1
EXHIBIT 10.8
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of May 6, 1999,
by and among XXXXXXXX.XXX, INC., a Washington corporation ("Purchaser"), and
COMMONSITE, LLC, a California limited liability company ("Seller"), and Xxxx
Xxxxxxx, an owner of Seller ("Xxxxxxx").
WHEREAS, Seller owns and operates web-based, electronic commerce
businesses known as Catalog Site and Catalog Channel (the "Businesses");
WHEREAS, Seller desires to sell and assign to Purchaser, and Purchaser
desires to purchase and assume from Seller, all of Seller's right, title and
interest in substantially all the assets of the Businesses upon the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, in order to induce Purchaser to enter into the purchase
transaction, Xxxxxxx is willing to join in the representations and warranties of
Seller hereunder and to make certain other covenant;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth in this Agreement, the parties
hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. (a) In addition to the terms defined above, the
following capitalized terms, as used herein, have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Closing Date" means the date of the Closing.
"Encumbrance" means any charge, claim, community property interest,
condition, equitable or beneficial interest, lien, option, pledge, security
interest, right of first refusal, or restriction of any kind, including without
limitation restrictions on transfer, receipt of income or exercise of any other
attribute of ownership.
"Marks" means each registered or unregistered trademark, service xxxx
and tradename used by Seller as described in Schedule C.
1
2
"Noncompetition Agreement" means the Noncompetition Agreement attached
as Exhibit A.
"Registration Rights Agreement" means the Registration Rights Agreement
attached as Exhibit B.
"Section" means a section or subsection of this Agreement.
"Software License Agreement" means the Software License Agreement
attached hereto as Exhibit C.
(b) Each of the following terms is defined in the Section below
set forth opposite such term:
Term Section
---- -------
Assumed Liabilities 2.4
Closing 2.9
Commerce Solution Purchaser 5.5
Consideration 2.6
Excluded Assets 2.3
Excluded Liabilities 2.5
Financial Statements 3.5
Holdback Amount 2.8
Indemnified Party 10.3
Indemnifying Party 10.3
Losses 10.2
Merchant Contracts 2.2
Purchased Assets 2.2
Securities Act 3.4
Shares 2.6
1.2 References. Unless stated otherwise in this Agreement, references in
this Agreement to Sections, Schedules and Exhibits are references to Sections of
and Schedules and Exhibits attached to this Agreement. Each Schedule to this
Agreement is by this reference incorporated into this Agreement.
2
3
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, the parties agree to consummate the following transactions at
the Closing: (a) Seller will sell, transfer and assign to Purchaser, and
Purchaser will purchase from Seller, all of the Purchased Assets; and (b) Seller
will assign to Purchaser, and Purchaser will assume, and become directly
responsible for the performance of all obligations with respect to, the Assumed
Liabilities; and (c) Purchaser will pay to Seller the Consideration as provided
herein. Notwithstanding the foregoing, Seller will remain obligated to discharge
the Excluded Liabilities without any responsibility therefor on the part of
Purchaser.
2.2 Purchased Assets. For purposes hereof, the term "Purchased Assets"
means, to the extent not specifically included in the Excluded Assets, all
assets, powers and rights held by Seller as of the Closing Date, or in which
Seller has a right, title or interest as of the Closing Date, and which are
used, were acquired for use or are held for use by Seller primarily in
connection with the Businesses, of whatever kind, tangible and intangible, and
wherever located, including, without limitation:
(a) the servers, software, content and data to run the
Businesses;
(b) the URL's shown on Schedule A and all other intellectual
property related to the Businesses, including without limitation all Marks.
(c) the database of registered xxxxxxxxxxx.xxx newsletter
subscribers, including the software system holding the data and third-party
licenses for such software;
(d) the database of users who have ordered catalogs through
Catalog Site, including the software system holding the data and third-party
licenses for such software;
(e) all contracts between Catalog Site and its clients (the
"Merchant Contracts"), including without limitation those merchants listed in
Schedule B, and all accounts receivable arising from the Merchant Contracts;
(f) all servers, software and other data used in the operation
of Catalog Channel;
(g) all other user lists and other books, records, lists, files
and papers, whether in hard copy or electronic format; and
(h) all goodwill associated with the Businesses or the Purchased
Assets.
3
4
2.3 Excluded Assets. For purposes hereof, the term "Excluded Assets"
means the following rights, properties and assets of Seller which are used, were
acquired for use or are held for use by Seller primarily in connection with the
Businesses, which shall not be included as part of the Purchased Assets and
shall not be conveyed to Purchaser at the Closing:
(a) all cash;
(b) all accounts, notes and other receivables except accounts
receivable arising from the Merchant Contracts;
(c) the Commerce Solution affiliate software and intellectual
property related thereto;
(d) affiliate marketing agreements other than with companies
identified in Schedule B; and
(e) contracts with merchants other than the Merchant Contracts.
2.4 Assumed Liabilities. Upon the terms and subject to the conditions of
this Agreement, Purchaser agrees, effective at the time of Closing, to assume
only the following liabilities of Seller ("Assumed Liabilities") arising out of
the conduct of the Businesses:
(a) the obligations of Catalog Site under the Merchant
Contracts.
2.5 Excluded Liabilities. For purposes hereof, the term "Excluded
Liabilities" means all liabilities of Seller, whether known or unknown, whether
relating to the operation of the Businesses or otherwise, now existing or
arising and created by Seller hereafter, except the Assumed Liabilities.
2.6 Consideration. The consideration (the "Consideration") for the
Purchased Assets and for the execution and delivery of the Non-Competition
Agreement (Exhibit A hereto) shall be (a) cash in the amount of four hundred
forty one thousand dollars ($441,000) ("Cash Portion"), and (b) 132,300 shares
of the common stock of Purchaser (the "Shares") to be issued to Seller. The Cash
Portion, net of the Holdback Amount, and the Shares shall be delivered to Seller
at Closing. Three hundred ninety-one thousand dollars ($391,000) of the Cash
Portion is consideration for the Purchased Assets, and Fifty thousand dollars
($50,000) of the Cash Portion is consideration paid for the execution and
delivery of the Non-Competition Agreement. The Shares shall be issued in the
name of Seller; upon request by Seller, and in compliance with the relevant
securities laws, Purchaser shall reissue the Shares to the persons as directed
by Seller.
2.7 Reserved.
4
5
2.8 Holdback. Purchaser shall retain the sum of $50,000 (the "Holdback
Amount") for a period of 30 days after date (the "Start Date") upon which (i)
the Purchased Assets are in the possession of Purchaser at their Seattle offices
and (ii) the software, data and other content necessary to run the Businesses
have been installed and are performing in a manner substantially similar to the
performance of the Businesses as of the date of this Agreement. At such time as
the Seller determines that items (i) and (ii) above have occurred, Seller shall
notify Purchaser in writing of such fact, stating the date which Seller believes
is the Start Date. Within five (5) business days after receipt of Seller's
notice, if Purchaser reasonably determines that the Start Date has not yet
occurred, Purchaser shall notify Seller in writing of its disagreement and state
with specificity the reasons for its disagreement. Thereafter, Seller shall use
its best efforts to accomplish items (i) and (ii) above as expeditiously as
possible, and again shall notify Purchaser in writing when the Start Date has
occurred. Within thirty (30) days after the Start Date, Purchaser shall promptly
pay to Seller the Holdback Amount.
2.9 Closing. Provided that all conditions have been satisfied, and
unless the parties agree in writing to an extension, closing (the "Closing")
shall occur at a time, date and place mutually agreeable to the parties, but not
later than May 7, 1999. Purchaser shall be entitled to sole possession of the
Purchased Assets on and after the Closing Date in accordance with the following
procedures.
A. On or prior to the Closing Date, Purchaser shall
deliver by wire transfer the Cash Portion (net of the Holdback
Amount) of the Purchase Price to the Trust Account of King,
Weiser, Bazar & Xxxxxx ("KWBJ"), and shall deliver by overnight
courier a certificate for the Shares to KWBJ at 0000 Xxxxxxx
Xxxx Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attn:
Xxxxxxx Xxxxxxxxxx. The Cash Portion (net of the Holdback
Amount) and the Shares are to be held by KWBJ for disposition in
accordance with this Section 2.9.
Wire Transfer Information:
Xxxxx Fargo & Co.
2020 Avenue of the Stars, #P138-00
Xxx Xxxxxxx, Xxxxxxxxxx 00000
ABA # (or Routing #): 000000000
Account # 0359-222379
B. KWBJ is authorized to release the Cash Portion (net of the
Holdback Amount) and the Shares to Company upon its receipt from
Purchaser of written notice that:
5
6
1. Ownership of all of the URL's listed on
Schedule A has been transferred to Purchaser via
Internic.
2. A copy of all current and archive order
bases has been transferred to Purchaser.
3. A copy of all web site databases and
content has been transferred to Purchaser.
4. A copy of all source code and
documentation for Commerce Solution has been
transferred to Purchaser.
C. Upon delivery of the above-listed items, Purchaser shall
notify KWBJ of such fact in writing or by facsimile
transmission, signed by Xxxx Xxxxx or an officer of Purchaser.
D. Purchaser acknowledges that the Cash Portion and the Shares
may be transferred to Seller prior to the time that Catalog Site
and Catalog Channel are operational at Purchaser's offices in
Seattle; that is, the installation and operation of Catalog Site
and Catalog Channel are not conditions precedent to the release
of the Cash Portion and the Shares to Seller.
E. Purchaser and Seller shall each indemnify and hold KWBJ
harmless from and against any and all claims, loss, damage, or
liability (including attorney's fees and costs) arising out of
KWBJ's actions or failure to act under this Section 2.9,
excepting only its gross negligence or willful misconduct in
carrying out the instructions set forth in this Section. KWBJ
shall not be responsible for verifying the validity of any
signature and may therefor assume that any correspondence
received by it was validly signed by the person identified as
the signator.
F. Notwithstanding any other provisions of this Agreement, if
KWBJ has not received written authorization to release the Cash
Portion (net of the Holdback Amount) and the Shares to Seller
within 45 days after KWBJ's receipt of the Cash Portion (net of
the Holdback Amount) and the Shares, KWBJ has the absolute right
at its election to file an action in interpleader in the
Superior Court of Los Angeles County, California, requiring
Purchaser and Seller to answer and litigate their several claims
and rights among themselves, and to deposit the Cash Portion
(net of the Holdback Amount) and the Shares with the clerk of
that court. In the event such action is filed, Purchaser and
Seller jointly and severally agree to pay KWBJ's costs, expenses
and reasonable attorney's fees which are required to file and
prosecute such interpleader action, the amount thereof to be
fixed and judgment therefor to be rendered by the court. Upon
the filing of such action, KWBJ shall be fully released and
discharged from all obligations imposed on it by this Section.
6
7
G. Upon receipt of any conflicting instructions, KWBJ shall take
no action in connection with its responsibilities hereunder
(other than as set forth at paragraph F above) until
non-conflicting instruction are received from both Purchaser and
Seller.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and Xxxxxxx hereby jointly and severally represent and warrant to
Purchaser that:
3.1 Status of Seller. Seller is a limited liability company, validly
existing and in good standing under the laws of the State of California, and has
all powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. Seller is not required to
qualify to do business in any other state or jurisdiction.
3.2 Authorization. The execution, delivery and performance by Seller of
this Agreement and all other documents and instruments to be delivered by Seller
hereunder, and the consummation by Seller of the transactions contemplated
hereby, are within the limited liability company powers of Seller and have been
duly authorized by all necessary action on the part of Seller. This Agreement
has been duly executed and delivered by a duly authorized representative of
Seller and constitutes a valid and binding agreement of Seller. All other
documents and instruments to be delivered by Seller under this Agreement, when
executed and delivered, will constitute valid and binding obligations of Seller.
3.3 Approvals. Neither the execution of this Agreement, the consummation
of the sale of the Purchased Assets nor the assumption of the Assumed
Liabilities hereunder requires the approval or consent of any governmental body,
agency, official or authority having jurisdiction over the Businesses.
3.4 Investment Representations.
(a) Seller is aware that the Shares have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws, in reliance on exemptions from such registration. It is
understood that reliance by Purchaser on such exemptions is predicated in part
upon the truth and accuracy of the statements made by Seller in this Agreement.
(b) Seller's duly authorized representatives, either alone or
with the assistance of Seller's professional advisors, have such knowledge and
experience in financial and business matters that they are capable of evaluating
the merits and risks of Seller's purchase of the Shares.
7
8
(c) Seller has sufficient financial resources to be able to bear
the risk of Seller's investment in the Shares.
(d) The duly authorized representatives of Seller have either
spoken or met with, or been given reasonable opportunity to speak with or meet
with, representatives of Purchaser for the purpose of asking questions of, and
receiving answers and information from, such representatives concerning Seller's
investment in the Shares.
(e) Seller is purchasing the Shares for its own account for
investment purposes and not with a view toward the sale or distribution of all
or any part of such securities. No one other than Seller will have any
beneficial interest in the Shares.
(f) Seller understands that, because the Shares have not been
registered under the Securities Act, (i) the Shares have the status of
securities acquired in a transaction under Section 4(2) of the Securities Act;
and (ii) the Shares cannot be sold unless they are subsequently registered or an
exemption from registration is available.
(g) Seller will in no event sell or distribute all or any part
of the Shares unless (i) there is an effective registration statement under the
Securities Act and applicable state securities laws covering any such
transaction involving such stock, or (ii) Purchaser receives an opinion from
Seller's legal counsel, in form acceptable to Purchaser, stating that such
transaction is exempt from registration.
(h) Seller understands that at the present time Rule 144
promulgated under the Securities Act may not be relied upon for the resale or
distribution of the Shares because Purchaser does not file the reports or make
information about Purchaser publicly available nor is there a public market for
the Shares. Moreover, there can be no assurance that Purchaser will in the
future file such reports or make publicly available such information, or that a
public market for the Shares will develop.
(i) Seller is an accredited investor under the Securities Act
because it is (i) an entity not formed for the specific purpose of acquiring the
Shares, with total assets in excess of $5,000,000 or (ii) an entity in which all
of the equity owners are themselves natural persons who either (A) each had an
individual income in excess of $200,000 in each of the two most recent years or
joint income with that person's spouse in excess of $300,000 in each of those
years and a reasonable expectation of reaching the same income level in the
current year or (B) each have an individual net worth, or a joint net worth with
that person's spouse, in excess of $1,000,000.
3.5 Financial Statements. Seller has provided Purchaser with true,
correct, and complete copies of Seller's income statement and balance sheet for
the period ending December 31, 1998, and the interim income statement and
balance sheet for the three months ended March 31, 1999 (collectively,
"Financial Statements"). To the best of Seller's knowledge, the Financial
8
9
Statements are correct and complete and fairly present the results of operations
and financial condition of Seller for the period or as at the date specified,
and were prepared on an income tax basis, applied on a consistent basis
throughout the periods involved, subject to any comments noted therein. The
books of account from which the Financial Statements were prepared accurately
reflect all of the items of income and expense, all assets and liabilities, and
all accruals of Seller.
3.6 Liabilities. There are no liabilities or obligations of any nature
or of any amount whatsoever, whether accrued or unaccrued, absolute or
contingent, liquidated or unliquidated, unmatured, unasserted, potential or
otherwise, related to the Purchased Assets or the Businesses except:
(a) to the extent reflected in the Financial Statements and not
already paid or discharged; and
(b) those that have been or will be incurred in or as a result
of the normal and ordinary course of business after March 31, 1999.
3.7 Litigation. There are no actions, suits, claims, proceedings or
investigations pending or, to the best of Seller's knowledge, threatened against
or affecting the Purchased Assets or the Businesses at law or in equity or
before or by any federal, state, municipal or other governmental court,
department, commission, board, bureau, agency or instrumentality. To the best of
Seller's knowledge, no event has occurred or circumstance exists that may give
rise to or serve as a basis for the commencement of any such action, suit, claim
proceeding or investigation. Seller has fully complied with all laws and
regulations applicable to the Purchased Assets and the Businesses. There are no
awards, decisions, injunctions, judgment, orders, rulings, subpoenas or verdicts
entered, issued, made or rendered by any court, administrative agency,
governmental body, or arbitrator to which the Purchased Assets or the Businesses
are subject.
3.8 Employee Claims. To the best of Seller's knowledge, no employee of
Seller involved in the operations of the Businesses has any claim against
Seller, and Seller is not obligated or liable to any such person in any way or
for any amounts except compensation due to employees in the ordinary course of
business.
3.9 Taxes.
(a) Seller has filed with the appropriate governmental
authorities all tax and related returns required to be filed by it, and such
returns accurately reflect the taxes payable;
(b) all federal, state, local, county, franchise, sales, use,
excise, property, and other taxes which are due and payable have been duly paid;
9
10
(c) no reserves for unpaid taxes have been set up or are
required on the basis of the facts and in accordance with generally accepted
accounting principles, except as reflected in the Financial Statements;
(d) there are no unpaid assessments or proposed assessments of
federal, state or local taxes pending against Seller; and
(e) there are no federal, state, or local tax audits pending or,
to the best of Seller's knowledge, threatened, concerning Seller.
3.10 Title to Personal Property. Seller owns good and marketable title
to all personal property and assets of every type and description purported to
be owned or used by it as part of the Businesses, including those properties and
assets reflected on its Financial Statements, free and clear of any and all
Encumbrances of every kind, nature, and description; and all of Seller's
operating assets are in good operating condition and repair, not in need of
non-routine maintenance and are adequate and sufficient for the uses to which
they are being put and for the continued conduct of the Businesses by Purchaser.
3.11 Accounts Receivable. All the accounts receivable of Seller
reflected in the Financial Statements and to be acquired by Purchaser represent
valid obligations arising from sales actually made in the ordinary course of
business and have been collected or are good and collectible in the aggregate
recorded amounts thereof (less the reasonable amount for doubtful accounts as
reflected in the Financial Statements) and can reasonably be anticipated to be
paid in full, without set off, within 90 days after the day on which it first
becomes due.
3.12 Intellectual Properties.
(a) Seller has no patents or patent rights, and requires no such
rights in connection with the conduct of its business as presently conducted. To
the best of Seller's knowledge, Seller is not infringing or otherwise acting
adversely to the right of any person under or in respect to any patent or patent
rights.
(b) Schedule C contains a complete and accurate list of all
Marks owned or claimed by Seller and material to its business as presently
conducted. Seller is the owner of all right, title, and interest in and to each
of these Marks, free and clear of all Encumbrances or other adverse claims. To
the best of Seller's knowledge, none of the Marks infringe or violate any
trademark, service xxxx, tradename or other proprietary right of any other
person. Seller does not license any of the Marks from any third party. The Marks
constitute all those necessary for the operation of Seller's business as
currently conducted.
10
11
3.13 Employees and Benefits. Seller is not a party to any pension or
other employee benefit plan and has no outstanding withdrawal liability (or
other obligation) with respect to any such plan; is not a party to any
collective bargaining or union agreement; and has no written or oral employment
agreements with any of its employees. Seller has timely paid all withholding,
FICA, and other taxes required to be paid on behalf of its employees.
3.14 Employment Practices. To the best of Seller's knowledge, Seller has
been and is in compliance with all federal or state law respecting employment or
employment practices, including without limitation terms and conditions of
employment, wages and hours, equal employment opportunity, non-discrimination,
immigration, collective bargaining and occupation safety and health.
3.15 Brokers. Except for Xxx Xxxxxxx of XxXxxxx & Xxxxxxxx, Inc., Seller
has not employed any broker, finder, or agent, or otherwise become in any way
obligated for any broker's, finder's or agent's (or similar) fee with respect to
the transaction contemplated by this Agreement.
3.16 Insurance. Seller is adequately insured with respect to all risks
normally insured against by companies similarly situated. Seller has paid all
premiums and otherwise performed all its obligations under all its insurance
policies and will keep all such insurance policies in full force and effect
through the Closing Date.
3.17 Absence of Certain Events, Circumstances, Etc. Since March 31,
1999, Seller has conducted the Businesses only in the ordinary course and there
has not been any material adverse change in the Businesses or in the assets,
properties, prospects or condition of the Businesses, and no event has occurred
or circumstances exists that may result in such a material adverse change, and
Seller has not:
(a) incurred any obligation or liability related to the
Businesses, whether absolute or contingent, except obligations and liabilities
incurred in the ordinary course of Seller's business;
(b) discharged or satisfied any Encumbrance or paid any
obligation or liability related to the Businesses, whether absolute or
contingent, other than current liabilities having become due and payable since
that date in the ordinary course;
(c) sold or transferred any of its tangible or intangible assets
or properties or cancelled any debts or claims related to the Businesses,
except, in each case, in the ordinary course;
(d) sold, assigned, or transferred any Xxxx;
11
12
(e) suffered any losses that would have a materially adverse
effect on the business or financial condition of the Businesses or waived any
rights of substantial value;
(f) suffered any loss, damage, or destruction to any of its
properties due to fire or other casualty whether or not insured, which loss,
damage, or destruction materially and adversely affects its business, properties
or operations;
(g) mortgaged, pledged, or subjected to any Encumbrance any of
its tangible or intangible assets related to the Businesses, except the lien of
current personal property taxes not yet due and payable; or
(h) conducted the Businesses otherwise than in their ordinary,
normal and usual manner.
3.18 Disclosure.
(a) No representation or warranty of Seller and/or Xxxxxxx in
this Agreement omits to state a material fact necessary to make the statements
herein, in light of the circumstances in which they were made, not misleading;
and
(b) No notice given pursuant to Section 5.3 will contain any
untrue statement or omit to state a material fact necessary to make the
statement therein or in this Agreement, in light of the circumstances in which
they were made, not misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller that:
4.1 Organization and Existence. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Washington and has all corporate powers required to carry on its business as
now conducted.
4.2 Corporate Authorization. The execution, delivery and performance by
Purchaser of this Agreement and all other documents and instruments to be
delivered by Purchaser hereunder, and the consummation by Purchaser of the
transactions contemplated hereby, are within the corporate powers of Purchaser
and have been duly authorized by all necessary corporate action on the part of
Purchaser. This Agreement has been duly executed and delivered by a duly
authorized officer of Purchaser and constitutes a valid and binding agreement of
Purchaser. All other documents and instruments to be delivered by Purchaser
under this
12
13
Agreement, when executed and delivered, will constitute valid and binding
obligations of Purchaser.
4.3 Governmental Authorization. The execution, delivery and performance
by Purchaser of this Agreement require no action by or in respect of, or filing
with, any governmental body, agency, official or authority.
4.4 Non-Contravention. The execution, delivery and performance by
Purchaser of this Agreement do not and will not (a) contravene or conflict with
the articles of incorporation or bylaws of Purchaser or (b) to the knowledge of
Purchaser contravene or conflict with any provision of any law, regulation,
judgment, injunction, order or decree binding upon Purchaser.
4.5 Litigation. There is no action, suit, investigation or proceeding
pending against, or to the knowledge of Purchaser, threatened against or
affecting, Purchaser before any court or arbitrator or any governmental body,
agency or official which in any matter challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated hereby.
ARTICLE 5
COVENANTS OF SELLER
Seller agrees that:
5.1 Conduct of the Businesses. Except as Purchaser otherwise expressly
agrees in writing, Seller covenants that, prior to the Closing Date, Seller
will:
(a) conduct the Businesses only in the ordinary and usual
course, without material change in the nature of its operations, and not
otherwise sell, mortgage, lease or dispose of any portion of its assets or
acquire any property or assets;
(b) not incur any debts, liabilities or contract obligations
related to the Businesses, except in the ordinary course or with the prior
approval of Purchaser, which involve total consideration in excess of $5,000 and
cannot be canceled by Seller on 30 days' notice;
(c) not do or cause to be done anything that would cause any
representation or warranty to be untrue or inaccurate if made at the time,
except as otherwise permitted by this Agreement;
(d) maintain the Purchased Assets, and the insurance with
respect thereto, in accordance with good business practice;
13
14
(e) make no change with respect to management or supervisory
personnel or its auditors or other major consultants;
(f) use its best efforts to preserve its business organization
intact, keep available the services of its present management, and preserve the
goodwill of its suppliers, customers, and others having business relationships
with it; and
(g) permit no increase in the compensation payable or to become
payable by it to any of its employees or consultants, or other employees except
as required under Seller's established policies and consistent with past
practice.
5.2 Access to Information. During the period from the date hereof to the
Closing Date, Purchaser and its duly authorized representatives shall have full
and free access to the offices, records, files, and books of account of Seller
related to the Businesses; provided, however, that such access shall not
unreasonably interfere with Seller's normal operations and employee
relationships. Purchaser and its representatives shall treat all information
obtained from such access and not otherwise in the public domain as
confidential, and if this transaction does not close, Purchaser shall return all
books, records and documents made available to it.
5.3 Notices of Certain Events. Between the date of this Agreement and
the Closing Date, Seller will promptly notify Purchaser in writing if Seller
becomes aware of any fact or condition that causes or constitutes a breach of
any of Seller's representations and warranties as of the date of this Agreement,
or if Seller becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a breach of any representation or warranty had
such representation or warranty been made as of the time of occurrence or
delivery of such fact or condition.
5.4 Employee Matters. Seller will be responsible for accrued wages,
vacation, pension, termination pay and all benefits (including all matters
related to COBRA rights) arising from Seller's employment or termination of all
personnel involved with the Businesses.
5.5 Future Prohibition. If Seller, within twelve (12) months after the
date of this Agreement, sells the assets that comprise its Commerce Solution
business, Seller will require that the purchaser of such assets (the "Commerce
Solution Purchaser") agree at the time of such purchase that the Commerce
Solution Purchaser will not, for a period which will terminate on the first
anniversary of the date of this Agreement, sell or license the Commerce Solution
software to a buyer in the same type of business as XxxxXxxx.xxx, Catalog Site
or Catalog Channel. Purchaser acknowledges that Seller will sell or license the
Commerce Solution software for use in e-commerce activity that might involve the
aggregation of multiple merchants and products, and that such sale or license
will not be a breach of this Agreement.
14
15
5.6 Post-Closing Assistance. Seller shall use it best efforts to make
available to Purchaser the developer services of Xxxxx Xxxxx for a period of one
week after Closing at no cost to Purchaser for the purpose of establishing the
Business at Purchaser's offices in Seattle. The one week period shall commence
on a date selected by Buyer, but not later than thirty (30) days after the date
hereof. Seller shall be responsible to pay the airfare and living expenses of
one trip to Seattle by Xxxxx. Thereafter, and for a period of 12 weeks after
Closing, Seller shall use its best efforts to make available to Purchaser the
services of Xxxxx for up to 10 hours per week at a cost of $50 per hour, plus
travel and living expenses, if required. Seller is not aware of any reason why
Xxxxx would not be available to perform these services.
ARTICLE 6
COVENANTS OF PURCHASER
Purchaser agrees that:
6.1 Confidentiality. Prior to the Closing Date and after any termination
of this Agreement, Purchaser will hold all confidential documents and
information concerning Seller furnished to Purchaser in connection with the
transactions contemplated by this Agreement in confidence, except to the extent
that such information can be shown to have been (i) previously known on a
nonconfidential basis by Purchaser, (ii) in the public domain through no fault
of Purchaser or (iii) later lawfully acquired by Purchaser from sources other
than Seller; provided that Purchaser may disclose such information to its
officers, directors, employees, accountants, counsel, consultants, advisors and
agents in connection with the transactions contemplated by this Agreement so
long as such persons are informed by Purchaser of the confidential nature of
such information and are directed by Purchaser to treat such information
confidentially. The obligation of Purchaser to hold any such information in
confidence shall be satisfied if they exercise the same care with respect to
such information as they would take to preserve the confidentiality of their own
similar information. If this Agreement is terminated, Purchaser will cause its
officers, directors, employees, accountants, counsel, consultants, advisors,
auditors and agents to, destroy or deliver to Seller, upon written request, all
documents and other materials, and all copies thereof, obtained by Purchaser or
on its behalf from Seller in connection with this Agreement that are subject to
such confidence.
ARTICLE 7
COVENANTS OF BOTH PARTIES
The parties hereto agree that:
7.1 Reasonable Efforts; Further Assurances. Subject to the terms and
conditions of this Agreement, each party will use its best efforts (exclusive of
litigation) to take, or cause to be
15
16
taken, all actions and to do, or cause to be done, all things necessary or
desirable under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. Without limitation, Seller shall transfer the
Purchased Assets to Purchaser's Seattle offices and provide education and
training to Purchaser in the operation of such Purchased Assets prior to
Closing. Seller and Purchaser each agree to execute and deliver such other
documents, certificates, agreements and other writings and to take such other
actions as may be necessary or desirable to consummate or implement
expeditiously the transactions contemplated by this Agreement and to vest in
Purchaser good and marketable title to the Purchased Assets.
7.2 Certain Filings. Seller and Purchaser shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
7.3 Confidentiality of Agreement. Seller and Purchaser will hold, and
will use their best efforts to cause their respective officers, directors,
employees, accountants, counsel, consultants, advisors and agents to hold the
terms of this Agreement in confidence, unless compelled to disclose such terms
by judicial or administrative process or by other requirements of law.
ARTICLE 8
TAX MATTERS
8.1 Tax Cooperation; Allocation of Taxes.
(a) Purchaser and Seller agree to furnish or cause to be
furnished to each other, upon request, as promptly as practicable, such
information and assistance relating to the Purchased Assets and the Businesses
as is reasonably necessary for the filing of all Tax returns, and making of any
election related to Taxes, the preparation for any audit by any taxing
authority, and the prosecution or defense of any claim, suit or proceeding
relating to any Tax return. Seller and Purchaser shall cooperate with each other
in the conduct of any audit or other proceeding related to Taxes involving the
Businesses and each shall execute and deliver such powers of attorney and other
documents as are necessary to carry out the intent of this Section 8.1(a).
(b) All personal property taxes due payable in 1999 with respect
to the Purchased Assets shall be apportioned between Seller and Purchaser as of
the Closing Date based on the number of days of such taxable period included in
the Pre-Closing Tax Period and
16
17
the number of days of such taxable period included in the Post-Closing Tax
Period. Seller shall be liable for the proportionate amount of such taxes that
is attributable to the Pre-Closing Tax Period, and Purchaser shall be liable for
the proportionate amount of such taxes that is attributable to the Post-Closing
Tax Period. Within 90 days after the Closing, Seller and Purchaser shall present
a statement to the other setting forth the amount of reimbursement to which each
is entitled under this Section 8.1(b) together with such supporting evidence as
is reasonably necessary to calculate the proration amount. The proration amount
shall be paid by the party owing it to the other within 10 days after delivery
of such statement. Thereafter, Seller shall notify Purchaser upon receipt of any
xxxx for personal property taxes relating to the Purchased Assets, part or all
of which are attributable to the Post-Closing Tax Period, and shall promptly
deliver such xxxx to Purchaser who shall pay the same to the appropriate taxing
authority, provided that if such xxxx covers the Pre-Closing Tax Period, Seller
shall also remit prior to the due date of assessment to Purchaser payment for
the proportionate amount of such xxxx that is attributable to the Pre-Closing
Tax Period. In the event that either Seller or Purchaser shall thereafter make a
payment for which it is entitled to reimbursement under this Section 8.1(b), the
other party shall make such reimbursement promptly but in no event later than 30
days after the presentation of a statement setting forth the amount of
reimbursement to which the presenting party is entitled along with such
supporting evidence as is reasonably necessary to calculate the amount of
reimbursement. Any payment required under this Section and not made within 10
days of delivery of the statement shall bear interest at the rate of 12% per
annum (but in no event higher than the maximum legal rate) for each day until
paid.
(c) All transfer, documentary, sales, use and other Taxes
assessed upon or with respect to the transfer of the Purchased Assets to
Purchaser (exclusive of Taxes imposed upon or measured by Seller's net income or
gross receipts) shall be the responsibility of Purchaser.
ARTICLE 9
CONDITIONS TO CLOSING
9.1 Conditions to the Obligations of Each Party. The obligations of
Purchaser and Seller to consummate the Closing are subject to the satisfaction
of the following conditions:
(a) no action or proceeding shall have been instituted in which
an order has been entered restraining or prohibiting or invalidating the
transactions contemplated by this Agreement, or affecting the right of Purchaser
to own the Purchased Assets after the Closing Date; and
(b) all actions by or in respect of or filings with any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been obtained.
17
18
9.2 Conditions to Obligation of Purchaser. The obligation of Purchaser
to consummate the Closing is subject to the satisfaction of the following
further conditions:
(a) Purchaser shall have completed its due diligence review of
Seller, the Businesses and the Purchased Assets, and the results of such review
shall be to Purchaser's reasonable satisfaction. As of the date of this
Agreement, Purchaser's due diligence review is substantially complete. Purchaser
has had full and free access to inspect and audit Seller's books relating to the
Business, to observe and inspect the operation of the Business, and to discuss
all phases of the Business with Xxxxxxx and employees of the Business.
(b) Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Closing Date;
(c) The Purchased Assets, including but not limited to all
servers and databases, shall have been transferred to Purchaser's Seattle
offices and otherwise delivered to the satisfaction of Purchaser;
(d) The representations and warranties of Seller contained in
this Agreement and in any certificate or other writing delivered by Seller
pursuant hereto shall be true in all material respects at and as of the Closing
Date, as if made at and as of such time;
(e) The Noncompetition Agreement shall have been duly executed
by Xxxxxxx;
(f) The Registration Rights Agreement shall have been duly
executed by Seller;
(g) The Software License Agreement shall have been duly executed
by Seller; and
(h) Purchaser shall have received:
(i) a xxxx of sale for the Purchased Assets, duly executed by
the Seller, in form reasonably satisfactory to Purchaser and its legal counsel;
and
(ii) assignment and assumption agreements for the Merchant
Contracts, duly executed by Seller, in form reasonably satisfactory to Purchaser
and its legal counsel, and all necessary consents from the other parties to such
contracts;
(iii) such other approvals or documents as Purchaser may
reasonably request.
18
19
9.3 Conditions to Obligation of Seller. The obligation of Seller to
consummate the Closing is subject to the satisfaction of the following
conditions:
(a) Purchaser shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior to the
Closing Date;
(b) The representations and warranties of Purchaser contained in
this Agreement and in any certificate or other writing delivered by Purchaser
pursuant hereto shall be true in all material respects at and as of the Closing
Date, as if made at and as of such time;
(c) The Registration Rights Agreement shall have been duly
executed by Purchaser;
(d) The Software License Agreement shall have been duly executed
by Purchaser; and
(e) Seller shall have received:
(i) payment of the Consideration, including delivery of
the Shares, as provided in Section 2.6;
(ii) assignment and assumption agreements for the
Merchant Contracts and the Distributor Contracts, duly executed by Purchaser, in
form reasonably satisfactory to Seller and its legal counsel, and all necessary
consents from the other parties to such contracts; and
(iii) such other approvals or documents as Seller may
reasonably request.
ARTICLE 10
SURVIVAL; INDEMNIFICATION
10.1 Survival. The representations and warranties of the parties hereto
contained in this Agreement or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Closing for a period
of one year. The right to indemnification, payment of damages or other remedy
based on such representation and warranties or other covenants and obligations
will not be affected by any investigation conducted with respect to any
knowledge acquired (or capable of being acquired) at any time, whether before or
after the execution and delivery of this Agreement or the Closing Date, with
respect to the accuracy or inaccuracy of or compliance with any such
representation, warranty, covenant or obligation. The waiver of any condition
based on the accuracy of any representation or warranty, or on the
19
20
performance of or compliance with any covenant or obligation, will not affect
the right to indemnification, payment of damages or other remedy based on such
representation, warranties, covenants and obligations.
10.2 Indemnification.
(a) Seller and Xxxxxxx each hereby agrees to indemnify Purchaser
against and agrees to hold it harmless from any and all damage, loss, liability
and expense (including, without limitation, reasonable expenses of investigation
and reasonable attorneys' fees and expenses in connection with any action, suit
or proceeding) (collectively, "Losses") incurred or suffered by Purchaser in any
way related to or arising out of (i) any misrepresentation or breach of
warranty, covenant or agreement made or to be performed by Seller pursuant to
this Agreement, or (ii) Seller's ownership of the Purchased Assets or operation
of the Businesses prior to the Closing Date.
(b) Purchaser hereby indemnifies Seller and Xxxxxxx against and
agrees to hold each of them harmless from any and all Losses incurred or
suffered by Seller or Xxxxxxx in any way related to or arising out of (i) any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Purchaser pursuant to this Agreement or (ii) Purchaser's ownership
of the Purchased Assets or operation of the Businesses on or after the Closing
Date.
(c) In addition to any other legal or equitable remedies
available to Purchaser for Seller's and/or Xxxxxxx'x breach of any
representation, warranty, covenant or agreement contained in this Agreement, and
in addition to pursuing indemnification rights for Losses covered under Section
10.2(a) above, Purchaser may, as a nonexclusive remedy, offset against the
Holdback Amount the amount of any loss that it shall have suffered as a result
of such breach or the amount of any Losses for which Purchaser is to be
indemnified pursuant to Section 10.2(a) above.
10.3 Procedures. The party seeking indemnification under Section 10.2
(the "Indemnified Party") agrees to give prompt notice to the party against whom
indemnity is sought (the "Indemnifying Party") of the assertion of any claim, or
the commencement of any suit, action or proceeding in respect of which indemnity
may be sought under such Section. The Indemnifying Party may, at its own
expense, participate in and control the defense of any such suit, action or
proceeding; provided, the Indemnifying Party's counsel is reasonably
satisfactory to the Indemnified Party and the Indemnifying Party thereafter
consults with the Indemnified Party upon the Indemnified Party's reasonable
request from time to time with respect to such suit, action or proceeding. The
parties shall in any event cooperate in the defense or prosecution of any such
suit, action or proceeding. The Indemnifying Party shall not be liable under
Section 10.2 for any settlement effected without its consent of any claim,
litigation or proceeding in respect of which indemnity may be sought hereunder.
20
21
ARTICLE 11
TERMINATION
11.1 Grounds for Termination. This Agreement may be terminated at any
time prior to the Closing:
(a) by Purchaser if the results of Purchaser's due diligence
review of Seller, the Businesses and the Purchased Assets are not satisfactory
to Purchaser in its sole discretion;
(b) by mutual written agreement of Seller and Purchaser;
(c) by either Seller or Purchaser if the Closing shall not have
been consummated on or before May 7, 1999;
(d) by either Seller or Purchaser if there shall be any law or
regulation that makes the consummation of the transaction contemplated hereby
illegal or otherwise prohibited or if consummation of the transactions
contemplated hereby would violate any nonappealable final order, decree or
judgment of any court or governmental body having competent jurisdiction; or
(e) by either Seller or Purchaser, in the event of any material
breach by the other party to this Agreement.
The party desiring to terminate this Agreement shall give promptly
notice of such termination to the other party.
11.2 Effect of Termination. If this Agreement is terminated as permitted
by Section 11.1, such termination shall be without liability of either party (or
any shareholder, director, officer, employee, agent, consultant or
representative of such party) to the other party to this Agreement; provided
that if such termination shall result from the willful failure of either party
to fulfill a condition to the performance of the obligations of the other party
or to perform a covenant of this Agreement or from a willful breach by either
party to this Agreement, such party shall be fully liable for any and all Losses
incurred or suffered by the other party as a result of such failure or breach.
The provisions of Section 12.3 shall survive any termination hereof pursuant to
Section 11.1.
21
22
ARTICLE 12
MISCELLANEOUS
12.1 Notices. All notices, requests and other communications to either
party hereunder shall be in writing (including facsimile or similar writing) and
shall be given,
if to Purchaser, to:
XxxxXxxx.xxx, Inc.
00 Xxxxx Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxx, President and CEO
if to Seller, to:
Commonsite, LLC
0000 Xxxxx Xxxx
Xxxxx 0000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxx Xxxxxxx
or to such other address as such party shall have designated by notice so given
to each other party.
12.2 Amendments; No Waivers. Any provision of this Agreement may be
amended or waived prior to the Closing Date if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by Purchaser and
Seller, or in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by either party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
12.3 Expenses. Except as otherwise specified herein, Purchaser and
Seller will each be solely responsible for and bear all of its own respective
expenses, including, without limitation, expenses of legal counsel, accountants,
and other advisors, incurred at any time in connection with pursuing or
consummating this Agreement and the transactions contemplated hereby.
22
23
12.4 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
12.5 Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of Washington, without regard to the
conflicts of law rules of such state.
12.6 Consent to Jurisdiction; Attorneys' Fees. For purposes of any
litigation arising out of or in connection with this Agreement, the parties
hereby consent to the jurisdiction of State and Federal Courts sitting in King
County, Washington. In the event of any such litigation, the prevailing party
shall be entitled to recover from the other party all of its attorneys' fees and
other expenses incurred in connection with such litigation.
12.7 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received a
counterpart hereof signed by the other party hereto.
12.8 Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter of this Agreement. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by either party hereto. Neither
this Agreement nor any provision hereof is intended to confer upon any person
other than the parties hereto any rights or remedies hereunder.
12.9 Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
12.10 Severability. Unless otherwise provided herein, if any provision
of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining portions shall not in any way be
affected or impaired thereby.
23
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
XXXXXXXX.XXX, INC.
By________________________________
Name: Xxx Xxxxxx
Title: Chief Executive Officer
COMMONSITE, LLC
By_______________________________
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
24
25
SCHEDULE A
URL's
xxx.xxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxx.xxx
xxx.x0xxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxx.xxx
xxx.xxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxx.xxx
xxx.xxxxxxxxxxxxxxxxxx.xxx
xxx.xxxxxxxx.xxx
xxx.xxxxxxxxx.xxx
xxx.xxxxxxxxxxxxx.xxx
25
26
SCHEDULE B
MERCHANTS
A1 Books
American Frame
Cake & Candle Cassettes
Cents Off
Corona Cigar Company
Debonair
Del Sol of Santa Xxxx
Edutainco (The Edutainment Catalog)
Eskimo Joe's
Felissimo
Flowers USA
Mobile Office Outfitter
Stash Tea Co.
Walkabout Travel Gear
26
27
SCHEDULE C
MARKS
Catalog Site
The Catalog Site
Catalog Channel
The Catalog Channel
27
28
EXHIBIT A
Noncompetition Agreement
28
29
EXHIBIT B
Registration Rights Agreement
29
30
EXHIBIT C
Software License Agreement
30
