(1) [***]
indicates information that has been omitted and for which
confidential treatment has been requested
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(e) During the term of this Agreement, and for any period
during
which payment is to be under this section 2.2, (the "Audit
Period"), Buyer shall
maintain financial and operational records related to this
Agreement. Buyer
shall make all books and records open to inspection by the Seller
or its
assigned designee during normal business hours. During the Audit
Period, Buyer
hereby grants to Seller or its designee(s), upon one (1) days prior
notice to
Buyer, access to and the right to make copies of any of Buyer's
books,
statements, documents, papers or records ("Financial Information")
for the
purpose of determining the accuracy of fees being remitted to the
Seller. If any
Audit of buyer's payments or other records reveals any variance in
any payment
to Seller, then: Buyer shall immediately remit any amount due. In
addition, if
any Audit reveals any variance from any payment in excess of five
percent (5%)
of the amount paid, Buyer shall immediately reimburse Seller for
all costs and
expenses incurred in conducting such Audit. Failure to pay such
variance and the
cost of the Audit as required herein shall constitute a material
breach of the
Agreement and Seller may terminate the Agreement in accord with the
breach
provisions of Section 11.
(f) Should Seller, at some point in the future seek to purchase
services from the Buyer, Buyer, with respect to any service
provided utilizing
the Assets, shall at no time provide pricing that is
