Exhibit 10.15


 


 




 





 


ASSET PURCHASE AGREEMENT


 


 


by and among


 


STARVOX COMMUNICATIONS, INC.

and


CAPITAL TELECOMMUNICATIONS, INC.,

individually
and collectively as the “Seller”


 


and


 


MANHATTAN TELECOMMUNICATIONS
CORPORATION,

and

EACH OF
THE SEVERAL PURCHASER DESIGNEES

individually
and collectively as the “Purchasers”


 




 





 


 






 


Dated and Effective


as of


November 21, 2007


 






 


 

















 


ASSET PURCHASE AGREEMENT


 


                This ASSET PURCHASE AGREEMENT (this “Agreement”)
is executed to be effective as of November 21, 2007 (“Effective Date”),
by and among


 


(A)                              each of STARVOX
COMMUNICATIONS, INC., a Delaware corporation (“StarVox”), and its
wholly-owned subsidiary, CAPITAL
TELECOMMUNICATIONS, INC., a Pennsylvania corporation (“CTI”), each of StarVox and CTI individually
and collectively comprising, and referred to herein as, “Seller”; and


 


(B)                                MANHATTAN
TELECOMMUNICATIONS CORPORATION, a Delaware corporation (“MTC”), and each
of those certain wholly-owned MTC subsidiaries identified on Schedule 1.5
as PURCHASER DESIGNEES, MTC and each such Purchaser Designee individually and
collectively comprising, and referred to herein as, “Purchaser”.


 


Seller and Purchaser may be
referred to in this Agreement individually as a “Party” and,
collectively, as the “Parties”.


 


W
I T N E S S E T H:


 


WHEREAS, Seller is a
facilities-based provider of wholesale and retail voice and data communications
and internet services and, in such connection, is engaged in reselling
communications access lines to those Business Customers (as hereinafter
defined)  located within territory
serviced by Verizon Communications, including, without limitation, the States
of Delaware, Pennsylvania, Maryland, New Jersey and portions of Connecticut (collectively,
the “Verizon Territory”); and


 


WHEREAS, on the terms
and subject to the conditions set forth in this Agreement, Seller desires to
sell, and Purchaser desires to purchase, those certain assets that are defined
herein as the Subject Assets;


 


NOW, THEREFORE, in
consideration of the foregoing and the mutual promises contained in this
Agreement and other good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows:


 


ARTICLE 1


PURCHASE AND SALE OF ASSETS


 


1.1.          Purchase and Sale.  In accordance with the terms and subject to
the conditions set forth in this Agreement, and for the consideration herein
stated, on the Closing Date (as defined below), Seller agrees to sell, convey,
assign and transfer to Purchaser, and Purchaser agrees to purchase and accept
from Seller, all of Seller’s right, title and interest in and to the following
(collectively, the “Subject Assets”):


 


(a)           all of the telecommunications business
access lines within the Verizon Territory (“Business  Access Lines”)
being provided as of the Effective Date and up through the applicable Closing
Date by Seller on a resale (or other non-primary-carrier) basis to those business
customers as so identified on the Verizon Billing and Customer Service Data to
Seller (as hereinafter defined) as of the Closing Date (together with their
subsidiaries, affiliates, successors, transferees, assigns, agents or other
related persons, collectively the “Business Customers”).  The number of Business Access Lines of Business
Customers which Seller claims exist within the Verizon Territory is
approximately 17,560 (the “Represented Number”).  On the Closing Date, Seller shall provide
Purchaser with the most current Verizon billing and customer service data and
invoices pertaining to the Business Customers (the “Verizon Billing and
Customer Service Data”), and the actual number of Business Access Lines  shall be determined therefrom to be the number
of Business Access Lines as so reflected on the most current Verizon Billing and
Customer Service Data (the “Actual Business Line Number”).  The determination of whether a particular 


 


 





















 


Business Access Line is a  business line shall be based on Verizon’s
designation of such line in the Verizon Billing and Customer Service Data.


 


(b)           Seller shall also convey to Purchaser,
for no additional consideration, any and all residential lines that are
affiliated with any Business Customer and all access lines for any additional
residential customer located within the Verizon Territory not affiliated with a
Business Customer (collectively “Residential Lines”), provided that no
such Residential Lines shall be counted towards the Actual Business Line
Number.  All  Residential Lines conveyed hereunder shall be
included in the definition of Subject Customers;


 


(c)           to the extent relating specifically
to Subject Customers only, (i) all lists, names, addresses, credit,
billing and collection data and other pertinent records and information
maintained by Seller as of the Closing Date (in such form and medium as so
maintained as of such date), (ii) all agreements, purchase orders or other
contractual instruments and documents, together with all associated rights,
obligations and interests as would otherwise have accrued to Seller from and
after the Closing Date in accordance with the terms thereof, entered into by
Seller with Subject Customers on or prior to the Closing Date with respect to
the Access Lines (the “Customer Agreements”);


 


(d)           without limitation, all cash and cash
equivalents, payments, proceeds, receivables, accounts, collections, rebates,
refunds, reserves, withholdings, recoveries, claims or other entitlements or
amounts of every nature proceeds of every nature payable by or attributable to
Subject Customers to the extent first arising or accruing and payable at any
time, for any period or in respect of any events or circumstances occurring, on
or after the Closing Date (as hereinafter defined) (collectively, the “Post-Closing
Cashflow”); and


 


(e)           to the extent that Seller is not
otherwise entitled as of the Closing Date per applicable Customer Agreement
terms and conditions to receipt, collection or application thereof, any and all
deposits, prepaid expenses and any other security maintained by Seller as of
the Closing Date pursuant to any Customer Agreement  (“Subject Deposits”).


 


1.2.          Excluded Assets.  The Subject Assets do not include, and
nothing in this Agreement or any documentation, transaction or other matters
contemplated hereby or thereby shall in any way be deemed or construed as
effecting any transfer or conveyance to Purchaser of any items as described
below in this Section 1.2(a) (collectively, the “Excluded
Assets”):


 


(a)           subject to section 5.1 hereof, all of
Seller’s copyrights, patents, inventions, trademarks, logos, trade secrets,
know-how, strategies, plans, budgets, marketing materials and all other forms
of confidential or proprietary information, materials or intellectual property,
whether or not relating to Subject Customers;


 


(b)           except to the extent constituting Subject
Deposits or Post-Closing Cashflow, any and all cash, cash equivalents,
payments, proceeds, receivables, accounts, collections, rebates, refunds,
reserves, withholdings, recoveries, claims or other entitlements or amounts of
every nature attributable to or accruing, arising or payable in respect of any
of the Subject Customers, Customer Agreements, Access Lines or otherwise;  and


 


(c)           any and all rights, interests and
entitlements provided in this Agreement or any related documentation for the
benefit of Seller, including, without limitation, payments and receipts of
Earnout Consideration as described (and defined) below and other amounts as
contemplated hereby.


 


1.3.          Assumed Liabilities.  Purchaser hereby agrees that it shall, at all
times on and from the Closing Date, duly pay, discharge and bear sole and full
legal obligation for, and shall save, indemnify and hold harmless Seller and
its subsidiaries, affiliates, successors, transferees, assigns, agents or other
related persons (a “Related Person”) from and against all Assumed
Liabilities of any nature or type whenever and however arising after the
Closing Date.  As used herein, “Assumed
Liabilities” means and includes, in each case with the express exception of



 


 


2





















 


any Excluded Liabilities, (a) only
those obligations and liabilities under the Customer Agreements and otherwise in
respect of any of the Subject Assets solely arising at any time from and after
the Closing Date therefor or are otherwise related to the ownership and operation
of the Subject Assets arising after such Closing Date and (b) only those carrier
and other costs not otherwise expressly allocated to Seller herein of migrating
and transitioning the Access Lines and Subject Customers to Purchaser as
provided under the Customer Agreements.


 


1.4.          Excluded Liabilities.  Seller hereby agrees that it shall, at all
times on and from the Closing Date, duly pay, discharge and bear sole and full
legal obligation for, and shall save, indemnify and hold harmless Purchaser and
its Related Persons from and against all Excluded Liabilities of any nature or
type whenever and however arising prior to the Closing Date.  By its execution and delivery hereof,
Purchaser is not assuming, nor shall it or any of its Related Persons incur or
be subjected to any obligations or liabilities in respect of, any Excluded
Liabilities.  As used in this Agreement, “Excluded
Liabilities” means and includes (a) any and all obligations and
liabilities under the Customer Agreements or otherwise in respect of any of the
Subject Assets arising at any time prior to the Closing Date therefor or are
otherwise related to the ownership and operation of the Subject Assets arising
prior to such Closing Date; (b) all obligations and liabilities of Seller
and/or its Related Persons to Verizon and other carriers, vendors and service
providers for any and all termination, recertification, transition or other
nonrecurring or special charges, assessments, fees, costs or impositions to the
extent arising or accruing in favor of such carriers, vendors and service
providers as a direct result of the Closing hereunder pursuant to the terms and
conditions of Seller’s (or such Related Persons’) own agreements existing with
such persons; (c) all commission , agency fee, and other obligations to
agents and other third parties relating to the ownership and operation of the
Subject Assets, whether arising prior to, or after the closing Date; and (d) all
obligations and liabilities relating directly and exclusively to any Excluded
Asset hereunder.


 


1.5.          Purchaser Designees.   The Parties expressly acknowledge and agree
that the Subject Assets are to be conveyed in accordance with all applicable
laws, rules, regulations, orders, decisions or any other legal requirements whatsoever
(collectively, “Legal Requirements”) of the United States Federal
Communications Commission (“FCC”) or any other Legal Authority in or of the
various jurisdictions comprising the Territory having authority over any such
Subject Assets or the conveyance thereof. 
Accordingly, the Parties agree that MTC shall be entitled to designate
in writing, as the named Purchaser under the relevant Bill of Sale (as
hereinafter defined) covering the particular Subject Assets to be conveyed
thereto, one or more of its wholly-owned subsidiaries identified on Schedule
1.5 hereto (each, a “Designated Subsidiary”) that, as of the Closing
Date, possesses all authorizations, approvals and qualifications by or of Legal
Authorities in or for any relevant jurisdiction with the Territory as necessary
to receive such conveyance in compliance with all Legal Requirements
thereof.  Simultaneously with its
acceptance of and countersignature to any such Bill of Sale, each Purchaser
Designee shall assume and accede to all rights, interests, obligations and
liabilities applicable to, and shall for all purposes be included in all
references in this Agreement to, 
Purchaser; provided, that no such assumption or accession by one
or more Purchaser Designees shall in any way reduce, limit or impair the covenants,
obligations and liabilities of MTC as the specified Purchaser hereunder at all
times and for all purposes on and after the Effective Date, the timely and
proper payment and performance of which covenants, obligations and liabilities
shall at all such times and for all such purposes be and remain the full and
absolute legal responsibility of MTC, as principal obligor with respect thereto.


 


ARTICLE 2


EARNOUT PAYMENTS; SELLER OPTION


 


2.1.          Purchase Price.     In consideration for the transfer
and conveyance of the Subject Assets, Purchaser agrees to pay to Seller,
subject to adjustments and pursuant to the terms and conditions of this
Agreement,  the aggregate sum of
$2,634,000.00 (the “Purchase Price”) (calculated at the rate of the Represented
Number times $150), adjusted  and payable
as follows:


 


(a)           On the Closing Date, there shall be
paid to Seller, as against the Purchase Price, the product of: (x)  the
Actual Business Line Number, times (y) $150, times (z) 80% (the “Initial
Payment”)


 


 


3





















 


(b)           On the Attrition Determination Date
(as hereinafter defined), there shall be paid as a final payment against the
Purchase Price, the Post Closing Settlement Payment, as defined and determined
in accordance with Section 10.4 hereof.


 


2.2.          Initial Deposit:  On the Effective Date of
this Agreement, Purchaser shall pay a $500,000 deposit against the Purchase
Price, in immediately available funds (the “Initial Deposit”), by wire transfer
or certified bank check, to be held in escrow by Purchaser’s Counsel (“Escrow
Agent”) pursuant to the Escrow Agreement annexed hereto as Exhibit A (the “Escrow
Agreement).  Escrow Agent shall provide
Purchaser with wire transfer instructions on or before the Execution Date;


 


2.3.          Pay-over Obligation and
Resolution.  Except as
otherwise expressly provided herein, after the Closing, if Purchaser or Seller
receives or otherwise holds funds that the other party is so entitled to, such
party shall hold the funds in trust for the other party and shall remit such
amounts to the other party within ten (10) days of receipt thereof.


 


ARTICLE 3


REPRESENTATIONS AND WARRANTIES OF
PURCHASER


 


Purchaser represents and
warrants to Seller as follows:


 


3.1.          Authorization and
Enforceability. Purchaser is duly organized and validly existing
under the laws of, in the case of (x) MTC, the State of Delaware and (y) each
Purchaser Designee, such jurisdiction specified therefor on Schedule 1.5
hereto, and is legally qualified to do business in such jurisdictions comprising
the Territory and as are otherwise necessary to conduct its business, and has
all requisite power and authority (corporate or otherwise) to own, lease and
operate its properties and to carry on its business as now conducted and as to
be conducted immediately after giving effect to the Closing Date hereunder.
Purchaser has taken all action necessary to authorize the execution, delivery
and performance by it of this Agreement and all other agreements and
instruments reasonably necessary to complete the transactions contemplated by
this Agreement (the “Purchaser Documents”) and has full power and
authority to enter into the Purchaser Documents and carry out the terms thereof
on the Effective Date and up to and through the Closing Date.  Purchaser has duly executed and delivered this
Agreement and will on the Closing Date so execute and deliver the applicable Purchaser’s
Documents.  The Purchaser’s Documents as
delivered at the Closing Date will be valid and binding obligations of
Purchaser enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, moratorium or similar laws and equitable principles
affecting creditors’ rights generally.


 


3.2.          Compliance. The
execution, delivery and performance of this Agreement and the Purchaser’s
Documents by Purchaser, the compliance by Purchaser with the provisions of this
Agreement and the Purchaser’s Documents the consummation of the transactions
contemplated by this Agreement will not conflict with or result in the breach
of any of the terms or provisions of or constitute a default under:


 


(a)           the articles of organization or
bylaws of Purchaser;


 


(b)           any note, indenture, mortgage or deed
of trust or loan agreement to which Purchaser is a party or by which Purchaser
is bound; or


 


(c)           any material Legal Requirement of any
federal, state, local or foreign court or regulatory authority or
administrative or arbitrative body, agency or tribunal, or any other
governmental body whatsoever (“Legal Authority”) applicable to
Purchaser.


 


3.3.          Consents; Regulatory
Approvals.  Except as
specifically identified on Schedule 3.3 (each, an “Outstanding
Purchaser Approval”), Purchaser possesses as of the Effective Date all
consents, approvals and 


 


 


4





















 


authorizations of third
parties necessary to the conduct of its business and operations as presently
conducted and otherwise as required in connection with its execution, delivery
and performance of this Agreement through the Closing Date hereunder,
including, without limitation, all certificates of authority, permits,
licenses, approvals and authorizations of and from all Legal Authorities within
the all jurisdictions comprising the Territory as necessary for it to own,
operate and accept and receive conveyance of the Subject Assets and to provide communications
services as contemplated hereby to all Subject Customers located therein in
compliance with all applicable Legal Requirements (collectively, the “Purchaser-Required
Approvals”), in each case excluding, for all purposes of this Section 3.3,
any items specifically constituting Closing-Required Approvals subject to the
provisions of (and as defined in) Section 5.3 below.


 


3.4.          Brokers. Purchaser has
no obligation to pay any fees or commissions to any broker, finder, agent or
other intermediary in connection with the negotiation or consummation of the
transactions contemplated hereby as a result of any action or agreement of
Purchaser (a “Purchaser Commissions”).  Purchaser shall be responsible for payment of any
such Purchaser Commission and shall defend, and hold harmless Seller for any
claims against Seller by such third parties owed a Purchaser Commission.


 


3.5.          Legal Proceedings. There are no
claims, actions, suits, inquiries, investigations or proceedings before any
Legal Authority pending or, to Purchaser’s knowledge, threatened against
Purchaser relating to the transactions contemplated hereby or relating to the
Subject Assets.


 


3.6.          NO OTHER
REPRESENTATIONS. 
EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN
THIS ARTICLE 3 OR AS MAY BE CONTAINED (AND EXPRESSLY DESIGNATED AS
SUCH) IN ANY OTHER PURCHASER’S DOCUMENT, PURCHASER HAS NOT MADE ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER
CONCERNING PURCHASER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AND/OR THE PURCHASER’S DOCUMENTS.


 


ARTICLE 4


REPRESENTATIONS AND WARRANTIES OF
SELLER


 


Seller represents and
warrants to Purchaser as follows:


 


4.1.          Authorization and
Enforcement. Seller is duly organized and validly existing
under the laws of, in the case of (x) StarVox, the State of Delaware and (y) CTI,
the Commonwealth of Pennsylvania, and has all requisite corporate power and
authority to own, lease and operate its properties and to service on the Subject
Customers. Seller has full power and authority to perform this Agreement and to
execute and deliver the documents and instruments contemplated by this
Agreement (the “Seller’s Documents”). Seller has duly executed and delivered
this Agreement and will on the Closing Date so deliver the applicable Seller’s
Documents. The Seller’s Documents as delivered at the Closing Date will be
valid and binding obligations of Seller’s enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, moratorium or similar laws
and equitable principles affecting creditors’ rights generally.


 


4.2.          Compliance. The
execution, delivery and performance of this Agreement and Seller’s Documents by
Seller, the compliance by Seller with the provisions of this Agreement and
Seller’s Documents, and the consummation of the transactions contemplated by
this Agreement and Seller’s Documents will not conflict with or result in the
breach of any of the terms or provisions of or constitute a default under:


 


(a)           the certificate of incorporation or
bylaws of Seller;


 


(b)           any note, indenture, mortgage, deed
of trust, loan to which Seller is a party or by which Seller is bound; or


 


 


5





















 


(c)           any material statute or any order, rule or
regulation or any decision of any Legal Authority applicable to Seller.


 


4.3.          Consents. Except as
specifically identified on Schedule 4.3 (each, an “Outstanding Seller
Approval”), Seller possesses as of the Effective Date all consents,
approvals and authorizations of third parties necessary to the conduct of its
business and operations as presently conducted and otherwise as required in
connection with its execution, delivery and performance of this Agreement and
the Seller’s Documents through the Closing Date hereunder, including, without
limitation, all certificates of authority, permits, licenses, approvals and
authorizations of and from all Legal Authorities within the all jurisdictions
comprising the Territory as necessary for it to own, operate and effect
conveyance to Purchaser of the Subject Assets and to provide, up to and
including the Closing Date, communications services as contemplated hereby to
all Subject Customers located therein in compliance with all applicable Legal Requirements
(collectively, the “Seller-Required Approvals”), in each case excluding,
for all purposes of this Section 4.3, any items specifically
constituting Closing-Required Approvals subject to the provisions of (and as
defined in) Section 5.3 below.


 


4.4.          Brokers. Seller has no
obligation to pay any fees or commissions to any broker, finder, agent or other
intermediary in connection with the negotiation or consummation of the
transactions contemplated hereby as a result of any action or agreement of Seller
(a “Seller Commissions”).  Seller
shall be responsible for payment of any such Seller Commission and shall
defend, and hold harmless Purchaser for any claims against Purchaser by such
third parties owed a Seller Commission.


 


4.5.          Legal Proceedings. There are no
claims, actions, suits, inquiries, investigations or proceedings before any
Legal Authority pending or, to Seller’s knowledge, threatened against Seller
relating to the transactions contemplated hereby or relating to the Subject
Assets.


 


4.6.          Liens.  The Subject Assets are, as of the Effective
Date, and, as of the Closing Date, shall be transferred and conveyed to
Purchaser free and clear of any and all liens, claims and encumbrances of any
kind or nature whatsoever (collectively, but subject to each of the following
exclusions, “Liens”).


 


4.7.          NO OTHER
REPRESENTATIONS. 
EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN
THIS ARTICLE 4 OR AS MAY BE CONTAINED (AND EXPRESSLY DESIGNATED AS
SUCH) IN ANY OTHER SELLER’S DOCUMENT, SELLER HAS NOT MADE ANY REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER CONCERNING SELLER
OR ANY OF THE SUBJECT ASSETS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT AND/OR THE SELLER’S DOCUMENTS.


 


ARTICLE 5


SELLER COVENANTS


 


5.1.          Access to Subject Assets. Prior to the
Closing Date, Seller shall afford to Purchaser and its authorized
representatives access, at reasonable hours and upon reasonable advance notice,
to Seller’s offices and its books and records maintained by Seller in respect
of the Subject Assets as of the Effective Date (in the form so maintained) as
reasonably necessary to effect the timely transfer and transitioning of the
Subject Assets on the Closing Date.  Without
limiting the foregoing, Seller shall make available to Purchaser the existing
forms of all currently-effective Customer Agreements, along with such other
records and documents as are expressly to be included in the Subject Assets.  Seller shall provide such other reasonable
cooperation and information as may reasonably be requested by Purchaser to
effect the timely transfer and transitioning of the Subject Assets on the
Closing Date.   Seller further agrees not
to unreasonably withhold, delay or condition its consent to and approval of any
reasonable request made by Purchaser during the first six (6) months
immediately following the Closing Date to use of Seller’s business or trade
names in, or otherwise obtain Seller’s participation in, Subject
Customer-related correspondence necessary for transitioning the Subject Assets
as herein contemplated; provided,
in each case, such 


 


 


6





















 


correspondence is made
available to Seller for its prior review and reasonable approval and
distributed only in the form so reviewed and approved.


 


5.2.          Preservation of Subject Assets.  From and after the Effective Date through the
Closing Date, Seller shall continue to provide service to the Subject Customers
and otherwise own and operate its business in respect of the Subject Assets in
the ordinary course, and shall take all commercially-reasonable actions as are
consistent with its ordinary-course operations and past practices and reasonably
necessary to (i) maintain the Subject Assets as generally constituted on
and as of the Effective Date, (ii) prevent Subject Customer attrition in
excess of historical, ordinary-course levels and (iii) defend the Subject
Assets from the imposition of any Liens. 
Without limiting the foregoing, at no time during the period described
in the foregoing sentence shall Seller offer, establish or make available to
Subject Customers any special discounts, credits, free service or other
non-ordinary-course pricing (collectively, “Discounts”) that would by
their terms extend (or would create any expectation among Subject Customers as
to their extension) beyond the Closing Date. 
Seller acknowledges and agrees that any amounts claimed by Subject
Customers as Discounts prohibited hereby shall be the sole and exclusive
liability of Seller.


 


5.3.          Closing-Required Approvals.  Seller hereby undertakes and covenants, in
each case with and subject to the reasonable cooperation and participation of
Purchaser as required pursuant to Section 6.3 and otherwise, to
prepare, submit and/or effect such applications, notices, filings,
registrations and related documentation required to be submitted or made in
accordance with applicable Legal Requirements to or with the FCC and/or other
Legal Authorities in order to obtain such consents, approvals and other authorizations
of, from or with such Legal Authorities as specifically identified on Schedule
5.3 hereto (the “Closing-Required Approvals”) that (x) are
necessary to obtain or effect at or prior to the Closing Date in order to
consummate in accordance with applicable Legal Requirements the transactions
then to occur as provided herein and (y) do not otherwise constitute
Seller-Required Approvals or Purchaser-Required Approvals as herein
defined.   Subject to Purchaser’s
cooperation and participation as aforesaid, Seller shall direct, and shall bear
the various filing and other costs and expenses (including the legal fees and
disbursements of Seller’s counsel, Kelley Drye & Warren LLP) incurred
in connection with, the process of obtaining or effecting all Closing-Required
Approvals.


 


5.4.          Seller-Required Approvals.  Seller shall, at its sole effort and expense,
take all commercially-reasonable measures necessary to (x) obtain and/or
cause to be effective on and as of the Closing Date, any and all of the
Outstanding Seller Approvals, and (y) maintain in effect all such
Outstanding Seller Approvals and all other Seller-Required Approvals up to and
as of the Closing Date.


 


ARTICLE 6


PURCHASER COVENANTS


 


6.1.          Purchaser-Required Approvals.  Purchaser shall, at its sole effort and
expense, take all commercially-reasonable measures necessary to (x) obtain
and/or cause to be effective on and as of the Closing Date, any and all of the
Outstanding Purchaser Approvals, and (y) maintain in effect all such
Outstanding Purchaser Approvals and all other Purchaser-Required Approvals up
to and through the Closing Date and for so long as necessary thereafter in
accordance with applicable Legal Requirements to provide communications and
internet-related services to the Subject Customers as contemplated by this
Agreement.


 


6.2.          Assistance and Cooperation
Concerning Closing-Required Approvals.   Purchaser shall make available to Seller
such information, documents and access to personnel and records of or relating
to Purchaser, and shall provide such cooperation and assistance as reasonably
requested by Seller to facilitate Seller’s efforts in obtaining or effecting
all Closing-Required Approvals in a timely and efficient manner.


 


 


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ARTICLE 7


CONDITIONS TO OBLIGATIONS OF
PURCHASER


 


The obligations of Purchaser under Articles 1
and 2 of this Agreement are subject to satisfaction, at or prior to the
Closing Date, of each of the following conditions, any one or more of which may
be waived in writing by Purchaser:


 


7.1.          Representations and Warranties. All representations
and warranties of Seller made in this Agreement and, if any, in Seller’s
Documents shall in all material respects be true and correct on the date when
made and, unless expressly stated as relating exclusively with respect to any
earlier date, on and as of the Closing Date with the same force and effect as
if made as of the Closing Date.


 


7.2.          Performance of Covenants and
Agreements.  All of the
terms, covenants, conditions and agreements set forth in this Agreement and
Seller’s Documents to be complied with and performed by Seller at or prior to
the Closing Date shall in all material respects have been complied with or
performed by Seller as and when required prior to the Closing Date.


 


7.3.          Certain Approvals.  As of the Closing Date, all Closing-Required
Approvals and Purchaser-Required Approvals shall have been obtained or effected
and shall remain valid and in effect; provided
that Purchaser shall not be entitled to rely upon, as a condition to Purchaser’s
obligations as aforesaid, any failure in obtaining or effecting any of the
foregoing or otherwise in the Closing Date validity or effectiveness thereof to
the extent in any manner resulting from or attributable to Purchaser’s nonperformance
of or noncompliance with any of its covenants and agreements with respect to
such Closing-Required Approvals or Purchaser-Required Approvals contained in Sections
6.3 or 6.7 or elsewhere in this Agreement or otherwise by reason of
events, circumstances or matters within Purchaser’s reasonable direction or
control.


 


7.4.          Closing Deliveries.   Purchaser shall have received all documents
and deliverables in the form and manner as required to be delivered to
Purchaser at or prior to the Closing Date pursuant to Section 10.2
below.


 


ARTICLE 8


CONDITIONS TO OBLIGATIONS OF
SELLER


 


The obligations of Seller
under Articles 1 and 2 of this Agreement are subject to satisfaction, at or
prior to the Closing Date, of each of the following conditions, any one or more
of which may be waived in writing by Seller:


 


8.1.          Representations and
Warranties. All representations and warranties of Purchaser
made in this Agreement and, if any, in Purchaser’s Documents shall in all
material respects be true and correct on the date when made and, unless
expressly stated as relating exclusively with respect to any earlier date, on
and as of the Closing Date with the same force and effect as if made as of the
Closing Date.


 


8.2.          Performance of Covenants and
Agreements.  All of the
terms, covenants, conditions and agreements set forth in this Agreement and
Purchaser’s Documents to be complied with and performed by Purchaser at or
prior to the Closing Date shall in all material respects have been complied
with or performed by Purchaser as and when required prior to the Closing Date.


 


8.3.          Certain Approvals.  As of the Closing Date, all Closing-Required
Approvals and Seller-Required Approvals shall have been obtained or effected
and shall remain valid and in effect; provided
that Seller shall not be entitled to rely upon, as a condition to Seller’s
obligations as aforesaid, any failure in obtaining or effecting any of the
foregoing or otherwise in the Closing Date validity or effectiveness thereof to
the extent in any manner resulting from or attributable to Seller’s
nonperformance of or noncompliance with any of its covenants and agreements
with respect to such Closing-Required Approvals or Seller-Required Approvals
contained in Sections 5.3 or 5.4 or elsewhere in this Agreement.


 


 


8





















 


8.4.          Closing Deliveries.   Seller shall have received all documents and
deliverables in the form and manner as required to be delivered to Seller at or
prior to the Closing Date pursuant to Section 10.3 below.


 


ARTICLE 9

TERMINATION


 


At any time prior to
occurrence of any Closing hereunder, this Agreement may be terminated:


 


(a)           by Purchaser notice to Seller, upon
the failure of one or more the conditions specified in Article 7 to
Purchaser’s obligations hereunder to have been performed or satisfied on or
prior to the Closing Date; or


 


(b)           by Seller notice to Purchaser, upon
the failure of one or more the conditions specified in Article 8 to
Seller’s obligations hereunder to have been performed or satisfied on or prior
to the Closing Date; or


 


(c)           by notice of either Party, upon
discovery of the other Party’s material misrepresentation made herein or upon
such other Party’s abandonment of or material breach or nonperformance of any
covenant or obligation required of it hereunder to the extent remaining
unremedied after fifteen (15) days notice and opportunity to cure; or


 


(d)           by mutual written agreement by both
Parties to the Agreement.


 


ARTICLE 10

CLOSING DATE


 


10.1.        Time and Place of Closing.  The closing of the transactions contemplated
by this Agreement (the “Closing”) shall take place at the offices of
Seller’s counsel, Kelley Drye & Warren LLP, 3050 K St, NW, Suite 400,
Washington, DC 20008 on such date (the “Closing Date”) as agreed between
the Parties that is no later than the the fifth (5th) business day following
the final satisfaction or waiver, as applicable, of all conditions precedent to
the Parties’ respective obligations as set forth in Articles 7 and 8.  An initial Closing shall occur within two (2) business
days (subject, in any event, to continuing satisfaction as of such date of all
other conditions precedent as aforesaid) with respect to any and all Subject
Assets for which all Closing-Required Approvals, Seller-Required Approvals and
Purchaser-Required Approvals (collectively, “Requisite Approvals”) have
then been obtained and become effective to permit the valid and lawful
conveyance thereof and the migration of the relevant Access Lines and successive
Closings shall continue occur within each two week period thereafter (again,
subject to continuing satisfaction as of such date of all other conditions
precedent as aforesaid) after all Requisite Approvals have been obtained to
permit the continued valid and lawful conveyance thereof and the migration of
the remaining Access Lines (each, an “Interim Closing Date”; provided,
that the last such Closing shall occur on a date (the “Final Closing Date”)
no later than March 31, 2008.  The
parties intend that the Closing shall be a staged Closing and shall continue as
and when additional of the Subject Asset become Approved Migrated Lines.


 


For purposes of this
Agreement, the term “Closing Date” shall mean and be a singular reference to
the single date or each of the series of dates up to the Final Closing Date on
which any Closing actually occurs in accordance with this Section 10.1
and, except where explicitly noted as relating to the particular Subject Assets
subject to actual conveyance thereon, shall be interpreted as referring to any
and all such dates.


 


10.2.        Obligations of Seller at
Closing. On the Closing Date, Seller shall deliver or cause to be delivered to
Purchaser the following documents and take the other actions identified :


 


(a)           an assignment and bill of sale, in
substantially the form attached as Schedule 10.2(a) hereto (each, a
“Bill of Sale”), conveying to and in the name of the appropriate
jurisdictional entity of Purchaser all of the Subject Assets in respect of each
jurisdiction within the Territory for which Requisite Approvals at such time been



 


 


9





















 


obtained and become
effective and as to which valid and lawful conveyance may otherwise be made in
accordance with all jurisdictional Legal Requirements;


 


(b)           an assignment and assumption agreement,
in substantially the form attached as Schedule 10.2(b) hereto
(each, an “Assignment and Assumption”), with respect to all Customer
Agreements and related rights subject to conveyance to and assumption by
Purchaser on such Closing Date;


 


(c)           certificates executed as of the
Closing Date by (x) Seller’s corporate secretary attesting to the
certificate of incorporation, bylaws and authorizing resolutions of Seller in
the respective forms attached and to the incumbency and signatures of officers
and (y) Seller’s authorized officer attesting to satisfaction of the
conditions to Purchaser’s obligations as set forth in Sections 7.1 and 7.2;


 


(d)           records and evidence establishing to
Purchaser’s reasonable satisfaction Seller’s prior receipt of the Outstanding
Seller Approvals and the Closing Date validity of all other Seller-Required
Approvals that are in any way reasonably material to the lawful and valid
consummation and effect of the transactions occurring on such Closing Date; and


 


(e)           all other documents and instruments
as may be reasonably necessary and required to consummate the transactions
contemplated by this Agreement.


 


10.3.        Obligations of Purchaser at
Closing. On the Closing Date, Purchaser shall deliver or cause to be delivered
the following documents, and take the other actions identified below:


 


(a)           Purchaser’s duly-executed
counterparts to each Bill of Sale and Assignment and Assumption being executed
and delivered by Seller on such Closing Date;


 


(b)           certificates executed as of the
Closing Date by (x) Purchaser’s corporate secretary attesting to the
certificate of incorporation, bylaws and authorizing resolutions of Purchaser
in the respective forms attached and to the incumbency and signatures of
officers and (y) Purchaser’s authorized officer attesting to satisfaction
of the conditions to Seller’s obligations as set forth in Sections 8.1
and 8.2;


 


(c)           records and evidence establishing to
Seller’s reasonable satisfaction Purchaser’s prior receipt of the Outstanding
Purchaser Approvals and the Closing Date validity of all other
Purchaser-Required Approvals that are in any way reasonably material to the
lawful and valid consummation and effect of the transactions occurring on such
Closing Date; and


 


(d)           all other documents and instruments
as may be reasonably necessary and required to consummate the transactions
contemplated by this Agreement.


 


10.4.        Post Closing Settlement Payment.  Within five business days after the date that
is four months after the Final Closing Date (the “Attrition Determination Date”),
Purchaser shall determine and shall provide a written schedule (the “Attrition
Notice”) to Seller of any Business Access Lines that discontinued service with
Purchaser  prior to the said Attrition
Determination Date (“Discontinued Business Lines”) and the number of
remaining active migrated Business Access Lines (“Final Business Line Number”).  Seller shall have five days after receipt of
the Attrition Notice to accept the data contained therein or request additional
support.  Additional support shall be
provided by inviting to Purchaser’s office two of Seller’s representatives to
review first hand the Verizon Billing and Customer Service Data that was used
to support the Attrition Notice.   Within
five (05) days after Seller agrees to the number of Discontinued Business Lines
and the Final Business Line Number, there shall be paid to Seller by the Escrow
Agent from the Initial Deposit, as a final settlement payment (“Post Closing
Settlement Payment”) against  the
Purchase Price, an amount equal to the sum (if any) of: (i) the product of
(x) the Final Business Lines Number, 


 


 


10





















 


times (y) $150, less (ii) the
Initial Payment.  Any remaining amount of
the Initial Deposit shall be repaid to Purchaser as an adjustment against the
Purchase Price.


 


ARTICLE 11

SURVIVAL


 


All representations, warranties,
covenants and agreements of the Parties made in this Agreement or in any
exhibit, schedule, certificate or agreement delivered in accordance with this
Agreement shall survive the execution and delivery of, and the Closing of the
transactions under, this Agreement as provided in Articles 2, 5
and 6 of this Agreement.


 


ARTICLE 12

OTHER PROVISIONS


 


12.1.        Further Assurances. After the
Closing Date, each of the Parties will take such actions and execute and
deliver to the other Party such further documents, instruments of assignment,
conveyances and transfers consistent with their respective post-Closing
covenants contained in Articles 5 and 6, as applicable, as reasonably
necessary to give full legal effect to the transactions and agreements as
expressly intended in this Agreement.


 


12.2.        Benefit and Assignment. This
Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective permitted successors and assigns; provided that neither Party may assign
this Agreement, or otherwise transfer or delegate any rights, interests,
obligations or liabilities hereunder, without the prior written consent of the
other Party (not to be unreasonably withheld, conditioned or delayed where such
assignment or delegation is to be made to a wholly-owned subsidiary of the
assigning Party and such assigning Party shall remain fully liable for
performance hereunder after giving effect thereto).


 


12.3.        Amendment, Waiver. The
provisions of this Agreement may be amended or waived only by an instrument in
writing signed by the Party against which enforcement of such amendment or
waiver is sought. Any waiver of any term or condition of this Agreement or any
breach hereof shall not operate as a waiver of any other such term, condition
or breach, and no failure to enforce any provision hereof shall operate as a
waiver of such provision or of any other provision hereof.


 


12.4.        Governing Law, Jurisdiction;
Related Waivers. THE CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT
WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE FEDERAL [AND STATE]
COURTS LOCATED WITHIN NEW YORK COUNTY, STATE OF NEW YORK, SHALL HAVE EXCLUSIVE
JURISDICTION WITH REGARD TO ALL MATTERS RELATING TO THE INTERPRETATION AND
ENFORCEMENT OF THIS AGREEMENT.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, AS SUCH,
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY SUCH PROCEEDING. 
ADDITIONALLY, EACH PARTY EXPRESSLY WAIVES AND FOREGOES, EXCEPT AS
PROVIDED IN SECTION 6.6, ANY RIGHT TO RECOVER PUNITIVE, EXEMPLARY,
CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.


 


12.5.        Non-Solicitation
Agreement. 
For a period of three (3) years after the Final Closing Date,
neither Seller nor any Affiliate, nor any of the respective, members,
shareholders, partner, officers, directors, employees or agents shall use any
customer lists or similar customer information to solicit directly or
indirectly Subject Customers of the Purchaser existing on the Final Closing
Date.


 


 


11





















 


12.6.        Notices. Any notice,
demand or request required or permitted to be given under the provisions of
this Agreement (a) shall be in writing; (b) shall be delivered
personally, including by means of facsimile, overnight express delivery, or
mailed by registered or certified mail, postage prepaid and return receipt requested;
(c) shall be effective on the date of personal delivery, upon dispatch by
facsimile with electronic confirmation of transmission, on the business day
immediately following transfer to an overnight courier for delivery, the date
set forth on the return receipt; and (d) shall be delivered or mailed to
the addresses or facsimile numbers set forth below or to such other address as
any Party may from time to time direct in writing in accordance with this
section (telephone numbers are provided to assist in coordination, but
telephone conversations do not constitute notice):


 


If to Purchaser:


 


Manhattan Telecommunications Corporation


44 Wall Street, 6th Floor


New York, NY 10005


Attn: Andoni Ecomomou, COO and EVP


Facsimile: 212.635.5074


 


with a copy to:


 


Garfunkel, Wild & Travis, P.C.


Counsel to Purchaser


111 Great Neck Road — Suite 503


Great Neck, New York 11021


Attn:  Burton
S. Weston, Esq.


Facsimile: 516.466.5964


 


If to Seller:  Individual delivery to
each of:


StarVox Communications, Inc.


43480 Yukon Drive, Suite 201


Ashburn, VA  20147


Attn: Chris McKee, General Counsel


Facsimile: 202-330-5106


 


12.6.        Entire
Agreement; Counterparts.  This Agreement and the Seller’s Documents and
Purchaser’s Documents contemplated hereby constitute the entire agreement, and
supersede all prior or contemporaneous agreements or understandings, written or
oral between the Parties with respect to the subject matter hereof.  This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement and
will become effective when one or more counterparts have been signed by each of
the Parties and delivered to the other Party, regardless of whether all Parties
have executed the same counterpart. 
Counterparts may be delivered via facsimile, electronic mail (including
pdf) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for
all purposes.


 


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left blank]


 


 


12

















 


IN WITNESS WHEREOF, the
Parties have executed this Asset Purchase Agreement as of the Effective Date
first written above.


 


	
  PURCHASER:

  	
   

  
	
   

  	
  MANHATTAN TELECOMMUNICATIONS CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andoni Economou

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Andoni Economou

  	
   

  
	
   

  	
   

  	
  Title:

  	
  MetTel EVP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EACH OF THE SEVERAL PURCHASER DESIGNEES

  
	
   

  	
  Upon signature to the applicable
  Bill(s) of Sale by which acceding to this Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLER:

  	
   

  
	
   

  	
  STARVOX COMMUNICATIONS, INC.,

  
	
   

  	
  as collectively comprising,
  together with its wholly-owned 

  subsidiary signing below, the
  “Seller” hereunder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Reiland

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John Reiland

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Starvox CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CAPITAL TELECOMMUNICATIONS, INC.,

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title: