EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This agreement ("Agreement") is made as of December 22, 2000, by and
between xxxxxxxx.xxx Corporation, a Delaware corporation ("Purchaser"), with a
principal place of business at 00 Xxx Xxxxx Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxx
00000, and EarthWeb Inc., a Delaware corporation (the "Seller"), with a
principal place of business at 0 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, pursuant to
the following terms and conditions.
WHEREAS, the Seller now owns and wishes to sell its Internet Web sites set
forth on Exhibit A (collectively the "Web Sites"), all of the related Internet
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Web Site pages, and all content, domain names, subscriber lists and other assets
that currently make up the Web Sites (the Web Sites and all other items,
collectively the "Pages") to Purchaser on the terms set forth herein below; and
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein, and such other good and valuable
consideration, Purchaser and the Seller hereby agree as follows:
1. Grant.
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(a) Purchaser hereby agrees to purchase and the Seller hereby agrees to
sell any and all of the Seller's rights, title and interest in and to all
content; text; graphics; images; audio; video; databases; HTML; DHTML and SHTML
files; XML; WAP; cgi and other scripts, all programming code (source and
object), subscriber databases; archives; server and traffic logs; e-mail,
newsletter subscriber lists; opt-in e-mail rental lists; postal and print name
lists; customer and advertiser lists; work-in-process; goodwill; copyrights;
copyright applications; trademarks and servicemarks including all goodwill and
common law rights (including but not limited to those listed on Exhibit B (the
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"Trademarks and Servicemarks")); trademark and servicemark applications (as
listed on Exhibit B); names (including EarthWeb, and all derivations thereof);
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design; trade dress; logos; graphics; Web Sites and domain names (as listed on
Exhibit B (the "Domain Names")); architecture; intellectual property; property
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rights; pages; advertising space reservation and advertising insertion orders;
commerce and other contracts (as listed in Exhibit C); any deposits, other
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advance payments or accounts receivable related to any advertising contracts or
insertion orders with unfulfilled obligations, orders, or other items assumed by
Purchaser (as listed in Exhibit C) or fulfilled by Purchaser after the date of
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this Agreement; and all business, accounting, legal and technical records
directly related to the Pages (including but not limited to all current and, to
the extent available, past insertion orders, all advertising trafficking
databases and records, demographic and other survey information, sales and
marketing materials including media kits, brochures and advertisements and all
related artwork, all promotional materials (t-shirts, mousepads, etc.), date of
hire, performance review, salary review, I-9 and Visa information with respect
to the Employees (as defined below) who accept employment with Purchaser (it
being understood that no other personnel records shall be considered Assets for
purposes of this Agreement), phone and e-mail lists with respect to Employees
who accept employment with Purchaser, trademark records and files, copyright
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records, litigation and contract files and server logs); computer workstations
including monitors, keyboard, mouse and modem, and other portable office
furniture, equipment, fax machines and network printers currently used by the
Employees (or substantially similar workstations, furniture, equipment, fax
machines and network printers) and other furniture and equipment generally
available on the 32nd floor to be mutually agreed by the parties hereto, all of
the foregoing with respect to the Pages (the Pages and all of the previous
items, hereafter collectively referred to as the "Assets"); provided, however,
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that the Assets shall not include the assets and properties set forth on Exhibit
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D (the "Excluded Assets").
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(b) The closing of the purchase and sale of the Assets under Section 1(a)
hereof (the "Closing") shall be held of the office of White & Case LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, 00000 at 4:00 P.M. on December 26, 2000 or
at such other place and/or date as the parties hereto shall designate in
writing. Such date is hereafter referred to as the "Closing Date".
(c) The Seller will do all things that are deemed necessary by Purchaser,
in its reasonable discretion, for the valid transfer of the Assets including,
without limitation, cooperate in the transfer of the Pages to Purchaser's server
host facility and server logs, transfer of the Domain Names to Purchaser in the
Internic Whois database, delivery to Purchaser of the electronic DNS zone file
for the Domain Names to xxxxxxxx@xxxxxxxx.xxx, placement of the xxxxxxxx.xxx
logo, toolbar and footers on the Pages pursuant to the specifications of
Purchaser and delivery of written documentation regarding the operation of the
Pages in a form reasonably acceptable to Purchaser. The Assets will be
delivered to Purchaser in such electronic or other format as Purchaser shall
reasonably request. Seller shall complete the InterNIC Registrant Name Change
Agreement form, currently located at
xxxx://xxx.xxxxxxxxxxxxxxxx.xxx/xxxxxxxxxxx/xxxx/xxxxxxxxx.xxxx, and the
trademark assignment form, attached as Exhibit E, for each Domain Name and
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trademark listed on Exhibit B, or such other forms and do all other things
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deemed necessary by Purchaser to transfer the Domain Names to Purchaser and the
Pages to Purchaser's servers. The Pages shall reside solely on Purchaser's
servers, and their distribution and mirroring shall be maintained solely by
Purchaser.
(d) The Seller acknowledges that Purchaser is not purchasing or assuming
any liabilities, obligations or indebtedness of the Seller, the Employees, the
Pages or the other Assets arising from any event prior to the date of this
Agreement (the "Excluded Liabilities"), except as specifically listed on Exhibit
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C (the "Assumed Liabilities"). For the avoidance of doubt, and without limiting
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the foregoing, any liabilities retained by the Seller in connection with the
Seller's prior purchase of any of the Assets, any future payment obligations
related to such prior purchases by the Seller and any liabilities with respect
to WARN Act and any other employee related obligations with respect to employees
of the Seller (other than the Employees as of post-Closing) shall be Excluded
Liabilities.
(e) To the extent that the assignment of any contract shall require the
consent of another party thereto, this Agreement shall not constitute an
agreement to assign the same if an attempted assignment would constitute a
breach thereof, but Seller and Purchaser agree to use all commercially
reasonable efforts to obtain the written consent of the other parties to the
assignment of all such contracts (it being understood and agreed that neither
Seller nor Purchaser
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shall be required to make any payment to obtain any such consent), and if any
such consent is not obtained, Seller and Purchaser shall cooperate in any
arrangement reasonably acceptable to both Seller and Purchaser designed to
provide to Purchaser substantially similar benefits, subject to the assumption
by Purchaser of substantially similar obligations and liabilities of Seller,
under any such arrangement.
2. Proprietary Rights.
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The Seller acknowledges and agrees that nothing contained in this Agreement
shall cause the Seller to acquire any right, title, or interest in or to any
copyrights, trademarks, service marks, trade secrets, patents or other
intellectual property rights of Purchaser, or to acquire or retain any rights to
the Pages or the other Assets whether originated before or after the date hereof
other than as set forth in the agreements contemplated herein; provided,
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however, that Purchaser shall license to the Seller the postal mailing lists and
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provide text or html ads in e-mail newsletters related to the Pages for one year
and the Seller shall be entitled to use (without cost to Purchaser) such lists
and ads solely to promote its career services business on four separate
occasions.
3. Representations and Warranties of Seller.
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The Seller represents and warrants that:
(a) it is the sole owner of the Assets and that it has the full legal
right, power and authority to enter in this Agreement and sell the Assets;
(b) it has full legal capacity to enter into this Agreement; and that the
execution and performance of this Agreement by the Seller will not infringe upon
any rights of any person or entity nor violate any other agreement or contract
to which the Seller is a party;
(c) this Agreement constitutes the valid and binding obligation of the
Seller, enforceable against the Seller, in accordance with its terms except to
the extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law);
(d) to the best of Seller's Knowledge, the Seller has received no notice
that the Pages infringe upon the intellectual property rights of any other
party;
(e) to the best of Seller's Knowledge, the Assets are free and clear of all
liens, encumbrances, security interests, restrictions or claims of any kind or
nature; and
(f) there is no action, suit, proceeding or investigation (i) pending with
respect to the Pages or the other Assets for which the Seller has received
notice or (ii) to the best of the Seller's Knowledge, threatened which could
reasonably be expected to have a material adverse effect on the business,
operations, earnings, ownership or condition (financial or otherwise) of the
Pages or the other Assets taken as a whole (a "Material Adverse Effect").
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4. Representations and Warranties of Purchaser.
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Purchaser represents and warrants that:
(a) it has full legal capacity to enter into this Agreement; and that the
execution and performance of this Agreement by Purchaser will not infringe upon
any rights of any person or entity nor violate any other agreement or contract
to which Purchaser is a party;
(b) this Agreement constitutes the valid and binding obligation of
Purchaser, enforceable against Purchaser, in accordance with its terms, except
to the extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a proceeding in equity or
at law); and
(c) notwithstanding anything contained in this Agreement to the contrary,
Purchaser acknowledges and agrees that it has examined the Assets, that, other
than as expressly set forth in Article 3 hereof, no other representation or
warranty of any nature has been made by the Seller regarding the Assets and that
all property being conveyed, directly or indirectly, to Purchaser pursuant to
this Agreement is being conveyed "as is". The Seller expressly disclaims any
representations or warranties regarding the Assets other than as set forth in
Article 3 hereof.
5. Purchase Price and Other Consideration.
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Upon the terms and subject to the conditions set forth in this Agreement,
(a) Purchaser agrees to pay the Seller, on the Closing Date, an amount (the
"Purchase Price") equal to five hundred thousand dollars ($500,000) by wire
transfer to the following account: Mellon Bank Pittsburgh, Routing #000000000,
for credit to Xxxxxxx Xxxxx House Account _________ for further credit to
EarthWeb Inc. Account __________; (b) Purchaser agrees to promote the Career
Channel (as defined below) or the Seller's career services Web sites (as
determined by the Seller in its sole discretion) for three years from the date
hereof with 3,000,000 ad impressions per month on Purchaser's network of Web
sites and related Internet media properties and (c) each of the Seller and
Purchaser agree to execute and deliver on the Closing Date a transition services
agreement with respect to the Assets (the "Transition Services Agreement") on
the terms set forth in Exhibit F.
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6. Employment Obligations.
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As of the Closing Date, Purchaser or one or more of its affiliates shall
have offered employment to each employee set forth on Exhibit G hereto (each an
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"Employee") on terms and conditions (including, but not limited to, salary,
commissions and bonus) which are substantially comparable in the aggregate to
the terms and conditions of their employment by the Seller, such employment to
commence on the Closing Date, subject to acceptance of such employment by the
Employee. Terms and conditions with respect to options and benefits shall be
substantially comparable to those terms and conditions with respect to options
and benefits for an employee of Purchaser in a substantially similar position
with substantially similar experience and
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compensation as such Employee. In the event that an Employee is terminated
without reasonable cause by Purchaser during the three month period immediately
following the date hereof, Purchaser shall pay such Employee severance on the
terms set forth on Exhibit H hereto. Notwithstanding anything to the contrary
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contained herein, nothing in this Agreement shall give any Employee the right to
be retained in the service of Purchaser or any subsidiary or affiliate of
Purchaser for a specific period of time, or restrict or otherwise inhibit in any
way Purchaser's (or such subsidiary's or affiliate's) right to terminate the
employment of any Employee, with or without cause, after the date hereof. As of
the date hereof and as of the Closing Date, Purchaser shall have no present
intention to terminate the Employees.
7. Landlord Consent.
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Each of the Seller and Purchaser agree to use their commercially reasonable
efforts to obtain all third-party consents required to sublease the 32nd floor
at 0 Xxxx Xxxxxx, Xxx Xxxx, XX from the Seller to Purchaser; provided, however,
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that neither party shall be required to incur any unreimbursed cost in order to
comply with this Section 7.
8. Indemnity.
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The Seller agrees to fully defend, indemnify and hold Purchaser and its
parent, subsidiaries, officers, directors, employees and affiliates harmless
from, and against, any and all costs, damages, expenses, liabilities and other
claims, including attorneys' fees and court costs arising from or attributable
to the Excluded Liabilities.
9. Ancillary Agreements.
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(a) The Seller and Purchaser shall use their respective best efforts to
enter into a binding term sheet by December 29, 2000 with respect to a career
channel service agreement with a term of eighteen (18) months from the date of
execution of the definitive written agreement (the "Career Channel Service
Agreement") to be entered into pursuant to the binding term sheet on terms
reasonably acceptable to each of the Seller and Purchaser whereby Purchaser
shall create and operate a career channel, treated like the other 14 channels of
its U.S. network of Web sites, focused on Internet and information technology
careers (the "Career Channel"). Pursuant to the terms of the Career Channel
Service Agreement, the Seller's xxxx.xxx Web site shall be the exclusive on-line
job site sponsor for the Career Channel and for all the industry and
geographical job sites throughout the U.S. xxxxxxxx.xxx network and exclusive
career services commerce partner of xxxxxxxx.xxx. Notwithstanding the
foregoing, Purchaser shall be entitled to sell advertising to non-career service
companies or Web sites on the Career Channel and advertising to career service
companies or Web sites on the other areas of Purchaser's network of Web sites
excluding other dedicated career areas sponsored by xxxx.xxx. The Career
Channel Service Agreement shall also require Purchaser to provide to the main
Career Channel page a minimum of * page views per month (as calculated by
Purchaser's server logs) and the Seller shall pay * for each page view
received in excess of * provided that Seller shall pay Purchaser at least
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* per month and no more than * per month; and provided, further, that in
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the event Purchaser provides fewer than * page views in any month, the Seller
shall receive a credit for the number of under-delivered page views, in the
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* Information omitted pursuant to a request for confidential treatment. The
omitted information has been filed separately with the Secretary of the SEC.
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immediately subsequent month for such shortfall. Purchaser shall host the main
Career Channel page which shall be directly linked to the online job site hosted
by the Seller but with the look and feel of Purchaser's Web site.
(b) Seller and Purchaser shall enter into a content license agreement for
a term of three years, pursuant to which Purchaser shall grant a fully-paid up,
royalty-free license to the Seller to display, publish, distribute, transmit,
post and reproduce (collectively, "Display") Purchaser's content and service
offerings solely with respect to the Datamation Web site and solely for
publication on Seller's career services Web sites; provided, however, that
Seller shall not be entitled to Display more than twelve (12) articles per
month, and the Seller shall provide brand attribution and links to Purchaser's
Web site on all pages Displaying such content. In addition, pursuant to such
content license agreement, Seller shall be entitled to Display selected
tutorials on Seller's career services Web sites, such tutorials and Display
rights to be mutually agreed in good faith between the parties hereto. Seller
shall have no right to sublicense its rights or obligations under such content
license agreement or to alter any content Displayed by Seller pursuant to such
content license agreement; provided that xxxx.xxx's navigation and interface
shall be permitted to be displayed on Seller's career services Web sites.
10. Additional Covenants.
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(a) At the Closing, the Seller shall deliver, or cause to be delivered,
the following:
(i) a certificate of an officer of the Seller certifying that (A) the
representations and warranties of the Seller are true and correct in all
material respects on and as of the Closing Date as though such
representations and warranties were made on and as of such date, except for
any changes permitted by the terms hereof or consented to in writing by
Purchaser, (B) the Seller has performed and complied in all material
respects with all terms, conditions, covenants, obligations, agreements and
restrictions required by this Agreement to be performed or complied with by
the Seller prior to or at the Closing Date and (C) as of the Closing Date
there has been no event, change or circumstance that has resulted in a
Material Adverse Effect since the date hereof;
(ii) a certificate of the Secretary of the Seller attesting to the
incumbency of the Seller's officers, the authenticity of the resolutions
authorizing the transactions contemplated by this Agreement and the
authenticity and continuing validity of the Seller's certificate of
incorporation and by-laws;
(iii) a certificate of the Secretary of State of Delaware as to the
legal existence and good standing of the Seller in the State of Delaware;
(iv) trademark assignments, in the form of Exhibit E attached hereto,
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with respect to the trademarks set forth on Exhibit B, executed by the
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Seller;
(v) a xxxx of sale, in form and substance reasonably accepted to
Purchaser, with respect to the Assets executed by the Seller;
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(vi) an assignment and assumption agreement, in form and substance
reasonably acceptable to Purchaser, with respect to the Assumed Liabilities
executed by the Seller;
(vii) InterNIC Registrant Name Change Agreement forms for each of the
Domain Names set forth in Exhibit I in form and substance reasonably
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acceptable to Purchaser signed by the Seller;
(viii) letters from the Seller and addressed to each list company
authorizing the transfer of certain lists and assets to Purchaser,
substantially in the form attached as Exhibit J; and
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(ix) office email and telephone information of each Employee.
(b) During the period from the date hereof to the Closing Date, except as
expressly permitted or contemplated by this Agreement and other than in respect
of the Excluded Assets, the Seller shall conduct its operations with respect to
the Assets in all material respects in the ordinary course of business
consistent with past practices; provided, however, that the Seller shall change
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the passwords with respect to the Web Sites and their underlying servers and
editorial interfaces pursuant to Purchaser's instructions on the date hereof;
(c) In the event Purchaser's payments under the Xxxxxx.xxx earn-out
obligations exceed $200,000.00 in any single year, the Seller shall purchase
advertising on Purchaser's network of Web sites and related Internet media
properties, on Purchaser's standard terms and conditions, in an amount equal to
such excess payments over a period of 12 months from the date the relevant
earnout is paid;
(d) Seller shall use commercially reasonable efforts to preserve and keep
the records held by the Seller relating to the Assets and shall make such
records available to Purchaser to the extent (i) required to complete the
financial audit of Purchaser with respect to the year ended December 31, 2000
and (ii) for such period of time as may be required by law, it being understood
that Purchaser shall reimburse the Seller for all out of pocket expenses
incurred with such access and any expenses with respect to Purchaser's financial
audit are the obligations of Purchaser;
(e) Upon request, the Seller shall complete one mailing in a timely manner
to the Employees with respect to Purchaser's offer of employment pursuant to the
terms of this Agreement; and
(f) At the Closing, Purchaser shall deliver, or cause to be delivered, the
following:
(i) a certificate of an officer of Purchaser certifying that (A) the
representations and warranties of Purchaser are true and correct in all
material respects on and as of the Closing Date as through such
representations and warranties were made on and as of such date, except for
any changes permitted by the terms hereof or consented to in writing by the
Seller and (B) Purchaser has performed and complied in all material
respects with all terms, conditions, covenants, obligations, agreements and
restrictions required by this
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Agreement to be performed or complied with by Purchaser prior to or at the
Closing Date;
(ii) a certificate of the Secretary of Purchaser attesting to the
incumbency of Purchaser's officers, and the authenticity and continuing
validity of Purchaser's certificate of incorporation and by-laws;
(iii) a certificate of the Secretary of State of Delaware as to the
legal existence and good standing of Purchaser in the State of Delaware;
and
(iv) an assignment and assumption agreement, in form and substance
reasonably acceptable to the Seller, with respect to the Assumed
Liabilities executed by Purchaser.
11. Survival of Representations.
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The respective representations and warranties of the Seller and Purchaser
contained in this Agreement shall survive the consummation of the transactions
contemplated by this Agreement until the day which is six months following the
Closing Date and shall thereafter cease to be of any force and effect.
12. Jurisdiction.
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The Seller and Purchaser hereby submit to the jurisdiction of the State and
Federal courts located within the State of New York for purposes of all legal
proceedings which may arise hereunder or under any of the other documents
entered into in connection herewith. The Seller and the Purchaser irrevocably
waive, to the fullest extent permitted by law, any objection which he/it may
have or hereafter have to the laying of the venue of any such proceeding brought
in such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. The Seller and Purchaser hereby
consent to process being served in any such proceeding by the mailing of a copy
thereof by registered or certified mail, postage prepaid, to its address
specified in the preamble to this Agreement.
13. Notices.
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All notices required or permitted to be given under this Agreement must be
in writing, and will be deemed given on the date of receipt if delivered in
person, or on the date of mailing if mailed by overnight courier or registered
or certified mail, postage prepaid, return receipt requested, to the applicable
party at its address indicated on the first page of this Agreement. Either
party may change its address for purposes of this Agreement by giving fifteen
(15) days' prior written notice of such change of address to the other party in
the manner described in this Section.
14. Expenses.
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The parties hereto shall pay all of their own expenses relating to the
transaction contemplated by this Agreement, including, without limitation, the
fees and expenses of their
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respective counsel, it being understood that the Seller shall pay the fees and
expenses of Xxxxxxxxx Xxxxxxxx and shall indemnify Purchaser with respect
thereto.
15. Governing Law.
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The interpretation and construction of this Agreement, and all matters
relating hereto, shall be governed by the laws of the State of New York, without
regard to any applicable principles of conflicts of law.
16. Binding Effect; Assignment.
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Neither party shall assign any of its rights, or delegate any of its
obligations under this Agreement to any third party without the consent of the
other party except that Purchaser may assign this Agreement, without consent, to
any acquirer of at least a majority of Purchaser's assets or capital stock.
This Agreement is binding upon, and shall inure solely to the benefit of, the
parties hereto and their respective heirs, personal representatives, successors
and permitted assigns. This Agreement, other than Section 6, is not intended to
benefit, and shall not be construed as benefiting, any third party, and no third
party shall have standing to enforce any provision of this Agreement.
17. Modification.
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No purported modification, amendment or waiver of any term of this
Agreement shall be effective unless it is in writing, subsequent to this
Agreement and signed by both parties hereto.
18. Confidentiality.
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The terms of this Agreement shall be considered "Confidential Information"
for purposes of the confidentiality agreement dated as of November 6, 2000, by
and between the Seller and Purchaser (the "Confidentiality Agreement").
Notwithstanding anything contained herein or in the Confidentiality Agreement to
the contrary and except as otherwise required by law, (a) neither party hereto
shall issue any press release or make any other public statement, in each case
relating to, connected with or arising out of this Agreement or the matters
contained herein, without obtaining the prior approval of the other party hereto
to the contents and manner of presentation and publication thereof and (b)
neither party shall disclose the financial terms set forth in this Agreement.
19. Counterpart.
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This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same agreement. Facsimile copies shall also be deemed originals.
20. Severability.
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The parties agree that the provisions of this Agreement are severable and
separate and that the unenforceability of any specific provision or part of any
provision shall not affect the validity of any other provision or term of this
Agreement.
21. Entire Agreement.
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This Agreement constitutes the entire agreement of Purchaser and the Seller
with respect to the subject matter hereof and supersedes any and all prior and
contemporaneous understandings or agreements, whether oral or written,
concerning such subject matter; provided, however, that the Confidentiality
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Agreement shall remain in full force and effect. Each party acknowledges that it
enters into this Agreement without relying on any statement by the other party
which is not specifically set forth in this Agreement.
22. Knowledge Definition.
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"Knowledge" with respect to the Seller shall mean the actual knowledge of
any of Xxxx Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx Xxxxxxx and Xxxxx
Xxxxxxxx.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first written above.
xxxxxxxx.xxx Corporation ("Purchaser") EARTHWEB INC. ("Seller")
By: By:
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Title: Title:
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Printed Name: Printed Name:
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Date: Date:
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