EXHIBIT 2.14
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "AGREEMENT") is entered into as of
March 8, 2001 by and among Evite, Inc., a California corporation (the "SELLER")
and Ticketmaster (formerly known as Ticketmaster Online-Citysearch, Inc.), a
Delaware corporation (the "BUYER").
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer substantially all of the assets relating to the operation of an
internet website (xxxxx.xxx) which provides users with electronic invitations
and related reminder, calendaring and contact listing services, and which
carries event planning information (the "BUSINESS") in accordance with the terms
of this Agreement.
NOW, THEREFORE, BE IT RESOLVED, that the parties hereto hereby agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions
set forth in this Agreement, Seller hereby agrees to sell, convey, transfer,
assign and deliver to Buyer, and Buyer hereby agrees to purchase from Seller
(collectively, the "ACQUISITION"), all of Seller's right, title and interest in
and to all of the assets of Seller reasonably required to conduct the Business
(the "ACQUISITION ASSETS") including without limitation those which are more
specifically set forth on SCHEDULE 1.1 hereto, except the Excluded Assets (as
defined below), free and clear of all mortgages, liens, security interests,
encumbrances, restrictions, and claims of any kind or nature whatsoever
(collectively, "ENCUMBRANCES").
1.2 EXCLUDED ASSETS. Notwithstanding the foregoing, the Acquisition
Assets shall not include the assets of Seller set forth on SCHEDULE 1.2 hereto
(the "EXCLUDED ASSETS").
1.3 NO ASSUMPTION OF LIABILITIES. The parties hereby acknowledge and
agree that Buyer shall not assume or be obligated to perform any liabilities or
obligations of Seller, whether fixed, accrued or contingent, known or unknown,
whether presently in existence or arising hereafter and including any sales or
other taxes resulting from the Acquisition (collectively the "LIABILITIES"), and
Seller agrees to pay all of the Liabilities.
1.4 PURCHASE PRICE. In consideration for the sale of the Acquisition
Assets, Buyer will pay at the Closing (as defined below) cash in the amount of
$** (the "PURCHASE PRICE") by wire. Buyer shall wire $**.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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out of the Purchase Price directly to Seller at Closing and shall wire the
remainder of the Purchase Price, or $**, to a post-Closing escrow to be
established by Seller in a form substantially similar to the Escrow Agreement
attached hereto as EXHIBIT A to satisfy all of its known liabilities and
obligations, including without limitation, paying off in full or at such
lesser amount as successfully negotiated its long-term debt and equipment
leases as listed on SCHEDULE 1.4 ("SECURED OBLIGATIONS"), entering into a
settlement and release of its lease obligations with its landlord, obtaining
releases from each employee and all of its other payables and severance costs
associated with winding down the company and to serve as security for
Seller's obligation to obtain and deliver to Buyer executed UCC termination
statements (and any other documents necessary to terminate any security
interests or liens) for each security interest and/or UCC filing set forth on
SCHEDULE 1.4 ("SECURITY INTERESTS").
1.5 THE CLOSING. Upon the satisfaction or written waiver of all
conditions set forth in Article 5 of this Agreement, the closing (the "CLOSING")
of the Acquisition shall take place at the offices of Strategic Law Partners
LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 at such
time and date as Buyer and Seller may mutually select (with the date of the
Closing being referred to herein as the "CLOSING DATE").
1.6 DELIVERY AND TRANSFER AT CLOSING; FURTHER ASSURANCES. At the
Closing, Seller shall transfer and assign to Buyer its entire right, title and
interest in and to the Acquisition Assets pursuant to a Xxxx of Sale in form
substantially the same as EXHIBIT B attached hereto and such other instruments
of transfer as may be reasonably requested by Buyer to transfer the Acquisition
Assets to Buyer including, but not limited to, short form assignments of any
copyrights, trademarks and domain names in forms substantially the same as those
attached as EXHIBIT C, EXHIBIT D and EXHIBIT E, respectively. From time to time
after the Closing, Seller will execute and deliver to Buyer such instruments of
sale, transfer, conveyance, assignment and delivery, consents, assurances,
powers of attorney and other instruments as may be reasonably requested by Buyer
in order to vest in Buyer all right, title and interest of Seller in and to the
Acquisition Assets and otherwise in order to carry out the purpose and intent of
this Agreement, including without limitation, UCC termination statements and any
other documents necessary to terminate any security interests or liens relating
to the Acquisition Assets. In addition, Seller shall use its best efforts to
obtain any consents necessary to assign contracts included within the
Acquisitions Assets.
1.7 DELIVERY AT EXECUTION. On or before the execution of this
Agreement, Seller shall execute and deliver, or shall cause to be executed and
delivered, and Buyer shall execute and deliver the following documents:
(a) Escrow Agreement substantially in the form of EXHIBIT A
attached hereto executed by Seller and Xxxxxxx Coie, LLP, as Escrow Agent.
(b) Xxxx of Sale substantially in the form of EXHIBIT B attached
hereto.
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** Ticketmaster has requested from the SEC confidential treatment of this
information. A complete copy of this Exhibit has been sent to the SEC along
with a request that this information be kept confidential.
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(c) Assignment of Copyrights substantially in the form of EXHIBIT C
attached hereto.
(d) Assignment of Trademarks substantially in the form of EXHIBIT D
attached hereto.
(e) Assignment of Domain Names substantially in the form of EXHIBIT
E attached hereto.
(f) Agreement Not to Compete substantially in the form of EXHIBIT F
attached hereto executed by Xxxx Xxxxxxxxx.
(g) Transition Services Agreement substantially in the form of
EXHIBIT G attached hereto executed by Seller.
All such documents shall be held in escrow and shall only be
enforceable at such time as Buyer shall have wire transferred the Purchase Price
in the manner set forth in Section 1.4 hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
The Seller represents and warrants to Buyer as follows:
2.1 ORGANIZATION AND STANDING. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
and has all requisite corporate power and authority to own, operate and lease
its properties and carry on its business as now conducted, and is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a material adverse
effect on Seller. Seller does not own, directly or indirectly, an interest in
any corporation, partnership, limited liability company or other entity.
2.2 AUTHORITY, APPROVAL AND ENFORCEABILITY.
(a) Seller has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, and all
corporate action on its part necessary for such execution, delivery and
performance has been duly taken.
(b) The execution and delivery by Seller of this Agreement does
not, and the performance and consummation of the transactions contemplated by
this Agreement will not, result in any conflict with, breach or violation of or
default, termination or forfeiture under (or upon the failure to give notice or
the lapse of time, or both, result in any conflict with, breach or violation of
or default, termination or forfeiture under) any terms or provisions of (i) its
Articles of Incorporation or Bylaws, (ii) any statute, rule, regulation, or
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any judicial, governmental, regulatory or administrative decree, order or
judgment, or (iii) any Material Agreement (as defined in SCHEDULE 2.8).
(c) No consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory authority or any
other governmental or administrative body is required on the part of Seller for
the consummation by it of the transactions contemplated by this Agreement.
(d) Upon due execution and delivery by Seller, this Agreement will
be its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
2.3 ASSETS. Seller owns the Acquisition Assets, free and clear of all
Encumbrances, and upon consummation of the transactions contemplated hereby,
Buyer shall receive good and marketable title to the Acquisition Assets free and
clear of all Encumbrances. The Acquisition Assets constitute substantially all
of the assets used in the Business except for the Excluded Assets, and, except
as set forth on SCHEDULE 2.3, Buyer will hereby obtain all of the software and
tangible assets reasonably necessary to operate the Business.
2.4 INTELLECTUAL PROPERTY; SOFTWARE.
(a) For all purposes of this Agreement,
(i) "INTELLECTUAL PROPERTY RIGHTS" means intellectual property
rights arising from or in respect of the following, whether protected, created
or arising under the laws of the United States or any other jurisdiction: (A)
fictional business names, trade names, service names, registered and
unregistered trademarks and service marks and logos (including any Internet
domain names), and applications therefor (collectively, "MARKS"), (B) patents,
patent rights and all applications therefor, including any and all continuation,
divisional, continuation-in-part, or reissue patent applications or patents
issuing thereon (collectively, "PATENTS"), (C) copyrights and all registrations
and applications therefor (collectively, "COPYRIGHTS") and (D) know-how, trade
secrets, inventions, discoveries, concepts, ideas, methods, processes, designs,
formulae, technical data, drawings, specifications, data bases and other
proprietary and confidential information, including customer lists, in each case
to the extent not included in the foregoing clauses (B) or (C) (collectively,
"TRADE SECRETS") and, together with the Marks, Patents, Copyrights and Trade
Secrets, the "INTELLECTUAL PROPERTY").
(ii) "SOFTWARE" means any and all (A) computer programs,
including any and all software implementations of algorithms, models and
methodologies, whether in source code or object code, (B) databases and
compilations, including any and all data and collections of data, whether
machine readable or otherwise, (C) descriptions, flow-charts and other work
product used to design, plan, organize and develop any of the foregoing and (D)
all documentation, including user manuals and training materials, relating
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to any of the foregoing, in each case developed or licensed by the Seller, or
used in or necessary for the conduct of its business, specifically excluding
those items prepared for customers in the operation of the Seller's business for
which the customer contractually has vested title.
(b) SCHEDULE 2.4(b) sets forth a complete and correct list of all
Intellectual Property Rights owned, licensed or used by Seller in the conduct of
its business (other than any Intellectual Property Rights consisting of
"shrink-wrap" licensed software), together with a listing of all material
licenses, franchises, licensing agreements (whether as licensor or licensee) to
which Seller is a party, and any other arrangement with respect to such
Intellectual Property Rights. All Intellectual Property Rights owned, licensed
or used by Seller or used or exercised in or necessary to the conduct of the
Seller's business, are referred to herein, collectively, as the "SELLER
INTELLECTUAL PROPERTY ASSETS."
(c) Seller has not, during the three years preceding the date of
this Agreement, been a party to any proceeding, nor, to the knowledge of the
Seller, is any proceeding threatened that involved or is likely to involve a
claim of infringement or misappropriation by any person or entity (including any
governmental authority) of any Intellectual Property Right of such person or
entity. No Seller Intellectual Property Asset is subject to any outstanding
order, judgment, decree or stipulation to which Seller is subject in any
proceeding to which Seller is a party or, to its knowledge, any other
proceeding, restricting the use thereof by the Seller, or restricting the
licensing thereof by Seller or any person or entity. To the Company's knowledge,
the current use and exploitation of the Intellectual Property Assets by Seller
(including, without limitation, the licensing or other distribution of Software
to third parties by the Seller) does not conflict with, infringe upon, violate
or result in the misappropriation of Intellectual Property Right of any person
or entity.
(d) Except as set forth on SCHEDULE 2.4(d):
(i) The Seller has no right, title or interest in any Patent.
The Seller owns all right, title and interest in each of the registered Marks
listed in SCHEDULE 2.4(b), within its respective field of use, free and clear of
any and all liens and Encumbrances. Seller has not received any notice or claim
(whether written or oral) challenging the Seller's exclusive and complete
ownership of any of the Marks listed in SCHEDULE 2.4(b) (collectively "SELLER
MARKS") in their respective fields of use, or suggesting that any other person
or entity has any claim of legal or beneficial ownership or other claim or
interest with respect thereto;
(ii) The Seller Marks are legally valid and enforceable without
any material qualification, limitation or restriction on their use and Seller
has not received any notice or claim (whether written or oral) challenging the
validity or enforceability of any of the Seller Marks;
(iii) The Seller has not taken any action (or failed to take any
action), or used or enforced (or failed to use or enforce) any of Seller Marks,
in each case
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in a manner that would result in the abandonment, cancellation, forfeiture,
relinquishment or unenforceability of any of the Owned Marks or any of the
Seller's rights therein;
(iv) The Seller has taken reasonable steps to protect its rights
in and to each of Seller Marks and to prevent any known unauthorized use thereof
by any other person or entity, in each case in accordance with standard industry
practice, and has adequately policed Seller Marks against third party
infringement of which it is aware;
(v) The Seller has not granted to any person or entity any
right, license or permission to use any of Seller Marks;
(vi) All Seller Marks that have been registered have been
effectively registered in accordance with all applicable legal requirements and
are currently in compliance with all legal requirements;
(vii) All maintenance fees, annuities, and the like due on
Seller Marks have been timely paid; and
(viii) No Xxxx that constitutes a Seller Xxxx has been or is now
involved in any opposition or cancellation proceeding and, to the Seller's
knowledge, no such action is threatened with the respect to any of Seller Marks.
(e) The Seller has taken reasonable precautions (as determined by
the Seller management) to protect the secrecy of any Trade Secrets that derive
commercial value from not being generally known to the public. To the Seller's
knowledge, the Seller has the absolute and unrestricted right to use all of the
Trade Secrets. None of the Trade Secrets owned by Seller is subject to any liens
or Encumbrances. The Seller has not received any notice or claim challenging the
Seller's absolute and unrestricted right to use any of the Trade Secrets or
suggesting that any other person or entity has any claim with respect thereto.
None of the Trade Secrets has been, or is alleged to have been, misappropriated
from any other person or entity. Except under appropriate confidentiality
obligations, to the Seller's knowledge, there has been no disclosure by Seller
of material confidential information or other Trade Secrets that derive
commercial value from not being generally known to the public.
(f) The Seller either owns the entire right, title and interest in,
to and under, or has acquired a license to use, any and all Seller Intellectual
Property Assets which are material to the conduct of the Business in the manner
that the Business has heretofore been or is presently being conducted, and no
other Intellectual Property Rights are necessary for the unimpaired continued
operation of such businesses after the Closing Date in the manner that such
businesses have heretofore been or are presently being conducted.
(g) SCHEDULE 2.4(g) sets forth a complete and accurate list of all
of the material Software (excluding Software that is available in consumer
retail stores and subject to "shrink-wrap" agreements). SCHEDULE 2.4(g)
specifically identifies all material
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Software that is owned exclusively by Seller (the "OWNED SOFTWARE") and all
material Software that is used by Seller in the conduct of the Business that is
not exclusively owned by Seller (excluding software that is available in
consumer retail stores and subject to "shrink-wrap" agreements) (the "LICENSED
SOFTWARE"). The Seller is the owner of all right, title and interest in and to
all Owned Software, including, without limitation, all Copyrights, Trade Secrets
and other Intellectual Property Rights relating thereto, free and clear of any
and all liens and Encumbrances, and Seller has not received any notice or claim
(whether written, oral or otherwise) challenging the Seller's complete and
exclusive ownership of all Owned Software and all such Intellectual Property
Rights relating thereto or claiming that any other person or entity has any
claim of legal or beneficial ownership with respect thereto. The Seller has not
assigned, licensed, transferred or encumbered any of its rights in or to any
Owned Software, including, without limitation, any Copyrights, Trade Secrets or
other Intellectual Property Rights with respect thereto, to any person or
entity, excluding any non-exclusive licenses granted to customers in the
ordinary course of Business or pursuant to Designated Software Agreements (as
defined hereon). The Seller has lawfully acquired the right to use the Licensed
Software, as it is used in the conduct of its business as presently conducted,
and has not exercised any rights in respect of any Licensed Software, including,
without limitation, any reproduction, distribution or derivative work rights,
outside the scope of any license expressly granted by the person or entity from
which the right to use such Licensed Software was obtained.
(h) SCHEDULE 2.4(h) contains a complete and accurate specific list
of all agreements and arrangements pertaining to the Licensed Software
(collectively, "LICENSED SOFTWARE AGREEMENTS") and a complete and accurate list
of all agreements and arrangements pertaining to any other technology used or
practiced by Seller as to which a person or entity other than Seller owns the
applicable Intellectual Property Rights (collectively, "OTHER LICENSED
TECHNOLOGY AGREEMENTS" and, together with Licensed Software Agreements, the
"LICENSED TECHNOLOGY AGREEMENTS"). SCHEDULE 2.4(h) sets forth a complete and
accurate list of all royalty obligations of Seller under any Licensed Technology
Agreements. All Licensed Technology Agreements are in full force and effect, and
Seller is not in material breach thereof, nor is Seller aware of any claim or
basis for any claim to the contrary. There are no outstanding, and, to the
Seller's knowledge, no threatened disputes with respect to any Licensed
Technology Agreement. The Licensed Technology Agreements together expressly
confer on Seller any necessary rights under or in respect of all of the
Intellectual Property Rights that are not owned exclusively by Seller and that
are used or practiced in the Business. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
result in the impairment of any rights under, any Licensed Technology Agreement.
(i) SCHEDULE 2.4(i) contains a complete and accurate list of all
agreements and arrangements involving the grant by Seller to any person or
entity of any right to distribute, prepare derivative works based on, support or
maintain or otherwise commercially exploit any Software, including, without
limitation, any joint development or marketing agreements or strategic alliance
agreements involving any Software (collectively,
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"DESIGNATED SOFTWARE AGREEMENTS"). All Designated Software Agreements are in
full force and effect, and Seller is not in material breach thereof, nor is
Seller aware of any claim or basis for a claim to the contrary. There are no
outstanding and, to the Seller's knowledge, no threatened disputes or
disagreements with respect to any Designated Software Agreement. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in any impairment of rights under
any Designated Software Agreement.
(j) To the Seller's knowledge, it has taken commercially reasonable
actions in accordance with industry practice to protect its Intellectual
Property Rights in relation to employees, independent contractors and
consultants, including entering into agreements with such persons or entities
that assign to Seller all of the employee's, contractor's or consultant's
rights, including all Intellectual Property Rights, in any Intellectual Property
created or developed thereby that is used in connection with, or that relates
to, the Business. To the knowledge of the Seller, no employee of Seller has
entered into any contract or other agreement with any person or entity (other
than the Seller) that restricts or limits in any way the scope or type of work
in which the employee may be engaged for Seller or requires the employee to
transfer, assign, or disclose information concerning the employee's work with
Seller to any other person or entity.
2.5 LICENSES AND PERMITS; LAWS.
(a) Seller has, and at all times has held, all permits, licenses,
orders, authorizations, registrations, qualifications, approvals and other
analogous instruments (collectively, "PERMITS") (and each is in full force and
effect) as required by applicable law for the purpose of conducting the Business
or owning the Acquisition Assets or both. The Seller is in compliance with all
such Permits. SCHEDULE 2.5(a) hereto sets forth a complete and correct list of
all such Permits. There are no proceedings, pending or threatened, to revoke or
terminate any such presently existing Permits, and Seller knows of no reason why
any such Permit would not be renewed in the ordinary course.
(b) Except as set forth in SCHEDULE 2.5(b), Seller has complied in
all material respects with all foreign, federal, state, local and county laws,
ordinances, regulations, judgments, orders, decrees or rules of any court,
arbitrator or governmental, regulatory or administrative agency or entity
applicable to the Business. Except as set forth on SCHEDULE 2.5(b), Seller has
not received any governmental notice of any violation by Seller of any such
laws, rules, regulation or orders.
2.6 FINANCIAL STATEMENTS.
(a) Seller has delivered to Buyer complete copies of its balance
sheet, income statement and statement of shareholders' equity as of December 31,
2000 (the "FINANCIAL STATEMENTS"). The Financial Statements have been prepared
from the books and records of Seller in accordance with generally accepted
accounting principles ("GAAP") (except where noted on SCHEDULE 2.6), are
complete and correct in all material respects,
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present fairly Seller's financial position as of such date, and contain and
reflect adequate reserves for all liabilities or obligations of any nature,
whether absolute or contingent.
(b) Except to the extent specifically reflected or reserved against
in the Financial Statements or as set forth on SCHEDULE 2.6, Seller has no
outstanding liabilities or obligations of any nature, whether absolute, accrued,
contingent or otherwise, and whether due or to become due (including, without
limitation, any liability for taxes and interest, penalties and other charges
payable with respect to any such liability or obligation), except for (i)
liabilities and obligations incurred in the ordinary course of business since
the date of the Financial Statements, and (ii) obligations under contracts and
commitments incurred in the ordinary course of business and not required under
GAAP to be reflected on the Financial Statements.
2.7 TAXES.
(a) DEFINITIONS. For purposes of this Agreement:
(i) the term "TAXES" means (A) all federal, state, local,
foreign and other net income, gross income, gross receipts, sales, use, ad
valorem, transfer, franchise, profits, license, lease, service, service use,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
property, windfall profits, customs, duties or other taxes, fees, assessments or
charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts with respect thereto, (B) any liability
for payment of amounts described in clause (A) whether as a result of transferee
liability, of being a member of an affiliated, consolidated, combined or unitary
group for any period, or otherwise through operation of law and (C) liability
for the payment of amounts described in clauses (A) or (B) as a result of any
tax sharing, tax indemnity or tax allocation agreement or any other express or
implied agreement to indemnify any other person; and the term "TAX" means any
one of the foregoing Taxes; and
(ii) the term "RETURNS" means all returns, declarations,
reports, statements and other documents required to be filed in respect of
Taxes, and the term "RETURN" means any one of the foregoing Returns.
(b) Seller or its agent has completed and filed on a timely basis
and in materially correct form all Returns required to be filed. As of the time
of filing, the filed Returns did not materially misstate the facts regarding the
income, business, assets, operations, activities, status or other matters of the
Seller or any other information required to be shown thereon. All Taxes required
to be paid by the Seller to taxing authorities or others have been paid. Seller
does not owe any Taxes on compensation paid to any of its employees, other than
Taxes that are not yet due and payable.
2.8 MATERIAL AGREEMENTS AND RELATIONSHIPS.
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(a) Except as set forth on SCHEDULE 2.8 (the "MATERIAL AGREEMENTS")
or as is listed on any portion of SCHEDULE 2.4, Seller is not a party to or
subject to any material oral or written agreement with respect to the Business.
(b) To the best of Seller's knowledge, no party to any Material
Agreement has committed a breach thereof or a default thereunder or intends to
cancel or withdraw such Material Agreement.
(c) Seller has performed all material obligations required to be
performed by it on or prior to the date hereof under each Material Agreement and
Seller is current with respect to all payments required to be made by Seller
under each Material Agreement.
2.9 ABSENCE OF LITIGATION. Except as set forth on SCHEDULE 2.9, Seller
is not a party to any litigation, claim, arbitration, investigation or other
proceeding, nor, to the best of its knowledge, is there any such litigation,
claim, arbitration, investigation or other proceeding threatened against Seller.
Seller is not bound by any judgment, decree, injunction, ruling or order of any
court, governmental, regulatory or administrative department, commission, agency
or instrumentality, arbitrator or any other person that relates to the Business.
2.10 NO BROKERS. Seller is not obligated for the payment of fees or
expenses of any broker or finder in connection with the origin, negotiation or
execution of this Agreement or in connection with any transaction contemplated
hereby or thereby other than a fee payable by Seller to XX Xxxxxx, H&Q under the
terms of an engagement letter dated September 29, 2000.
2.11 EMPLOYEES. Each current and former employee of Seller has executed
and delivered to Seller an Employment, Confidential Information and Invention
Assignment Agreement substantially in the form of EXHIBIT H (without any
material deviations therefrom) and each employee of Seller that was terminated
by Seller without cause on or after November 1, 2000 and received severance pay
has executed and delivered to Seller an Evite/Execustaff Exit Certification
substantially in the form of EXHIBIT I (without any material deviations
therefrom). To Seller's knowledge, no present or former employee, officer or
director of the Company has made or threatened to make any claim against the
Seller or Execustaff, Inc., nor does any reasonable basis exist for such a
claim. Seller has performed all material obligations required to be performed by
it under its Client Service Agreement with Execustaff, Inc., and Seller has not
committed a breach thereof. Seller has not received notice of termination of
such agreement from Execustaff, Inc. and, to Seller's knowledge, Execustaff,
Inc. has no present plans to terminate such agreement.
2.12 COMDISCO AND VENTURE LEASING DEBTS. Seller has paid all material
amounts that it owes to Comdisco, Inc. and Venture Leasing Associates and its
affiliates.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 ORGANIZATION AND STANDING. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware.
3.2 AUTHORITY, APPROVAL AND ENFORCEABILITY.
(a) Buyer has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, and all
necessary corporate action for such execution, delivery and performance has been
duly taken.
(b) The execution and delivery by Buyer of this Agreement does not,
and the performance and consummation of the transactions contemplated by this
Agreement will not, result in any conflict with, breach or violation of or
default, termination or forfeiture under (or upon the failure to give notice or
the lapse of time, or both, result in any conflict with, breach or violation of
or default, termination or forfeiture under) any terms or provisions of its (i)
Certificate of Incorporation or Bylaws, (ii) any statute, rule, regulation or
any judicial, governmental, regulatory or administrative decree, order or
judgment, or (iii) any material agreement, lease or other instrument to which it
is a party or to which it or any of its assets may be bound.
(c) No consent, approval, authorization, order, registration,
qualification or filing of or with any court or any regulatory authority or any
other governmental or administrative body is required on the part of Buyer for
the consummation by it of the transactions contemplated by this Agreement.
(d) Upon due execution and delivery by Buyer, this Agreement will
be its legal, valid and binding obligation, enforceable against it in accordance
with its terms.
ARTICLE 4
COVENANTS
4.1 MAINTENANCE OF BUSINESS. During the period from the date hereof to
the Closing Date, Seller shall operate the Business in the ordinary course and
in substantially the same manner as it has prior to the date of this Agreement;
provided however, Seller may (with advance written notice to Buyer if such
actions relate to employee layoffs or terminating agreements relating to content
on or functionality or Seller's website) proceed with preparations for winding
down Seller's operations and business as long as such actions do not interfere
with the operation of the Business. Seller shall not allow any diminution in
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the quality of the Business (including, without limitation, the operation of
xxxxx.xxx, customer service response time, advertiser support and routine
maintenance) and agrees not to enter into any material agreements with respect
to the Acquisition Assets or take any other significant actions with respect to
the Acquisition Assets without the prior written consent of Buyer, which shall
not be unreasonably withheld.
4.2 OTHER DISCUSSIONS. During the period from the date hereof through
the Closing Date, neither Seller nor any of its officers, directors, agents or
representatives will initiate discussions, solicit or negotiate (including
providing any non-public information concerning the Business), or authorize any
person or entity to discuss, solicit or negotiate on its or their behalf, with
any other party concerning the possible sale or disposition of Seller's
business, assets or capital stock. Seller will immediately notify Buyer, if any
offer is received from a potential purchaser.
4.3 EFFORTS. Seller will use commercially reasonable efforts to cause
all conditions to the Closing to be satisfied as soon as practicable. Seller
shall use its commercially reasonable efforts to obtain any consents necessary
in connection with the consummation of the transactions contemplated by this
Agreement.
4.4 ACCESS TO INFORMATION. Buyer shall be permitted to make a full and
complete investigation of Seller's business and affairs and shall have access to
the facilities, employees, and records of Seller for the purpose of conducting
its due diligence investigation in accordance with this paragraph; provided,
however, in no event shall Buyer's due diligence investigation be permitted to
interfere with the day to day operations of Seller.
4.5 CUSTOMER NOTICE; TRANSFER OF CUSTOMER DATA. Immediately following
the execution of this Agreement, Seller shall send a notice to each registered
user and email invitees of such registered users ("Users") of the Evite service
of Seller's intended transfer and sale of such User's Data (as defined in the
Evite Privacy Policy) to Buyer pursuant to this Agreement (the "USER NOTICE")
and allowing each such User three (3) days following transmission of the User
Notice to notify Seller of its election to opt out of the transfer of such
User's Data (each such notification shall be referred to herein as an "OPT OUT
NOTICE"). Buyer acknowledges that such Data is subject to the Evite Privacy
Policy in effect as of the date hereof and that Buyer shall honor all Opt Out
Notices received from such Users during and after such three (3) day period. At
the Closing, Seller shall transfer to Buyer the Data of those Users who have not
delivered an Opt Out Notice.
ARTICLE 5
CONDITIONS TO ACQUISITION
5.1 CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the transactions contemplated hereby are subject to satisfaction (or
written waiver) of the following conditions: (a) Seller shall have executed and
delivered to Buyer an
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Assurance of Voluntary Compliance in the form of EXHIBIT J attached hereto
executed by the Michigan Attorney General, (b) Seller shall have delivered to
Buyer consents to the transaction contemplated by this Agreement from its
shareholders, (c) three (3) days shall have elapsed since the delivery of the
User Notice described in Section 4.5, and (d) consummation of the transactions
contemplated by this Agreement shall not violate any order, decree or judgment
of any court or governmental body having jurisdiction.
ARTICLE 6
INDEMNITY
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Buyer and Seller in this Agreement shall survive the execution,
delivery, and performance of this Agreement until the earlier of one year from
the Closing Date or the date that Seller's Certificate of Dissolution is
accepted by the California Secretary of State for filing (the "TERMINATION
DATE"), and shall be deemed to have been made again by such party at and as of
the Closing Date.
6.2 INDEMNIFICATION OF BUYER.
(a) Seller agrees to indemnify, defend and hold harmless Buyer
against and in respect of, any and all claims, demands, losses, costs, expenses,
obligations, liabilities, damages, remedies and penalties, including interest,
penalties and reasonable attorney's fees and expenses that the Buyer shall incur
or suffer, and which arise from or are attributable to by reason of or in
connection with (i) any breach or inaccuracy of any of Seller's representations
or warranties contained in this Agreement or (ii) any Liability.
(b) The indemnity obligations of Seller pursuant to this Section
6.2 shall survive the Closing, and shall terminate on the Termination Date
(except to the extent that claims have been submitted in writing or notice of
the claim has been provided in writing prior to the Termination Date). In any
case in which claims have been asserted or are pending prior to the Termination
Date, the parties agree that the indemnity obligations of Seller with respect to
such matters shall continue in full force and effect until such matters have
been settled by agreement of the parties or by other final non-appealable
resolution of such matters. No disclosure by Seller other than as set forth in
this Agreement or the Schedules hereto nor any investigation made by or on
behalf of Buyer with respect to Seller shall be deemed to affect Buyer's
reliance on the representations or warranties made by Seller contained in this
Agreement and shall not constitute a waiver of Buyer's rights to indemnity as
herein provided.
(c) Seller shall have no obligations under this Section 6.2 for an
amount in excess of $1,000,000.00. Absent fraud or willful breach by Seller, the
indemnity provisions shall be the sole and exclusive remedy of Buyer for
monetary damages (but not for injunctive relief) under this Agreement.
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6.3 INDEMNIFICATION OF SELLER.
(a) Buyer agrees to indemnify, defend and hold harmless Seller from
and against, and shall reimburse Seller against and in respect of, any and all
claims, demands, losses, costs, expenses, obligations, liabilities, damages,
remedies and penalties, including interest, penalties and reasonable attorneys'
fees and expenses Seller shall incur or suffer, and which arise from or are
attributable to by reason of or in connection with any breach or inaccuracy of
any of Buyer's representations or warranties contained in this Agreement.
(b) The indemnity obligations of Buyer pursuant to this Section 6.3
shall terminate on the Termination Date (except to the extent that claims
against Buyer have been submitted in writing or notice of the claim has been
provided in writing prior to the Termination Date). In any case in which claims
have been asserted or are pending prior to the Termination Date, all parties
agree that the indemnity obligations of Buyer with respect to such matters shall
continue in full force and effect until such matters have been settled by
agreement of the parties or by other final non-appealable resolution of such
matters. No disclosure by Buyer other than as set forth in this Agreement or the
schedules hereto nor any investigation made by or on behalf of Seller with
respect to Buyer shall be deemed to affect Seller's reliance on the
representations and warranties made by Buyer contained in this Agreement and
shall not be a waiver of Seller's rights to indemnity as herein provided.
(c) Buyer shall have no obligations under this Section 6.3 for an
amount in excess of $1,000,000.00. Absent fraud or willful breach by Buyer, the
indemnity provisions shall be the sole and exclusive remedy of Seller for
monetary damages (but not for injunctive relief) under this Agreement.
6.4 PROCEDURE FOR INDEMNIFICATION WITH RESPECT TO NON-THIRD PARTY
CLAIMS. If an indemnified party determines to seek indemnification under this
Article 6 (excluding claims resulting from the assertion of liability by third
parties, which shall be governed by the provisions of Section 6.5), it shall
promptly give written notice thereof to the indemnifying party, including in
such notice a brief description of the facts upon which such claim is based and
the amount thereof. If the indemnifying party, within ten (10) business days
after receipt of the notice of claim does not give written notice to the
indemnified party announcing its intent to contest such claim, the claim shall
be deemed accepted and the amount of claim shall be deemed a valid claim, and
the indemnifying party shall, within five (5) business days after expiration of
the prior notice period, deliver to the indemnified party the amount of the
claim. In the event, however, that the indemnifying party contests the assertion
of a claim by giving such written notice to the indemnified party within said
period, then the parties shall act in good faith to reach agreement regarding
such claim. In the event the parties are unable to reach an agreement regarding
such claim, such claim shall be submitted to non-binding mediation with a
recognized dispute resolution service before a single mutually-selected mediator
to be held in Los Angeles, California.
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6.5 PROCEDURE FOR INDEMNIFICATION WITH RESPECT TO THIRD-PARTY CLAIMS.
(a) If an indemnified party determines to seek indemnification
under this Article 6 with respect to a claim resulting from the assertion of
liability by third parties, such indemnified party shall promptly give written
notice to the indemnifying party of facts upon which any such claim will be
based; the notice shall set forth such material information with respect thereto
as is then reasonably available to such indemnified party. In case any such
liability is asserted against the indemnified party, and the indemnified party
notifies the indemnifying party thereof, the indemnifying party will be
entitled, if such indemnifying party so elects by written notice delivered to
the indemnified party within ten (10) business days after receiving the
indemnified party's notice, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. Notwithstanding the foregoing,
(i) the indemnified party shall also have the right to employ its own counsel in
any such case, but the fees and expenses of such additional counsel shall be at
the expense of the indemnified party unless the indemnified party shall
reasonably determine that there is a conflict of interest between the
indemnified party and the indemnifying party with respect to such claim, in
which case the fees and expenses of such additional counsel will be borne by the
indemnifying party, (ii) the rights of an indemnified party to be indemnified
hereunder in respect of claims resulting from the assertion of liability by
third parties shall not be adversely affected by the indemnified party's failure
to give notice pursuant to the foregoing unless, and, if so, only to the extent
that, the indemnifying party is materially prejudiced thereby. With respect to
any assertion of liability by a third party that results in an indemnifiable
claim, the parties hereto shall make available to each other all relevant
information in their possession material to any such assertion.
(b) In the event that the indemnifying party, within ten (10)
business days after receipt of the aforesaid notice of a claim, fails to assume
the defense of an indemnified party against such claim, the indemnified party
shall have the right to undertake the defense, compromise, or settlement of such
action on behalf of and for the account, expense, and risk of the indemnifying
party; provided, however, that indemnified party shall not settle any such claim
without the prior written consent of the indemnifying party, which consent shall
not be unreasonably withheld or delayed.
(c) Notwithstanding anything in this Article 6 to the contrary, the
indemnified party shall have the right to participate (at the indemnified
party's expense) in such defense, compromise, or settlements, and the
indemnifying party shall not, without the indemnified party's prior written
consent (which consent shall not be unreasonably withheld or delayed), settle or
compromise any such claim or consent to entry of any judgment in respect thereof
unless such settlement, compromise, or consent includes as an unconditional term
thereof the giving by the claimant or the plaintiff to the indemnified party a
release from all liability in form and substance satisfactory to such
indemnified party in respect of such claim.
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ARTICLE 7
TERMINATION
7.1 TERMINATION BY MUTUAL CONSENT. At any time prior to the Closing,
this Agreement may be terminated by written consent of Buyer and Seller.
7.2 TERMINATION BY BUYER OR SELLER.
(a) Buyer may terminate this Agreement at any time prior to the
Closing by delivery of written notice to Seller if any of the conditions to
closing set forth in Section 5.1 hereof shall not have been satisfied on or
prior to March 15, 2001 through no fault of Buyer.
(b) Seller may terminate this Agreement at any time prior to the
Closing by delivery of written notice to Buyer if the conditions to closing set
forth in Section 5.1(b) or (d) hereof shall not have been satisfied on or prior
to March 15, 2001 through no fault of Seller.
7.3 EFFECT OF TERMINATION. In the event of termination as provided
above, the obligations of the parties hereunder shall terminate; provided, that
(a) Sections 6.1, 6.2 (to the extent specifically provided thereunder) 8.4, 8.5,
8.6 and 8.8 shall survive such termination and continue in full force and
effect, and (b) nothing herein will relieve any party from liability for any
breach of this Agreement prior to such termination.
ARTICLE 8
MISCELLANEOUS
8.1 NOTICES. Any notice given hereunder shall be in writing and shall
be deemed effective upon the earlier of personal delivery (including personal
delivery by facsimile) or the third day after mailing by certified or registered
mail, postage prepaid, as follows:
(a) If to Buyer:
Ticketmaster
0000 Xxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
and Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
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Strategic Law Partners LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) If to Seller:
Evite, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Coie
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as any party may have furnished in writing to the other
parties in the manner provided above.
8.2 ENTIRE AGREEMENT; MODIFICATIONS; WAIVER. This Agreement and the
exhibits and schedules hereto and the documents referred to herein between the
parties hereto constitute the final, exclusive and complete understanding of the
parties with respect to the subject matter hereof and supersede any and all
prior agreements, understandings and discussions with respect thereto,
including, without limitation, that certain Ticketmaster/Xxxxx.xxx Term Sheet
dated February 2, 2001, by Buyer and Seller. No variation or modification of
this Agreement and no waiver of any provision or condition hereof, or granting
of any consent contemplated hereby, shall be valid unless in writing and signed
by the party against whom enforcement of any such variation, modification,
waiver or consent is sought. The rights and remedies available to Buyer and
Seller pursuant to this Agreement and all exhibits hereunder shall be
cumulative. Upon the Closing, the rights of termination set forth in Article 7
hereof and the conditions set forth in Article 5 shall be deemed to be waived
and of no further force or effect.
8.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed shall constitute an original copy
hereof, but all of which together shall constitute one agreement.
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8.4 PUBLICITY. The terms and conditions of this Agreement shall be
confidential information and shall not be disclosed to any third party, provided
that the parties will mutually approve a press release announcing the
Acquisition on a "terms undisclosed" basis; provided, however, the parties may
disclose the terms of this Agreement to the extent necessary to obtain the
required consents to enter into this Agreement and perform such parties'
obligations hereunder, so long as the disclosing party informs the third party
in writing that the transaction and the identity of the parties hereto are
confidential. If either party determines that it is required by law to disclose
information regarding this Agreement or to file this Agreement with any
governmental agency or authority, it shall, within a reasonable time before
making any such disclosure or filing, consult with the other party regarding
such disclosure or filing and seek confidential treatment for such portions of
the disclosure or filing as may be requested by the other party.
8.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
between California without regard to conflict of law provisions.
8.6 FURTHER ASSURANCES. At the request of any of the parties hereto,
and without further consideration other than reimbursement of reasonable
out-of-pocket expenses, the other parties agree to execute such documents and
instruments and to do such further acts as may be necessary or desirable to
effectuate the Acquisition, including without limitation, Seller delivering
executed UCC termination statements and any other documents necessary to
terminate any security interests or liens relating to the Acquisition Assets. In
addition, Seller shall use its best efforts to obtain any consents necessary to
assign contracts included within the Acquisitions Assets.
8.7 EXPENSES. Any expenses incurred prior to the consummation of the
Acquisition (including, without limitation, attorneys' fee and broker's fees)
shall be incurred for the incurring party's own account.
8.8 ATTORNEYS' FEES. In the event of any suit or other proceeding to
construe or enforce any provision of this Agreement or any other agreement to be
entered into pursuant hereto, or otherwise in connection with this Agreement,
the prevailing party's or parties' reasonable attorney's fees and costs (in
addition to all other amounts and relief to which such party or parties may be
entitled) shall be paid by the other party or parties.
8.9 ASSIGNMENT. This Agreement shall not be assigned in whole or in
part, by operation of law or otherwise, without the prior written consent of the
other party, and any attempted assignment in violation of this Section 8.9 will
be void.
8.10 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any person other than Seller and Buyer and their
respective successors and permitted assigns.
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8.11 INSURANCE. Seller shall add Buyer as an additional insured to all
insurance policies maintained by Seller.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as
of the date first above written.
TICKETMASTER
(formerly known as TICKETMASTER
ONLINE-CITYSEARCH, INC.)
/s/ XXX XXXXXXXX
-------------------------------------------
Xxx Xxxxxxxx, Executive Vice President
EVITE, INC.
/s/ XXXX XXXXXXXXX
-------------------------------------------
Xxxx Xxxxxxxxx, President
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