EXHIBIT 10.14
XXXXXXXXX.XXX ASSET TRANSFER AGREEMENT
XXXXXXXXX.XXX ASSET TRANSFER AGREEMENT (this "Agreement") is
entered into as of April 1, 1999 by and between iTurf Inc., a Delaware
corporation ("Buyer") and TSI Soccer Corporation, a North Carolina corporation
("Seller").
RECITALS
Seller is engaged in the business of selling soccer clothing,
accessories and related merchandise at the retail level (the "Business"); and
Seller has agreed to sell and assign to Buyer, and Buyer has
agreed to purchase and assume, the Purchased Assets (as defined below)
associated on the terms set forth in this Agreement.
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Sale and Purchase of Assets.
1.1 Sale of Assets to Buyer. Seller hereby
agrees to sell, assign, transfer, convey and deliver to Buyer, and Buyer agrees
to purchase and acquire from Seller at the Closing (as defined below), all of
Seller's right, title and interest in and to the Purchased Assets as those
assets exist on the Closing Date (as defined below), free and clear of any
security interest, lien, charge, option, restriction on transfer, claim or other
encumbrance (a "Lien"). The term "Purchased Assets" as used herein means the
XXXXxxxxx.xxx Internet domain name, the goodwill associated with that domain
name and the HTML code, graphics and other copyrightable work existing on the
XXXXxxxxx.xxx web site as it exists on the Closing Date (as defined below).
1.2 Limitation on Assumption of Liabilities.
Buyer shall not assume or be responsible for any liabilities or obligations of
Seller relating to the Purchased Assets or otherwise, prior to or after the
Closing Date, and Seller shall pay, perform and discharge all such liabilities
and obligations.
2. Purchase Price. The full consideration (the "Purchase
Price") for the Purchased Assets shall be that number of shares of Class A
Common Stock, par value $.01 per share, of Buyer equal to the quotient obtained
by dividing $25,000 by the initial public offering price per share of the Class
A Common Stock, to be issued and delivered on the Closing Date to Seller and
evidenced by a stock certificate or certificates in the name(s) designated by
Seller at least two days prior to Closing.
3. Closing.
3.1 Date of Closing. The closing of the
transactions contemplated by this Agreement (the "Closing") shall take place on
the closing date of Buyer's initial public offering of its Class A Common Stock,
at 10:00 A.M. at the offices of Buyer, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 or on such other date or at such other time and place as the parties may
mutually agree. The date on which the Closing is held is referred to in this
Agreement as the "Closing Date."
3.2 Closing Deliveries. At the Closing, Seller
shall deliver a xxxx of sale or other instrument of assignment covering the
Purchased Assets and Buyer shall deliver to Seller the stock certificate or
certificates referred to in Section 2 hereof.
4. Representations and Warranties by Seller.
Seller represents and warrants as follows:
4.1 Organization and Authority. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of North Carolina, and has the full corporate power and authority
to enter into and to perform its obligations under this Agreement and any and
all agreements, instruments, or other documents delivered or to be delivered
pursuant to this Agreement ("Related Agreements") and to own and lease its
assets and to operate the Business as it is now being conducted.
4.2 Authorization. The execution, delivery and
performance by Seller of this Agreement and any Related Agreements to which
Seller is party have been duly authorized by all necessary corporate and
stockholder action of Seller, and this Agreement and any Related Agreements to
which Seller is party constitute the valid and binding obligations of Seller,
enforceable against it in accordance with their terms, except as may be limited
by bankruptcy, insolvency, moratorium or other similar laws affecting creditors'
rights generally, and subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
4.3 No Conflict. The execution, delivery and
performance by Seller of this Agreement and any Related Agreements to which
Seller is party does not and will not (i) violate or conflict with the
certificate of incorporation or by-laws of Seller, and will not conflict with,
or result in a breach or termination of or constitute a default under, any
lease,
agreement, commitment or other instrument, or any order, judgment or decree, by
which Seller is a party, or to which the Purchased Assets are subject; (ii)
constitute a violation by Seller of any law, regulation, ordinance, order, writ,
judgment, injunction, decree or other requirement of any governmental body or
court applicable to Seller or any of its properties; or (iii) result in the
creation of any Lien upon the Purchased Assets. No consent, approval or
authorization of, or designation, declaration or filing with, any person, entity
or governmental authority is required in connection with the execution, delivery
and performance of this Agreement.
4.4 Title to Assets. Seller has and will
transfer to Buyer at the Closing, and at the Closing, Buyer will receive, good
and marketable title to the Purchased Assets, free and clear of any Lien.
4.5 Investment Intent. Seller is acquiring
Buyer's Class A Common Stock pursuant hereto for its own account for investment
and not with a view to, or for sale in connection with, any public distribution
thereof in violation of the Securities Act of 1933, as amended (the "Securities
Act"). Seller understands that such shares of Class A Common Stock have not been
registered for sale under the Securities Act of 1933 or qualified under
applicable state securities laws and that such securities will be delivered to
Seller pursuant to one or more exemptions from the registration or qualification
requirements of such securities laws and that the representations and warranties
contained in this Section 4.5 are given with the intention that Buyer may rely
thereon for purposes of claiming such exemptions. Seller understands that such
securities cannot be sold unless registered under the Securities Act of 1933 and
qualified under applicable state securities laws or unless an exemption from
such registration and qualification is available.
5. Representations and Warranties by Buyer.
Buyer represents and warrants to Seller as follows:
5.1 Organization. Buyer is a corporation duly
organized, validly existing and in good standing under the law of the State of
Delaware and has the full corporate power and authority to enter into and
perform this Agreement and any Related Agreements to which Buyer is a party in
accordance with its terms.
5.2 Authorization. The execution, delivery and
performance by Buyer of this Agreement and any Related Agreements to which Buyer
is a party have been duly authorized by all necessary corporate action of Buyer
and this Agreement and any Related Agreements to which Buyer is a party
constitute the valid and binding obligations of Buyer, enforceable against it in
accordance with their terms, except as may be limited by bankruptcy, insolvency,
moratorium or other similar laws affecting creditors' rights generally, and
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
5.3 No Conflict. The execution, delivery and
performance by Buyer of this Agreement and any Related Agreements to which Buyer
is a party will not (i) conflict with the certificate of incorporation and
by-laws of Buyer and will not conflict with or result in the breach or
termination of, or constitute a default under, any lease, agreement, commitment
or other instrument, or any order, judgment or decree to which Buyer is a party
or by which Buyer is bound, or (ii) constitute a violation by Buyer of any law,
regulation, ordinance, order, writ, judgment, injunction, decree or other
requirement of any governmental body or court applicable to Buyer. No consent,
approval or authorization of, or designation, declaration or filing with, any
person, entity or governmental authority is required on the part of Buyer in
connection with the execution, delivery and performance of this Agreement.
6. Miscellaneous.
6.1 Notices. Any notice or other communication under
this Agreement shall be in writing and shall be considered given when delivered
personally, one day after delivery by a reputable overnight courier (receipt
confirmed), or four days after the postmark date if mailed by registered mail,
return receipt requested, to the parties at the addresses set forth below (or at
such other address as a party may specify by notice to the other):
If to Buyer, to it at:
iTurf Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
If to Seller, to it at:
c/o xXXxX*s Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
6.2 Further Assurances. Each party shall use all
reasonable efforts to take, cause to be taken, all actions and to do, or cause
to be done, all other things necessary, proper and advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement.
6.3 Governing Law. This Agreement shall be
governed by and construed in accordance with the law of the State of New York,
without giving effect to principles governing conflicts of law.
6.4 Assignment. Neither party may assign this
Agreement, any of its rights or delegate any of its duties under this Agreement
without the prior written consent of the other party hereto.
6.5 Expenses. Each party shall bear its own
expenses incurred in connection with the negotiation and preparation of this
Agreement and in connection with all obligations required to be performed by it
hereunder.
6.6 Counterparts. This Agreement may be
executed in one or more counterparts, which together shall constitute a single
instrument.
6.7 Entire Agreement. This Agreement, including
the schedules and exhibits, contains a complete statement of all the
arrangements between the parties with respect to its subject matter, supersedes
any previous agreements between them relating to that subject matter, and cannot
be amended, modified or terminated except in a written document executed by all
the parties hereto.
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO XXXXXXXXX.XXX ASSET TRANSFER AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be duly executed as of the date first above written.
iTurf Inc.
By:/s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chief Operating Officer
TSI Soccer Corporation
By:/s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
