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ASSET PURCHASE AGREEMENT (this "Agreement") dated as of _________,_________,_________(M/D/Y), among AAA, INC., a _________ corporation ("Seller"), and BBB, INC., a _________ corporation ("Purchaser").
This Agreement sets forth the terms and conditions upon which Seller is selling and Purchaser is purchasing all of the assets (other than Excluded Assets, as defined below) and certain liabilities of Seller's CLIQNOW! division.
Accordingly, in consideration of the premises and the representations, warranties and agreements herein contained, the parties hereto agree as follows:
| ARTICLE I DEFINITIONS |
The following definitions shall apply for purposes of this Agreement (such definitions to be equally applicable to both the singular and plural forms of the terms defined):
1.1 "Business" means (i) media selling across web site advertising networks; and (ii) the provision of promotion, marketing and sales services and other ancillary activities relating to and provided in connection with the foregoing.
1.2 "Certificate of Designations" means the certificate of designations with respect to Series B Convertible Redeemable Preferred Stock of Purchaser in the form attached hereto as Exhibit 1.2.
1.3 "Contracts" means those agreements listed on Schedule 1.3.
1.4 "Deferred Purchase Price" means $ _________.
1.5 "Encumbrances" means, to the extent applicable, all claims, liens (including liens for taxes), mortgages, security interests, leases, options, rights of first refusal or first offer, easements or other similar encumbrances.
1.6 "Intellectual Property" means the trade names listed on Schedule 1.6, and all registered trademarks and goodwill associated therewith.
1.7 "Knowledge", "to Seller's Knowledge" and variations thereof shall mean that which is actually known by an executive officer of Seller and with no requirement of due inquiry or that such officers "should have known."
1.8 "Leased Premises" shall mean that portion of office space located at _________, _________ presently utilized by the Transferred Employees.
1.9 "Material Adverse Change" or "Material Adverse Effect" means, when used with respect to Seller or Purchaser, as the case may be, any change or effect that is or, so far as can be reasonably determined, is likely to be materially adverse to the assets, properties, condition (financial or otherwise), business (including, without limitation, the Business) or results of operations of Seller or Purchaser, as the case may be, taken as a whole.
1.10 "Permitted Encumbrances" means Encumbrances that (a) are liens for taxes not yet due and payable, (b) do not, individually or in the aggregate, materially detract from the value of the assets to which they attach, (c) are mechanics', carriers', materialmen's, landlords', workers' or other similar liens incurred in the ordinary course of business or (d) relate to assets owned by customers or third parties that are used by the Company in its operations.
1.11 "Post-Closing Financial Statements" means (i) audited financial statements (balance sheets, statements of income and statements of cash flows) for the Business for the year ended _________,_________,_________(M/D/Y), prepared by Seller's regular independent auditors, and accompanied by an unqualified opinion of such auditors, and (ii) unaudited balance sheet as of _________,_________,_________(M/D/Y) and unaudited statement of income for the three months ended _________,_________,_________(M/D/Y).
1.12 "Registration Rights Agreement" means the registration rights agreement dated the date hereof and in the form attached hereto as Exhibit 1.12.
1.13 "Royalty Rights" means all of Seller's right, title and interest in and to any revenue derived from or arising out of the Business, including royalties and similar payments, whether or not earned or payable on the date hereof.
1.14 "Seller's Accounts Estimate" means $ _________, as adjusted pursuant to Sections 1.15 and 1.16 hereof.
1.15 "Seller's Accounts Payable" means the accounts payable of Seller relating to the Business as of the date hereof, as listed on Schedule 1.15, which Schedule may be amended within 30 days from the date hereof (with corresponding adjustments being made to the Seller's Accounts Estimate).
1.16 "Seller's Accounts Receivable" means the accounts receivable of Seller relating to the Business as of the date hereof as listed on Schedule 1.16, which Schedule may be amended within 30 days from the date hereof (with corresponding adjustments being made to the Seller's Accounts Estimate).
1.17 "Transaction Documents" means, collectively, this Agreement, the Certificate of Designations, the Employment Agreements and the Registration Rights Agreement.
1.18 "Transferred Employees" means the individuals listed on Schedule 1.18.
| ARTICLE II THE ASSET PURCHASE |
2.1 The Asset Purchase.
(a) Upon the terms and subject to the conditions of this Agreement, Seller hereby sells, conveys, assigns, transfers and delivers to Purchaser free and clear of all Encumbrances (other than Permitted Encumbrances and except as expressly provided herein), and Purchaser hereby purchases from Seller, the Business and all the assets, properties and rights owned or leased by Seller and constituting the Business (the "Purchased Assets"), including without limitation:
(i) all of Seller's right, title and interest in and to the Contracts, to the extent assignable;
(ii) Seller's Accounts Receivable;
(iii) all customer lists, sales data, brochures, catalogs, mailing lists, art work, photographs and advertising material that are used in the Business, whether in electronic form or otherwise;
(iv) all of Seller's interest in governmental permits, licenses, registrations, certificates, consents, orders and approvals necessary for the continued operation of the Business;
(v) all trade secrets, Royalty Rights, work notes, market studies, consultant's reports and similar property, tangible or intangible, used in the Business;
(vi) copies of all records of Seller material to the operation of the Business, including property, tax and marketing records and copies of personnel records of Transferred Employees;
(vii) all right, title and interest in and to the goodwill incident to the Business;
(viii) all prepaid expenses of, or for the benefit of, the Business;
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