XXXXXXXXXXXXXX.XXX
ASSET PURCHASE AGREEMENT
BY & BETWEEN
HANDHELD ENTERTAINMENT, INC.,
A DELAWARE CORPORATION
AND
XXXXX XXXX XXXX XXXXXXX,
AN INDIVIDUAL
DATED AS OF DECEMBER 15, 2006
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("AGREEMENT") is entered into as of
December 15, 2006 by and between HANDHELD ENTERTAINMENT, INC., a Delaware
corporation ("HANDHELD") and Xxxxx Xxxx Xxxx Xxxxxxx, an individual ("XX.
XXXXXXX").
RECITALS
WHEREAS, Xx. Xxxxxxx owns one hundred percent (100%) of the assets and
business interests (subject to Section 3.4(c)) ("INTEREST") relating to
Xxxxxxxxxxxxxx.xxx ("YOURDAILYMEDIA" or "BUSINESS"); and
WHEREAS, HandHeld desires to purchase the Interest from Xx. Xxxxxxx,
and Xx. Xxxxxxx desires to sell the Interest to HandHeld, in each case upon the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. [RESERVED]
ARTICLE II.
SALE AND PURCHASE
SECTION 2.1. AGREEMENT TO SELL AND TO PURCHASE.
On the terms and subject to the conditions set forth in this
Agreement, at the Closing, HandHeld shall purchase from Xx. Xxxxxxx, and Xx.
Xxxxxxx shall sell, transfer, assign, convey and deliver to HandHeld, the
Interest.
SECTION 2.2. PURCHASE PRICE.
(a) The purchase price (the "PURCHASE PRICE") for the Interest shall
consist of the following:
(i) $200,000 United States Dollars ("USD") (the "CASH
CONSIDERATION"), less the Escrow Amount which will be deposited at the
Closing into Escrow pursuant to the terms of the Escrow Agreement,
attached as EXHIBIT A, (the "ESCROW AGREEMENT"). The Cash
Consideration (less the Escrow
2
Amount) shall be due and payable to Xx. Xxxxxxx on January 2, 2007 via
wire transfer or as otherwise directed by Xx. Xxxxxxx;
(ii) $60,000 USD payable in 12 equal monthly installments of
$5,000 USD (each a "MONTHLY PAYMENT"). The first Monthly Payment shall
be due and payable January 1, 2007 and each remaining Monthly Payment
shall be due and payable on the first day of each calendar month
thereafter; and
(iii) A five (5)-year, convertible promissory note in favor of
Xx. Xxxxxxx in the amount of $800,000 USD, in the form attached as
EXHIBIT B hereto, given by HandHeld (the "PROMISSORY NOTE") at the
Closing. The Promissory Note shall be convertible on the terms
provided in the Promissory Note.
SECTION 2.3. NONDISCLOSURE; NONCOMPETITION; NON-SOLICITATION.
(a) Except as required by the law of any jurisdiction or pursuant to
any ongoing employment or consultancy or other agreement between Xx.
Xxxxxxx and HandHeld, from and for a period of five (5) years after the
Closing Date, Xx. Xxxxxxx shall not use, divulge, furnish or make
accessible to anyone any proprietary, non-public, confidential or secret
information to the extent relating to HandHeld or the Business (including,
without limitation, customer lists, supplier lists and pricing and
marketing arrangements with customers or suppliers) and Xx. Xxxxxxx shall
cooperate reasonably with HandHeld in preserving such proprietary,
confidential or secret aspects of HandHeld and the Business.
(b) From and after the Closing Date and except as pursuant to any
ongoing employment or consultancy or other agreement between Xx. Xxxxxxx
and HandHeld, for a period of two (2) years from the Closing Date, Xx.
Xxxxxxx shall not engage in Competitive Business Activities (as defined
below). For purposes of this Agreement, "COMPETITIVE BUSINESS ACTIVITIES"
means the operation of a website, or other electronic system with similar
capabilities, that is, in whole or in part, devoted to hosting
user-generated, PG-13-like rated humor.
(c) HandHeld hereby acknowledges and agrees that Xx. Xxxxxxx shall
continue to own and operate one or more separate businesses and/or related
websites (as applicable), as listed on Schedule 2.3(c) to this Agreement
("SEPARATE BUSINESSES") and shall continue to own all inventions,
creations, revenues, profits, or other benefits generated by the Separate
Businesses. In addition, and notwithstanding anything to the contrary in
this Agreement, or the Services Agreement (as defined in Section 4.2 of
this Agreement), or as would otherwise be provided by applicable State or
Federal law, HandHeld waives any right to claim any incidence of franchise,
sharing or other right to revenues, profits, or other benefits, whether
created or generated by Xx. Xxxxxxx or by any Separate Business. Moreover,
HandHeld waives any right to claim any incidence of ownership to any
intellectual property created or generated by Xx. Xxxxxxx by any Separate
Business, except such as directly relates to the intellectual property
acquired by HandHeld pursuant to this Agreement (e.g., intellectual
property of the Business, including any trademark with respect to
"Xxxxxxxxxxxxxx.xxx" (for the avoidance of
3
doubt Xx. Xxxxxxx does not own any such registered trademarks), the domain
name "xxxxxxxxxxxxxx.xxx" and any intellectual property residing on the
server which Xx. Xxxxxxx shall transfer to HandHeld at the Closing).
(d) Xx. Xxxxxxx shall not, directly or indirectly, after the Closing
and for a period of two (2) years from the Closing Date, (i) solicit for
hire or enter into any contractual arrangement with any employee or
contractor of HandHeld without the prior written consent of HandHeld unless
such employee or contractor has not been employed by HandHeld for a period
of two (2) years; or (ii) call on or solicit any of the customers or
suppliers (other than general site sponsors and/or advertisers and server
providers) of HandHeld or the Business or make known the names and
addresses of such customers or suppliers or any information relating in any
manner to HandHeld or the Business or HandHeld's or the Business'
relationships with such customers or suppliers. Xx. Xxxxxxx agrees that a
violation of this Section may cause irreparable injury to HandHeld, and
HandHeld shall be entitled, in addition to any other rights and remedies it
may have at law or in equity, to an injunction enjoining and restraining
Xx. Xxxxxxx from doing or continuing to do any such violation and any other
violations or threatened violations of this Section.
(e) Xx. Xxxxxxx acknowledges and agrees that the covenants set forth
in this Section are reasonable and valid in scope and in all other respects
and are designed to protect the goodwill associated with the assets and the
Business being purchased pursuant to this Agreement. If any of such
covenants is found to be invalid or unenforceable by a final determination
of a court of competent jurisdiction (i) the remaining terms and provisions
hereof shall be unimpaired and (ii) the invalid or unenforceable term or
provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision. In the event that, any of the
provisions of this Section relating to scope of the covenants contained
therein or the nature of the business restricted thereby shall be declared
by a court of competent jurisdiction to exceed the maximum restrictiveness
such court deems enforceable, such provision shall be deemed to be replaced
herein by the maximum restriction deemed enforceable by such court.
ARTICLE III.
WARRANTIES OF XX. XXXXXXX
Xx. Xxxxxxx warrants to HandHeld as set forth in this Article III:
SECTION 3.1. AUTHORITY OF XX. XXXXXXX
(a) Xx. Xxxxxxx has full power and authority to execute and deliver
this Agreement and related documents.
4
SECTION 3.2. ASSETS AND LIABILITIES OF YOURDAILYMEDIA.
As of the date hereof, the only assets and liabilities of
Yourdailymedia are those listed on Schedule 3.2 hereof.
SECTION 3.3 EMPLOYEES/CONTRACTORS OF YOURDAILYMEDIA.
As of the date hereof and except as set forth in Schedule 3.3 hereto,
Yourdailymedia has no, and prior to the Closing will have no employees,
contractual relationships or other obligations, other than this Agreement.
SECTION 3.4 STATUS OF ASSETS.
(a) As of the date hereof and at the Closing, no person or entity
other than Xx. Xxxxxxx has any interest in or claim to any of the assets
listed in Schedule 3.2.
(b) As of the date hereof, neither the execution and delivery of this
Agreement (and related documents) nor the consummation or performance of
any of the transactions contemplated thereby will, directly or indirectly
(with or without notice or lapse of time) contravene, conflict with, or
result in a violation or breach of any provision of, or give any person the
right to declare a default or exercise any remedy under, or to accelerate
the maturity or performance of, or to cancel, terminate, or modify any
material agreement to which Xx. Xxxxxxx is a party.
(c) As of the date hereof, and subject to Section 3.4(d) below,
Xx.Xxxxxxx is the true and lawful owner of the Interest, holds good,
absolute and marketable title in and to all of the Interest, and has full
power and authority to sell and convey the same, in each case free and
clear of all encumbrances.
(d) HandHeld acknowledges and agrees that Xx. Xxxxxxx does not warrant
any right(s) to user-submitted content which has or may appear on
xxx.xxxxxxxxxxxxxx.xxx. Xx. Xxxxxxx warrants to HandHeld that, as of the
date of the Closing, Xx. Xxxxxxx has not received any unresolved notice of
claim against him relating to a third party's alleged rights in
user-submitted content appearing on xxx.xxxxxxxxxxxxxx.xxx. For the
avoidance of doubt, any user-submitted content which appears on
xxx.xxxxxxxxxxxxxx.xxx is (and has historically been) deleted from the site
as soon as reasonably practicable following receipt by Xx. Xxxxxxx of any
notice relating to a third party's alleged rights in any such
user-submitted content.
SECTION 3.5 TRAFFIC STATISTICS REPORTS.
The xxxxxxxxxxxxxx.xxx website traffic statistic reports provided to
HandHeld by Xx. Xxxxxxx are, to the best knowledge of Xx. Xxxxxxx'x, reasonably
true and correct representations of actual results realized for the periods
covered by such reports, as reported by industry standard website traffic
reporting services and Yourdailymedia's internal traffic statistics program.
5
ARTICLE IV.
CONDITIONS TO XX. XXXXXXX'X OBLIGATIONS
The obligation of Xx. Xxxxxxx to consummate the transactions
contemplated by this Agreement is subject to the satisfaction (unless waived in
writing by Xx. Xxxxxxx) of each of the following conditions on or prior to the
Closing Date:
SECTION 4.1. TRANSACTION DOCUMENTS.
HandHeld shall have executed and delivered to Xx. Xxxxxxx this
Agreement, the Escrow Agreement, the Promissory Note, and the Registration
Rights Agreement in the form attached hereto as EXHIBIT C (the "REGISTRATION
RIGHTS AGREEMENT").
SECTION 4.2. INDEPENDENT CONTRACTOR SERVICES
HandHeld shall have agreed to engage Xx. Xxxxxxx on substantially the
terms set forth in the Independent Contractor Services Agreement attached hereto
as EXHIBIT D (the "SERVICES AGREEMENT").
SECTION 4.3. OPINION OF COUNSEL.
Xx. Xxxxxxx shall have received an opinion of Xxxxxx Curls Xxxxxxxx &
Xxxxx LLP, counsel to HandHeld, substantially in the form attached hereto as
EXHIBIT E ("PURCHASER'S OPINION OF COUNSEL").
SECTION 4.4 CORPORATE DOCUMENTS.
Xx. Xxxxxxx shall have received from HandHeld certified copies of its
charter documents, a certificate of good standing from the jurisdiction in which
it is incorporated and written consents from the Board of Directors of HandHeld
and the shareholders of HandHeld (where required by law) approving the execution
and delivery of this Agreement (and related documents) and the consummation of
the transactions contemplated hereby and thereby, and such resolutions shall be
in full force and effect as of the Closing Date.
SECTION 4.5 PAYMENT.
HandHeld shall have transferred the Cash Consideration as directed by
Xx. Xxxxxxx in accordance with Section 2.2.
6
ARTICLE V.
CONDITIONS TO HANDHELD'S OBLIGATIONS
The obligation of HandHeld to consummate the transactions contemplated
by this Agreement is subject to the satisfaction (unless waived in writing by
HandHeld) of each of the following conditions on or prior to the Closing Date:
SECTION 5.1. INDEPENDENT CONTRACTOR SERVICES
Xx. Xxxxxxx shall have agreed to provide consulting services to
HandHeld on substantially the terms set forth in the Services Agreement.
SECTION 5.2. OPINION OF COUNSEL.
HandHeld shall have received an opinion of Xxxxx Xxxxxxxx of Xxxxxxxx
Venture Counsel, U.S. counsel to Xx. Xxxxxxx, substantially in the form attached
hereto as EXHIBIT F ("SELLER'S OPINION OF COUNSEL").
SECTION 5.3. XXXX OF SALE.
Xx. Xxxxxxx shall have executed and delivered to HandHeld the Xxxx of
Sale in the form attached hereto as EXHIBIT G (the "XXXX OF SALE").
SECTION 5.4. TRANSACTION DOCUMENTS.
Xx. Xxxxxxx shall have executed and delivered to HandHeld this
Agreement, the Escrow Agreement, the Registration Rights Agreement, the Services
Agreement, and the Xxxx of Sale.
ARTICLE VI.
THE CLOSING
SECTION 6.1. THE CLOSING.
The Closing of the transactions contemplated hereby (the "CLOSING")
shall be held on December 15, 2006 (the "CLOSING DATE") or at such other time as
the parties may mutually agree. The Closing shall be held at the offices of
Xxxxxx Curls Xxxxxxxx & Xxxxx LLP, 00 Xxx Xxxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxxxx, XX 00000 or at such other place as the parties may mutually agree.
Alternatively, the parties may mutually agree that the Closing may occur by
mail, fax, overnight courier or a combination thereof. At the Closing, all of
the transactions provided for in Article II hereof shall be consummated on a
substantially concurrent basis.
7
ARTICLE VII.
INDEMNIFICATION
SECTION 7.1. SURVIVAL.
All of the warranties of Xx. Xxxxxxx contained in Article III of this
Agreement shall survive the Closing and continue in full force and effect
until the first (1st) anniversary of the Closing Date.
SECTION 7.2. INDEMNIFICATION PROVISIONS FOR BENEFIT OF HANDHELD.
(a) In the event that any of the warranties contained in this
Agreement are breached and provided that, as to any claim for breach of any
such warranties, HandHeld makes a written claim for indemnification against
Xx. Xxxxxxx within one (1) year of the date of this Agreement then Xx.
Xxxxxxx agrees to indemnify HandHeld and its Affiliates from and against
all Damages HandHeld and its Affiliates suffer resulting directly from such
event; provided, however, that Xx. Xxxxxxx shall not have any obligation to
indemnify HandHeld from and against any such Damages until HandHeld has
suffered aggregate Damages by reason of all such breaches in excess of ten
thousand dollars ($10,000) USD and then only to the extent of Damages in
excess of said ten thousand dollars ($10,000) USD; provided further that no
claim may be made by HandHeld under this Section unless the total of the
Damages associated with any single event or occurrence triggering an
indemnification claim exceeds ten thousand dollars ($10,000) USD. In any
event, the maximum amount that Xx. Xxxxxxx shall be required to pay as to
all claims made under this Section shall be equal to the lesser of one
million dollars ($1,000,000) USD, or the actual consideration received by
Xx. Xxxxxxx pursuant to this Agreement as of the date of Xx. Xxxxxxx'x
payment of such indemnification claim, and the payment of which shall first
be satisfied (A) by a setting off of such amounts against all or any
portion of the remaining amounts due under the Promissory Note, then (B)
from funds held in Escrow, and then (C) from the Cash Consideration. For
the avoidance of doubt with respect to any claim by HandHeld against Xx.
Xxxxxxx under this Section, HandHeld will accept a deduction from Xx.
Xxxxxxx'x Promissory Notes (in the amount of the Damages claimed for by
HandHeld) towards satisfaction of any such claim.
SECTION 7.3. MATTERS INVOLVING THIRD PARTIES.
(a) If any third party notifies a party to this Agreement (the
"INDEMNIFIED PARTY") with respect to any matter which may give rise to a
claim (other than a Tax Claim) for indemnification against another party to
this Agreement (the "INDEMNIFYING PARTY") under this Article VII, then the
Indemnified Party shall use reasonable efforts to notify the Indemnifying
Party thereof promptly and in any event within ten days after receiving any
written notice from a third party; provided, however, that no delay on the
part of the Indemnified Party in notifying the Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder unless, and
then solely to the extent that, the Indemnifying Party is actually
prejudiced thereby.
(b) Once the Indemnified Party has given notice of the matter to the
Indemnifying Party, the Indemnified Party may, subject to the Indemnifying
Party's
8
rights to assume the defense of such matter pursuant to paragraph (c)
below, defend against the matter in any manner it deems appropriate.
(c) The Indemnifying Party may at any point in time choose to assume
the defense of all of such matter, in which event:
(i) the Indemnifying Party shall defend the Indemnified Party
against the matter with counsel of its choice reasonably satisfactory
to the Indemnified Party,
(ii) the Indemnified Party may retain separate counsel at its
sole cost and expense (except that the Indemnifying Party shall be
responsible for the fees and expenses of one separate co-counsel for
all Indemnified Parties to the extent the Indemnified Party is
advised, in writing by its counsel, that either (x) the counsel the
Indemnifying Party has selected has a conflict of interest, or (y)
there are legal defenses available to the Indemnified Party that are
different from or additional to those available to the Indemnifying
Party), and
(iii) the Indemnifying Party shall reimburse the Indemnified
Party for the reasonable costs of defense or investigation for the
period prior to the assumption of the defense.
(d) Assumption of the defense of any matter by the Indemnifying Party
shall without further action constitute an irrevocable waiver by the
Indemnifying Party of its right to claim at a later date that such third
party action for which the defense was assumed is not a proper matter for
indemnification pursuant to this Article VII.
(e) The Indemnified Party shall not consent to the entry of a judgment
or enter into any settlement with respect to any matter which may give rise
to a claim for indemnification without the written consent of the
Indemnifying Party, which consent may not be unreasonably withheld or
delayed; provided, however, that if the Indemnifying Party has failed to
provide indemnification required to be provided pursuant to this Article
VII for fifteen days after a request therefor, then the Indemnified Party
may take any such action without the consent of the Indemnifying Party.
(f) The Indemnifying Party shall not consent to the entry of a
judgment with respect to any matter which may give rise to a claim for
indemnification or enter into any settlement which does not include a
provision whereby the plaintiff or claimant in the matter releases the
Indemnified Party from all liability with respect thereto, without the
written consent of the Indemnified Party (not to be unreasonably withheld
or delayed).
SECTION 7.4. CERTAIN ADDITIONAL PROVISIONS RELATING TO
INDEMNIFICATION.
(a) After the Closing Date, the indemnification provisions set forth
in this Article VII shall constitute the sole and exclusive recourse and
remedy available to HandHeld with respect to the breach of any warranty
contained in this Agreement or in any certificate delivered pursuant to
this Agreement, except for actual fraud.
9
(b) All payments by an Indemnifying Party under this Article VII shall
be treated as an adjustment to the Purchase Price for all foreign, federal,
state and local income tax purposes.
ARTICLE VIII.
MISCELLANEOUS PROVISIONS
SECTION 8.1. NOTICES.
All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given (a) when delivered personally to the
recipient, (b) when sent to the recipient by telecopy (receipt electronically
confirmed by sender's telecopy machine) if during normal business hours of the
recipient, otherwise on the next Business Day, (c) two (2) Business Days after
the date when sent to the recipient by reputable express courier service
(charges prepaid), or (d) seven Business Days after the date when mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent to Xx.
Xxxxxxx and to HandHeld at the addresses indicated below:
If to Xx. Xxxxxxx: Xxxxx Xxxxxxx
xxxxx Xxxxxxxxx 00
Xxxxx, 00000
Xxxxxxxx
Xxxxx
Fax: x00 00 000 0000
With a copy to: Xxxxxx Xxxxxxx, LLP
(which shall not constitute notice) ATTN: Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxx
XX0 0XX
Xxxxxxx
Fax: 0044113 000 0000
And
Xxxxxxxx Venture Counsel
ATTN: Xxx Xxxxxxxx
0000 Xxxxxxxx Xxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
10
If to HandHeld: HandHeld Entertainment, Inc.
ATTN: Xxxxxxx Oscodar
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx Curls Xxxxxxxx & Xxxxx, LLP
(which shall not constitute notice) ATTN: Xxxxxx X. Xxxxxx, Esq.
00 Xxx Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address as either party hereto may, from time to time,
designate in writing delivered pursuant to the terms of this Section.
SECTION 8.2. AMENDMENTS.
The terms, provisions and conditions of this Agreement may not be
changed, modified or amended in any manner except by an instrument in writing
duly executed by both of the parties hereto.
SECTION 8.3. ANNOUNCEMENTS.
All press releases, notices to customers and suppliers and similar
public announcements prior to or within five days after the Closing Date with
respect to this Agreement and the transactions contemplated by this Agreement
shall be approved by both HandHeld and Xx. Xxxxxxx (not to be unreasonably
withheld or delayed) prior to the issuance thereof; provided that either party
may make any public disclosure it believes in good faith is required by law,
regulation or rule of any stock exchange on which its securities are traded (in
which case the disclosing party shall use reasonable efforts to advise the other
party prior to making such disclosure and to provide the other party a
reasonable opportunity to review the proposed disclosure).
SECTION 8.4. EXPENSES.
Except as expressly set forth in this Agreement, each party to this
Agreement shall bear all of its legal, accounting, investment banking, and other
expenses incurred by it or on its behalf in connection with the transactions
contemplated by this Agreement, whether or not such transactions are
consummated.
SECTION 8.5. ENTIRE AGREEMENT.
This Agreement, together with the Exhibits and Schedules, constitutes
the entire agreement among the parties hereto with respect to the subject matter
hereof, supersedes and is in full substitution for any and all prior agreements
and understandings among them relating to such subject matter and no party shall
be liable or bound to the other party hereto in any manner
11
with respect to such subject matter by any warranties, representations,
indemnities, covenants, or agreements except as specifically set forth herein.
The Exhibits and Schedules to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
SECTION 8.6. DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 8.7. COUNTERPARTS.
For the convenience of the parties, any number of counterparts of this
Agreement may be executed by any one or more parties hereto, and each such
executed counterpart shall be, and shall be deemed to be, an original, but all
of which shall constitute, and shall be deemed to constitute, in the aggregate
but one and the same instrument.
SECTION 8.8. GOVERNING LAW; JURISDICTION.
(a) This Agreement and the legal relations between the parties hereto
shall be governed by and construed in accordance with the laws of the State
of California applicable to contracts made and performed therein without
regard to principles of conflicts of law.
(b) Any legal action or proceeding with respect to this Agreement
shall be brought in the courts of the State of California, and, by
execution and delivery of this Agreement, the parties hereto hereby accept
for themselves and in respect of their property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties
hereto hereby irrevocably waive any objection, including any objection to
the laying of venue or based on the grounds of forum non conveniens, which
any of them may now or hereafter have to the bringing of any such action or
proceeding in such respective jurisdictions.
SECTION 8.9. CONSTRUCTION; INTERPRETATION.
The parties have negotiated the provisions of this Agreement, and any
presumption that an ambiguity contained in this Agreement shall be construed
against the party that caused this Agreement to be drafted shall not apply to
the interpretation of this Agreement. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any party.
Any references to any federal, state, local or foreign statute or law will also
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Unless the context otherwise requires: (a) a term has the
meaning assigned to it by this Agreement; (b) including means "including but not
limited to"; (c) "or" is disjunctive but not exclusive; (d) words in the
singular include the plural, and in the plural include the singular; and (e) "$"
means the currency of the United States of America.
12
SECTION 8.10. SEVERABILITY.
In the event that any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein, shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, then to the
maximum extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
instrument. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
SECTION 8.11. SPECIFIC PERFORMANCE.
Without limiting or waiving in any respect any rights or remedies of
the parties under this Agreement now or hereinafter existing at law or in equity
or by statute, each of the parties hereto shall be entitled to seek specific
performance of the obligations to be performed by the other in accordance with
the provisions of this Agreement.
[Remainder of Page Intentionally Left Blank]
13
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first written above.
XX. XXXXXXX
/s/ Xxxxx Xxxx Xxxx Xxxxxxx
----------------------------------------
Xxxxx Xxxx Xxxx Xxxxxxx
HANDHELD HANDHELD ENTERTAINMENT, INC.
By: /s/ Xxxx Oscodar
------------------------------------
Name: Xxxx Oscodar
Title: President
14
SCHEDULE 2.3(c)
SEPARATE BUSINESSES
The Xxxxxx.xxx website and
business/entertainment search engine
(collectively, "XXXXXX.XXX")*
* Notwithstanding anything to the contrary in Section 2.3(c) of this
Agreement, Xx. Xxxxxxx acknowledges and agrees that as of the Closing, Xx.
Xxxxxxx shall cease to perform any operational or business role with or on
behalf of Xxxxxx.xxx, except as such role relates solely to the sale of
Xxxxxx.xxx to a third-party purchaser. For avoidance of doubt, such
facilitating role may include, by way of illustration and not limitation,
assigning the domain name, negotiating the sale of Xxxxxx.xxx with a
third-party purchaser, executing and delivering to such third-party
purchaser asset or entity sale documentation, etc.
15
SCHEDULE 3.2
ASSETS & LIABILITIES
1. The name and domain name "Xxxxxxxxxxxxxx.xxx"
2. The website "Xxxxxxxxxxxxxx.xxx" and all intellectual property relating to
the design of the website held by Xx. Xxxxxxx
3. All goodwill of the Business
4. All rights associated with the "content management system" with respect to
the Business.
5. From the Closing, the benefit and burden of the contractual arrangements
listed in Schedule 3.3.
16
SCHEDULE 3.3
BUSINESS CONDUCTED; EMPLOYEES/CONTRACTORS
The advertising agent contracts with Xxxxxx Media and Tribal Fusion (who take
40% and 45% commission respectively with respect to all advertising revenue they
source).
Any contractual arrangements with Xxxxxxx.xxx, Bullz-Eye and Gorilla Nation.
Contract with Steadfast Networks for providing the main server ($3,060 per
month).
Contract with Server Matrix ("The Planet") for providing separate web server
(approximately $300 per month).
17
EXHIBIT A
ESCROW AGREEMENT
18
EXHIBIT B
PROMISSORY NOTE
19
EXHIBIT C
REGISTRATION RIGHTS AGREEMENT
20
EXHIBIT D
INDEPENDENT CONTRACTOR SERVICES AGREEMENT
21
EXHIBIT E
PURCHASER'S OPINION OF COUNSEL
22
EXHIBIT F
SELLER'S OPINION OF COUNSEL
23
EXHIBIT G
XXXX OF SALE
24
