EXHIBIT 2.1
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[ EXECUTED COPY ]
ASSET PURCHASE AGREEMENT
BY AND AMONG
ADS ALLIANCE DATA SYSTEMS, INC.,
ALLIANCE DATA SYSTEMS CORPORATION
AND
COOLSAVINGS, INC.
February 6, 2004
TABLE OF CONTENTS
Page
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ARTICLE I PURCHASE AND SALE OF ASSETS. . . . . . . . . . . . 1
1.01 Transfer of the Assets . . . . . . . . . . . . . . 1
1.02 Aggregate Purchase Price of the Assets . . . . . . 2
1.03 Allocation of Purchase Price . . . . . . . . . . . 2
1.04 Liabilities. . . . . . . . . . . . . . . . . . . . 2
1.05 Closing. . . . . . . . . . . . . . . . . . . . . . 2
1.06 Taxes, Assessments and Similar Adjustments . . . . 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . 3
2.01 Organization and Qualification . . . . . . . . . . 3
2.02 Authorization. . . . . . . . . . . . . . . . . . . 4
2.03 Consents and Approvals; No Violations. . . . . . . 4
2.04 Financial Statements . . . . . . . . . . . . . . . 4
2.05 Acquired Assets. . . . . . . . . . . . . . . . . . 4
2.06 Absence of Certain Changes . . . . . . . . . . . . 4
2.07 Brokers' Fees and Commissions. . . . . . . . . . . 4
2.08 Contracts. . . . . . . . . . . . . . . . . . . . . 4
2.09 Other Activities of the Seller . . . . . . . . . . 5
2.10 Title to Acquired Assets . . . . . . . . . . . . . 5
2.11 Taxes. . . . . . . . . . . . . . . . . . . . . . . 5
2.12 Litigation . . . . . . . . . . . . . . . . . . . . 5
2.13 Licenses . . . . . . . . . . . . . . . . . . . . . 5
2.14 Compliance with Laws . . . . . . . . . . . . . . . 5
2.15 Permits. . . . . . . . . . . . . . . . . . . . . . 5
2.16 Intellectual Property. . . . . . . . . . . . . . . 6
2.17 Litigation . . . . . . . . . . . . . . . . . . . . 9
2.18 Employees. . . . . . . . . . . . . . . . . . . . . 9
2.19 Employee Benefits. . . . . . . . . . . . . . . . . 9
2.20 Customers. . . . . . . . . . . . . . . . . . . . . 9
2.21 Misstatements and Omissions. . . . . . . . . . . . 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER. . . . 10
3.01 Organization and Qualification . . . . . . . . . . 10
3.02 Authorization. . . . . . . . . . . . . . . . . . . 10
3.03 No Violation . . . . . . . . . . . . . . . . . . . 10
3.04 Consents and Approvals . . . . . . . . . . . . . . 10
3.05 Brokers' Fees and Commissions. . . . . . . . . . . 10
3.06 Financing. . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV COVENANTS OF PARTIES . . . . . . . . . . . . . . . 10
4.01 Covenants of Seller. . . . . . . . . . . . . . . . 10
4.02 Covenants of Purchaser . . . . . . . . . . . . . . 12
4.03 Covenants of Purchaser and Seller. . . . . . . . . 13
ARTICLE V CONDITIONS TO SELLER'S OBLIGATIONS . . . . . . . . 16
5.01 Representations and Warranties True at
Closing Date; Covenants Performed. . . . . . . . . 16
5.02 Litigation . . . . . . . . . . . . . . . . . . . . 16
5.03 Required Consents and Approvals. . . . . . . . . . 16
5.04 Deliveries by Purchaser. . . . . . . . . . . . . . 16
ARTICLE VI CONDITIONS TO PURCHASER'S OBLIGATIONS. . . . . . . 17
6.01 Representations and Warranties True
at Closing Date. . . . . . . . . . . . . . . . . . 17
6.02 Litigation . . . . . . . . . . . . . . . . . . . . 17
6.03 Required Consents and Approvals. . . . . . . . . . 17
6.04 Deliveries to Purchaser. . . . . . . . . . . . . . 17
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Page
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ARTICLE VII TERMINATION PRIOR TO CLOSING . . . . . . . . . . . 18
7.01 Termination. . . . . . . . . . . . . . . . . . . . 18
7.02 Effect of Termination. . . . . . . . . . . . . . . 18
ARTICLE VIII INDEMNIFICATION. . . . . . . . . . . . . . . . . . 18
8.01 Indemnity. . . . . . . . . . . . . . . . . . . . . 18
8.02 Limitations of Liability . . . . . . . . . . . . . 18
8.03 Notice of Claim. . . . . . . . . . . . . . . . . . 20
8.04 Defense. . . . . . . . . . . . . . . . . . . . . . 20
8.05 Exclusive Remedy . . . . . . . . . . . . . . . . . 21
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . 21
9.01 Bulk Sales Law . . . . . . . . . . . . . . . . . . 21
9.02 No Liens Created . . . . . . . . . . . . . . . . . 21
9.03 Entire Agreement . . . . . . . . . . . . . . . . . 21
9.04 Amendment. . . . . . . . . . . . . . . . . . . . . 21
9.05 Parties Bound by Agreement;
Successors and Assigns . . . . . . . . . . . . . . 21
9.06 Counterparts . . . . . . . . . . . . . . . . . . . 21
9.07 Modification and Waiver. . . . . . . . . . . . . . 21
9.08 Expenses . . . . . . . . . . . . . . . . . . . . . 21
9.09 Notices. . . . . . . . . . . . . . . . . . . . . . 21
9.10 Governing Law. . . . . . . . . . . . . . . . . . . 22
9.11 No Third-Party Beneficiaries . . . . . . . . . . . 22
9.12 Public Announcements . . . . . . . . . . . . . . . 22
9.13 Knowledge. . . . . . . . . . . . . . . . . . . . . 22
9.14 Interpretation . . . . . . . . . . . . . . . . . . 22
9.15 Schedules. . . . . . . . . . . . . . . . . . . . . 23
9.16 Enforcement. . . . . . . . . . . . . . . . . . . . 23
9.17 Severability . . . . . . . . . . . . . . . . . . . 23
Exhibit Description Page
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A Xxxx of Sale and Assignment and
Assumption Agreement . . . . . . . . . . . . . . . A-1
B Transition Services Agreement. . . . . . . . . . . B-1
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of
February 6, 2004 by and among ADS Alliance Data Systems, Inc., a Delaware
corporation ("Seller"), Alliance Data Systems Corporation, a Delaware
corporation ("Seller's Parent" and with Seller, the "Seller Parties"), and
CoolSavings, Inc., a Delaware corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller operates a business, among other areas of business,
that utilizes the Purchased Assets to deliver targeted, electronic
promotional offers to opt-in consumers, which can be redeemed at certain
retailer point-of-sale systems (the "Business");
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires
to purchase from Seller, in accordance with the provisions of this
Agreement, substantially all of the assets of Seller used in the Business;
and
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements herein contained, the parties
hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
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1.01 TRANSFER OF THE ASSETS.
(a) On the terms and subject to the conditions of this
Agreement, Seller shall, on the Closing Date, sell, assign, transfer,
convey and deliver to Purchaser, free and clear of all liens, pledges,
charges, claims, security interests or any encumbrances of any sort
("Encumbrances"), and Purchaser shall purchase from Seller, on the Closing
Date, all of Seller's right, title and interest in and to all of the assets
owned or used (or held for use) by Seller in connection with the Business
(except for any assets of the Business listed on SCHEDULE 1.01(c)) (the
"Purchased Assets"). The Purchased Assets shall include, without
limitation, the assets listed on SCHEDULE 1.01(a).
(b) The sale, conveyance, transfer, assignment and delivery
of the Purchased Assets by Seller to Purchaser shall be effected by a Xxxx
of Sale and Assignment and Assumption Agreement in the form attached as
EXHIBIT A and such deeds, endorsements, assignments, transfers and other
instruments of transfer and conveyance as are attached as exhibits to this
Agreement or, if not attached to this Agreement as an exhibit, as Purchaser
shall reasonably request.
(c) The following assets of Seller (the "Excluded Assets")
shall be excluded from the Purchased Assets: (i) all assets of Seller that
are not owned or used (or held for use) by Seller in connection with the
Business, and (ii) the assets of the Business listed on SCHEDULE 1.01(c).
1.02 AGGREGATE PURCHASE PRICE OF THE PURCHASED ASSETS. The aggregate
purchase price of the Purchased Assets payable by Purchaser (the "Purchase
Price") shall be One Hundred Thousand Dollars ($100,000).
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1.03 ALLOCATION OF PURCHASE PRICE. Purchaser and Seller shall
allocate the Purchase Price, the Assumed Liabilities and other relevant
items to the individual assets or classes of assets within the meaning of
Section 1060 of the Internal Revenue Code of 1986, as amended, in
accordance with a schedule to be prepared by Purchaser within ten (10) days
of Closing and approved by Seller, such approval not to be unreasonably
withheld. Purchaser and Seller covenant and agree that (a) the values
assigned to the assets by the parties' mutual agreement shall be conclusive
and final for all purposes, and (b) neither Purchaser nor Seller will take
any position before any government authority or in any judicial proceeding
that is in any way inconsistent with such Allocation.
1.04 LIABILITIES.
(a) On the terms and subject to the conditions set forth in
this Agreement, at Closing, Purchaser shall assume, and agree to pay,
perform and discharge when due, only the following obligations of the
Seller related to the Business (the "Assumed Liabilities"): the
obligations of Seller under the Contracts identified on SCHEDULE 1.04 (to
be prepared and attached by Purchaser) (the "Assumed Contracts"), but only
to the extent such obligations (i) relate to services that are to be
performed initially after Closing and (ii) do not otherwise constitute a
refund obligation, a payment in arrears or a liability for services
required to be performed or other matters occurring prior to Closing.
(b) At Closing, Purchaser shall assume only the Assumed
Liabilities and shall not assume or in any way be liable or responsible for
any other debts, obligations or liabilities of Seller of any kind
whatsoever, whether known or unknown, absolute, contingent, accrued or
otherwise (the "Excluded Liabilities").
1.05 CLOSING.
(a) TIME. Subject to the satisfaction or waiver of the
conditions set forth herein, the consummation of the purchase and sale of
the Purchased Assets (the "Closing") shall take place at 11:00 a.m.
(C.S.T.) on February 6, 2004 or on such other date at such other time and
place as the parties shall agree in writing (the "Closing Date") by mail,
courier, telecopier and/or wire transfer to the extent mutually acceptable
to the parties.
(b) PAYMENT OF THE PURCHASE PRICE AT CLOSING. At the
Closing, Purchaser will pay the Purchase Price by wire transfer of
immediately available funds to such account or accounts as Seller shall
have designated in writing at least two days prior to the Closing Date.
(c) TRANSACTIONS TO BE EFFECTED AT THE CLOSING. At the
Closing:
(i) Seller shall deliver to Purchaser:
(A) The Xxxx of Sale and Assignment and
Assumption Agreement in the form of EXHIBIT A
respectively and such assignments and other instruments
of transfer related to the Purchased Assets in form and
substance reasonably satisfactory to Purchaser and its
counsel;
(B) The certificates referenced in Section 6.01;
(C) Such other documents as Purchaser or its
counsel may reasonably request to effect the sale and
transfer of the Purchased Assets to Purchaser (including
trademark assignments) and to demonstrate satisfaction of
the conditions and compliance with the covenants set
forth in this Agreement;
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(ii) Purchaser shall deliver to Seller:
(A) The Xxxx of Sale and Assignment and
Assumption Agreement in the form of EXHIBIT A;
(B) The certificates referenced in Section 5.01;
(C) Such other documents as Seller or its counsel
may reasonably request to demonstrate satisfaction of the
conditions and compliance with the covenants set forth in
this Agreement.
1.06 TAXES, ASSESSMENTS AND SIMILAR ADJUSTMENTS.
(a) Seller shall be responsible for the payment of the
following:
(i) all federal, state and other taxes imposed upon
Seller's net income from the transactions contemplated
hereunder (including but not limited to federal taxes based
upon depreciation recapture and federal taxes based upon the
recapture of investment tax credit);
(ii) taxes payable by Seller on gross income from the
sale of the Purchased Assets to Purchaser hereunder; and
(iii)any penalties, interest, or similar charges with
respect to the foregoing taxes enumerated in this Section.
(b) All sales or transfer taxes, including but not limited
to, document recording fees, and sales and excise taxes, arising out of or
in connection with the consummation of the transactions contemplated hereby
shall be paid by Purchaser.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby represents and warrants to Purchaser as follows:
2.01 ORGANIZATION AND QUALIFICATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with all requisite corporate power and authority to own,
operate and lease its properties and to carry on its business as it is now
being conducted. Seller is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each state or other
jurisdiction in which either the ownership or use of the properties owned
or used by it, or the nature of the activities conducted by it, requires
such qualification.
2.02 AUTHORIZATION. Seller has full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by
Seller, the performance by Seller of its obligations hereunder, and the
consummation by Seller of the transactions contemplated hereby, have been
duly authorized by all necessary action in respect thereof on the part of
Seller. No other corporate action on the part of Seller is necessary to
authorize the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby. This Agreement has been duly and
validly executed and delivered by Seller and constitutes a valid and
binding obligation of Seller, enforceable against it in accordance with its
terms.
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2.03 CONSENTS AND APPROVALS; NO VIOLATIONS. The execution and
delivery of this Agreement by Seller and the consummation by Seller of the
transactions contemplated hereby will not result in a violation or breach
of, conflict with, constitute (with or without due notice or lapse of time
or both) a default under, or result in the creation of any Encumbrance on
any of the properties or assets of Seller, or the Purchased Assets under:
(1) any provision of the certificate of incorporation or by-laws of Seller;
(2) any law or order applicable to Seller or by which any of its properties
or assets may be bound; or (3) any of the terms, conditions or provisions
of any contract applicable to Seller or its Business, except for any
contract listed on SCHEDULE 2.03.
2.04 FINANCIAL STATEMENTS.
(a) Seller has delivered to Purchaser a true and complete
copy of the income statement of Business for the period January 1, 2003
through December 31, 2003 (the "Income Statement"). The Income Statement
(i) was prepared in accordance with generally accepted accounting
principles applied on a consistent basis ("GAAP") throughout the period
covered thereby, and (ii) fairly presents in all material respects the
results of operations of the Business for the periods then ended.
(b) Except (i) for obligations incurred since December 1,
2002 in the ordinary course of business (which are not, individually or in
the aggregate, material and which have not arisen out of, resulted from or
related to any tort, breach of contract or violation of law) or (ii) as set
forth on SCHEDULE 2.04(b), Seller has no obligations or liabilities of any
nature. Without limiting the foregoing, Seller does not have any unearned
revenue obligation under the Assumed Contracts and has not received any
prepayments with respect to such contracts.
2.05 PURCHASED ASSETS. Except for assets disposed of in the
ordinary course of business, the Purchased Assets constitute all material
assets that are necessary for the Business as presently conducted and that
have been used in the Business since December 1, 2002.
2.06 ABSENCE OF CERTAIN CHANGES. Except as set forth in SCHEDULE
2.06, since December 1, 2002, there has not been any material adverse
change in the financial condition or operations of Seller, or any damage,
destruction or loss, whether or not covered by insurance, having a Material
Adverse Effect on the business, financial condition or operations of
Seller. Since the date of the Income Statement, Seller has conducted the
Business only in the ordinary and usual course, and, without limiting the
foregoing, except as set forth in SCHEDULE 2.06, (a) no changes have been
made in (i) executive compensation levels; (ii) the manner in which other
employees of Seller are compensated; (iii) any supplemental benefits
provided to any such executives or other employees; or (iv) Seller's
accounting methods or policies related to the Business, (b) Seller has not
suffered any strike, collective bargaining negotiation, dispute, grievance
or other similar labor trouble, or (c) sold, transferred, licensed, leased
or removed from its premises any of its tangible assets, except in the
ordinary course of business, or sold, assigned, licensed, transferred or
granted any rights under or with respect to any of its Intellectual
Property.
2.07 BROKERS' FEES AND COMMISSIONS. Seller nor its directors,
officers, employees or agents have not employed any investment banker,
broker or finder in connection with the transactions contemplated hereby.
2.08 CONTRACTS.
(a) SCHEDULE 2.08 hereto sets forth a list of the Contracts
relating to the Business. As used in this Section 2.08, the word
"Contract" means and includes every agreement of any kind which is legally
enforceable by or against Seller. Seller has delivered to Purchaser true
and complete copies (with all amendments) of all written Contracts and
SCHEDULE 2.08 includes a summary of the material terms of any oral
contract.
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(b) Each of the Contracts listed on SCHEDULE 2.08 hereto is
in full force and effect and is assignable to Purchaser. Seller has not
committed any act or omission which with or without notice or the passage
of time or both would constitute a breach or default by Seller under any
material Contract and, to the Knowledge of Seller, no other party to any of
such Contracts is in breach or default. Except as set forth in SCHEDULE
2.08(b), all Contracts included in the Assumed Contracts will be
effectively transferred to Purchaser at the time of the Closing.
(c) None of the Contracts restricts or adversely affects the
development, marketing or offering of Seller's services or the conduct of
the Business (including, without limitation, by way of noncompetition,
nondisclosure or nonsolicitation covenants restricting Seller) or grants
third parties exclusive rights, rights of first opportunity or first
refusal or rights to obtain services on a most-favored customer basis.
2.09 OTHER ACTIVITIES OF THE SELLER. Neither Seller nor any officer
or director of Seller owns or has any investment in a corporation or other
entity which does business with Seller.
2.10 TITLE TO PURCHASED ASSETS. Seller has good and marketable
title to all of the Purchased Assets, free and clear of all Encumbrances,
and at Closing, Purchaser will acquire good and marketable title to the
Purchased Assets, free and clear of all Encumbrances.
2.11 TAXES. All taxes related to Seller or Seller's operation of
the Business during periods prior to and including Closing, whether on or
measured by income or gross receipts or franchise, real and personal
property, employment, excise, sales and use or other taxes of any kind,
have been paid by Seller or will be paid by Seller when due, and Purchaser
will not be liable for or required to pay any of such taxes.
2.12 LITIGATION. Except as set forth in SCHEDULE 2.12, there is no
action, suit, or proceeding relating to the Business or the Purchased
Assets that is pending or, to the Knowledge of Seller, threatened against
Seller at law or in equity, or before any federal, state, municipal, or
other governmental department, commission, board, bureau, agency, or
instrumentality.
2.13 LICENSES. Except as set forth in SCHEDULE 2.13, Seller holds
each license, permit or other governmental authorization (hereinafter
referred to as "Licenses") which is required for the operation of the
Business. No material violations have been recorded in respect of any of
such licenses, and no proceeding is pending or to the Knowledge of Seller,
threatened to revoke or limit any such licenses.
2.14 COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE 2.14,
Seller is in substantial compliance with all, and has received no notice of
any violation of any, laws or regulations having a material application to
its operation, of the Business and Seller has all permits, licenses, zoning
rights, and other governmental authorizations necessary to conduct the
Business as presently conducted.
2.15 PERMITS. With respect to the operation of the Business and the
Purchased Assets, Seller possesses all permits listed on SCHEDULE 2.15
("Permits"). Except as set forth in SCHEDULE 2.15, with respect to each
such Permit:
(a) it is valid, subsisting and in full force and effect;
(b) there are no violations of such Permit that would result
in a termination of such Permit;
(c) Seller has not received notice that such Permit will not
be renewed; and
(d) To Seller's Knowledge this Agreement and the transactions
contemplated herein will not adversely affect the validity of such Permit
or cause a cancellation of or otherwise adversely affect such Permit.
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2.16 INTELLECTUAL PROPERTY.
(a) "Patent" means all (a) patents and patent applications,
and (b) business methods, inventions, and discoveries that, to the Seller's
Knowledge, may be patentable. SCHEDULE 2.16(a)(1) contains the patent
number and patent title of each Patent that is used by Seller in, is
material to the operation of the Business (as operated immediately prior to
the Closing Date), and specifies whether it is owned or used pursuant to a
license. Except as listed on SCHEDULE 2.16(a)(2), all Patents required to
be listed have been registered with the United States Patent and Trademark
Office or with a corresponding state office, are currently in compliance
with all formal legal requirements, and all maintenance fees due in respect
thereto have been paid, and, to the Knowledge of Seller, are valid and
enforceable and are not subject to any maintenance fees or taxes or actions
falling due within ninety (90) days after the Closing Date. Except as
listed on SCHEDULE 2.16(a)(2), no Patent required to be listed on SCHEDULE
2.16(a)(1) has been or is now involved in any opposition, invalidation,
cancellation, reexamination or reissue ("Action") and no such Action is
threatened with respect to any such Patent. All products and materials
containing such a Patent bear the proper legal notice where permitted by
law. The foregoing is expressly subject to the disclaimer in Section
4.03(d) below.
(b) "Xxxx" means all fictitious business names, trading
names, corporate names, registered and unregistered trademarks, service
marks, and applications. SCHEDULE 2.16(b)(1) lists each Xxxx that is used
by Seller in and is material to the operation of the Business (as operated
immediately prior to the Closing Date), and specifies whether it is owned
or used pursuant to a license. Except as listed on SCHEDULE 2.16(b)(2),
all Marks required to be listed that have been registered with the United
States Patent and Trademark Office or with a corresponding state office are
currently in compliance with all formal legal requirements (including the
timely post-registration filing of affidavits of use and incontestability
and renewal applications), to the Knowledge of Seller are valid and
enforceable, and are not subject to any maintenance fees or taxes or
Actions falling due within ninety (90) days after the Closing Date. No
Xxxx required to be listed on SCHEDULE 2.16(b)(1), except for those Marks
listed on SCHEDULE 2.16(b)(2), has been or is now involved in any
opposition, invalidation, or cancellation and no such Action is Threatened
with respect to any such Xxxx. All products and materials containing such
a Xxxx xxxx the proper legal notice where permitted by law.
(c) "Copyright" means all copyrights in both published works
and unpublished works. SCHEDULE 2.16(c) lists each Copyright that is used
by Seller in and is material to the operation of the Business (as operated
immediately prior to the Closing Date), and specifies whether it is owned
or used pursuant to a license. All Copyrights required to be listed on
SCHEDULE 2.16(c) that have been registered, are currently in compliance
with formal legal requirements, to the Knowledge of Seller, are valid and
enforceable, and are not subject to any maintenance fees or taxes or
Actions falling due within ninety (90) days after the Closing Date. All
works encompassed by such Copyrights have been marked with the proper
copyright notices.
(d) "Software" means computer software. SCHEDULE 2.16(d)(1)
lists all Software developed by or used by Seller that is material to the
operation of the Business (as operated immediately prior to the Closing
Date), excluding any operating system, off-the-shelf or "shrinkwrapped"
software, and specifies whether it is owned or used pursuant to a license.
SCHEDULE 2.16(d)(2) lists all originators, developers or programmers (other
than employees), contractors, or agents, who have written any modifica-
tions, enhancements, material portion of or materially contributed to any
development of such Software (collectively, the "Developers"). SCHEDULE
2.16(d)(3) contains a materially complete and accurate list of all code
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incorporated into such Software that was not specifically written or
developed for use in such Software (the "Preexisting Code"). This list
includes code from toolkits, from preexisting code written by the
Developers and/or from third-party software used to write or otherwise
contribute to the development of any such Software. After Closing,
Purchaser will have at least a non-exclusive right to use any such
Preexisting Code and, to the Knowledge of Seller, there are no third-party
rights to such Preexisting Code that will materially interfere with
Purchaser's ownership and use of such Software.
(e) "Trade Secrets" means all know-how, trade secrets,
confidential information, customer lists, Software (source and object
code), technical information, data, process technology, plans, drawings and
blueprints. Seller has taken all reasonable precautions to protect the
secrecy, confidentiality, and value of its Trade Secrets. To the Knowledge
of Seller, none of its Trade Secrets is part of the public knowledge or
literature or, has been used, divulged, or appropriated either for the
benefit of any third person or to Seller detriment. No Trade Secret is
subject to any adverse claim nor has any adverse claim been Threatened with
respect to any such Trade Secret and, to the Knowledge of Seller, there is
no basis therefore.
(f) "Intellectual Property" means the following which is
owned by Seller or used or held for use by Seller in connection with the
operation of the Business and which is material to the Business as
presently conducted by Seller: (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, divisions, continuations-in-
part, revisions, extensions, reissues and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and
all applications, registrations and renewals in connection therewith, (c)
all copyrightable works, all copyrights, and all applicants, registrations
and renewals in connection therewith, (d) all mask works and all
applications, registrations and renewals in connection therewith, (e) all
trade secrets and confidential business information (including prospect
lists, ideas, research and development, know how, formulas, compositions,
manufacturing and production processes and techniques (and documentation
thereof), technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information, and business and marketing
plans and proposals to the extent the foregoing qualify under applicable
law as trade secrets or protectable confidential information), (f) all
Software, (g) all Domain Names, (h) all other proprietary rights, and (i)
all copies and tangible embodiments thereof (in whatever form or medium).
To the Knowledge of Seller, Seller owns or has the right to use pursuant to
a Contract all Intellectual Property necessary to operate the Business (as
operated immediately prior to the Closing Date) and, except for the
Excluded Assets, is assigning such Intellectual Property to Purchaser as
part of the Purchased Assets. Seller has taken all reasonably necessary
action to maintain and protect each item of Intellectual Property that it
owns or uses in the operation of the Business (as operated immediately
prior to the Closing Date).
(g) Except as set forth on SCHEDULE 2.16(g) (and subject to
the disclaimer in Section 4.03(d) below), Seller has delivered to Purchaser
correct and complete copies of all written documentation evidencing
ownership and prosecution (if applicable) of each item of Intellectual
Property owned or used by Seller in the operation of the Business (as
operated immediately prior to the Closing Date). With respect to each item
of Intellectual Property:
(A) Seller possess all right, title, and interest in
and to the item, free and clear of any Encumbrance, except
Permitted Encumbrances;
(B) the item is not subject to any outstanding order;
7
(C) no action is pending or threatened which challenges
the validity, patentability, enforceability, use, or ownership
of the item; and
(D) Except as may be expressly set forth in the
Contracts, Seller has never agreed to indemnify any person for
or against any interference, infringement, misappropriation, or
other conflict with respect to the item.
(h) Except as listed on SCHEDULE 2.16(h)(1), to the Knowledge
of Seller and relating to the operation of the Business (as operated
immediately prior to the Closing Date), Seller has not interfered with,
infringed upon, or misappropriated any other person's Intellectual
Property, and Seller has never received any notice alleging any such
interference, infringement, misappropriation, violation or conflict
(including any claim that Seller must license or refrain from using any
other person's Intellectual Property or any letter or notice otherwise
bringing to Seller's attention that Seller may require a license or that a
third party owns Intellectual Property that may be relevant to Seller's
ability to use its Intellectual Property). To the Knowledge of Seller, no
third Person has any Intellectual Property that interferes or would be
likely to interfere with Purchaser's use of any of its Intellectual
Property as it relates to the operation of the Business (as operated
immediately prior to the Closing Date). To the Knowledge of Seller and
relating to the Purchased Assets, Purchaser will not interfere with,
infringe upon, or misappropriate any Intellectual Property rights of any
other Person as a result of the continued operation of the Business as
currently conducted. Except as listed on SCHEDULE 2.16(h)(2), to the
Knowledge of Seller, no other Person has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with the Intellectual
Property included within the Purchased Assets.
(i) SCHEDULE 2.16(i)(1) identifies each item of Intellectual
Property, other than readily available Software available on a retail basis
having a replacement value of less than $1,000.00 per copy (excluding any
operating system, off-the-shelf or "shrinkwrapped" software), that any
other Person owns or has rights to and that Seller uses and is material to
the operation of the Business (as operated immediately prior to the Closing
Date). SCHEDULE 2.16(i)(2) lists each Contract to which Seller has granted
to any Person rights under or with respect to any of its Intellectual
Property included within the Purchased Assets (together with any
exceptions). Seller has made available to Purchaser correct and complete
copies of all such Contracts with respect to such use as amended to date.
With respect to each item of Intellectual Property required to be listed on
SCHEDULE 2.16(i), excluding each item of computer software available on a
retail basis having a retail basis of less than $1,000.00:
(A) the underlying item of Intellectual Property is not
subject to any outstanding order;
(B) no action is pending or threatened which challenges
the enforceability of the underlying item of Intellectual
Property; and
(C) Seller has not granted any sublicense or similar
Contract with respect to such Contract.
(j) Except as set forth on SCHEDULE 2.16(j), all current
employees and, to the Knowledge of Seller, former employees, of Seller have
executed written Contracts with such Seller that assign to such Seller all
rights to any inventions, improvements, discoveries, or information
relating to the Purchased Assets. No employee of Seller has entered into
any Contract that restricts or limits in any way the scope or type of work
in which the employee may be engaged or requires the employee to transfer,
assign, or disclose information concerning his work or her work to any
person other than Seller. To the Knowledge of Seller, no employee of
Seller has misappropriated any trade secrets or other confidential
information of any other person in the course of the performance of his or
her duties as an employee of the Business.
8
2.17 LITIGATION. SCHEDULE 2.17 sets forth each instance in which
Seller, in regards to the Purchased Assets and the Business, (a) is subject
to any outstanding order or (b) is a party, the subject of, or, to is
threatened to be made a party to or the subject of, any Action. As of the
Closing Date, there is no action which questions the enforceability of this
Agreement or the transactions contemplated herein, or could result in any
material adverse effect with respect to the Business, and Seller has no
basis to believe that any such action may be brought against Seller.
2.18 EMPLOYEES.
(a) SCHEDULE 2.18(a) contains (i) a complete and accurate
list of the following information for each employee of Seller performing
activities for the Business: employer; name; job title; date of hiring or
engagement; date of commencement of employment or engagement; current
compensation paid or payable and any change in compensation since December
1, 2002; sick and vacation leave that is accrued but unused; and service
credited for purposes of vesting and eligibility to participate under any
other employee or director benefit plan (the "Active Employees"); and (ii)
a complete and accurate list of each independent contractor, consultant and
agent of Seller performing activities for the Business (such persons,
together with the Active Employees, collectively, the "Business
Personnel").
(b) None of the Business Personnel is bound by any Contract
that purports to limit the ability of such officer, director, agent,
employee, consultant, or contractor to engage in or continue or perform any
conduct, activity, duties or practice relating to the operation of the
Business or the Purchased Assets.
(c) SCHEDULE 2.18(c) contains a list of each employee that is
on a leave of absence or is otherwise not actively at work.
(d) Seller is not a party to any written or oral employment
contract or agreement with any of the Business Personnel which precludes
their termination by Seller at will.
2.19 EMPLOYEE BENEFITS. Seller will treat all Employees hired by
Purchaser as terminated for purposes of any plans offered by Seller for the
benefit of the Employees, including, but not limited to, health and medical
plans, plans or arrangements providing for compensation, retention,
bonuses, profit-sharing, stock option or other stock related rights or
other forms of incentive or deferred compensation, vacation benefits,
insurance (including any self-insured arrangements), employee assistance
program, disability or sick leave benefits, workers' compensation,
supplemental unemployment benefits, severance benefits and post-employment
or retirement benefits (including compensation, pension, health, medical or
life insurance benefits) ("Employee Benefit Plans"). With respect to any
kind of Employee Benefit Plan, such plan has been funded and maintained in
compliance with all laws applicable thereto and the requirements of such
plan's governing documents.
2.20 CUSTOMERS. SCHEDULE 2.20 lists the Business's current
customers and states the approximate total sales by Seller to each such
customer during 2003. Seller has not received from any such customer a
notice of termination or a notice of an intent to terminate the
relationship with Purchaser.
2.21 MISSTATEMENTS AND OMISSIONS. No representation or warranty
made by Seller contains any untrue statement of material fact or omits to
state a material fact necessary to make such statements not misleading.
9
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser hereby represents and warrants to Seller as follows:
3.01 ORGANIZATION AND QUALIFICATION. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
businesses as now being conducted.
3.02 AUTHORIZATION. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. No other corporate proceeding on the
part of Purchaser is necessary to authorize the execution and delivery of
this Agreement or to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by Purchaser and
constitutes a valid and binding obligation of Purchaser, enforceable
against it in accordance with its terms.
3.03 NO VIOLATION. Neither the execution and delivery of this
Agreement by Purchaser and the performance by Purchaser of its obligations
hereunder nor the consummation by Purchaser of the transactions
contemplated hereby will (a) violate, conflict with or result in any breach
of any provision of the Certificate or Articles of Incorporation or Bylaws
of Purchaser, (b) violate, conflict with or result in a violation or breach
of, or constitute a default (with or without due notice or lapse of time or
both) under the terms, conditions or provisions of any note, bond,
mortgage, indenture or deed of trust, or any material license, lease or
agreement to which Purchaser or any of Purchaser's subsidiaries is a party
or (c) violate any order, writ, judgment, injunction, decree, statute, rule
or regulation of any court or governmental authority applicable to
Purchaser or any of Purchaser's subsidiaries.
3.04 CONSENTS AND APPROVALS. No filing or registration with, no
notice to and no permit, authorization, consent or approval of any third
party or any governmental authority is necessary for the consummation by
Purchaser of the transactions contemplated by this Agreement.
3.05 BROKERS' FEES AND COMMISSIONS. Purchaser nor any of its
subsidiaries, directors, officers, employees or agents has employed any
investment banker, broker or finder in connection with the transactions
contemplated hereby.
3.06 FINANCING. Purchaser has sufficient funds available to pay the
Purchase Price and all expenses incurred by Purchaser in connection with
the transactions contemplated hereby.
ARTICLE IV
COVENANTS OF PARTIES
--------------------
4.01 COVENANTS OF SELLER.
(a) CONDUCT OF BUSINESS. From the date hereof until the
Closing Date, except as otherwise contemplated or permitted by this
Agreement, Seller shall conduct the Business in the ordinary course in a
manner consistent with past practice and maintain the Assets in their
present state of repair (ordinary wear and tear excepted). In furtherance
and not in limitation of the foregoing, the Seller shall not, without the
prior written consent of Purchaser:
(i) Dispose of any Assets other than in the ordinary
course of business consistent with past practice;
10
(ii) Mortgage, pledge or subject to liens or other
encumbrances any Assets;
(iii)Purchase or commit to purchase any capital Asset
for a price exceeding $3,000;
(iv) Amend or terminate any material agreement, which is
a Purchased Asset (except as otherwise contemplated by this
Agreement), in force on the date hereof.
(b) PRE-CLOSING ACCESS TO INFORMATION. Prior to the Closing,
Seller shall: (i) provide Purchaser and its designees (including officers,
counsel, accountants, and other authorized representatives) with such
information as Purchaser may from time to time reasonably request with
respect to Seller and the transactions contemplated by this Agreement; (ii)
provide Purchaser and its designees access during regular business hours to
the books, records, offices, personnel, counsel and accountants of Seller
relating to the Business, as Purchaser or its designees may from time to
time reasonably request; and (iii) permit Purchaser and its designees to
make such inspections thereof as Purchaser may reasonably request. Any
investigation shall be conducted in such a manner so as not to interfere
unreasonably with the operation of the Business. In addition, Seller
shall, upon Purchaser's reasonable request and at such times as Purchaser
deems appropriate, use reasonable best efforts to arrange for access to and
meetings with the vendors, suppliers, customers and sales channels of, and
other third parties related to, the Business for purposes of discussing the
transfer and transition to Purchaser following Closing of the Seller's
relationships with such vendors, suppliers, customers and sales channels.
Any information made available pursuant to this Section 4.01(b) hereto
shall be subject to the confidentiality obligations of Section 4.03(c).
(c) TRANSITION SERVICES. Seller agrees to provide transition
services in accordance with the Transition Services Agreement attached
hereto as EXHIBIT B.
(d) PAYMENT OF EXCLUDED LIABILITIES. Seller shall pay,
perform and discharge when due all of its obligations with respect to any
of the Excluded Liabilities.
(e) RESTRICTIVE COVENANTS.
(i) For a period of two (2) years following Closing in
the case of subsection (A) and a period of one (1) year
following Closing in the case of subsections (B) and (C),
neither Seller Party shall, for compensation or otherwise,
directly or indirectly, as principal, agent, consultant,
manager, owner, partner (inactive or otherwise), stockholder,
member or in any other representative capacity, own, operate,
manage, control, engage in, invest in or participate in any
manner in, any business which (A) provides targeted, electronic
promotional offers to opt in consumers, which are redeemable at
retailer point-of-sale systems in the United States of America
or Mexico, (B) provides targeted, electronic promotional offers
on behalf of consumer packaging goods companies to consumers
(on an opt in basis or otherwise), which are redeemable at
retailer point-of-sale systems in the United States of America
or Mexico, or (C) provides targeted, electronic promotional
offers to consumers (on an opt in basis or otherwise), which
are redeemable at any Kroger or Giant Eagle (or any store that
is owned by Kroger or Giant Eagle) located in the United States
of America or Mexico. The foregoing notwithstanding, it shall
not be a breach of this Section 4.01(e) for Seller to hold
passive investments of not more than five percent (5%) of the
equity securities of any company whose equity securities are
traded on a public stock exchange.
11
(ii) For a period of two (2) years after Closing, no
Seller Party shall directly or indirectly employ or engage, or
recruit or solicit for employment or engagement any individual
now or hereafter employed by Purchaser and/or the Business.
(iii)From and after Closing, no Seller Party shall
request or advise any Person who is a customer, vendor or
lessor of Purchaser to withdraw, curtail or cancel any such
party's business with Purchaser.
(iv) Seller, at Purchaser's sole cost and expense, will
from time to time upon (but only upon) Purchaser's written
request take such action as Purchaser may reasonably request to
enforce the restrictive covenants made by xXXX.xxx, Inc. and
Planet U, Inc. in favor of Seller under Section 7.5 of that
certain Asset Purchase Agreement dated December 3, 2002 among
Seller, xXXX.xxx, Inc. and Planet U, Inc.
4.02 COVENANTS OF PURCHASER.
(a) POST-CLOSING ACCESS. It is recognized that Seller may
need tax, financial or other data after the Closing Date with respect to
the Business covering fiscal periods prior to the Closing Date to
facilitate the preparation of tax returns or in connection with any audit,
investigation, litigation, amended return, claim for refund or any
proceeding in connection therewith or to comply with the rules and
regulations of the Internal Revenue Service, the Securities and Exchange
Commission or any other governmental organization or agency. Seller may
retain copies of all books, records, data and personnel concerning the
operation and conduct of the Business with respect to periods prior to and
including the Closing Date (the "Pre-Closing Information"). If such copies
are incomplete, Purchaser will, upon Seller's request, provide Seller with
additional copies of the Pre-Closing Information. Seller will bear all
reasonable out-of-pocket costs and expenses incurred by Purchaser
(excluding salaries or wages of its employees) with respect to Purchaser's
obligations pursuant to this Section 4.02(a).
(b) EMPLOYEES. On and as of the Closing Date, Purchaser
shall be permitted, but is not obligated under this Agreement, to offer
employment to or engage any of the Business Personnel it wishes to employ
or engage in its sole discretion; provided, Purchaser shall not assume any
obligations under any employment agreements or contracts or Seller's
Employee Benefit Plans. Any Business Personnel re-hired by Purchaser (the
"Rehired Employees") shall be deemed "new hires, at will" of Purchaser, and
Purchaser shall attach as SCHEDULE 4.02(b) hereto at Closing a list of all
Rehired Employees. Seller agrees to take no action which would interfere
with such employment by Purchaser, and shall take all action required by
law or otherwise to cause the valid termination of employment at the
Closing Date of such Business Personnel who are to be employed by Purchaser
following the Closing Date. Seller will pay and satisfy all compensation
and employee benefit obligations to the Business Personnel arising on or
prior to the Closing Date, and Purchaser shall not assume any accrued
vacation or other compensable time, earned but unpaid bonuses, profit
sharing, retirement, severance pay, life insurance, retiree welfare
benefits, disability, health care or workers' compensation plans or claims,
or any other employee benefit or fringe benefit plans operated for, or
obligations owed by Seller to, any such Business Personnel. Seller shall
also be solely responsible for and shall provide all notices and health
care plan continuation coverage required by or under "COBRA" (29 U.S.C.
Section 601-606) with respect to its employees, former employees and other
qualified beneficiaries regardless of whether the "qualifying event"
triggering COBRA continuation occurs at or before Closing. Seller further
agrees that Purchaser shall not be liable for any liability in respect of
any Business Personnel (including, without limitation, any Rehired
Employees) for any acts or omissions relating to the employment of such
employees arising on or prior to the Closing Date, including, but not
limited to, claims for workers' compensation or other benefits, regardless
of whether such employees are subsequently employed by Purchaser.
12
4.03 COVENANTS OF PURCHASER AND SELLER.
(a) APPROVALS OF THIRD PARTIES; SATISFACTION OF CONDITIONS TO
CLOSING. Seller and Purchaser will use their reasonable, good faith
efforts, and will cooperate with one another, to secure all necessary
consents, approvals, authorizations and exemptions from governmental
agencies and other third parties, including as may be required after the
Closing.
(b) FURTHER ASSURANCES. In addition to such actions as
Seller or Purchaser may otherwise be required to take under this Agreement
or applicable law in order to consummate this Agreement and the
transactions contemplated hereby, Seller and Purchaser shall take such
action, shall furnish such information, and shall prepare, or cooperate in
preparing, and execute and deliver such certificates, agreements and other
instruments as Purchaser or Seller may reasonably request from time to
time, at or after the Closing, with respect to compliance with obligations
of Purchaser or Seller in connection with the transactions contemplated
herein.
(c) CONFIDENTIALITY. In connection with this Agreement the
parties will have access to information which is nonpublic, confidential or
proprietary in nature. All of such information, in whole or in part,
together with any analyses, compilations, studies or other documents
prepared by any party, which contain or otherwise reflect any such
information is hereinafter referred to as the "Information". Each party
hereby agrees as follows:
(i) the Information will be kept confidential and shall
not, without the prior mutual written consent of the parties,
be disclosed, in any manner whatsoever, in whole or in part,
and shall not be used by any party following the termination of
this Agreement. Each party agrees to transmit the Information
only to its respective employees and representatives who need
to know the Information and who shall agree to be bound by the
terms and conditions of this Agreement. In any event, each
party shall be responsible for any breach of this Agreement by
its respective employees or representatives;
(ii) each party agrees to keep a record of the location
of the Information. If the transactions contemplated hereunder
are not consummated, the Information, except for that portion
of the Information which consists of analyses, compilations,
studies or other documents prepared by each party's respective
employees and representatives, will be returned to the other
promptly upon request and no party shall retain any copies.
That portion of the Information, and all copies thereof, which
consists of analyses, compilations, studies or other documents
prepared by each party's respective employees and
representatives will promptly be destroyed, and such fact shall
be certified in writing to the providing party by an officer of
the recipient party;
(iii)in the event any party becomes legally compelled to
disclose any of the Information, such party will provide to the
other parties prompt notice so that each other party may seek a
protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event
that such protective order or other remedy is not obtained, or
compliance with the provisions of this Agreement is waived, a
party will furnish only that portion of the Information which
is legally required, and to the extent requested by the other
party, will exercise its best efforts to obtain a protective
order or other reliable assurance that confidential treatment
will be accorded the Information;
13
(iv) The term "Information" does not include information
which (i) was known to any party about another party prior to
its disclosure, provided that such information was lawfully
obtained or developed, (ii) becomes generally available to the
public other than as a result of a disclosure by a party in
violation of this Agreement, or (iii) becomes available from a
source other than a party to this Agreement, if the source is
not bound by a confidentiality obligation or agreement and such
source lawfully obtained such information;
(v) After Closing, Purchaser, as the owner of the
Business, shall not be subject to any continuing restrictions
on its use or disclosure of the Information.
(d) XXXXX PATENT.
(i) Purchaser acknowledges that: (A) United States
Patent No. 5,907,830 "Electronic Coupon Distribution" and all
of Seller's right, title and interest therein (the "Xxxxx
Patent") is an Excluded Asset and is not part of the Purchased
Assets, (B) as described in SCHEDULE 2.12, American Consulting
Corporation has filed a complaint against Seller for matters
related to the Xxxxx Patent (the "Xxxxx Litigation"), (C)
Purchaser has been granted a license to the Xxxxx Patent
pursuant to that certain Cross License Agreement effective June
30, 2000 between Purchaser and Planet U, Inc. and the related
Settlement Agreement effective June 30, 2000 among Purchaser,
Planet U, Inc. and certain other parties (collectively the
"Cross License Agreement").
(ii) Seller hereby grants Purchaser the option to
purchase all of Seller's right, title and interest in and to
Xxxxx Patent. The terms of the option shall be as follows: (A)
the option shall be exercisable if, but only if, after the
settlement, dismissal or entry of a final order in the Xxxxx
Litigation, Seller continues to own the Xxxxx Patent (the date
of such settlement, dismissal or order, a "Retention Event");
(B) within ten (10) days after the occurrence of a Retention
Event, Seller shall give Purchaser written notice that the
option is exercisable, whereupon, for a period of ninety (90)
days, Purchaser shall have the right to exercise the option;
(C) Purchaser may exercise the option by delivering written
notice of exercise to Seller, which notice shall designate a
date of closing which shall be not less than five (5) days, nor
more than thirty (30) days after the delivery of the exercise
notice; (D) the exercise price for the option shall be $25,000
in cash; and (E) if Purchaser exercises the option, at the
closing of such exercise, Purchaser shall deliver the exercise
price to Seller in cash or other immediately available funds
against delivery by Seller of such assignments and other
instruments of transfer as Purchaser may reasonably request.
(iii)Purchaser acknowledges that Seller has not made,
and hereby expressly disclaims, any representations or
warranties related to Seller's rights in or to the Xxxxx Patent
or the likelihood of a favorable result in the Xxxxx
Litigation. Seller may settle the Xxxxx Litigation on such
terms as Seller determines (in its sole and absolute
discretion), and Seller has no duty, express or implied, to
cause a Retention Event to occur. If in connection with the
Xxxxx Litigation Seller's rights in and to Xxxxx Patent are
limited or impaired or Seller is determined to have no rights
in the Xxxxx Patent, Seller shall not be liable to Purchaser
for any damages related to such result; without limiting the
foregoing, Seller shall not be liable to Purchaser for any
breach under the Cross License Agreement if Purchaser loses any
or all of its rights to the Xxxxx Patent as a result of any
settlement or judgment in the Xxxxx Litigation.
14
(iv) Purchaser hereby releases Seller from any and all
remaining royalties due Purchaser under the Cross License
Agreement.
(e) PREPARATION AND DELIVERY OF ADDITIONAL FINANCIAL
STATEMENTS
(i) Seller hereby acknowledges that in connection with
the acquisition of the Purchased Assets, Purchaser may be
required to make filings with the Securities and Exchange
Commission ("Securities Filings") pursuant to the Securities
Act of 1933, the Securities Exchange Act of 1934 or the rules
and regulations promulgated thereunder ("Securities Laws") that
include certain audited financial statements of the Business
for 2003 and the periods of Seller's ownership (by way of
example, and without limitation, Purchaser may be required to
file a Form 8-K and the financial statements required under
Item 7 thereof) (the "Historical Financial Statements").
Seller represents that it has the accounting records and
information that Purchaser's accountants identified on January
29, 2004 will be required for the preparation and audit of the
Historical Financial Statements.
(ii) After Closing, Seller shall, from time to time upon
Purchaser's request, promptly (and not more than five (5) days
after each applicable request) deliver to Purchaser such
financial statements (on a carve-out basis), accounting
records, schedules, information and assistance as Purchaser or
its accountants may request to permit them to conduct an audit
of the Historical Financial Statements that Purchaser must file
to comply with the Securities Laws (Purchaser shall specify in
its requests the period or periods that will be audited and the
information needed). Without limiting the foregoing, Seller
shall promptly (A) prepare (in accordance with GAAP and the
requirements of Regulation S-X promulgated under the Securities
Laws ) the Historical Financial Statements and deliver such
statements to Purchaser's accountants, (B) disclose and make
available to Purchaser's accountants such information as they
may require for the audit of the Historical Financial
Statements, (C) cooperate with the accountants and participate
in answering such inquiries as the accountants may reasonably
make, (D) deliver to Purchaser's accountants such management
representation letters (and bring down letters) as they may
require to deliver the required audit and an unqualified
opinion, (E) otherwise assist such accountants in the delivery
to Purchaser of the Historical Financial Statements and
corresponding accountants' reports (which shall be prepared
consistently with the requirements of Regulation S-X and GAAP);
and (F) cooperate with and cause Seller's accountants to
cooperate with Purchaser and Purchaser's accountants in the
audit of the financial statements and the preparation of
pro-forma financial statements relating to Purchaser, Seller
and/or the Purchased Assets to be included in connection with
the Securities Filings and in responding to any comments or
inquiries relating to the Financial Statements and/or the
Securities Filings.
(iii)In addition to the foregoing, with respect to
Historical Financial Statements, Seller agrees to provide
Purchaser with such other information as Purchaser may
reasonably require in connection with the preparation of its
Securities Filings (including, without limitation, its Annual
Report on Form 10-K).
15
(iv) Purchaser will pay the fees and costs of its
accountants in connection with the preparation and delivery of
the Historical Financial Statements. If Seller is required to
use the services of its external accountants in connection with
the foregoing obligations, Purchaser will reimburse Seller for
the reasonable fees and costs charged by such accountants for
such services.
ARTICLE V
CONDITIONS TO SELLER'S OBLIGATIONS
----------------------------------
Each of the obligations of Seller to consummate the transactions
contemplated hereby will be subject to the satisfaction (or written waiver
by Seller) at the Closing Date of each of the following conditions:
5.01 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING DATE; COVENANTS
PERFORMED. The representations and warranties of Purchaser contained in
this Agreement shall be true in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of
such date (other than representations and warranties made expressly as of a
specific date, which only need be true in all material respects as of such
date); Purchaser shall have performed and complied in all material respects
with the covenants and agreements set forth herein to be performed or
complied with by it on or before the Closing Date; and Purchaser shall have
delivered to Seller a certificate dated as of the Closing Date and signed
by a duly authorized officer of Purchaser to all such effects.
5.02 LITIGATION. No suit, investigation, action or other proceeding
shall be pending against Seller or Purchaser before any court or
governmental agency which has resulted in the restraint or prohibition of
Seller or Purchaser, in connection with this Agreement or the consummation
of the transactions contemplated hereby.
5.03 [Intentionally omitted].
5.04 DELIVERIES BY PURCHASER. Purchaser shall have executed and
prepared the following documents for delivery to Seller:
(a) The Xxxx of Sale and Assignment and Assumption Agreement
in the form of EXHIBIT A; and
(b) The certificate referenced in Section 5.01.
(c) A certificate from the secretary of Purchaser (i)
attaching copies of its Certificate of Incorporation and Bylaws, a good
standing certificate issued by the Delaware Secretary of State not dated
more than ten (10) days prior to Closing, and resolutions authorizing the
execution, delivery and performance of this Agreement and the taking of all
action required hereunder or in connection herewith on behalf of Purchaser,
and (ii) certifying the incumbency of the officers acting on behalf of
Purchaser and their genuine signatures, with a cross-certification of such
secretary's incumbency and genuine signature.
16
ARTICLE VI
CONDITIONS TO PURCHASER'S OBLIGATIONS
-------------------------------------
Each of the obligations of Purchaser to consummate the transactions
contemplated hereby is subject to the satisfaction (or written waiver by
Purchaser) at or prior to the Closing Date of each of the following
conditions:
6.01 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING DATE. The
representations and warranties of Seller contained in this Agreement shall
be true in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of such date (other than
representations and warranties made expressly as of a specific date, which
only need be true in all material respects as of such date); Seller shall
have performed and complied in all material respects with the respective
covenants and agreements set forth herein to be performed or complied with
by it on or before the Closing Date; and Seller shall have delivered to
Purchaser a certificate dated as of the Closing Date and signed by a duly
authorized officer of Seller to all such effects.
6.02 LITIGATION. No suit, investigation, action or other proceeding
shall be pending or overtly threatened against Purchaser or Seller before
any court or governmental agency which has resulted in the restraint or
prohibition of Purchaser or Seller, in connection with this Agreement or
the consummation of the transactions contemplated hereby.
6.03 REQUIRED CONSENTS AND APPROVALS. All authorizations, consents
and approvals (governmental or otherwise) set forth in SCHEDULE 6.03
(including, without limitation, all consents required for the assignment of
the Assumed Contracts) must have been obtained and must be in full force
and effect. All applicable governmental pre-acquisition filing, information
furnishing and waiting period requirements, including expiration of all
applicable waiting periods, must have been met or such compliance must have
been waived by the governmental authority having authority to grant such
waivers.
6.04 DELIVERIES TO PURCHASER. Seller shall have executed and
prepared the following documents for delivery to Purchaser:
(a) The Xxxx of Sale and Assignment and Assumption Agreement
in the form of EXHIBIT A.
(b) The certificate referenced in Section 6.01.
(c) A certificate from the secretary of Seller (i) attaching
copies of its Certificate of Incorporation, Bylaws and Executive Committee
Charter, a good standing certificate issued by the Delaware Secretary of
State not dated more than ten (10) days prior to Closing, and (ii)
certifying the incumbency of the officers acting on behalf of Seller and
their genuine signatures, with a cross-certification of such secretary's
incumbency and genuine signature, and resolutions of the Executive
Committee authorizing the execution, delivery and performance of this
Agreement and the taking of all action required hereunder or in connection
herewith on behalf of Seller.
17
ARTICLE VII
TERMINATION PRIOR TO CLOSING
----------------------------
7.01 TERMINATION. Anything herein to the contrary notwithstanding,
this Agreement may be terminated at any time (such date of termination
being the "Termination Date") before the Closing Date as follows, and in no
other manner:
(a) MUTUAL CONSENT. By mutual written consent of Purchaser
and Seller;
(b) BY SELLER. By Seller in writing, without liability, if
Purchaser shall (i) fail to perform in any material respect its agreements
contained herein required to be performed by it on or prior to the Closing
Date, or (ii) materially breach any of its representations, warranties or
covenants contained herein, which failure or breach is not cured within ten
(10) days after Seller has notified Purchaser of its intent to terminate
this Agreement pursuant to this subparagraph (b);
(c) BY PURCHASER. By Purchaser in writing, without
liability, if Seller shall (i) fail to perform in any material respect its
agreements contained herein required to be performed by it on or prior to
the Closing Date, or (ii) materially breach any of its representations,
warranties or covenants contained herein, which failure or breach is not
cured within ten (10) days after Purchaser has notified Seller of its
intent to terminate this Agreement pursuant to this subparagraph (c);
(d) RESTRAINT. By either Seller or Purchaser in writing,
without liability, if there shall be any order, writ, injunction or decree
of any court or governmental or regulatory agency binding on Purchaser or
Seller, which prohibits or restrains Purchaser or Seller from consummating
the transactions contemplated hereby, provided that Purchaser and Seller
shall have used their reasonable, good faith efforts to have any such writ,
injunction or decree lifted and the same shall not have been lifted within
30 days after entry, by any such court or regulatory agency;
(e) EXPIRATION DATE. By either Purchaser or Seller if the
Closing shall not have occurred on or prior to February 10, 2004; PROVIDED,
HOWEVER, that no entity may terminate this Agreement in accordance with
this Section 7.01(e) if the failure to consummate the Closing shall be due
to the action or failure to act of the party seeking to terminate this
Agreement in violation of its covenants under this Agreement; or
7.02 EFFECT OF TERMINATION. In the event that this Agreement shall
be terminated pursuant to ARTICLE VII, all obligations of the parties
hereto under this Agreement shall terminate and there shall be no liability
of any party to any other party hereto and each party hereto will pay all
costs and expenses incident to its negotiation and preparation of this
Agreement and to its performance of and compliance with all agreements and
conditions contained herein on its part to be performed or complied with,
including the fees, expenses and disbursements of its counsel, its auditors
and its actuaries, PROVIDED, HOWEVER, that if this Agreement shall be
terminated pursuant to Section 7.01(b), Section 7.01(c) or Section 7.01(e),
such termination shall not release any party hereto from any liability that
such party may have for any breach occurring prior to the Termination Date
of any representation, warranty or covenant made by such party in this
Agreement.
18
ARTICLE VIII
INDEMNIFICATION
---------------
8.01 INDEMNITY. Subject to, as applicable, the overall limitations,
the minimum amounts and the time limitations set forth in Section 8.02
hereto:
(a) Seller Parties, jointly and severally, as the party
against whom indemnification is sought ("Indemnifying Party") will
indemnify and hold Purchaser as the party seeking indemnification
("Indemnified Party") harmless from and with respect to any and all claims,
lawsuits, liabilities, losses, damages, costs and expenses, including
without limitations the reasonable fees and disbursements of counsel and
all amounts reasonably paid in investigation, defense or settlement of any
of the foregoing or the enforcement of this obligation (collectively,
"Damages") brought against or incurred by Purchaser or its affiliates and
their successors or assigns and their respective directors, officers,
employees, consultants and agents ("Purchaser Protected Parties"), whether
or not involving a claim by a third party, as a result of, with respect to,
or arising out of (i) any inaccuracies in any representation or warranty
(but excluding consequential, incidental, exemplary or punitive damages
unless and except to the extent the breach relates to a third party claim
involving such damages) or breach of any covenant made by Seller in this
Agreement, (ii) any of the Excluded Assets or Excluded Liabilities
(including, without limitation, any liabilities (A) under that certain
Asset Purchase Agreement dated December 3, 2002 among Seller, Planet U,
Inc. and xXXX.xxx, Inc. and the ancillary agreements thereto or (B) related
to taxes), (iii) any event arising from the operation or ownership of, or
conditions occurring with respect to, any of the Purchased Assets prior to
Closing, or (iv) that certain Invention Assignment Agreement dated February
3, 2000 between American Consulting Corporation and Planet U, Inc. (or the
transactions related thereto), Seller's ownership of U.S. Patent No.
5,907,830 or the litigation described on SCHEDULE 2.12.
(b) Purchaser will indemnify and hold the Seller Parties
harmless from and with respect to any and all Damages brought against or
incurred by Seller or its affiliates and their successors or assigns and
their respective directors, officers, employees, consultants and agents
("Seller Protected Parties"), whether or not involving a claim by a third
party, as a result of, with respect to, or arising out of (i) any
inaccuracies in any representation or warranty or breach of any covenant
made by Purchaser in this Agreement or (ii) any of the Assumed Liabilities,
except to the extent any of such Damages arise out of, result from or are
related to Damages for which the Seller Parties are required to indemnify
Purchaser above.
(c) For purposes of indemnification pursuant to this ARTICLE
VIII, the term Indemnified Party shall include Purchaser or the Seller
Parties, as the case may be, and its or their permitted successors and
assigns, together with their respective Protected Parties.
8.02 LIMITATIONS OF LIABILITY.
(a) No Indemnifying Party shall be required to indemnify an
Indemnified Party hereunder for any Damages arising under this ARTICLE VIII
until the aggregate amount of Damages for which Indemnified Party is
entitled to indemnification pursuant to this ARTICLE VIII hereto exceeds
$20,000 (it being understood and agreed that the $20,000 is intended as a
basket, and Indemnifying Party shall be liable for the first $20,000 of
Damages for which Indemnified Party is entitled to indemnification if the
aggregate Damages exceed $20,000).
(b) The aggregate amounts payable by an Indemnifying Party
with respect to all claims for indemnification against it shall not exceed
$150,000.
19
(c) All representations, warranties, covenants and
obligations in this Agreement and any other certificate or document
delivered pursuant to this Agreement shall survive the Closing and the
consummation of the transaction contemplated hereby and continue in full
force and effect for a period of eighteen (18) months after the Closing
Date, except (i) the representations and warranties in Sections 2.02, 2.10
and 2.11 (the "Special Representations and Warranties") and all covenants
and agreements shall survive the Closing and continue in full force and
effect indefinitely (unless a covenant or agreement by its terms has a time
limitation), and (ii) to the extent an Indemnified Party gives written
notice of a claim for indemnification prior to the end of the applicable
survival period, in which case the Indemnifying Party shall remain liable
for any Damage arising out of, resulting from or related to the breach
asserted in the notice of claim.
(d) Notwithstanding anything to the contrary in Section
8.02(a) or (b), the basket in Section 8.02(a) and the aggregate limit in
Section 8.02(b) shall not apply to breaches of the Special Representations
and Warranties or any breaches of covenants or agreements, including,
without limitation, Seller's indemnification obligations under subsections
(ii), (iii) and (iv) of Section 8.01(a).
8.03 NOTICE OF CLAIM. The Purchaser Protected Parties or the Seller
Protected Parties, as the case may be, will notify the Indemnifying Party,
in writing, of any claim for indemnification, specifying in reasonable
detail the nature of the Damages, and, if known, the amount, or an estimate
of the amount, of the liability arising therefrom. The Purchaser Protected
Parties or the Seller Protected Parties, as the case may be, will provide
to the Indemnifying Party, as promptly as practicable thereafter, such
information and documentation as may be reasonably requested by the
Indemnifying Party to support and verify the claim asserted, so long as
such disclosure would not violate the attorney-client privilege of the
Purchaser Protected Parties or the Seller Protected Parties, as the case
may be.
8.04 DEFENSE. If the facts pertaining to Damages arise out of the
claim of any third party, or if there is any claim against a third party
(other than a Purchaser Protected Party or a Seller Protected Party, as the
case may be) available by virtue of the circumstances of the Damages, the
Indemnifying Party may assume the defense or the prosecution thereof by
prompt written notice to the affected Protected Party, including the
employment of counsel or accountants, at its cost and expense. The affected
Protected Party will have the right to employ counsel separate from counsel
employed by the Indemnifying Party in any such action and to participate
therein, but the fees and expenses of such counsel employed by the affected
Protected Party will be at its expense and shall not be considered Damages
hereunder (unless the Indemnifying Party fails to assume the defense or
fails to actively and diligently conduct it). The Indemnifying Party will
not be liable for any settlement of any such claim effected without its
prior written consent, which will not be unreasonably withheld; provided
that if the Indemnifying Party does not assume the defense or prosecution
of a claim as provided above within thirty (30) days after notice thereof
from any Protected Party or fails to actively and diligently conduct the
defense, the affected Protected Party may, at its option, assume the
defense and may settle such claim without the Indemnifying Party's consent.
The Indemnifying Party will not agree to a settlement of any claim which
provides for any relief other than the payment of monetary damages without
the affected Protected Party's prior written consent. Whether or not the
Indemnifying Party chooses to so defend or prosecute such claim, the
Indemnifying Party and the affected Protected Party will cooperate in the
defense or prosecution thereof and will furnish such records, information
and testimony, and attend such conferences, discovery proceedings,
hearings, trials and appeals, as may be reasonably requested in connection
therewith. The Indemnifying Party will be subrogated to all rights and
remedies of any Protected Party, except to the extent they apply against
another Protected Party.
20
8.05 EXCLUSIVE REMEDY. From and after the Closing, except for (i)
Damages arising out of or resulting from actual fraud, or (ii) claims for
injunctive or other equitable relief, the indemnification provided pursuant
to this ARTICLE VIII, shall be the sole and exclusive remedy hereto for any
Damages as a result of, with respect to or arising out of the breach of
this Agreement or any representation or warranty contained herein, any of
the transactions or other agreements or instruments contemplated or entered
into in connection herewith (including all exhibits, the Schedules, or any
other schedule attached hereto or referenced herein).
ARTICLE IX
MISCELLANEOUS
-------------
9.01 BULK SALES LAW. Purchaser hereby waives compliance by Seller
with the provisions of the bulk sales law of any state.
9.02 NO LIENS CREATED. This Agreement shall not be construed to
create any lien or encumbrance on any of the Assets, or to create any
rights in any third persons or to indicate that Purchaser is assuming any
liabilities of Seller except as specifically provided for in
Section 1.04(b).
9.03 ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits) constitutes the sole understanding of the parties with respect to
the subject matter hereof; provided, however, that this provision is not
intended to abrogate any other written agreement between the parties
executed with or after this Agreement.
9.04 AMENDMENT. 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.
9.05 PARTIES BOUND BY AGREEMENT; SUCCESSORS AND ASSIGNS. The terms,
conditions and obligations of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective successors and
assigns thereof. Neither party may assign its rights, duties or obligations
hereunder or any part thereof to any other person or entity without the
prior written consent of the other party; provided, however, Purchaser
shall be entitled to assign this Agreement in whole or in part to a party
acquiring all or substantially all of the assets of the Business.
9.06 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
9.07 MODIFICATION AND WAIVER. Any of the terms or conditions of
this Agreement may be waived in writing at any time by the party which is
entitled to the benefits thereof. 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).
9.08 EXPENSES. Except as otherwise provided herein, Seller and
Purchaser shall each pay all costs and expenses incurred by each of them,
or on their behalf respectively, in connection with this Agreement and the
transactions contemplated hereby, including fees and expenses of their own
financial consultants, accountants and counsel.
9.09 NOTICES. Any notice, request, instruction or other document to
be given hereunder by any party hereto to any other party hereto shall be
in writing and delivered personally (including by overnight courier or
express mail service) or by facsimile or sent by registered or certified
mail, postage or fees prepaid,
21
if to Seller to:
ADS Alliance Data Systems, Inc.
00000 Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: General Counsel
if to Purchaser to:
CoolSavings, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxx,
Chief Executive Officer and President
with a copy to:
Xxxxxx X. Xxxxxxx, Esquire
Xxxxxxx & Savage, P.C.
0000 Xxxx xx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
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 or the office of 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
fourth business day after the day it is so placed in the mail or, if
earlier, the time of actual receipt.
9.10 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Texas without giving effect
to the principles of conflicts of law thereof.
9.11 NO THIRD-PARTY BENEFICIARIES. With the exception of the
parties to this Agreement, the Purchaser Protected Parties and Seller
Protected Parties, there shall exist no right of any person to claim a
beneficial interest in this Agreement or any rights occurring by virtue of
this Agreement.
9.12 PUBLIC ANNOUNCEMENTS. No public announcement may be made by
any person with regard to the transactions contemplated by this Agreement
without the prior consent of Seller and Purchaser, provided that either
party may make such disclosure if advised by counsel that it is required to
do so by applicable law or regulation of any governmental agency or stock
exchange upon which securities of such party are registered and such party
has consulted with the other regarding the necessity and content of such
announcement. Seller and Purchaser will discuss any public announcements or
disclosures concerning the transactions contemplated by this Agreement with
the other parties prior to making such announcements or disclosures.
9.13 KNOWLEDGE. As used in this Agreement, the phrase "to Seller's
Knowledge," "Known" and phrases of like kind or import shall mean to the
actual knowledge of those officers of the Seller set forth on SCHEDULE 9.13
hereto, as of the date of this Agreement or the date as of which a
particular representation or warranty is given.
9.14 INTERPRETATION. Words of the masculine gender will be deemed
and construed to include correlative words of the feminine and neuter
genders. Words importing the singular number will include the plural number
and vice versa unless the context will otherwise indicate. References to
Articles, Sections and other subdivisions of this Agreement are to the
Articles, Sections and other subdivisions of this Agreement as originally
executed. The headings of this Agreement are for convenience and do not
define or limit the provisions hereof. Words importing persons include
firms, associations and corporations. The term "herein," "hereunder,"
"hereby," "hereto," "hereof" and any similar terms refer to this Agreement;
22
the term "heretofore" means before the date of execution of this Agreement;
and the term "hereafter" means after the date of execution of this
Agreement. References herein to "include", "includes" or "including" shall
mean without limitation.
9.15 SCHEDULES. The term "Schedules" means the schedules, including
all attachments to all schedules, attached hereto and, together with all
exhibits hereto, part hereof. The Schedules will be arranged in paragraphs
corresponding to the applicable lettered and numbered sections and
subsections of this Agreement. Matters listed on one Schedule shall be
deemed disclosed on any other Schedule where such other Schedule expressly
incorporates by reference the matter disclosed on the first Schedule. Any
capitalized and undefined term used in the Schedules shall have the same
meaning assigned to such term herein. Unless expressly labeled within the
Schedules as being "material", the description or listing of a matter,
event or thing within the Schedules (whether in response for a description
or listing of material items or otherwise) shall not be deemed an admission
or acknowledgment that such matter, event or thing is "material" for any
other purpose, including the purposes of determining termination or
indemnification based on materiality.
9.16 ENFORCEMENT. Should any Seller Party breach any of the
provisions hereof, in addition to and not in limitation of any other rights
or remedies Purchaser may have: (a) Purchaser shall no longer be bound to
make any further payments that it may owe to any Seller Party under this or
any other agreement (including, without limitation, the Asset Purchase
Agreement) to which Purchaser and any Seller Party are parties, until such
breach is cured to Purchaser's reasonable satisfaction; (b) Purchaser may
recover money damages; and (c) in addition to its rights to damages and its
other rights, Purchaser shall be entitled to obtain equitable relief for
any such breach (without the showing of special, imminent or irreparable
damages and without any obligation to post bond or other security or
surety), so that the Seller Party that is breaching, or has breached, this
Agreement shall be required to cease and desist immediately from such
activities (it being agreed that damages alone would be inadequate to
compensate Purchaser and would be an inadequate remedy for such breach).
In the event Purchaser seeks to enforce the terms of this Agreement against
a Seller Party by suit, arbitration or similar legal process, Purchaser
shall be entitled to recover from such Seller Party the costs and expenses
incident thereto, including, without limitation, reasonable attorneys'
fees.
9.17 SEVERABILITY. The parties acknowledge and agree that the
restrictions in Section 4.01(e) are reasonable in scope and duration and
are necessary to protect Purchaser after Closing. Should any provision of
this Agreement be held by a court of competent jurisdiction to be
unenforceable, or enforceable only if modified, such holding shall not
affect the validity of the remainder of this Agreement, the balance of
which shall continue to be binding upon the parties with any such
modification (if any) to become a part hereof and treated as though
contained in this original Agreement. The parties further agree that any
such court is expressly authorized to modify any such unenforceable
provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modification
that the court deems warranted to carry out the agreement of the parties.
The parties expressly agree that this Agreement as so modified by the court
shall be binding upon and enforceable against each of them.
[Signatures located on following pages.]
23
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed on its behalf as of the date indicated on the
first page hereof.
PURCHASER:
---------
COOLSAVINGS, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: President & CEO
SELLER:
------
ADS ALLIANCE DATA SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
SELLER'S PARENT:
---------------
ALLIANCE DATA SYSTEMS CORPORATION
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
24
Exhibit A
Xxxx of Sale and Assignment and Assumption Agreement
Exhibit B
Transition Services Agreement
