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EXHIBIT 10.12
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
INTELLIPOST CORPORATION
AND
METROMAIL CORPORATION
DATED AS OF NOVEMBER 30, 1998
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INDEX OF SCHEDULES
SCHEDULE DESCRIPTION
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1.1(a) Assets
1.1(a)(ii) Patents, etc.
1.1(a)(iii) Software Products
1.1(a)(vi) Inventory
1.1(b) Assumed Liabilities
2.2 Governmental and Third Party Consents
2.3 No Changes
2.4 Restrictions on Business Activities
2.5 Liens on Property
2.6 Intellectual Property
2.7 Agreements, Contracts and Commitments
2.8 Litigation
ASSET PURCHASE AGREEMENT
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TABLE OF CONTENTS
PAGE
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ARTICLE I - THE ACQUISITION....................................................................-1-
1.1 Purchase of Assets..............................................................-1-
1.2 Consideration...................................................................-2-
1.3 Transfer of Customers...........................................................-3-
1.4 Closing.........................................................................-3-
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF SELLER..........................................-4-
2.1 Organization of Seller..........................................................-4-
2.2 Authority; Consents.............................................................-4-
2.3 No Changes......................................................................-5-
2.4 Restrictions on Business Activities.............................................-5-
2.5 Title of Properties; Absence of Liens and Encumbrances..........................-5-
2.6 Intellectual Property...........................................................-6-
2.7 Agreements, Contracts and Commitments...........................................-6-
2.8 Litigation......................................................................-7-
2.9 Complete Copies of Materials....................................................-7-
2.10 Representations Complete........................................................-7-
2.11 Only Representations............................................................-7-
2.12 Knowledge of Seller Defined.....................................................-7-
ARTICLE III - REPRESENTATIONS AND WARRANTIES OF BUYER..........................................-7-
3.1 Organization, Standing and Power................................................-7-
3.2 Authority.......................................................................-8-
3.3 No Knowledge of Breach of Representation or Warranty of Seller..................-8-
3.4 DV2U Website....................................................................-8-
ARTICLE IV - ADDITIONAL AGREEMENTS.............................................................-8-
4.1 Confidentiality.................................................................-8-
4.2 Expenses........................................................................-8-
4.3 Public Disclosure...............................................................-8-
4.4 Consents........................................................................-9-
4.5 Best Efforts....................................................................-9-
4.6 Notification of Certain Matters.................................................-9-
4.7 Additional Documents and Further Assurances.....................................-9-
4.8 Tax Returns.....................................................................-9-
4.9 Bulk Sales.....................................................................-10-
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE V - CONDITIONS TO THE ACQUISITION.....................................................-10-
5.1 Conditions to Obligations of Each Party to Effect the Acquisition..............-10-
5.2 Additional Conditions to Obligations of Seller.................................-10-
5.3 Additional Conditions to the Obligations of Buyer..............................-11-
ARTICLE VI - TERMINATION, AMENDMENT AND WAIVER................................................-12-
6.1 Termination....................................................................-12-
6.2 Effect of Termination..........................................................-12-
6.3 Amendment......................................................................-13-
6.4 Extension; Waiver..............................................................-13-
ARTICLE VII - GENERAL PROVISIONS..............................................................-13-
7.1 Survival of Representations and Warranties Limitation of Claims................-13-
7.2 Notices........................................................................-13-
7.3 Interpretation.................................................................-14-
7.4 Counterparts...................................................................-14-
7.5 Entire Agreement...............................................................-14-
7.6 Severability...................................................................-14-
7.7 Other Remedies.................................................................-15-
7.8 Governing Law..................................................................-15-
7.9 Rules of Construction..........................................................-15-
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into
as of November 30, 1998 by and between Intellipost Corporation, a Delaware
corporation ("BUYER") and Metromail Corporation, a Delaware corporation
("SELLER").
RECITALS
A. The Boards of Directors of each of Seller and Buyer believe it is in
the best interests of each company and their respective shareholders that Buyer
acquire certain of the assets of, and assume certain of the liabilities of
Seller (the "ACQUISITION") related to the Direct Value to You product line.
B. Seller's Direct Value to You is an Internet sponsorship product
engaged in the business of developing consumer information through sponsored
offers on a website (the "Business").
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the parties agree as follows:
ARTICLE I
THE ACQUISITION
1.1 Purchase of Assets.
(a) Purchase and Sale of Assets. On the terms and subject to the
conditions set forth in this Agreement, Seller will sell, convey, transfer,
assign and deliver to Buyer and Buyer will purchase and acquire from Seller on
the Closing Date (as defined in SECTION 1.4), all of Seller's right, title and
interest in and to all of the assets and properties of Seller related to the
Direct Value to You Product Line and set forth on SCHEDULE 1.1(A) (collectively
the "ASSETS") free and clear of all liens, pledges, charges, claims, security
interests or other encumbrances of any sort (collectively, "LIENS").
(b) Assumption of Liabilities. Buyer shall not assume any
liabilities or obligations of Seller except for those liabilities and
obligations which Buyer expressly assumes pursuant to this Section 1.1(b).
Without limiting the foregoing, it is expressly agreed that Buyer shall not
assume any liabilities for employment, income, sales, property or other taxes
incurred or accrued by Seller as of the Closing Date, except as provided in
Section 1.2(c). Seller will indemnify and hold Buyer harmless from and against
any and all losses, costs, expenses, claims, liabilities, deficiencies,
judgments and damages incurred or suffered by Buyer or any of its affiliates
related to or arising out of any liabilities or obligations of Seller, except
for those liabilities or obligations
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expressly assumed by Buyer in this Section 1.1(b). At the Closing Buyer shall
assume the following obligations and liabilities of Seller (collectively, the
"ASSUMED LIABILITIES"): (A) all obligations and liabilities of Seller under the
Contracts described in SCHEDULE 2.7 to the extent such contracts are assigned
and transferred to Buyer at the Closing and (B) those obligations and
liabilities of Seller set forth in SCHEDULE 1.1(B) hereto, and (C) Seller's
obligations arising from the restrictions on the use of consumer lists developed
from the Business relating to exclusions or preferences for the method of
delivery of offers or solicitations to consumers. Buyer expressly is not
assuming any obligations or liabilities, whether accrued, absolute, contingent,
matured, unmatured or other, of Seller except for the Assumed Liabilities.
(c) Risk of Loss. In the event any of the Assets are unavailable
for delivery to Buyer on the Closing Date as a result of risks for which such
Assets were insured by Seller, Buyer may at its option elect (i) to require
Seller to deliver to Buyer assignments of such Seller's rights under its
insurance policies, if any, applicable to such Assets and to close on that
basis, or (ii) to not close due to the failure of a condition to closing if the
amount of the loss reasonably can be expected to be in excess of $50,000. Seller
hereby agrees to make such assignment of rights if Buyer so elects.
1.2 Consideration.
(a) Consideration for Assets. On the terms and subject to the
conditions set forth in this Agreement (including, without limitation, the
provisions of Section 7.1 hereof), as full payment for the transfer of the
Assets by Seller to Buyer, Buyer shall pay to Seller the Purchase Price. The
"PURCHASE PRICE" shall be equal to $400,000 in cash to be payable over time in
quarterly increments with each increment equal to 75% of the net revenues
received by Buyer from offline list sales of all of Buyer's databases during
such quarter. As used herein, "net revenues" shall be defined as total sales of
offline lists less actual expenses directly related to the sale of the offline
lists. As used herein, "offline list sales" shall be defined as any sales of
lists, for any purpose from any database owned or controlled by Buyer sold to
any third party where such lists are used by such third party for marketing,
modeling or promotion delivered by means other than Internet, including, without
limitation, telephone and U.S. mail. In the event that the entire Purchase Price
is not paid in full within thirty (30) months of the Closing Date, the remaining
amount of the Purchase Price shall be due and payable within ninety (90) days.
Buyer will provide a report to Seller and payment within 30 days of the end of
each quarter. Such report shall list the amount of offline list sales from all
of Buyer's databases, and the amount payable to Seller hereunder. Seller shall
have the right to audit Buyer's books and records relating to such sales and net
revenues from such sales on five (5) business days notice until the Purchase
Price is paid in full.
(b) Allocation of Purchase Price. Within 45 days following the
Closing Buyer shall prepare and deliver to Seller (subject to Seller's approval)
an allocation of the Purchase Price plus any other consideration properly
allocable among the Assets (the "ALLOCATION"). The parties agree that all tax
returns and reports (including Internal Revenue Service ("IRS") Form 8594) and
all financial statements shall be prepared in a manner consistent with (and the
parties shall not otherwise
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take a position inconsistent with) the Allocation unless required by the IRS or
state taxing authority. The Allocation shall be prepared in a manner consistent
with Section 1060 of the Internal Revenue Code of 1986, as amended (the "CODE"),
and the income tax regulations promulgated thereunder.
(c) Transfer Taxes. Buyer shall pay and promptly discharge when
due the entire amount of any and all sales and use tax ("SALES TAXES") imposed
or levied by reason of the sale of the Assets to Buyer. The parties shall
cooperate with each other to the extent reasonably requested and legally
permitted to minimize any such Sales Taxes.
1.3 Transfer of Customers.
(a) Transfer of Customers.
(i) Intent. It is the intent of parties hereto that all
of the Assets and all of Seller's backlog, if any, relating to the Assets be
transferred to Buyer. Accordingly, all parties agree to use their best efforts
to facilitate such transfer of customers as soon as possible.
(ii) Purchase Order Data. Seller shall provide or make
available to Buyer, upon request (A) a list of all outstanding written customer
orders, purchase orders and other customer commitments from Seller's current
customers, (B) the names of all customers (the "CURRENT CUSTOMERS") and (C) such
other information as is (AA) relevant to profitability on such items, (BB)
available to Seller without incurring undue effort or expense and (CC) requested
by Buyer.
(iii) Transfer of Orders; Assignments. Prior to the
Closing, Seller and Buyer agree to cooperate with each other in conducting joint
contacts with the Current Customers (as appropriate) for the purpose of
attempting to obtain such customers' consent to transfer orders from Seller to
Buyer (or to issue new orders to Buyer for the same or similar items) and to
assign Seller's rights and benefits under the Contracts to Buyer as of the
Closing.
(iv) Assumption of Obligation. To the extent that an
order is transferred or assigned to Buyer or that Buyer accepts a new purchase
order from a Current Customer, Buyer agrees to assume and perform all
obligations thereunder and to use reasonable efforts to fill the order in
accordance with its terms.
(v) Restrictions on Use of Database. Buyer agrees to
abide by all restrictions requested by consumers who are listed in the database
of Internet consumers transferred with the Assets, including all restrictions on
the method by which such consumers may be contacted for marketing purposes.
1.4 Closing.
(a) Closing. Unless this Agreement is earlier terminated
pursuant to Section 6.1, the closing of the transactions contemplated by this
Agreement (the "CLOSING") shall be held at the
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offices of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, XX
00000, at 10:00 a.m. on the date which is two business days following
satisfaction or waiver of the last of the conditions to Closing as set forth in
Article V hereof, or on such other time and/or date as the parties agree (the
actual date on which the Closing occurs is referred to herein as the "CLOSING
DATE").
(b) Delivery. At the Closing:
(i) Buyer shall deliver to Seller an instrument of
assumption of liabilities by which Buyer shall assume the Assumed Liabilities as
of the Closing;
(ii) Seller shall deliver to Buyer all bills of sale,
endorsements, assignments, consents to assignments to the extent obtained and
other instruments and documents as Buyer may reasonably request to sell, convey,
assign, transfer and deliver to Buyer good title to all the Assets free and
clear of any and all Liens; and
(iii) Seller and Buyer shall deliver or cause to be
delivered to one another such other instruments and documents necessary or
appropriate to evidence the due execution, delivery and performance of this
Agreement.
(c) Taking of Necessary Action; Further Action. If, at any time
after the Closing Date, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest Buyer with full right, title and
possession to all Assets, the officers and directors of Seller are fully
authorized in the name Seller or otherwise to take, and will take, all such
lawful and necessary and/or desirable action as Buyer shall reasonably request.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer, subject to such exceptions as
are specifically disclosed in the disclosure letter supplied by Seller to Buyer
(the "SELLER SCHEDULES") and dated as of the date hereof, as follows:
2.1 Organization of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Seller has the corporate power to own its property and to carry on its business
as now being conducted and as proposed to be conducted.
2.2 Authority; Consents. Seller has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes the valid and binding
obligation of Seller, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy and similar laws and general
principles of equity. Except as set forth on SCHEDULE 2.2, the execution
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and delivery of this Agreement by Seller does not, and, as of the Closing, the
consummation of the transactions contemplated hereby will not, materially
conflict with, or result in any material violation of, or material default under
(with or without notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of any
benefit under (any such event, a "CONFLICT") (i) any provision of the Articles
of Incorporation or Bylaws of Seller or (ii) except for any contracts or other
agreements that are not assignable without consent, any mortgage, indenture,
lease, contract or other agreement or instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Assets.
2.3 No Changes. Except as set forth in SCHEDULE 2.3, since September 1,
1998 there has not been, occurred or arisen any:
(a) destruction of, damage to or loss of any Assets of Seller
(whether or not covered by insurance) that constitutes a Material Adverse
Effect;
(b) acquisition, sale or transfer of any Asset except in the
ordinary course of business as conducted on that date;
(c) notice of or, to the best knowledge of Seller, threat of
commencement of any lawsuit or proceeding against or investigation of Seller
with respect to the Assets;
(d) notice of any claim of ownership by a third party of
Seller's Assets;
(e) any event or condition of any character that has or could be
reasonably expected to have a Material Adverse Effect; or
(f) negotiation or agreement by Seller or any officer or
employees thereof to do any of the things described in the preceding clauses (a)
through (e) (other than negotiations with Buyer and its representatives
regarding the transactions contemplated by this Agreement).
2.4 Restrictions on Business Activities. Except as provided in SCHEDULE
2.4, there is no agreement, commitment, judgment, injunction, order or decree
binding upon Seller or the Assets which has or could reasonably be expected to
have the effect of prohibiting or impairing the continued use by Buyer of the
Assets following the Closing.
2.5 Title of Properties; Absence of Liens and Encumbrances. Seller has
good and valid title to, or, in the case of leased properties and assets, valid
leasehold interests in, all of the Assets, free and clear of any Liens, except
as reflected in SCHEDULE 2.5. Seller has full corporate right and corporate
power to (and at the Closing will) sell, convey, assign, transfer and deliver to
Buyer good title to all the Assets which it purports to own, free and clear of
all Liens, except (i) for the Assumed Liabilities, (ii) for statutory liens for
taxes not yet due, and (iii) as reflected in SCHEDULE 2.5.
2.6 Intellectual Property.
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(a) Seller owns a valid right or license to use the Intellectual
Property listed on Schedule 1.1(a)(ii) (the "Intellectual Property") being used
or held for use to conduct the Business, and the conduct of the Business
currently and in the past, to the knowledge of Seller, does not conflict with
and has not conflicted with valid intellectual property rights of others. All
Intellectual Property owned by Seller is so owned free and clear of all Liens
and no other person, including without limitation any present or former
employee, officer or director of Seller, has any right whatsoever therein. To
Sellers' knowledge, neither Seller nor any present or former employee thereof
has violated or, by conducting the Business in the ordinary course would
violate, any of the intellectual property rights of any other person or entity.
Seller does not have any obligation to compensate any person or entity for the
use of any Intellectual Property, except for any Intellectual Property licensed
by Seller which requires a license fee, nor has Seller granted to any person or
entity any license, option or other rights to use in any manner any of the
Intellectual Property, whether requiring the payment of royalties or not. No
former or current employee of Seller has any right whatsoever to any
Intellectual Property.
(b) Except as provided in Schedule 2.6, Seller has all right,
title and interest in and to the software products and the software technology
and related documentation included in the Assets as identified on Schedule
1.1(a)(iii) (the "SOFTWARE"). Except as provided in Schedule 2.6, no person or
entity other than Seller owns any right, title or interest in the Software
including, without limitation, any right to manufacture, use, copy, distribute
or sublicense any object code or source code thereof. Except as provided in
Schedule 2.6, (i) the Software is not subject to any Liens, (ii) Seller has not
been notified of or served with pending or, to Seller's knowledge, threatened
challenge of infringement of the rights of others, nor to the knowledge of
Seller is there any basis for a challenge of infringement of any such rights of
others, and (iii) the Software is freely transferable and assignable to Buyer
and will not be rendered invalid or adversely affected in any way by virtue of
the execution, delivery and performance of this Agreement.
22.7 Agreements, Contracts and Commitments. Set forth on SCHEDULE 2.7 is
a list of all agreements, contracts and commitments, written or oral, to which
Seller is a party or by which it is bound that relate to the Business or the
Assets being transferred. Those agreements, contracts and commitments that are
assignable without the consent of the other party shall be assigned, and Seller
shall assist Buyer in obtaining consent where required.
Except for such (i) breaches, violations and defaults, (ii) alleged
breaches, violations and defaults, and (iii) events that would constitute a
breach, violation or default with the lapse of time, giving of notice, or both,
noted in SCHEDULE 2.7 and those which reasonably would not be expected to have a
Material Adverse Effect, Seller has not breached, violated or defaulted under,
or received notice that it has breached, violated or defaulted under, any of the
terms or conditions of any Contract. Each Contract is in full force and effect
and, except as otherwise disclosed in SCHEDULE 2.7, is not subject to any
default thereunder of which Seller has knowledge by any party obligated to
Seller pursuant thereto. Seller will provide reasonable assistance to Buyer in
obtaining all necessary consents, waivers and approvals of parties to any
Contract as are required to assign all rights and benefits thereunder to Buyer
as of the Closing.
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2.8 Litigation. Except as set forth in SCHEDULE 2.8, Seller has not been
notified of or served with any action, suit or proceeding of any nature or, to
Seller's knowledge, threatened against Seller with respect to the Assets or the
Business, nor, to the knowledge of Seller, is there any basis therefor. SCHEDULE
2.8 sets forth, with respect to any pending or threatened action, suit,
proceeding or investigation, the forum, the parties thereto, the subject matter
thereof and the amount of damages claimed or other remedy requested.
2.9 Complete Copies of Materials. Seller has delivered or made available
true and complete copies of each document (or summaries of same) that has been
requested by Buyer or its counsel.
2.10 Representations Complete. None of the representations or warranties
made by Seller (as modified by Seller Schedules), nor any statement made in any
Exhibit or certificate furnished by Seller pursuant to this Agreement, contains
or will contain at the Closing Date, any untrue statement of a material fact, or
omits or will omit at the Closing Date to state any material fact necessary in
order to make the statements contained herein or therein, in the light of the
circumstances under which made, not misleading. There is no fact, circumstance
or condition of any kind or nature whatsoever known to Seller which reasonably
would be expected to have a Material Adverse Effect which has not been set forth
in this Agreement, except those facts concerning general economic, legislative,
regulatory or other matters such as may generally impact all businesses of the
type operated by Seller.
2.11 Only Representations. Other than as set forth in this Agreement,
the Exhibits and Schedules hereto, Seller makes no representations or warranties
to Buyer.
2.12 Knowledge of Seller Defined. Where Seller has given a
representation or warranty based on Seller's knowledge, such knowledge shall be
limited to the actual knowledge of Xxxxxx Xxxxxxx or other employees of Seller
who have been directly involved in the Business as of the date of this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 Organization, Standing and Power. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the corporate power to own its properties and to carry on
its business as now being conducted and is duly qualified to do business and is
in good standing in each jurisdiction in which the failure to be so qualified
would have a material adverse effect on the ability of Buyer to consummate the
transactions contemplated hereby.
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3.2 Authority. Buyer has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly executed and
delivered by Buyer and constitutes the valid and binding obligation of Buyer,
enforceable in accordance with its terms except as such enforceability may be
limited by bankruptcy or similar laws and general principles of equity.
3.3 No Knowledge of Breach of Representation or Warranty of Seller.
Buyer is not aware of any facts, circumstances or conditions that would render
any of the representations and warranties of Seller inaccurate, untrue or false,
or any facts, circumstances or conditions that have been omitted that are
necessary to make the facts disclosed not misleading.
3.4 DV2U Website. Buyer will have the existing DV2U website operational
such that consumers may visit the site to register for sweepstakes currently
offered on the site. Such obligation shall terminate on December 31, 1999.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Confidentiality. Each of the parties hereto hereby agrees to keep
such information or knowledge obtained in any investigation in connection with
this transaction, or pursuant to the negotiation and execution of this Agreement
or the effectuation of the transactions contemplated hereby, confidential;
provided, however, that the foregoing shall not apply to information or
knowledge which (a) a party can demonstrate was already lawfully in its
possession prior to the disclosure thereof by the other party, (b) is generally
known to the public and did not become so known through any violation of law or
this Agreement, (c) became known to the public through no fault of such party,
(d) is later lawfully acquired by such party from other sources, (e) is required
to be disclosed by order of court or government agency with subpoena powers or
(f) which is disclosed in the course of any litigation between any of the
parties hereto.
4.2 Expenses. Whether or not the Acquisition is consummated, all fees
and expenses incurred in connection with the Acquisition including, without
limitation, all legal, accounting, financial advisory, consulting and all other
fees and expenses of third parties ("THIRD PARTY EXPENSES") incurred by a party
in connection with the negotiation and effectuation of the terms and conditions
of this Agreement and the transactions contemplated hereby, shall be the
obligation of the respective party incurring such fees and expenses.
4.3 Public Disclosure. Unless otherwise required by law, prior to the
Closing Date, no disclosure (whether or not in response to an inquiry) of the
subject matter of this Agreement shall be made by any party hereto unless
approved by Buyer and Seller prior to release, provided that such approval shall
not be unreasonably withheld, subject, in the case of Buyer, to Buyer's
obligation to comply with applicable securities laws.
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4.4 Consents. Seller shall provide reasonable assistance to Buyer to
obtain all necessary consents, waivers and approvals under any of the Contracts
as may be required in connection with the Acquisition so as to transfer to Buyer
all rights of Seller thereunder.
4.5 Best Efforts. Subject to the terms and conditions provided in this
Agreement and to the fiduciary duties of the board of directors of Seller under
applicable law as advised by outside counsel, each of the parties hereto shall
use its best efforts to take promptly, or cause to be taken, all actions, and to
do promptly, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations: to consummate and make effective the
transactions contemplated hereby, to obtain all necessary waivers, consents and
approvals and to effect all necessary registrations and filings, and to remove
any injunctions or other impediments or delays, legal or otherwise, in order to
consummate and make effective the transactions contemplated by this Agreement
for the purpose of securing to the parties hereto the benefits contemplated by
this Agreement; provided that Buyer shall not be required to agree to any
divestiture by Buyer or any of Buyer's subsidiaries or affiliates of shares of
capital stock or of any business, assets or property of Buyer or its
subsidiaries or affiliates, or the imposition of any material limitation on the
ability of any of them to conduct their businesses or to own or exercise control
of such assets (including without limitation the Assets), properties and stock.
4.6 Notification of Certain Matters. Seller shall give prompt notice to
Buyer, and Buyer shall give prompt notice to Seller, of (i) the occurrence or
non-occurrence of any event, the occurrence or non-occurrence of which is likely
to cause any representation or warranty of Seller and Buyer, respectively,
contained in this Agreement to be untrue or inaccurate at or prior to the
Closing Date and (ii) any failure of Seller or Buyer, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by it hereunder; provided, however, that the delivery of any notice
pursuant to this Section 5.7 shall not limit or otherwise affect any remedies
available to the party receiving such notice.
4.7 Additional Documents and Further Assurances. Each party hereto, at
the request of another party hereto, shall execute and deliver such other
instruments and do and perform such other acts and things as may reasonably be
necessary or desirable for effecting completely the consummation of this
Agreement and the transactions contemplated hereby.
4.8 Tax Returns. Seller shall be responsible for and pay when due (i)
all of Seller's Taxes attributable to or levied or imposed upon the Assets
relating or pertaining to the period (or that portion of any period) ending on
or prior to the Closing Date and (ii) all Taxes attributable to, levied or
imposed upon, or incurred in connection with the Seller's business operations.
Seller shall continue to timely file within the time period for filing, or any
extension granted with respect thereto, all of Seller's Tax Returns required to
be filed in connection with the Assets and any portion of any such Tax Returns
connected therewith shall be true and correct and completed in accordance with
applicable laws. Buyer shall be responsible and pay when due all Taxes
attributable to or levied or imposed upon the Assets relating or pertaining to
the period (or that portion of any period) after the Closing Date
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4.9 Bulk Sales. Buyer hereby agrees to waive the requirement, if any,
that Seller comply with any bulk transfer law which may be applicable to the
transactions contemplated by this Agreement; provided, that Seller agrees to
indemnify and hold harmless Buyer with respect to any noncompliance with such
laws and Buyer's waiver with respect thereto.
ARTICLE V
CONDITIONS TO THE ACQUISITION
5.1 Conditions to Obligations of Each Party to Effect the Acquisition.
The respective obligations of each party to this Agreement to effect the
Acquisition shall be subject to the satisfaction at or prior to the Closing Date
of the following conditions:
(a) Corporate Approvals. This Agreement and the Acquisition
shall have been approved and adopted by the requisite vote of the Board of
Directors and/or stockholders of Buyer and Seller.
(b) No Injunctions or Restraints; Illegality. No temporary
restraining order, preliminary or permanent injunction or other order issued by
any court of competent jurisdiction or other legal restraint or prohibition
preventing the consummation of the Acquisition shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, seeking any of
the foregoing be pending; nor shall there be any action taken, or any statute,
rule, regulation or order enacted, entered, enforced or deemed applicable to the
Acquisition, which makes the consummation of the Acquisition illegal.
(c) If required, Articles of Transfer in compliance with laws of
the State of Illinois and/or Delaware shall have been duly executed by Buyer and
Seller.
5.2 Additional Conditions to Obligations of Seller. The obligations of
Seller to consummate and effect this Agreement and the transactions contemplated
hereby shall be subject to the satisfaction at or prior to the Closing Date of
each of the following conditions, any of which may be waived, in writing,
exclusively by Seller:
(a) Representations, Warranties and Covenants. The
representations and warranties of Buyer in this Agreement shall be true and
correct on and as of the Closing Date as though such representations and
warranties were made on and as of such time and Buyer shall have performed and
complied with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the Closing Date.
(b) Certificate of Buyer. Seller shall have been provided with a
certificate duly executed on behalf of Buyer to the effect that, as of the
Closing Date:
(i) all representations and warranties made by Buyer in
this Agreement are true and complete; and
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(ii) all covenants, obligations and conditions of this
Agreement to be performed by Buyer on or before such date have been so
performed.
(c) Investment in Buyer. Buyer shall have raised a minimum of
$2,500,000 through the sale of its equity securities.
5.3 Additional Conditions to the Obligations of Buyer. The obligations
of Buyer to consummate and effect this Agreement and the transactions
contemplated hereby shall be subject to the satisfaction at or prior to the
Closing Date of each of the following conditions, any of which may be waived, in
writing, exclusively by Buyer:
(a) Representations, Warranties and Covenants. The
representations and warranties of Seller in this Agreement shall be true and
correct on and as of the Closing Date as though such representations and
warranties were made on and as of such time and Seller shall have performed and
complied with all covenants, obligations and conditions of this Agreement
required to be performed and complied with by it as of the Closing Date.
(b) Certificate of Seller. Buyer shall have been provided with a
certificate executed on behalf of Seller to the effect that, as of the Closing
Date:
(i) all representations and warranties made by Seller in
this Agreement are true and complete; and
(ii) all covenants, obligations and conditions of this
Agreement to be performed by Seller on or before such date have been so
performed.
(c) Claims. There shall not have occurred any claims (whether or
not asserted in litigation) which may materially and adversely affect the
consummation of the transactions contemplated hereby or the Business or the
Assets of Seller.
(d) No Injunctions or Restraints on Conduct of Business. No
temporary restraining order, preliminary or permanent injunction or other order
issued by any court of competent jurisdiction or other legal or regulatory
restraint or provision challenging Buyer's proposed acquisition of the Assets,
or limiting or restricting Buyer's conduct or operation of the Business (or its
own business) following the Acquisition shall be in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, seeking any of
the foregoing be pending.
(e) No Material Adverse Changes. There shall not have occurred
any material adverse change in the Assets.
(f) Third Party Rights. No third party shall have any right of
any nature whatsoever (including, without limitation, any right to receive
royalty payments) in respect of any of
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the Assets, except rights to use Products pursuant to licenses granted by Seller
in the ordinary course of business.
ARTICLE VI
TERMINATION, AMENDMENT AND WAIVER
6.1 Termination. Except as provided in Section 6.2 below, this Agreement
may be terminated and the Acquisition abandoned at any time prior to the Closing
Date:
(a) by mutual consent of Seller and Buyer;
(b) by Buyer or Seller if: (i) the Closing has not occurred by
December 31, 1998; (ii) there shall be a final nonappealable order of a federal
or state court in effect preventing consummation of the Acquisition; or (iii)
there shall be any statute, rule, regulation or order enacted, promulgated or
issued or deemed applicable to the Acquisition by any Governmental Entity that
would make consummation of the Acquisition illegal;
(c) by Buyer if there shall be any action taken, or any statute,
rule, regulation or order enacted, promulgated or issued or deemed applicable to
the Acquisition by any Governmental Entity, which would: (i) prohibit Buyer's
ownership or operation of all or a portion of the Business or the Assets or (ii)
compel Buyer to dispose of or hold separate all or a portion of the Business or
the Assets or other businesses or assets of Buyer as a result of the
Acquisition;
(d) by Buyer if it is not in material breach of its obligations
under this Agreement and there has been a material breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of
Seller and such breach has not been cured within five (5) business days after
written notice to Seller (provided that, no cure period shall be required for a
breach which by its nature cannot be cured);
(e) by Seller if it is not in material breach of its obligations
under this Agreement and there has been a material breach of any representation,
warranty, covenant or agreement contained in this Agreement on the part of Buyer
and such breach has not been cured within five (5) business days after written
notice to Buyer (provided that, no cure period shall be required for a breach
which by its nature cannot be cured).
6.2 Effect of Termination. In the event of termination of this Agreement
as provided in Section 6.1, this Agreement shall forthwith become void and there
shall be no liability or obligation on the part of Buyer or Seller, or their
respective officers, directors or shareholders, provided that each party shall
remain liable for any breaches of this Agreement prior to its termination; and
provided further that, the provisions of Section 4.2 of this Agreement shall
remain in full force and effect and survive any termination of this Agreement.
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6.3 Amendment. This Agreement may be amended by the parties hereto at
any time by execution of an instrument in writing signed on behalf of each of
the parties hereto.
6.4 Extension; Waiver. At any time prior to the Closing Date, Buyer on
the one hand, and Seller, on the other, may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations of the other party
hereto, (ii) waive any inaccuracies in the representations and warranties made
to such party contained herein or in any document delivered pursuant hereto, and
(iii) waive compliance with any of the agreements or conditions for the benefit
of such party contained herein. Any agreement on the part of a party hereto to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party.
ARTICLE VII
GENERAL PROVISIONS
7.1 Survival of Representations and Warranties Limitation of Claims. The
representations and warranties of Seller set forth in this Agreement (as
modified by Seller Schedules) or in any instrument delivered pursuant to this
Agreement shall survive the Acquisition and continue for one (1) year. The
representations and warranties of Buyer in this Agreement or in any instrument
delivered pursuant to this Agreement shall not survive the Acquisition. Seller's
liability hereunder shall be limited to the amount of the Purchase Price
actually paid by Buyer hereunder as of the date of any liability.
7.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via telecopy (with acknowledgment of complete transmission)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Buyer, to:
Intellipost Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX
Attention: Chief Financial Officer
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
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(b) if to Seller, to:
Metromail Corporation
000 X. 00xx Xx.
Xxxxxxx, Xxxxxxxx
Attn: Chairman
with a copy to:
Experian Information Solutions, Inc.
000 Xxxx Xxxxxxx Xxxx, 00xx Xx.
Xxxxxx, XX 00000
Attn: General Counsel
Telecopy No: (000) 000-0000
7.3 Interpretation. When a reference is made in this Agreement to
Schedules or Exhibits, such reference shall be to a Schedule or Exhibit to this
Agreement unless otherwise indicated. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by the
words "without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
7.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
7.5 Entire Agreement. This Agreement, and the Schedules and Exhibits
hereto, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof; (b) are not intended to confer upon any other person any rights or
remedies hereunder, unless expressly provided otherwise; and (c) shall not be
assigned by operation of law or otherwise except as otherwise specifically
provided.
7.6 Severability. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
7.7 Other Remedies. Except as otherwise provided herein or in the any
and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any
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other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any
other remedy.
7.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
7.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be
signed by their duly authorized respective officers, all as of the date first
written above.
INTELLIPOST CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title:
METROMAIL CORPORATION
By /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name:
Title:
ASSET PURCHASE AGREEMENT
