ASSET PURCHASE AGREEMENT
between
TALKPOINT COMMUNICATIONS INC,
as Seller,
and
TALKPOINT HOLDINGS, LLC
as Purchaser
January 14, 2004
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of January
14, 2004, is made and entered into by and between TALKPOINT COMMUNICATIONS INC.,
a Delaware corporation, ("Seller") and TALKPOINT HOLDINGS, LLC, a New York
limited liability company, or its designee ("Purchaser");
W I T N E S S E T H:
WHEREAS, Seller is in the business of organizing internet conferencing
and in providing equipment to facilitate such conferencing (the "Business") and
owns interests in and to certain assets associated with the operation of the
Business; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller substantially all of the assets of Seller, tangible and
intangible, all in the manner and subject to the terms and conditions set forth
herein and in accordance with sections 105, 363 and 365 of Chapter 11 of Title
11 of the United States Code (the "Bankruptcy Code"); and
NOW, THEREFORE, for Ten Dollars ($10.00) and in consideration of the
mutual benefits to be derived from this Agreement and of the representations,
warranties, conditions, agreements and promises contained herein and other good
and valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the Seller and Purchaser hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Definitions. As used herein, the following terms shall have
the meanings set forth in this Article:
1.1(a) "Accounts." All accounts receivable of the Seller in
existence at the Closing.
1.1(b) "Assets." All of Seller's right, title and interest in
all properties, assets, and rights of any kind, whether tangible or
intangible, real or personal, owned, licensed, leased, by Seller in
connection with or incidental to the operation of the Business or
otherwise, including without limitation, all, Accounts, instruments,
equipment, furniture, fixtures, leasehold improvements, Inventory,
supplies, Records, goodwill, Leases (other than Real Property Leases),
Contracts, licenses, permits, approvals, franchises, authorizations,
rights, insurance claims and insurance proceeds (unless such claims
arise solely in connection with an Excluded Asset) but excluding those
Excluded Assets described in Section 1.3 hereof. Without limiting the
foregoing, the Assets shall include the Assumed Contracts.
1.1(c) "Bankruptcy Claims." All of the claims of Seller
that are specifically reserved in favor of the Seller.
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1.1(d) "Closing." The consummation of the purchase and sale
described herein.
1.1(e) "Closing Date." The date upon which all the events
associated with the purchase and sale described herein actually occur,
as described in Section 1.7.
1.1(f) "Contracts." All of Seller's rights in and under all
purchase order, service, supply, maintenance, equipment, and other
contracts (whether purchase, sale, or otherwise) other than Real
Property Leases affecting or involving the operation of the Business to
which the Seller is a party.
1.1(g) "Intellectual Property." To the extent assignable, all
software (including without limitation all source code) owned by
Seller, all of Seller's third party software licenses with respect to
which Seller is the licensee, patents, trademarks, trade secrets,
proprietary processes or rights, copyrights, trade names, service marks
and internet domain names, any applications or agreements of Seller for
or relating to any of the foregoing, all of Seller's electronic systems
and databases, all of Seller's common law or implied rights to use
intellectual property, all of Seller's claims and rights to recovery or
offset of any kind or character arising from or concerning the
Business, including, without limitation, confidentiality obligations
and similar obligations, and all other intangible property rights of
Seller utilized in connection with, or related to, the operation of the
Business.
1.1(h) "Inventory." All of the stock in trade, supplies, and
inventory used or useful in the operation of the Business as stocked by
Seller in accordance with Seller's normal ordering procedures, but not
including any inventory used or sold prior to the Closing in the
ordinary course or in accordance with orders of the Bankruptcy Court.
1.1(i) "Leases." All of Seller's rights and obligations in and
under all real and personal property lease agreements to which Seller
is a party.
1.1(j) "Licenses." All of the licenses and other
authorizations issued by any governmental authority or agency to Seller
for the operation of the Business.
1.1(k) "Records." All customer, inventory, billing and supply
records, product information, product drawings, production
documentation, material specifications, equipment lists, formulae,
specifications, plans, reports, data, notes, correspondence, marketing
and production material, files, instruction or maintenance manuals for
equipment, and all other books and records relating to the operation of
the Business.
1.1(l) "Trade Payables." Those accounts payable of Seller owed
to trade vendors as of the date hereof.
1.1(m) "To the knowledge of Seller" shall mean the actual
knowledge of Xxxxxxxx Xxxxxxxx and "to the knowledge of Purchaser"
shall mean the actual knowledge of Xxxxxxx Xxxxxxx.
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1.2 Purchase and Sale. Subject to the terms and conditions set forth
herein, and subject to the court and regulatory approvals specified in Sections
4.1 and 4.2, on the Closing Date, Seller shall sell and deliver to Purchaser,
and Purchaser shall purchase from Seller, the Assets, as is, where is, but free
and clear of any and all liens, claims, encumbrances or interests except as
specifically permitted herein.
1.3 Excluded Assets. The Assets shall not include any of the
following (collectively, the "Excluded Assets"):
(a) Cash and cash equivalents (other than Accounts) including,
without limitation, the Deposit as defined in Section 1.5;
(b) Bankruptcy Claims;
(c) Leases for real property (the "Real Property Leases");
(d) That certain Non-Negotiable Promissory Note from DTS Video
Holdings, Inc. to the Seller in the original principal amount of Six
Hundred Ninety Five Thousand Dollars ($695,000.00);
(e) All furniture, furnishings, and fixtures of Seller located
at the Portsmouth, New Hampshire facility;
(f) Any Contact that is not as Assumed Contract; and
(g) All real property interests of Seller, whether owned or
leased (the "Real Property").
1.4 Assignment and Assumption of Liabilities.
(a) Assumed Liabilities. Purchaser shall assume and agree to
pay all obligations (the "Assumed Liabilities") under the Contracts
which Purchaser designates in writing for assumption and assignment on
or before the date of the entry of the Bidding Procedure Order (the
"Assumed Contracts"). All costs to cure the Assumed Contracts, to the
extent required by operation of 11 U.S.C. ss. 365, shall be borne by
Purchaser up to a maximum of Twenty Five Thousand Dollars ($25,000.00)
with any additional amount to be borne by the Seller.
(b) No Other Liabilities Assumed. Except for the Assumed
Liabilities, Purchaser shall not assume any liability or obligation of
Seller, and Seller shall remain fully liable and responsible for its
liabilities and obligations that are not Assumed Liabilities, including
but not limited to any pre-petition claims of Seller (collectively, the
"Retained Liabilities").
1.5 Deposit. Purchaser and Seller hereby acknowledge that concurrently
with the execution hereof, Purchaser has delivered to the law firm of Xxxxxxxx
Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C., as escrow agent (the "Escrow
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Agent"), either (i) cash, or (ii) an irrevocable letter of credit from a bank in
a form reasonably acceptable to Seller, in either case in the amount of One
Hundred Thousand Dollars ($100,000.00), which amount or letter of credit shall
be held for the benefit of Purchaser and Seller (collectively, the "Deposit"),
pursuant to the terms of this Agreement and an escrow agreement dated as of the
date hereof by and among Purchaser, Seller and the Escrow Agent (the "Escrow
Agreement"). The Deposit shall at Closing be credited as a partial payment of
the Purchase Price (and if a letter of credit is provided, Seller shall be
entitled at the Closing to draw on such letter of credit for application against
the Purchase Price unless Purchaser and Seller agree otherwise). The Deposit, if
provided in cash, shall, at all times prior to its release or return in
accordance with the terms of this Agreement, be held by the Escrow Agent in
escrow in a segregated non-interest bearing account, and in any event held in
accordance with the terms of this Agreement and the Escrow Agreement, and no
other money or funds shall be commingled in such account. All interest earned,
if any, shall remain, at all times, property of the Purchaser. The Deposit shall
be fully refunded to Purchaser: (i) in the event of a termination of this
Agreement arising from the failure of any condition set forth in Section 4.1
hereof not caused by the wrongful act or omission of Purchaser; (ii) in the
event any Person other than Purchaser or its assigns is approved by the
Bankruptcy Court to be the successful bidder for the Assets; (iii) in the event
of termination of this Agreement by Purchaser pursuant to Section 6.2 (b); (iv)
in the event that the Closing does not occur or this Agreement is terminated as
a result of Seller's breach or default of any of its obligations hereunder, or
as a result of any other action, inaction or other failure or inability to
perform on the part of Seller; or (v) in the event that Seller terminates this
Agreement pursuant to Section 6.2(c)(i) (except pursuant to a breach of Section
4.2(d) or 6.2(c)(ii)). If this Agreement is terminated for any other reason,
including the failure of Purchaser to close after all of the conditions
precedent in Section 4.1 have either been satisfied or waived, the Deposit,
including any interest earned thereon, shall be delivered to Seller. Delivery of
the Deposit to Seller in accordance with the foregoing shall constitute full and
exclusive compensation for any and all losses and expenses incurred by Seller,
and as such shall constitute full and liquidated damages and not a penalty.
1.6 Purchase Price.
(a) The purchase price for the Assets (the "Purchase Price")
shall consist of: (i) the sum of Three Hundred Twenty Five Thousand
Dollars ($325,000), which shall be deemed to be payment in
consideration of all Assets other than the Accounts; and (ii) the sum
of Four Hundred Seventy Five Thousand Dollars ($475,000.00), subject to
adjustment as provided below, which shall be deemed to be payment in
consideration of the Accounts. As of the Closing Date the then extant
Accounts shall be categorized and valued in accordance with Schedule
1.6(a) hereto. In the event that the aggregate value of the Accounts as
calculated in accordance with Schedule 1.6(a) exceeds Four Hundred
Seventy Five Thousand Dollars ($475,000.00), the component of the
Purchase Price attributable to the Accounts Purchase Price shall be
increased by such excess amount. If such aggregate value of the
Accounts is less Four Hundred Seventy Five Thousand Dollars
($475,000.00) or less, then there shall be no adjustment of the
Purchase Price.
(b) The Purchase Price shall be paid as follows: (i) Purchaser
shall assume the Assumed Liabilities, exclusive of the Secured Debt
described in Schedule 1.6(b) hereto(the "Secured Debt"), (ii) Purchaser
shall pay in full all amounts outstanding as of the Closing Date with
respect to the Secured Debt, and (iii) Purchaser shall pay the Seller
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in cash the amount equal to the greater of (A) the Purchase Price minus
the Secured Debt and (B) $0. The sum of the foregoing subparts (ii) and
(iii) are referred to this Agreement as the "Cash Consideration".
(c) The Cash Consideration shall be paid in full by the
Purchaser to the Seller in cash or other immediately available funds at
Closing. The Purchase Price, and the Cash Consideration, shall be
increased to take into account any increase thereto caused by the
application of the bidding procedures as set forth in the Bid
Protection Order (as defined in Section 3.1(a) below), provided that
Purchaser is the successful bidder. The Deposit, including any interest
earned hereon, shall be credited against the Purchase Price at Closing.
Except as otherwise specified herein, the term "Dollars" or "$" as used
in this Agreement refers to United States Dollars.
1.7 Closing. The Closing shall occur within five (5) business days
after the entry of the Sale Order (as defined in Section 3.1(b) at the offices
of Seller's legal counsel, or such other place as Seller and Purchaser shall
agree, and shall be effective as of 11:59 p.m. Eastern Standard Time on the date
of Closing.
1.8 Allocation of Purchase Price. The Purchase Price shall be
allocated to the Assets in accordance with Schedule 1.8 to be provided at or
before the Closing Date.
1.9 Subject to Sale Order. The transactions contemplated in this
Agreement shall be expressly subject to the entry of the Sale Order (as defined
in Section 3.1(b)) by the Bankruptcy Court.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Seller's Representations and Warranties. Seller hereby represents
and warrants to Purchaser that to the knowledge of Seller (unless otherwise
specified), as of the date hereof, and except as set forth in the Schedules
corresponding to the Section numbers of this Article II:
(a) Organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Seller
has full corporate power to execute and deliver this Agreement and to perform
its obligations hereunder, to own, lease and operate its properties, and to
carry on its business as now being conducted.
(b) Authority and Binding Agreement. This Agreement has been duly
authorized, executed and delivered by Seller and, subject to the approval of the
Seller's shareholders or the United States Bankruptcy Court for the District of
Delaware (the "Bankruptcy Court"), is the valid and binding obligation of
Seller. This Agreement is enforceable against Seller in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(c) Conflicts; Consents. Except as shown on Schedule 2.1(c), neither the
execution and delivery of this Agreement (as well as all other instruments,
agreements, certificates or other documents contemplated hereby) and the
consummation of the transactions contemplated hereby or thereby by Seller will
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(i) conflict with or result in a breach of, or require any consent or approval
under, the charter or by-laws of the Seller, except for any such conflict,
breach or requirement with respect to which requisite waivers, consents or
approvals shall be obtained before the Closing (which waivers, consents and
approvals are set forth in Schedule 2.1(c)); (ii) violate any law, statute,
rule, regulation or order; or (iii) violate any writ, injunction or decree
applicable to the Seller or the properties or assets of the Seller, in each case
in any manner that could reasonably be expected to delay or prevent the Closing
or the consummation of the transactions contemplated hereunder or prevent
Purchaser from receiving good and marketable title to the Assets, free and clear
of any security interests, liens, pledges, charges, escrows, options, rights of
first refusal, mortgages, indentures, security agreements or other encumbrances
(each, a "Claim," and collectively, "Claims") other than Permitted Liens. Except
as set forth in Schedule 2.1(c), no consent or approval by, or notification of
or filing with, any governmental authority or body is required in connection
with the execution, delivery and performance by such party of this Agreement or
the consummation of the transactions contemplated hereby.
(d) Assets, Personal Property and Related Matters. Except as set forth
on Schedule 2.1(d), Seller will deliver to Purchaser at Closing good legal and
equitable title to all personal property Assets, AS IS and WHERE IS with no
representation or warranties of any kind, except as to title and as expressly
provided in this Agreement, and in each case free and clear of all Claims other
than (i) liens for current Taxes, payments of which are not yet delinquent or
that are being contested in good faith by appropriate proceedings set forth in
Schedule 2.1(d), (ii) liens in respect of pledges or deposits under worker's
compensation laws or similar legislation, carriers', warehousemen's, mechanics',
laborers' and materialmen's and similar liens, if the obligations secured by
such liens are not then delinquent or are being contested in good faith by
appropriate proceedings, (iii) any matters expressly identified on the Schedules
hereto; and (iv) liens permitted under this Agreement ("Permitted Liens").
(e) [Intentionally omitted]
(f) Governmental Regulations. Except as set forth on Schedule 2.1(f), no
material federal, state, or local governmental licenses or permits necessary for
Seller to conduct its Business as presently being conducted has been suspended
or revoked at any time within the three years prior to the date of this
Agreement.
(g) Prepayments. Seller has not received any prepayment for services to
be performed or goods to be delivered by Purchaser after the Closing Date other
than prepayments that in the aggregate are less than Twenty Thousand Dollars
($20,000.00).
(h) Brokers. No agent, broker, investment banker or any other Person
acting on behalf of or under the authority of Seller is or will be entitled to
any broker's or finder's fee or any other commission or similar fee directly or
indirectly from any of the parties hereto in connection with any of the
transactions contemplated hereby, and in no event shall Purchaser be obligated
to pay such Person.
(i) No Survival of Warranties and Representations; Limitation or
Damages. Seller's representations and warranties shall terminate at the time of
the Closing.
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2.2 Representations and Warranties by Purchaser. Purchaser hereby
represents and warrants to Seller that to the knowledge of Purchaser (unless
otherwise specified), as of the date hereof, and except as set forth in the
Schedules corresponding to the Section numbers of this Article II:
(a) Organization, Standing and Power. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of
New York. Purchaser is (or as at the date of closing will be) qualified to do
business in each jurisdiction necessary to consummate the transactions
contemplated hereby and perform its obligations hereunder. Purchaser has full
organizational power and authority to execute and deliver this Agreement and to
perform its obligations hereunder and to own, lease and operate its properties
and to carry on its business as now being conducted.
(b) Authority; Binding Agreement. This Agreement has been duly
authorized, executed and delivered by Purchaser and, subject to the approval of
the Bankruptcy Court, is the valid and binding obligation of Purchaser,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
(c) Conflicts; Consents. Neither the execution and delivery of this
Agreement (as well as all other instruments, agreements, certificates or other
documents contemplated hereby), the consummation of the transactions
contemplated hereby or thereby, nor compliance by Purchaser with any of the
provisions hereof or thereof will (i) conflict with or result in a breach of, or
require any consent or approval under, the certificate of formation or operating
agreement of Purchaser; or (ii) violate any law, statute, rule, regulation,
order, writ, injunction or decree applicable to either Purchaser or its
properties or assets. No consent or approval by, or notification of or filing
with, any governmental authority or body is required in connection with the
execution, delivery and performance by Purchaser of this Agreement or the
consummation of the transactions contemplated hereby.
(d) Brokers. No agent, broker, investment banker or other Person acting
on behalf of Purchaser or under the authority of Purchaser is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
directly or indirectly from Seller in connection with any of the transactions
contemplated hereby and in no event shall Seller be obligated to pay such
Person.
(e) Finances. Purchaser possesses or has immediate access to such funds
as necessary for Purchaser to pay the Cash Consideration and perform its
obligations arising with respect to Assumed Liabilities as and when required
pursuant to this Agreement.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 Bankruptcy Actions.
(a) Promptly following the signing of this Agreement and the Seller's
filing a voluntary petition under the Bankruptcy Code commencing a bankruptcy
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case (the "Chapter 11 Case") in the Bankruptcy Court (the date of the
commencement of the Chapter 11 Case being referred to as the "Petition Date"),
Seller shall file and prosecute in good faith a motion with the Bankruptcy Court
(the "Bid Protection Motion") seeking an order approving the Breakup Fee (as
provided for in Section 6.3 of this Agreement), and certain bid protections and
bidding procedures.
(b) Promptly following the Petition Date, Seller shall file and
prosecute in good faith, a motion (the "Sale Motion") seeking the approval of
this Agreement by the Bankruptcy Court, subject to higher and better offers, as
provided in the Bid Protection Order. Seller shall use its best efforts to
obtain an order granting the relief requested in the Sale Motion, approving this
Agreement, approving the sale and assignment of the Assets under this Agreement
free and clear of liens, encumbrances, claims and interests (the "Sale Order")
as soon thereafter as possible but in no case later than the Closing Date.
(c) Seller shall materially comply (or obtain an order from a competent
court waiving compliance) with all applicable laws and regulations, including,
without limitation, requirements under the Bankruptcy Code and the Federal Rules
of Bankruptcy Procedure, in connection with obtaining approval of the Bid
Protection Motion, the Sale Motion and the sale of the Assets under this
Agreement.
(d) At any hearing on the Sale Motion, the Purchaser shall provide to
the Bankruptcy Court evidence sufficient to the Bankruptcy Court to find that
adequate assurance of future performance exists with respect to all Contracts
that are not Excluded Assets.
3.2 Compliance With Bidding Procedures; Maintenance of
Confidentiality.
(a) Seller shall comply with the bidding procedures established or
approved by the Bankruptcy Court (the "Bidding Procedures").
(b) Seller shall provide or make available to Purchaser any document
that it has provided to any third party in accordance with the Bidding
Procedures that has not previously been made available to Purchaser, and which
is generally available to all bidders.
(c) Seller shall not release any Person from, or waive any provisions
of, any confidentiality agreement entered into in accordance with the Bidding
Procedures, without Purchaser's prior written consent.
3.3 Expenses. Subject to Section 1.5, each party hereto shall bear its
own costs and expenses incurred in connection with the transactions contemplated
by this Agreement; provided, however, that Purchaser shall be entitled to the
Break-Up Fee and the expense reimbursement in accordance with the provisions of
Section 3.8 hereof and in accordance with the Bid Protection Order.
3.4 Preservation of Assets. From the date hereof until the earlier of
the termination of this Agreement or the Closing Date, except as expressly
permitted by this Agreement or except with Purchaser's prior written consent,
which consent shall not be unreasonably withheld or delayed, and except for
action in the ordinary course of business, Seller shall preserve the material
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Assets in its current operating condition such that the Business may be operated
without Purchaser incurring material repair or maintenance expense.
3.5 Further Assurances. Each of the parties hereto agrees to use all
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, to consummate and make effective the
transactions contemplated by this Agreement as expeditiously as practicable and
to ensure that the conditions set forth in Article IV hereof are satisfied,
insofar as such matters are within the control of such party. In case at any
time after the Closing Date any further action is necessary or reasonably
desirable to carry out the purposes of this Agreement, each of the parties to
this Agreement shall take or cause to be taken all such action, to the extent
commercially reasonable, including the execution and delivery of such further
instruments and documents, as may be reasonably requested by the other party for
such purposes or otherwise to complete or perfect the transactions contemplated
hereby; provided, however, that no party shall be required to take any action or
execute and deliver any document that increases or extends its liability beyond
that set forth herein. Without limitation of the foregoing, Seller shall execute
and deliver such affidavits and other documents as may reasonably be requested
(including affidavits relating to Seller' operations) by Purchaser and/or
Purchaser's title and other insurers solely for purposes of obtaining a title or
other insurance policy satisfactory to Purchaser.
3.6 Access and Information. From the date hereof until the earliest of
the Closing Date or the date of termination of this Agreement, Seller shall
continue to permit Purchaser and its agents and representatives (including
without limitation their lenders and financial advisors) to have access to
Seller, its subsidiaries, if any, and their respective officers, counsel,
auditors, books and records, and the opportunity to investigate Seller, its
subsidiaries and the property and the condition and nature of their assets,
business and liabilities, in each case upon reasonable notice and during normal
business hours. If, during such investigation, Purchaser identifies facts or
conditions that could not reasonably have been discovered by Purchaser as of the
date that the Schedules are accepted by Purchaser and that render Seller's
representations or warranties untrue or inaccurate in one or more material
respects with the result that it materially impairs Purchaser's ability to
obtain financing on terms satisfactory to Purchaser, or otherwise could
reasonably be expected, individually or in the aggregate, to materially
adversely affect the Assets or Purchaser's use, operation or exploitation of the
Assets, then Purchaser may, by written notice delivered to Seller within seven
(7) business days of Purchaser's receipt of such facts or conditions, terminate
this Agreement.
3.7 Tax Matters and Covenants.
(a) Seller shall cause to be included in its income Tax Returns for all
periods (or portions thereof) ending on or before the Closing Date (a
"Pre-Closing Tax Period") all Tax items (relating to Assets held by the Seller
during such period) arising during such periods (or portions thereof). Purchaser
will cause to be included in its Tax Returns for all periods (or portions
thereof) beginning after the Closing Date (a "Post-Closing Tax Period") all Tax
items relating to the Assets during such periods (or portions thereof). As used
in this Agreement, "Tax Return" means returns, reports, information statements
and other documentation (including any additional or supporting materials) filed
or maintained, or required to be filed or maintained, in connection with the
calculation, determination, assessment or collection of any Tax and shall
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include any amended returns required as a result of examination adjustments made
by the Internal Revenue Service or other Tax authority.
(b) Seller shall cause the provisions of any Tax sharing or indemnity
agreement between Seller and any of its affiliates to be terminated on or before
the Closing Date.
(c) To the extent not excused under 11 U.S.C. ss.1146, all transfer,
documentary, sales, use, stamp, registration, and other Taxes and fees
(including any penalties and interest) incurred in connection with this
Agreement and the transactions contemplated hereby, other than income Taxes,
shall be paid by Purchaser. Each party shall file, to the extent required by
applicable law, all necessary Tax Returns and other documentation with respect
to all such transfer or sales and use Taxes. The parties shall cooperate with
each other to minimize the amount of such transfer or sales and use Taxes.
3.8 Notice of Developments. Seller shall give prompt written notice to
Purchaser of any material development affecting the Assets, Assumed Liabilities,
and the Business, and each party hereto shall give prompt written notice to the
other of any material development adversely affecting the ability of any such
party to consummate the transactions contemplated hereby.
3.9 Employees. Purchaser shall not be obligated hereby to offer
employment to any or all employees of Seller, except that in hiring new
employees, Purchaser shall, for the twelve (12) months following the Closing, to
the extent that persons were employees of Seller prior to Closing and are as
qualified for such positions as an applicant who is not a former employee of
Seller (as determined by Purchaser in its sole discretion), give preference to
such former employees in hiring over other applicants, subject to applicable
law.
3.10 Post-Closing Access and Information. Seller acknowledges and
agrees that from and after the Closing Date, Purchaser will be entitled to
possession of all documents, books, records, agreements, and financial data of
any sort relating solely to the Assets, which shall be maintained at the
principal executive office of Purchaser; provided, however, that Seller, at its
sole cost and expense and upon reasonable notice to Purchaser, shall be entitled
to reasonable access to, and to make copies of, such books and records as
necessary for auditing, Tax or litigation purposes, or in connection with any
bankruptcy or similar proceedings, or to the extent they relate to assets
retained by Seller, and Purchaser shall maintain such books, records and
material financial data for a period of at least three (3) years. Furthermore,
Purchaser agrees that it shall give the Seller the option of taking possession
of any or all of such materials, at the end of such three-year period, to the
extent that Purchaser has decided to destroy or throw away such materials.
Purchaser also agrees to make its accounting and record-keeping personnel
available to the Seller at reasonable times during normal business hours, in
exchange for reimbursement of the reasonable costs associated with such
employee's time, to the extent reasonably requested by Seller in connection with
its access to and use of such materials.
3.11 Litigation Support. In the event and for so long as any party
hereto actively is contesting or defending against any charge, complaint,
action, suit, proceeding, hearing, investigation, Claim or demand in connection
with (i) any transaction contemplated under this Agreement or (ii) any fact,
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situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction in existence
or occurring on or before the Closing Date involving either Seller or Purchaser,
the other party will reasonably cooperate with the contesting or defending party
and its counsel in the contest or defense, make available its personnel, and
provide such testimony and access to its books and records as shall be
reasonably necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending party, and the contesting or
defending party shall reimburse the other party for its expenses of doing same.
3.12 Assumed Contracts. Prior to Closing, Seller shall obtain an order
of the Bankruptcy Court, authorizing the Seller to assume and assign the Assumed
Contracts to Purchaser pursuant to Section 365 of the Bankruptcy Code free and
clear of any encumbrances. To the extent, if any, the consent of any third party
to the assignment of any Assumed Contract is necessary, Seller shall use
commercially reasonable efforts to obtain such consent; provided, however, that
Seller need not pay any money or other consideration to any such third party.
If, by the 60th day following the Closing Date and after using best efforts to
obtain such consent, Seller is unable to obtain any such consent, and Purchaser
has not waived the necessity of obtaining such consent, then such assigned
Contracts shall not be assigned and transferred to Purchaser (and shall be
deemed Excluded Assets) and Purchaser shall not assume any liabilities or
obligations with respect thereto.
ARTICLE IV
CLOSING CONDITIONS
4.1 Conditions to Obligations of Purchaser. The obligations of
Purchaser to perform hereunder and at the Closing are subject to the
satisfaction, at or prior to the Closing, of the following conditions, unless
waived by Purchaser:
(a) Sale Order. The Bankruptcy Court shall have entered the Sale Order.
The Sale Order shall not have been vacated, stayed, amended, reversed or
modified. The Sale Order shall contain (or be accompanied by) findings of fact
and conclusions of law by the Bankruptcy Court that, among other things, find
and conclude that (x) the transactions contemplated hereby are in good faith and
otherwise satisfy the provisions of Sections 363 and 365 of the Bankruptcy Code,
including that Purchaser is a good faith purchaser for value within the meaning
of Section 363(m) of the Bankruptcy Code, (y) that the stays of Rules 6004 (g)
and 6006 (d) of the Federal Rules of Bankruptcy Procedure shall not apply and
(z) that the Seller has complied with all applicable notice requirements with
respect to the transactions contemplated by this Agreement. The Sale Order shall
provide and declare that all right, title and interest of Seller under each of
the Assumed Contracts (other than Assumed Contracts under which Seller is a
licensee of a non-exclusive license of intellectual property rights and consent
of the licensor to assignment is required, but such licensor has objected to the
Sale Motion) shall, upon Closing, be transferred and assigned to and fully and
irrevocably vest in Purchaser and remain in full force and effect and shall
relieve Seller from any further obligations under the Assumed Contracts as
provided for in 11 U.S.C. ss.365(k). The Sale Order or other Order shall also
declare and include or be accompanied by findings of fact and conclusions of law
of the Bankruptcy Court which, among other things, shall determine and declare:
(a) that each Assumed Contract is in full force and effect and is an executory
contract of the applicable Seller under Section 365 of the Bankruptcy Code; (b)
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that Seller may assume each such Assumed Contract (other than Assumed Contracts
under which Seller is a licensee of a non-exclusive license of intellectual
property rights and consent of the licensor to assignment is required, but such
licensor has objected to the Sale Motion) in accordance with Section 365 of the
Bankruptcy Code; (c) that Seller may assign each such contract (other than
Assumed Contracts under which Seller is a licensee of a non-exclusive license of
intellectual property rights and consent of the licensor to assignment is
required, but such licensor has objected to the Sale Motion) in accordance with
Section 363 and 365 of the Bankruptcy Code and any provisions in any contract
that prohibit or condition the assignment of such contract constitute
unenforceable anti-assignment provisions which are void and of no force and
effect; (d) that all other requirements and conditions under Section 363 and 365
of the Bankruptcy Code for the assumption by Seller and assignment to Purchaser
of each such Assumed Contract have been satisfied; (e) that upon Closing, in
accordance with Section 363 and 365 of the Bankruptcy Code, Purchaser shall be
fully and irrevocably vested in all right, title and interest of each such
contract and that following the Closing, each such Assumed Contract shall remain
in full force and effect: (f) that the assignments of each such contract are in
good faith under Section 363(b) and (m) of the Bankruptcy Code; (g) that the
cure amount set forth for each Assumed Contract in the applicable exhibit to the
Sale Motion shall be final and binding on the non-debtor party to the Contract
unless a different amount is set forth in the Sale Order; and (h) that Seller
gave due and proper notice of such assumption and assignment to each licensor,
sublicensor and other non-debtor party under each such Assumed Contract as well
as to any sublicensees. The Sale Order and any related findings of fact and
conclusions of law with respect to the matters set forth in this Section 4.1(b)
shall be in form and substance reasonably satisfactory to the Purchaser.
(b) Pending Actions. No action, suit or proceeding (including any
proceeding over which the Bankruptcy Court has jurisdiction under 28 U.S.C. sec.
157(b) and (c)) brought by any governmental entity shall be pending to enjoin,
restrain or prohibit the transactions contemplated hereby, or that would be
reasonably likely to prevent or make illegal the transactions contemplated
hereby.
(c) Seller's Representations and Warranties; Seller's Performance.
Seller's representations and warranties shall be true and correct in all
material respects as of the date hereof and again at and as of the Closing Date,
except for any changes resulting from activities or transactions which may have
taken place after the date hereof and which are permitted or contemplated by
this Agreement or which have been entered into in the ordinary course of
business and except to the extent that such representations and warranties are
expressly made as of another specified date and, as to such representation, the
same shall be true as of such specified date. Seller shall have performed and
complied in all material respects with all covenants and agreements required to
be performed or complied with by it on or prior to the Closing Date.
(d) Deliveries by Seller. Seller shall be ready, willing and able to
deliver to Purchaser the items specified in Section 4.3(a).
(e) Legal Bar. No injunction or orders issued by a court of competent
jurisdiction that prohibits the consummation of the transactions contemplated
herein shall be in effect.
(f) Requisite Consents. Seller shall have received and delivered to
Purchaser all consents, if any, that are required for the assumption and
assignment to Purchaser of each of the Assumed Contracts. If such notification
has not been made by the Closing Date, then the conditions shall be deemed to
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have been satisfied or waived. Notwithstanding the foregoing, Purchaser shall
not be limited or restricted in its communications and negotiations with third
parties merely because such communications and discussions related to Contracts
and/or issues which consist of or affect Purchaser's conditions precedent
hereunder.
4.2 Conditions to Obligations of Seller. The obligations of Seller to
enter into the Closing are subject to the satisfaction, at or prior to the
Closing, of the following conditions, unless waived by Seller:
(a) Sale Order. The Bankruptcy Court shall have entered in the
Bankruptcy Case the Sale Order (together with any related findings of fact or
conclusions of law) approving this Agreement and the transactions contemplated
hereby, and reasonably satisfactory in form and substance to Seller. The Sale
Order shall not have been vacated, stayed, amended, reversed or materially
modified.
(b) Pending Actions. No action, suit proceeding (including any
proceeding over which the Bankruptcy Court has jurisdiction) brought by any
governmental entity shall be pending to enjoin, restrain or prohibit the
transactions contemplated hereby, or that would be reasonably likely to prevent
or make illegal the transactions contemplated hereby.
(c) Covenants, Representations and Warranties. The representations and
warranties of Purchaser contained herein shall be true and correct in all
material respects as of the date hereof and again at and as of the Closing Date,
except for any changes resulting from activities or transactions which may have
taken place after the date hereof and which are permitted or contemplated by
this Agreement or which have been entered into in the ordinary course of
business and except to the extent that such representations and warranties are
expressly made as of another specified date and, as to such representation, the
same shall be true as of such specified date. Purchaser shall have performed and
complied in all material respects with all covenants and agreements required to
be performed or complied with by it on or prior to the Closing Date.
(d) Deliveries by Purchaser. Purchaser shall be ready, willing and able
to deliver to Seller the items specified in Section 4.3(b).
(e) Legal Bar. No injunction or orders issued by a court of competent
jurisdiction that prohibits the consummation of the transactions contemplated
herein shall be in effect.
4.3 Deliveries at Closing.
(a) Deliveries by Seller. At the Closing, Seller shall deliver or cause
the delivery of the following to Purchaser:
(i) Conveyance Documents. Bills of sale, assignment and
assumption agreements, deeds, and other documents reasonably requested
by Purchaser in order to effectively convey to Purchaser the Assets in
accordance with the terms hereof, in form and substance to the
reasonable satisfaction of Purchaser, executed by the Seller.
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(ii) Keys, Computer Codes, Etc. To the extent permitted under
any licenses or agreements with third parties or provided in the Sale
Order, all keys and security access information or procedures to the
Seller's offices, facilities and other premises and properties being
sold or leased to Purchaser hereunder, all computer access codes and
passwords for computer programs or systems being sold or leased to
Purchaser hereunder and any other property in the possession of Seller
and being sold or leased to Purchaser hereunder.
(iii) Bring Down. A certificate of Seller dated as of the
Closing Date to the effect that (i) Seller's representations and
warranties were true and correct in all material respects as of the date
hereof and again at and as of the Closing Date, except for any changes
resulting from activities or transactions which may have taken place
after the date hereof and which are permitted or contemplated by this
Agreement or which have been entered into in the ordinary course of
business and except to the extent that such representations and
warranties are expressly made as of another specified date and, as to
such representation, the same shall be true as of such specified date
and (ii) Seller has performed and complied in all material respects with
all covenants and agreements required to be performed or complied with
by it on or prior to the Closing Date.
(b) Deliveries by Purchaser. At the Closing, Purchaser shall deliver
the following to Seller, as set forth below:
(i) Purchase Price. Except as required or authorized by Order
of the Bankruptcy Court, the Cash Consideration portion of the Purchase
Price that is due at Closing, less the Deposit (which shall be released
from escrow and delivered to Seller), shall be payable by wire transfer
of immediately available funds to one or more bank accounts as specified
by Seller. Such bank accounts shall be designated by Seller in writing
not later than two business days prior to the Closing Date.
(ii) Conveyance Documents. Assignment and assumption
agreements and other documents reasonably requested by Seller and third
parties in order to effectuate Purchaser' assumption of the Assumed
Liabilities, in form and substance to the reasonable satisfaction of
Seller, executed by Purchaser.
(iii) Bring Down. A certificate of Purchaser dated as of the
Closing Date to the effect that (i) the representations and warranties
of Purchaser contained herein shall be true and correct in all material
respects as of the date hereof and again at and as of the Closing Date,
except for any changes resulting from activities or transactions which
may have taken place after the date hereof and which are permitted or
contemplated by this Agreement or which have been entered into in the
ordinary course of business and except to the extent that such
representations and warranties are expressly made as of another
specified date and, as to such representation, the same shall be true as
of such specified date and (ii) the Purchaser has performed and complied
in all material respects with all covenants and agreements required to
be performed or complied with by it on or prior to the Closing Date
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ARTICLE V
[Reserved]
ARTICLE VI
MISCELLANEOUS
6.1 Entire Agreement. This Agreement and the Schedules and Exhibits
contain the entire agreement between the parties with respect to the
transactions contemplated by this Agreement and supersede all prior agreements
or understandings among the parties.
6.2 Termination. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(a) Mutual Consent. Upon the mutual written consent of Seller and
Purchaser.
(b) By Purchaser.
(i) By Purchaser, in accordance with Section 3.6;
(ii) By Purchaser, at any time after April 2, 2004, if any of
the conditions provided for in Section 4.1 shall not have been waived
by Purchaser or fully satisfied prior to such date and Purchaser is not
in material violation or breach of its agreements, representations or
warranties contained in this Agreement;
(iii) By Purchaser, in the event of a violation or breach by
Seller of its agreements contained in this Agreement that has rendered
the satisfaction of any condition to the obligations of Purchaser
impossible, and Purchaser is not in material violation or breach of its
agreements, representations or warranties contained in this Agreement;
(iv) By Purchaser, at any time after the Bid Protection Order
is entered if such order is vacated, reversed or stayed, or is modified
or amended in a manner materially adverse to the Purchaser;
(v) By Purchaser, if the Sale Order has not been entered on or
before April 2, 2004; or
(vi) By Purchaser, if the Closing does not occur on or before
April 30, 2004 and Purchaser is not in material violation or breach of
its agreements, representations or warranties contained in this
Agreement.
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(c) By Seller.
(i) By Seller, at any time after April 2, 2004, if any of the
conditions provided for in Section 4.2 shall not have been waived in
writing by Seller or fully satisfied prior to such date;
(ii) By Seller, in the event another offer is accepted by
Seller in accordance with the Bidding Procedures, and is approved by the
Bankruptcy Court, and such alternative offer results in the closing of
such sale, in which event this Agreement shall be deemed, without
further action, to have been automatically terminated by Seller on the
date of the approval by the Bankruptcy Court and the Deposit shall be
immediately returned to Purchaser and, if payable pursuant to Section
6.3, the Break-Up Fee shall be paid to Purchaser upon the closing of the
sale to such other offeror; or
(iii) By Seller, in the event of a violation or breach by
Purchaser of its agreements, representations or warranties contained in
this Agreement that has rendered the satisfaction of any condition to
the obligations of Seller impossible, and Seller is not in material
violation or breach of their agreements contained in this Agreement; or
(iv) By Seller, if the Closing does not occur on or before
April 30, 2004 and Seller is not in material violation or breach of its
agreements, representations or warranties contained in this Agreement.
(d) Effect of Termination. In the event of termination of this
Agreement pursuant to this Section 6.2, written notice thereof shall forthwith
be given to the other party, and all further obligations of the parties
hereunder shall immediately and without further action terminate, except that
the obligations set forth in Sections 1.5, 3.7, 6.3 and 6.14 and the last
sentence of this Section 6.2(d) shall survive in full force and effect;
provided, however, that if this Agreement is terminated by a party because of
the other party's failure to comply with its obligations under this Agreement,
the terminating party's right to pursue all legal remedies for breach of
contract or otherwise, including, without limitation, damages relating thereto,
shall also survive such termination unimpaired. Notwithstanding anything herein
to the contrary, to the extent the Agreement is terminated by Purchaser for any
reason, other than a knowing and willful breach by Seller, Purchaser's remedies
shall be limited solely to the return of the Deposit and any interest earned
thereon. If this Agreement is terminated as provided herein each party will
redeliver all documents, work papers and other material of any other party
relating to the transactions contemplated hereby, whether obtained before or
after the execution hereof to the party furnishing the same, and shall abide by
the terms of any confidentiality agreement relating thereto.
6.3 Breakup-Fee. This Agreement is subject to other offers in accordance
with the Bidding Procedures. In the event (i) that Purchaser was ready, willing
and able, subject to any required consents, to close the transactions
contemplated by this Agreement, and (ii) Seller consummates instead a sale of
the Assets to a third party not affiliated with Purchaser who has qualified as a
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bidder ("Qualified Bidder") as determined by the Bid Protection Order or who
otherwise pays a purchase price for the Assets which exceeds the Purchase Price
by at least Eighty-five Thousand Dollars ($85,000.00) with respect to the first
such bid, with any and all subsequent bids to be in increments of not less than
Ten Thousand Dollars ($10,000.00) each, and the sale to such higher offeror or
any other offeror other than Purchaser is closed, then Seller shall pay to
Purchaser, from the proceeds of such sale, a breakup fee (the "Break-up Fee") by
wire transfer of immediately available funds on the completion of the sale to
such higher or better offeror. The amount of the Break-up Fee shall be equal to
the sum of the following: (i) Twenty-four Thousand Dollars ($24,000.00), plus
(ii) Purchaser's actual reasonable fees and expenses for legal, financial, and
accounting representation with respect to the matters set forth in this
Agreement up to a maximum amount of Sixty Thousand Dollars ($60,000.00). In the
event of circumstances that trigger the payment of the Break-up Fee, the Deposit
shall be immediately returned to Purchaser.
6.4 Descriptive Headings; Certain Interpretations.
(a) Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
(b) Except as otherwise expressly provided in this Agreement,
the following rules of interpretation apply to this Agreement: (i) the
singular includes the plural and the plural includes the singular; (ii)
a reference to any agreement or other contract includes schedules and
exhibits thereto and permitted supplements and amendments thereof, (iii)
a reference to a law includes any amendment or modification to such law
and any rules or regulations issued thereunder; (iv) a reference to a
Person includes a natural person or entity and its permitted successors
and assigns; and (v) a reference in this Agreement to an Article,
Section, Exhibit or Schedule is to the Article, Section, Exhibit or
Schedule of this Agreement.
6.5 Notices. All notices, requests and other communications to any party
hereunder shall be in writing and sufficient if delivered personally or sent by
facsimile transmission (with confirmation of receipt) or by overnight delivery
service maintaining records of receipt, addressed as follows:
If to Purchaser, to:
TalkPoint Holdings, LLC
00 Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, Manager
with a copy, which shall not constitute notice, to:
Xxxxxx Xxxxx, Esq.
0000 X. Xxx Xxxxxx, Xxxxx 000 (Xxx 27455)
X.X. Xxx 0000 Xxxxxxxxxx, XX 00000 Facsimile (336)
282-5796
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If to Seller, to:
TalkPoint Communications, Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxx
Facsimile (000) 000-0000
with a copy, which shall not constitute notice, to:
Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X'Xxxxxx
Facsimile: (000) 000-0000
and
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other parties in writing in accordance herewith.
All notices, requests or instructions given in accordance herewith shall be
deemed received on the date of delivery, if hand delivered, faxed, or sent by
Federal Express or any other recognized overnight courier service, and three (3)
business days after the date of mailing, if mailed by certified mail, return
receipt requested.
6.6 Counterparts, Facsimile Transmission. This Agreement may be
executed in several counterparts, each of which shall be deemed an original but
all of which counterparts collectively shall constitute one instrument.
Signatures sent to the other parties by facsimile transmission shall be binding
as evidence of acceptance of the terms hereof by such signatory party.
6.7 Survival. All the provisions of this Agreement that
contemplate performance after the Closing shall survive the Closing.
6.8 Benefits of Agreement. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Agreement is for the sole
benefit of the parties hereto and not for the benefit of any third party.
6.9 Amendments and Waivers. No modification, amendment or waiver, of
any provision of, or consent required by, this Agreement, nor any consent to any
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departure herefrom, shall be effective unless it is in writing and signed by the
parties hereto and, in the case of Seller, approved by the Bankruptcy Court.
Such modification, amendment, waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
6.10 Assignment. This Agreement and the rights and obligations
hereunder shall not be assignable or transferable by any party hereto without
the prior written consent of the other parties hereto, provided that Purchaser
may assign all of its rights and obligations hereunder to any Person directly or
indirectly controlled by Purchaser or Purchaser's controlling shareholders.
6.11 Governing Law. The rights and obligations of the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to its conflict of laws principles.
6.12 Remedies Cumulative. Except as otherwise specifically provided
herein, the remedies of the parties under this Agreement are cumulative and
shall not exclude any other remedies to which any party may be lawfully
entitled.
6.13 Bankruptcy Court Jurisdiction. The Bankruptcy Court shall have
exclusive jurisdiction with respect to any issues arising between the parties
and relating to the terms or provisions of this Agreement or the consummation of
the transactions contemplated hereunder.
6.14 Confidential Information.
(a) Purchaser agrees that it will not, directly or indirectly,
disclose or make available to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever, any Confidential Information
(as defined below). As used in this Agreement, the term "Confidential
Information" means any and all information pertaining to Seller's and Seller's
vendors, customers, employees, Business, business methods, public relations
methods, organization, procedure or finances; provided, however, that such term
shall not include information that (i) becomes publicly known or available
thereafter other than by any means in violation of this Agreement, or (ii) where
disclosure of such Confidential Information is legally compelled.
(b) If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 6.14 is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with 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, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(c) Purchaser acknowledges receipt from Seller of good and
sufficient consideration for its covenants and agreements set forth in this
Section 6.14.
(d) Purchaser acknowledges and agrees that the covenants and
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undertakings contained in this Section relate to matters which are of a special,
unique and extraordinary character and that a violation of any of the terms of
this Section will cause irreparable injury to Seller and that the amount of such
injury will be difficult, if not impossible, to estimate or determine and cannot
be adequately compensated by monetary damages. Therefore, Purchaser agrees that
Seller shall be entitled, in addition to all other rights and remedies available
under this Agreement and applicable law, as a matter of course, to an
injunction, restraining order or other equitable relief from any court of
competent jurisdiction, restraining any violation or threatened violation of any
of such terms by Purchaser, and by such other persons as the court shall order.
6.15 Publicity. Except as otherwise required by law or applicable stock
exchange rules, press releases and other publicity concerning the transactions
contemplated by this Agreement shall be made only with the prior written
agreement of the Seller and Purchaser which shall not be unreasonably withheld
or delayed.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed and delivered as of the day and year first above written.
PURCHASER: TALKPOINT HOLDINGS, LLC
By: ________________________________
Name:
Title:
SELLER: TALKPOINT COMMUNICATIONS INC.
By: ________________________________
Name:
Title:
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SCHEDULES AND EXHIBITS
Schedule 1.6(a) Accounts Calculation
Schedule 1.6(b) Secured Debt
Schedule 1.8 Allocation [to be provided]
Schedule 2.1(c) Seller's Conflicts, Consents [to be provided]
Schedule 2.1(d) Assets, Personal Property, Related Matters [to be provided]
Exhibit A Bid Protections and Bidding Procedures [to be provided]
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Schedule 1.6(a)
to
Asset Purchase Agreement
The Accounts shall be valued as of the Closing Date in accordance with the
following:
Age of Account as of Closing Date Valuation per $1.00
--------------------------------- -------------------
Less than 30 days old $0.90
31 - 60 days old $0.70
61 - 90 days old $0.45
More than 90 days old $0.10
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Schedule 1.6(b)
to
Asset Purchase Agreement
Secured Convertible Promissory Notes
Principal Amount Interest Rate Unpaid Accrued Interest as of January 14, 2004
---------------- ------------- ----------------------------------------------
$75,000.00 8.0% $1,446.58
$37,500.00 8.0% $ 723.29
$37,500.00 8.0% $ 723.29
$37,500.00 8.0% $ 723.29
$37,500.00 8.0% $ 723.29
$26,250.00 8.0% $ 506.30
$25,000.00 8.0% $ 482.19
$25,000.00 8.0% $ 482.19
$12,500.00 8.0% $ 241.10
$ 7,500.00 8.0% $ 144.66
$ 3,750.00 8.0% $ 72.33
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EXHIBIT A
BID PROTECTIONS AND BIDDING PROCEDURES
To be provided.
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