ASSET PURCHASE AGREEMENT Dated as of January 30, 2009 PANEL INTELLIGENCE, LLC, a Delaware limited liability company, as Seller, MERRIMAN CURHAN FORD GROUP, INC. and PANEL INTELLIGENCE, LLC a Massachusetts limited liability company, as Buyer
Dated
as of January 30, 2009
PANEL
INTELLIGENCE, LLC,
a
Delaware limited liability company, as Seller,
XXXXXXXX
CURHAN FORD GROUP, INC.
and
PANEL
INTELLIGENCE, LLC
a
Massachusetts limited liability company, as Buyer
This
Asset Purchase Agreement (this “Agreement”), dated and
effective as of January 30, 2009 (the “Effective Date”), is entered
into by and between PANEL INTELLIGENCE, LLC, a Delaware limited liability
company (“Seller”),
Merriman, Curhan, Ford, Group, Inc. a Delaware corporation with a principal
place of business in San Francisco, California (“MCF Group”) and Panel
Intelligence, LLC a Massachusetts limited liability company (“Buyer”), with respect to the
following facts and circumstances.
RECITALS
A. Seller,
a wholly-owned subsidiary of MCF Group conducts a consulting business in which
it performs primary qualitative and quantitative research for its clients (the
“Business”).
B. Seller
generated negative cash flow in 2008 and requires an investment by MCF Group of
at least $100,000 within the next 30 days, and of at least $500,000 in 2009, in
order to continue its operations.
C. MCF
Group is unable to continue to fund Seller’s operating deficits, and as a
result, Seller will be required to cease operations.
D. MCF
Group has retained an investment banker to sell the Business but has not
received an offer other than Buyer’s despite having contacted over 35 potential
acquirers.
E. MCF
Group has determined that it is in its best interests, as the sole member of
Seller, to consent to Seller’s sale of substantially all of its assets to Buyer,
and thereafter, to seek additional market capital from outside investors so as
to enable MCF Group to remain in operation.
F. Buyer,
wishes to acquire substantially all of Seller’s Assets, as more particularly
described in Section 1.2
hereof,
G. Seller
wishes to sell the Assets to Buyer.
H. The
Recitals constitute a material part of this Agreement upon which the Parties
have relied in entering into this Agreement, and this Agreement shall be
construed in light thereof.
NOW,
THEREFORE, on the basis of the foregoing facts and in consideration of the
covenants, agreements and acts of the Parties as hereinafter set forth, the
Parties hereby covenant and agree as follows:
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ARTICLE
I.
THE
SALE AND PURCHASE TRANSACTION
1.1 Sale and Purchase
of Assets. Upon the terms and subject to the conditions set
forth in this Agreement, effective as of the Effective Date, Seller hereby
sells, conveys, assigns, transfers and delivers to Buyer, and Buyer hereby
purchases and acquires from Seller, free and clear of any Encumbrances, all of
Seller's right, title and interest in and to the Assets as defined in Section 1.2
1.2 Acquired
Assets. The assets being
acquired hereunder consist of substantially all the assets of Seller including
without limitation the assets listed on Schedule 1.2 hereto under
“Assets” and (a) all brochures, trade and marketing materials, service offering
descriptions, and other documents, in written and electronic form, which are
currently employed by Seller in the conduct of the Business, (b) any and
all intellectual property and copyrights related to the items identified in
(a) if and to the extent owned by Seller; (c) all books and records,
whether in written or electronic form, showing customer lists, customer sales,
accounts, fees and commission, orders, rejections, and correspondence with
customers, vendors or other third parties during the period Seller has owned the
business; and (d) other information and copies of documents likely to be
helpful or useful to Buyer in operating the Business after the Effective Date
(the “Assets”). For avoidance of doubt,
the Parties agree that Assets do not include the items listed under “Excluded
Assets” on Schedule 1.2
(“Excluded
Assets”).
1.3 Assumed
Liabilities. Except for the
liabilities set forth on Schedule 1.3 (the “Assumed Liabilities”), Buyer
does not assume and will not be responsible for any obligations or liabilities
of Seller or MCF Group of any type or nature, including, but not limited to, the
liability, if any, under claims for approximately ₤127,418.23 GBP asserted by
Fieldworks International relating to work performed in 2007 (“Vendor Liability”)
or any liabilities that may arise in connection with the pending IRS audit of
MCF Group and Seller. Buyer will, if requested by Seller, contribute up to
$20,000 to settle the Vendor Liability.
1.4 Purchase
Price;
Payment. The purchase price for the Assets shall be one
million dollars ($1,000,000) cash payable at Closing (“Cash Payment”), plus
shares of MCF Group worth $100,000 determined in accordance with Section 1.4.2 hereof plus the
Assumed Liabilities (the “Purchase Price”).
1.4.1 Wire. At
the Closing, Buyer shall transfer the Cash Payment by wire transfer of federal
funds in accordance with wire transfer instructions delivered by Seller (with
accompanying Federal tax identification number) to Buyer in writing prior to the
Effective Date (“Buyer’s Wire
Transfer Instructions”).
1.4.2 At
the Closing, Buyer, in payment of the shares portion of the Purchase Price,
shall transfer free and clear of any Encumbrances to MCF Group, by means of a
stock power acceptable in form to Seller a number of shares (the “Purchased Shares”) equal to
one hundred thousand divided by the deemed average price of MCF Group shares
determined as set forth herein (the “Deemed Average
Price”). “Deemed Average Price” shall mean the average of the
last sales price per share of MCF Group common stock, as reported in the Wall
Street Journal, for the thirty (30) trading days immediately preceding the
Effective Date..
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1.5 Allocation of
Purchase Price. The Parties have
prepared the allocation schedule attached hereto as Schedule 1.5 and agree that the
Parties shall allocate the Purchase Price (and all other capitalizable costs)
among the Assets for tax purposes in accordance with Schedule 1.5
1.6 Interim Services
Agreement. For a period of 30 days following the Closing, MCF
Group and Seller shall, on behalf of Buyer, continue to provide the same
benefits to Buyer’s employees as it provided to Seller’s employees and will
provide the same HR, IT and accounting services to Buyer as it provided to
Seller prior to Closing, and shall otherwise assist Buyer in establishing its
own functions in such regard, in return for which Buyer shall pay Seller $10,000
at the end of such 30 period. MCF Group and Seller will, if requested by Buyer,
provide IT and/or accounting services for an additional 60 days for a fee not to
exceed $10,000 to be negotiated in good faith at the time of the
request.
1.7 Lease. The
Business currently is conducted at the premises known as 000 XxxxxxxxxXxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (“Premises”), which premises are
made available to Seller pursuant to that certain lease (the “Lease”) dated May 21, 2007 by
and between Seller and CambridgePark 150 Realty Corporation, a Delaware
corporation (“Landlord”).
1.7.1 Seller
shall execute with Buyer a Sublease (“Sublease”) in the form acceptable to the
parties pursuant to which Buyer shall be obligated to pay to Seller two-thirds
of the Operating Costs, Real Estate Taxes and Annual Rent as defined under the
Lease (“Sub-rent”). If the parties are unable to finalize the terms of the
Sublease prior to the Closing, they shall negotiate in good faith for 30 days
thereafter. If they are unable to reach agreement after said thirty-day period,
then Buyer shall, within 6 months, vacate the Premises and its obligations to
pay Seller shall terminate. Buyer shall pay the Sub-rent during any period when
it is occupying the Premises. Among other matters, the Sublease shall permit
Buyer to vacate the Premises without liability to Seller or MCF Group if a) the
Landlord refuses to consent to the sublease after the parties good faith efforts
to obtain it or b) Landlord gives notice of its intention to commence eviction
proceedings or c) Landlord interferes with Buyer’s ability to use the premises
to conduct its business in the ordinary course.
1.7.2 Buyer
and Seller will cooperate in good faith to obtain Landlord’s consent to the
Sublease.
1.7.3 The
Landlord currently holds a security deposit under the Lease that is and will
remain the property of the Seller.
1.7.4 If,
after the closing of the Contemplated Transactions, Buyer subleases a portion of
the Premises at a rental rate in excess of the rent payable under the Sublease,
Buyer and Seller shall share the premium over $20 per square foot one-half to
Buyer and one-half to Seller.
1.8 Tradenames,
Trademarks, and Service Marks. After the Effective Date,
Seller shall have no authority to use the name “Panel Intelligence,” “Medpanel,”
the names set forth on Schedule 1.2 or any
name substantially similar there to in the conduct of its
business. Seller shall discontinue any usage of such names as
tradenames, trademarks, service marks, or otherwise, other than as needed to
identify itself as being the limited liability company formerly operating a
business under that name or those names.
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1.9 Employees and Key
Management. On the Closing Date, Buyer shall offer to employ
the employees of Seller set forth on Schedule 1.9, and,
except as provided in the Interim Services Agreement described in Section 1.6, Buyer shall be
solely responsible for all liabilities and obligations owed to such employees in
connection with their employment on or after the Closing Date or arising in
connection with such employee’s subsequent termination by Buyer. Seller shall
remain liable to such employees for salaries, benefits, retirement payments and
the like that accrued prior to the Effective Date. Each such Person employed by
Buyer is hereinafter referred to individually as an “Employee” and collectively
as the “Employees”. Except as provided in the Interim Services
Agreement, Buyer hereby assumes and shall be responsible for, and Seller shall
have no liability with respect to, any and all claims with respect to any
Employee on or after the Closing Date, arising from any action by Buyer after
the Closing Date. Seller agrees to reasonably cooperate in the
transition of employees of Seller to Buyer. Notwithstanding the
foregoing, Seller does not warrant or guarantee that the employees of Seller
involved in the Business will in fact accept Buyer’s offer of
employment.
1.10 Assignment of
Contracts. Prior to the Effective Date, the Parties have
identified the vendor, customer or other contracts or agreements pertaining to
the operation of the Business or service offerings that Buyer wishes to assume
as part of the Assumed Liabilities in connection with its operation of the
Business after the Effective Date and have listed them on Schedule 1.10 (the “Contracts”). Seller
shall reasonably cooperate with Buyer in obtaining assignments of those
contracts, and consents to the assignment of the parties to the Contract, on
terms reasonably acceptable to Buyer. With respect to any such
assigned contracts, Buyer shall be liable for any invoices from the other
parties thereto received after the Effective Date, regardless of whether the
invoice covers a period prior to or after the Effective Date.
1.11 Allocation of
Expenses. Seller shall be responsible for all invoices or
other demands for payment received prior to the Effective Date and Buyer shall
be responsible for all invoices and other demands for payment received after the
Effective Date, regardless of whether the invoice or other demand for payment
covers a period prior to or after the Effective Date.
1.12 Time and Place of
Closing. Unless terminated earlier, the Contemplated
Transactions shall be consummated (the “Closing”) at 10:00 a.m.
pacific standard time on Friday January 30, 2009, or on such other date, or at
such other place, as shall be mutually agreed upon by Seller and
Buyer. The date on which the Closing shall occur in accordance with
the preceding sentence is referred to in this Agreement as the “Closing
Date”. The Closing may occur by facsimile counterparts. The Buyer and
Seller hereby agree the Closing shall be effective as of the Closing
Date.
1.13 Equipment.
Seller leases certain equipment from Bank of the West under lease number
000-0000000-000 dated 9-28-07(“Equipment lease”) Within 30 days hereof, Seller
and Buyer shall pay off the Equipment lease and acquire the Equipment for Buyer
with Seller and MCF Group paying 1/3 of the cost and Buyer paying 2/3 of the
cost.
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ARTICLE
II.
CERTAIN
COVENANTS
2.1 Certain Tax
Matters. All transfer, documentary, sales, use, stamp,
registration and other such Taxes, and all conveyance fees, recording charges
and other fees and charges (including any penalties and interest) incurred in
connection with consummation of the transactions contemplated by this Agreement
shall be paid by the Party against whom they are assessed when due, and each
Party will, at its own expense, file all necessary tax returns and other
documentation with respect to all such Taxes, fees and charges. Buyer shall be
responsible for the preparation of and filing the appropriate documentation,
including the purchase price allocation, under Section 1060 of the Internal
Revenue Code, including Form 8594, in accordance with Schedule 2.1 hereof and
Seller agrees to file a conforming form after the completion of the Contemplated
Transactions hereunder.
2.2 Publicity. For
3 months following the closing, no Party shall issue any press release or
otherwise make any announcements to the public about the Contemplated
Transactions without the prior written consent of the other Parties, except as
required by any applicable Legal Requirements. Seller and Buyer
may inform the employees, members, managers, customers, and suppliers and others
having dealings with Seller and/or Buyer regarding the Business by letter and in
person but shall not disclose the terms of the transaction unless necessary for
the dealings to proceed. Thereafter, for a period of 3 months
following the Closing, Buyer shall make no further announcement regarding the
transfer of the Assets or Buyer’s receipt of the Business without Seller’s prior
written consent, which consent shall not be unreasonably withheld.
2.3 Confidentiality;
Privilege. Each Party shall keep confidential and shall not
appropriate for its own use, reveal or disclose to anyone except as necessary to
fulfill a Party’s obligations hereunder, any confidential information of the
other (as a “Disclosing
Party”) which may become known to it prior to or during the term of this
Agreement (a “Receiving
Party”). Each Party agrees to take the necessary steps to protect and
maintain the confidentiality of such confidential and proprietary information of
the other. Confidential or Proprietary Information shall mean any information
maintained as confidential by the other which is not publicly known and not
lawfully available without restriction from a third party and identified as such
in writing at the time of disclosure by the Disclosing Party. The foregoing
restrictions will not apply to any such Confidential Information that is (i)
required to be disclosed by court order, subpoena or decree or in compliance
with applicable law; (ii) in the public domain other than by reason of a breach
hereof by the receiving Party, (iii) known to the Receiving Party prior to its
receipt from the Disclosing Party hereunder and is not subject to a
confidentiality obligation, (iv) independently developed by the Receiving Party,
(v) received by the Receiving Party from a third party and not subject to a
confidentiality obligation. Each Party acknowledges that the Disclosing Party is
not waiving, and will not be deemed to have waived or diminished, any of its
attorney work product protections, attorney-client privileges or similar
protections and privileges as a result of disclosing its Confidential
Information, regardless of whether such claims have been or are entitled to be
asserted. Buyer shall not be obligated to maintain Confidential
Information purchased by it hereunder.
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2.4 Retention of
Records. After the Effective Date, Seller and Buyer shall each
provide the other and its representatives reasonable access to records that
relate to the Business, during normal business hours and on at least three days’
prior written notice, for any purpose reasonably related to their business
activities prior to or after the Effective Date as the case may be.
2.5 Assumption of
Liabilities. Buyer hereby assumes and agrees
to discharge and perform when due, the Assumed Liabilities. The
assumption by Buyer of the Assumed Liabilities shall not expand the rights or
remedies of any third party against Buyer or Seller as compared to the rights
and remedies which such third party would have had against Seller had Buyer not
assumed the Assumed Liabilities. Without limiting the generality of
the preceding sentence, the assumption by Buyer of the Assumed Liabilities shall
not create any third party beneficiary rights.
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES OF SELLER AND MCF GROUP
Seller
and the MCF Group jointly and severally represent and warrant to Buyer as
follows.
3.1 Organization;
Qualification. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of
Delaware. Seller has the limited liability company power and
authority to operate, own and lease its properties, perform its obligations, and
otherwise carry on its business as now conducted. Each of Seller and
MCF Group have the absolute and unrestricted power, authority and capacity to
enter into this Agreement and the Other Agreements to which it is or is to
become a party and perform its obligations under this Agreement and such Other
Agreements.
3.2 Authorization;
Enforceability. This Agreement and each Other Agreement to
which Seller or MCF Group is or is to become a party have been duly executed and
delivered by Seller and MCF Group and constitute the legal, valid and binding
obligations of Seller and MCF Group, enforceable against Seller and MCF Group in
accordance with their respective terms. Each of Seller and MCF Group
has duly and validly authorized this Agreement and the Other Agreements to which
it is or is to become a party and all of the Contemplated Transactions to be
undertaken by it.
3.3 No Violation of
Laws or Agreements; Legal Approvals; Consents. Except forth the Lease and
the Equipment Lease, the execution and delivery of this Agreement and the Other
Agreements and the consummation and compliance with the Contemplated
Transactions by Seller or MCF Group does not and shall not, directly or
indirectly (with or without notice or the lapse of time or both):
(i) contravene, conflict with, or result in a violation of any provision of
its Governing Documents or the resolutions adopted by its directors, managers or
members; (b) contravene or conflict with, breach or constitute a violation
of any provision of any contract, commitment, law, regulation, judgment,
injunction, order or decree binding upon or applicable to MCF Group, Seller or
the Assets; or (c) result in the creation or imposition of any Encumbrance on
the Assets. Except as set forth in this Agreement, no person is
required to make, give or obtain any Legal Approvals or Consents in connection
with the execution, delivery or performance by Seller and MCF Group of this
Agreement or any Other Agreement or the consummation by Seller and MCF Group of
the Contemplated Transactions.
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3.4 Legal
Proceedings. No Legal Proceeding is pending or, to the
knowledge of Seller or MCF Group, threatened against or affecting Seller, MCF
Group or the Assets, which questions the validity of this Agreement or the
Contemplated Transactions, or which might result, either individually or in the
aggregate, in any material adverse change in the Business. To the
best of knowledge of MCF Group and Seller, no officer, director, agent, or
employee of Seller is subject to any Legal Proceeding or Contract that prohibits
such officer, director, agent, or employee from engaging in or continuing any
conduct, activity, or practice relating to the Business or to the sale to Buyer
of the Assets.
3.5 Contracts;
Compliance. Each Contract identified in Schedule 1.10 is a legal,
valid and binding obligation of Seller and is in full force and
effect. Seller has provided to Buyer true, complete and correct
copies of the Lease and the Equipment Lease.
3.6 Governmental
Authorizations. MCF Group and Seller have all Governmental
Authorizations, if any, that are necessary to transfer the Assets to Buyer and
carry out their obligations under this Agreement.
3.7 No
Brokers. Except for Xxxxxxxxx for whose fees MCF Group is
solely responsible, neither MCF Group nor Seller has entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of Seller, MCF Group or Buyer or their respective Affiliates to pay
any finder’s fee, brokerage or agent’s commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the Contemplated Transactions. The Threshold for indemnity claims does not
apply to this representation.
3.8 Title.
Seller has good, valid and marketable title to all of the Assets, free and clear
of all mortgages, liens, pledges, security interests, charges, claims,
restrictions and other encumbrances and defects of title of any nature
whatsoever, except liens for current taxes not yet due and payable. To the
knowledge and belief of Seller and MCF Group, all leases, licenses, permits and
authorizations in any manner related to the Assets or the Business and all other
instruments, documents and agreements pursuant to which Seller has obtained the
right to use any real or personal property in connection with the Business are
in good standing, valid and effective in accordance with their respective terms,
and there is not under any of such instruments, documents or agreements any
existing default or event which with notice or lapse of time, or both, would
constitute a default and in respect of which Seller has not taken adequate steps
to prevent a default from occurring.
3.9 Taxes.,
All federal, state and local tax returns, reports and statements (including all
income tax, unemployment compensation, social security, payroll, sales and use,
excise, privilege, property, ad valorem, franchise, license, school and any
other tax under laws of the United States or any state or municipal or political
subdivision thereof) required to be filed in connection with the Business (the
"Tax Returns") have been filed with the appropriate governmental agencies in all
jurisdictions in which such returns, reports and statements are required to be
filed, and all such returns, reports and statements properly reflect the tax
liabilities in relation to the Business for the periods, properties or events
covered thereby; (b) all federal, state and local taxes, assessments,
interest, penalties, deficiencies, fees and other governmental charges or
impositions, including those enumerated above in respect of the Tax Returns,
which are called for by the Tax Returns, or claimed to be due by any taxing
authority, or upon or measured by Seller’s properties, assets or income (the
"Taxes"), have been properly accrued or paid; (c) Neither Seller nor MCF Group
has received any notice of assessment or proposed assessment by the Internal
Revenue Service or any other taxing authority in connection with any Tax Returns
and there are no pending tax examinations of or tax claims asserted against
Seller or any of its assets or properties; (d) there are no tax liens
(other than any lien for current taxes not yet due and payable) on any of the
Assets; (f) Neither Seller nor MCF Group has any knowledge of any basis for
any additional assessment of any Taxes in relation to the Business; and
(e) Seller has made all deposits required by law to be made with respect to
employees’ withholding taxes.
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3.10 Litigation.
Except for the Vendor Liability described in Section 1.3, no litigation,
arbitration, investigation or other proceeding of or before any court,
arbitrator or governmental or regulatory official, body or authority is pending
or, to MCF Group or Seller’s knowledge and belief, threatened against Seller or
MCF Group (in connection with the Business), the Assets, the Business, or the
transactions contemplated by this Agreement, and to MCF Group’s and Seller’s
knowledge and belief, there is not any basis for any such litigation,
arbitration, investigation or proceeding. To Seller’s and MCF Group’s knowledge
and belief, Seller is not a party to or subject to the provisions of any
judgment, order, writ, injunction, decree or award of any court, arbitrator or
governmental or regulatory official, body or authority.
3.11 Operation in
Ordinary Course. Since December 31, 2008, Seller and MCF Group have
operated the Business in the ordinary course, have paid all payables when due
and have not otherwise withdrawn any funds from the Seller’s bank accounts
except for the agreed upon $150,000 on January 20, 2009. Post closing neither
Seller nor MCF Group will withdraw any funds from such bank accounts without
Buyer’s express written consent in each instance. The Threshold for indemnity
claims does not apply to this representation and covenant.
3.12 Disclaimer of
Other Representations and Warranties. Except as expressly set
forth in this Article III,
Seller makes no representation or warranty, express or implied, at law or
in equity, in respect of the Seller or Assets, nor does Seller make any
representations or warranties regarding Buyer’s ability to continue the Business
or any customer relationships. The Buyer acknowledges and agrees,
that except as expressly set forth in this Article III, the Assets are
sold to Buyer “as is,” “where-is” and with “all faults.”
3.13 Reliance.
The Seller and MCF Group acknowledge that the Buyer is entering into this
Agreement in reliance on their representations and warranties set forth in this
article.
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ARTICLE
IV.
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller
as follows:
4.1 Organization. Buyer
is a limited liability company which has been duly organized, and in good
standing under the laws of Massachusetts. Buyer has the power and authority to
own or lease its properties, carry on its business, enter into this Agreement
and the Other Agreements to which it is or is to become a party and perform its
obligations under this Agreement and under such Other Agreements.
4.2 Authorization;
Enforceability. This Agreement and each Other Agreement to
which Buyer is or will become a party have been or will be duly executed and
delivered by Buyer, and constitute or will constitute the legal, valid and
binding obligations of Buyer, enforceable against it in accordance with their
respective terms. All Contemplated Transactions to which Buyer is or
is to become a party have been duly and validly authorized by all necessary
proceedings by Buyer.
4.3 No Violation of
Laws or Agreements; Legal Approvals; Consents. Except for the
Landlord with respect to the Lease and the Equipment Lessor , the execution and
delivery of this Agreement and the Other Agreements and the consummation and
compliance with the transactions, terms and conditions of this Agreement and the
Other Agreements by Buyer will not, directly or indirectly (with or without
notice or the lapse of time or both): (i) contravene, conflict with
or result in a violation of any provision of its Governing Documents or the
resolutions adopted by its manager; or (ii) violate, or give any person the
right to obtain any relief, or exercise any remedy under, any Legal Requirement
to which Buyer is subject, or by which any of its assets may be bound or
affected.
4.4 No
Brokers. Buyer has not entered into any contract, arrangement
or understanding with any person or firm which may result in the obligation of
Seller, Buyer or their respective affiliates to pay any finder’s fee, brokerage
or agent’s commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the Contemplated
Transactions.
4.5 Operation in
Ordinary Course. Since December 31, 2008, Seller has operated the
Business in the ordinary course and has booked all revenue in accordance with
past practices and deposited all checks promptly.
4.6 Seller’s
Reliance. The Buyer acknowledges that the Seller is entering
into this Agreement in reliance on the Buyer’s representations and warranties
set forth in this article.
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ARTICLE
V.
SURVIVAL
OF REPRESENTATIONS; INDEMNIFICATION; MUTUAL RELEASE
5.1 Survival of
Representations. All representations, warranties, covenants
and obligations made by any Party in this Agreement are several and independent
legal obligations and shall survive the Effective Date for a period 15
months (“Survival
Period”).
5.2 Indemnification
by MCF Group and Seller. Subject to the limitations imposed
pursuant to Section 5.4 hereof, Seller and MCF Group, jointly and severally
shall indemnify, defend, save and hold harmless Buyer and its officers,
managers, members, directors, employees, agents and Affiliates, (each, a “Buyer Indemnitee”) from and
against, and shall reimburse Buyer Indemnitees for, all Damages (collectively,
“Buyer Damages”)
directly or indirectly asserted against, imposed upon, resulting to, or incurred
or required to be paid by any Buyer Indemnitee from or in connection with: (i)
breach of any representation, warranty or covenant made by Seller or MCF Group
pursuant to this Agreement; (ii) the non-performance, partial or total, of any
covenant made by Seller pursuant to this Agreement; (iii) Seller’s
operation of the Business prior to and on the Effective Date except with respect
to any contracts assumed by Buyer; (iv) failure to pay when due the liabilities
of the Seller other than the Assumed Liabilities, including without limitation
the Vendor Liability, taxes and penalties assessed for periods prior to the
Closing and amounts due under the Lease and (iv) except as set
forth in Section 1.9,
claims of any type or nature relating to the employment of Seller’s
employees prior to the Effective Date or any termination of such employment at
or prior to the Effective Date; provided, however, with respect to (iv) above
only, Seller shall have no obligation to indemnify for claims made for incidents
or events that occurred prior to November 6, 2006.
5.3 Indemnification
by Buyer. Subject to the limitations imposed pursuant to
Section 5.4 hereof, Buyer shall indemnify, defend, save and hold harmless Seller
and its officers, directors, employees, Affiliates and agents (each, a “Seller Indemnitee”) from and
against any and all Damages (collectively, “Seller Damages”) directly or
indirectly asserted against, imposed upon, resulting to, or incurred or required
to be paid by any Seller Indemnitee from or in connection with, (i) any
breach or inaccuracy of any representation or warranty made by Buyer in this
Agreement or in any certificate or document delivered by Buyer in connection
with this Agreement or any Other Agreement to which Buyer is a party,
(ii) a breach or nonperformance of any covenant or agreement made by Buyer
in or in connection with this Agreement or in any Other Agreement to which Buyer
is or is to become a party, or (iii) Buyer’s operation of the Business
after the Effective Date.
5.4 Limitation on
Indemnification and Liability. Neither Party shall have the
right to assert any claim for indemnification under this Agreement more than 15
months after the Effective Date and a claim for indemnification under the
provisions enumerated herein must be asserted within Survival
Period. In no event shall the total, aggregate liability of the
Seller and MCF Group to the Buyer Indemnitees or of the Buyer to the Seller
Indemnitees and Seller under this Agreement or the Sublease, for any
liabilities, whether in the nature of indemnification or otherwise, exceed
$1,000,000. Neither the Buyer Indemnitees nor the Seller Indemnitees
shall be entitled to recover under Sections 5.2 or 5.3, respectively, for any
amount of damages in excess of $1,000,000 in the aggregate. This
limitation on damages shall not apply with respect to any efforts to rescind
this transaction by Seller, MCF Group or any of their successors, assigns,
trustees, or legal representatives. Moreover, neither Party shall
have the right to assert any claim for indemnification under this Agreement
unless and until the aggregate amount of all Buyer Damages or Seller Damages, as
the case may be, exceed fifty thousand dollars ($50,000) (“Threshold”) and then
the Buyer Indemnitees or the Seller Indemnitees, as the case may be, shall be
entitled to recover only the amount of such damages in excess of such Threshold
amount. The Threshold does not apply to claims for breach of Sections 3.7, 3.11
and 4.5. Neither Party may assert or recover consequential or special damages,
including punitive damages or damages for lost profits.
- 10
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5.5 Notice of
Claims. If any Buyer Indemnitee or any Seller Indemnitee (an
“Indemnified Party”)
believes that it has suffered or incurred, or will suffer or incur, any Damage
for which it is entitled to indemnification under this Article V, the
Indemnified Party shall promptly notify the party or parties from whom
indemnification is being claimed (the “Indemnifying
Party”). This notice shall specify the factual basis of the
claim in reasonable detail in light of the circumstances then
existing. If any Legal Proceeding is instituted by or against a third
party with respect to which any Indemnified Party intends to claim any Damages,
such Indemnified Party shall notify the Indemnifying Party of such action or
suit.
5.6 Third-Party
Claims.
5.6.1 Notice. Promptly
after receipt by a person entitled to indemnity under Article VI (an “Indemnified Person”) of notice
of the assertion of a third-party claim against it, such Indemnified Person
shall give notice to the person obligated to indemnify under the applicable
section thereof (an “Indemnifying Person”) of the
assertion of such third-party claim. If Indemnified Person fails to
notify the Indemnifying Person of the claim, it will not relieve the
Indemnifying Person of any liability that it may have to any Indemnified Person,
except to the extent that the Indemnifying Person demonstrates that the defense
of such third-party claim is prejudiced by the Indemnified Person’s failure to
give such notice.
5.6.2 Assumption of
Defense. If an Indemnified Person gives notice to the
Indemnifying Person pursuant to Section 5.6.1 of the
assertion of a third-party claim, the Indemnifying Person shall be entitled to
participate in the defense of such third-party claim and, to the extent that it
wishes, to assume the defense of such third-party claim. After notice
from the Indemnifying Person to the Indemnified Person of its election to assume
the defense of such third-party claim, the Indemnifying Person shall not, so
long as it diligently conducts such defense, be liable to the Indemnified Person
under this Article V
for any fees of other counsel or any other expenses with respect to the
defense of such third-party claim, in each case subsequently incurred by the
Indemnified Person in connection with the defense of such third-party claim,
other than reasonable costs of investigation. If the Indemnifying
Person assumes the defense of a third-party claim, no compromise or settlement
of such third-party claims may be effected by the Indemnifying Person without
the Indemnified Person’s consent, unless (x) there is no finding or admission of
any violation of Legal Requirement or any violation of the rights of any person;
(y) the sole relief provided is monetary damages that are paid in full by the
Indemnifying Person; and (z) the Indemnified Person shall have no liability with
respect to any compromise or settlement of such third-party claims effected
without its consent. If notice is given to an Indemnifying Person of
the assertion of any third-party claim and the Indemnifying Person does not,
within ten (10) days after the Indemnified Person’s notice is given, give notice
to the Indemnified Person of its election to assume the defense of such
third-party claim, the Indemnifying Person will be bound by any determination
made in such third-party claim or any compromise or settlement effected by the
Indemnified Person.
- 11
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5.6.3 Jurisdiction. Notwithstanding
the provisions of Section
7.5, Buyer and Seller each hereby consents to the nonexclusive
jurisdiction of any court in which a proceeding in respect of a third-party
claim is brought against any Seller or Buyer Indemnified Person, as the case may
be, for purposes of any claim that a Seller or Buyer Indemnified Person may have
under this Agreement with respect to such proceeding or the matters alleged
therein and agree that process may be served on Seller or Buyer with respect to
such a claim anywhere in the world.
5.6.4 Cooperation. With
respect to any third-party claim subject to indemnification under this Article V, (i) both the
Indemnified Person and the Indemnifying Person, as the case may be, shall keep
the other person fully informed of the status of such third-party claim and any
related proceedings at all stages thereof where such person is not represented
by its own counsel, and (ii) the Parties agree (each at its own expense) to
render to each other such assistance as they may reasonably require of each
other and to cooperate in good faith with each other in order to ensure the
proper and adequate defense of any third-party claim.
5.6.5 Confidential
Information; Privilege. With respect to any third-party claim
subject to indemnification under this Article V, the Parties agree
to cooperate in such a manner as to preserve in full (to the extent possible)
the confidentiality of all Confidential Information and the attorney-client and
work-product privileges. In connection therewith, each Party agrees
that: (i) it will use its commercially reasonable efforts, in respect of any
third-party claim in which it has assumed or participated in the defense, to
avoid production of Confidential Information (consistent with applicable law and
rules of procedure), and (ii) all communications between any Party hereto and
counsel responsible for or participating in the defense of any third-party claim
shall, to the extent possible, be made so as to preserve any applicable
attorney-client or work-product privilege.
ARTICLE
VI.
DEFINITIONS;
CONSTRUCTION
6.1 Definitions. The
following terms have the meanings specified below or are defined in the sections
referred to below.
“Affiliate” means, with
respect to any person, any other person that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with such person. “Control” for this purpose means the
possession, directly or indirectly, of more than twenty-five percent of the
voting power of a person.
“Agreement” means this Asset
Purchase Agreement, as it may be amended from time to time.
“Assumed Liabilities” is
defined in Section
1.3.
“Assets” is defined in Section 1.2.
- 12
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“Business” is defined in Recital A.
“Business Day” means any day other than
(i) Saturday or Sunday or (ii) any other day on which banks in San Francisco are
permitted or required to be closed.
“Buyer” means Panel
Intelligence, LLC, a Massachusetts limited liability company.
“Buyer Damages” is defined in
Section 5.2.
“Buyer Indemnitee” is defined
in Section 5.2.
“Consent” means any
registration, filing, declaration, application, rights of first refusal or
notice to or with any person and any consent, approval, permit, qualification,
waiver, waiting period, authorization, or action of or by any person other than
a Governmental Body. “Consent” shall include any
consent, approval, waiver, authorization or other action required under any
Contract or to prevent any assets or Liabilities of Seller from being in
default, terminating, accelerating, revoking, suspending, canceling, losing or
diminishing in value, changing in any respect or creating any Liability or
giving any person any rights or remedies as a result of the consummation of the
Contemplated Transactions.
“Contemplated Transactions”
means the sale and purchase of the Assets and the transactions contemplated by
this Agreement and the Other Agreements.
“Contract” is defined in Section 1.10.
“Damage” means any loss,
demand, claim, allegation, assertion, action or cause of action, assessment,
damage (including incidental and consequential damages), deficiency, Liability,
cost, expense, diminution of value, fine, penalty, judgment, award or
settlement, whether or not involving a third-party claim, including reasonable
legal fees, interest, and any reasonable amount paid in investigation, defense
or settlement of any of the foregoing.
“Deemed Average Price” is
defined in Section
1.4.2.
“Effective Date” is
defined in the Preamble.
“Encumbrance” means any debt,
mortgage, deed of trust, community or marital property interest, equitable
interest, pledge, security interest, encumbrance, option, right of first option
or refusal, agreement of sale, adverse claim, easement, lien, lease, assessment,
restrictive covenant, Liability, encroachment, right-of-way, servitude,
restriction on use or any other burden, charge or restriction of any kind or
nature whatsoever, legal or equitable, or any item similar or related to the
foregoing.
“Excluded Assets” is defined
in Section
1.2.
“Governing Documents” means,
with respect to any person who is not a natural person, the certificate or
articles of incorporation, bylaws, deed of trust, formation or governing
agreement and other charter, organic, organization or governing documents or
instruments of such person relating to the creation, formation, organization,
management or operation of such person or relating to the rights, duties and
obligations of the equity holders of such person.
- 13
-
“Governmental Authorization”
means any permit, certificate, license, consent, waiver, franchise, privilege,
approval, exception, variance, exemption, registration, filing or authorization
required, or otherwise made available by or under the authority of, any
applicable Legal Requirements or otherwise advisable in connection with the
formation and operation of the Business.
“Governmental Body” means any
nation, state, county, city, town, borough, village, district or other
jurisdiction, court, tribunal, government, quasi-governmental authority of any
nature, department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority or instrumentality
(foreign, federal, state, local or other political subdivision) or any body
similar or related to the foregoing.
“Indemnified Party” is defined
in Section 5.5.
“Indemnifying Party” is
defined in Section 5.5.
“Landlord” is defined in Section 1.7.
“Lease” is defined in Section 1.7.
“Legal Approval” means any
registration, filing, declaration, application, rights of first refusal or
notice to or with any person and any consent, approval, permit, qualification,
waiver, waiting period, authorization, Order or action of or by any Governmental
Body. “Legal
Approval” shall include any consent, approval, waiver, authorization or
other action required under any material contract of Seller or Governmental
Authorization or to prevent any assets or Liabilities of Seller from being in
default, terminating, accelerating, revoking, suspending, canceling, losing or
diminishing in value, changing in any respect or creating any Liability or
giving any person any rights or remedies as a result of the consummation of the
Contemplated Transactions.
“Legal Proceeding” means any
action, arbitration, audit, hearing, investigation, litigation, suit (whether
civil, criminal, administrative, investigative, or informal, public or private)
or Order commenced, brought, conducted, or heard by or before, or otherwise
involving, any Governmental Body or arbitrator.
“Legal Requirement” means any
applicable international, multinational, national, foreign, federal, state,
municipal, local (or other political subdivision) or administrative law,
constitution, statute, code, ordinance, rule, regulation, requirement, standard,
policy, guidance, treaty, judgment or Order of any kind or nature whatsoever
including any public policy, judgment or principle of common law.
“Liability” with respect to
any person or any property of such person, means any and all debt, liability or
obligation of such person of any nature, kind, character or description
whatsoever, whether or not due or to become due, known or unknown, accrued,
unaccrued, fixed, absolute, matured, liquidated, asserted, conditional,
secondary, potential, determined, determinable or contingent, executory,
liquidated or unliquidated, secured or unsecured, joint or several, vested or
unvested and whether or not incurred directly by such person or by any
predecessor of such person, whether or not required to be accrued on the
financial statements of such person and whether or not arising out of any act,
omission, transaction, circumstance, sale of goods or service, setoff,
recoupment, counterclaim or otherwise.
- 14
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“Order” means any order,
award, decision, injunction, judgment, ruling, writ, assessment, decree,
determination, subpoena, stipulation or verdict entered, issued, made, or
rendered by any court, administrative agency, or other Governmental Body or by
any arbitrator.
“Other Agreement” means any
other agreement or document contemplated by this Agreement to be executed and
delivered in connection with the transactions contemplated by this Agreement,
including the Sublease and all conveyance documents and
instruments.
“Party” or “Parties” mean a
party or the parties to this Agreement.
“Person” means and includes a
natural person, a corporation, an association, and a partnership, a limited
liability company, a trust, a joint venture, an unincorporated organization, a
business, a Governmental Body or any other legal entity.
“Purchase Price” is defined in
Section 1.4.
“Purchased Shares” is defined
in Section
1.4.2.
“Seller” means Panel
Intelligence, LLC, a Delaware limited liability company.
“Seller Damages” is defined in
Section 5.3.
“Seller Indemnitees” is
defined in Section 5.3.
“Software” means all computer
software programs and applications and subsequent versions thereof, including
source code, object, executable or binary code, objects, comments, screens, user
interfaces, report formats, templates, menus, buttons and icons and all files,
data, materials, manuals, design notes and other items and documentation related
thereto or associated therewith.
“Sublease” is defined in Section 1.7.1.
“Tax” means any income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, property, environmental, windfall profit, customs, vehicle, airplane,
boat, vessel or other title or registration, capital stock, franchise,
employees’ income withholding, foreign or domestic withholding, social security,
unemployment, disability, real property, personal property, sales, use,
transfer, value added, alternative, add-on minimum and other tax, fee,
assessment, levy, tariff, charge or duty of any kind whatsoever and any
interest, penalty, addition or additional amount thereon imposed, assessed or
collected by or under the authority of any Governmental Body or payable under
any tax-sharing agreement or any other material contract.
- 15
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6.2 Construction. As
used in this Agreement, unless a clear contrary intention
applies: (i) references to “Article” or “Section” are to an article or
section of this Agreement, and references to “hereunder,” “hereof,” “hereto,”
and words of similar import are references to this Agreement as a whole and not
to any particular article, section or other provision hereof;
(ii) references to the singular number includes the plural number, and vice
versa, and reference to any gender includes each other gender; (iii) all “Exhibits” and “Schedules” referred to in
this Agreement are to Exhibits and Schedules attached to this Agreement and are
incorporated into this Agreement by reference and made a part of this Agreement;
(iv) “include”, “includes” and “including” are deemed to be followed by “without
limitation” whether or not they are in fact followed by such words or words of
like import; (v) with respect to the determination of any period of time, “from”
means “from and including” and “to” means “to but excluding”; (vi) the headings
of the various articles, sections and other subdivisions of this Agreement are
for convenience of reference only and shall not modify, define or limit any of
the terms or provisions of this Agreement; (vii) “knowledge” of a person means
the actual knowledge of such person and the knowledge that a prudent individual
could be expected to discover or otherwise become aware of in the course of
conducting a reasonably comprehensive investigation concerning the existence of
the matters addressed; (viii) reference to any agreement, document or instrument
means such agreement, document or instrument as amended or modified and in
effect from time to time in accordance with the terms thereof and shall include
all addenda, exhibits and schedules thereto; (ix) reference to any Legal
Requirement means such Legal Requirement as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder, and reference to any
section or other provision of any Legal Requirement means that provision of such
Legal Requirement from time to time in effect and constituting the substantive
amendment, modification, codification, replacement or reenactment of such
section or other provision, and (x) a “breach” of a representation, warranty,
covenant or obligation of this Agreement or any instrument delivered in
connection with this Agreement will include (A) a breach or inaccuracy of such
representation or warranty, or a breach of, or noncompliance with, such covenant
or obligation, or (B) any claim by any person or other occurrence or
circumstance that is or was inconsistent with such representation, warranty,
covenant or obligation, and the term “breach” means any such breach, inaccuracy,
noncompliance, claim, occurrence or circumstance.
ARTICLE
VII.
MISCELLANEOUS
7.1 Costs and
Expenses. Except as may be explicitly otherwise set forth in
this Agreement, each of the parties shall pay its respective expenses, brokers’
fees and commissions.
7.2 Further
Assurances. After Effective Date, without further
consideration, Seller shall take or cause to be taken such actions (including
the execution, acknowledgment and deliver of instruments, documents, transfers,
conveyances and assurances) as Buyer may request for the better conveying,
transferring, assigning, delivering, assuring and confirming the Assets and the
Contracts to be assigned to Buyer.
7.3 Notices. All
notices given or made in connection with this Agreement shall be in
writing. Delivery of written notices shall be
effective: (i) on the second Business Day after the date of
mailing, if delivered by registered or certified mail, postage prepaid,
(ii) upon delivery, if sent by hand delivery, (iii) upon delivery, if
sent by prepaid courier, with a record of receipt, or (iv) on the next day
after the date of dispatch, if sent by cable, facsimile or
telecopy. All deliveries shall be made to the following
addresses:
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|
(i)
|
if
to Seller or MCF Group, to:
|
|
|
Panel
Intelligence, LLC
c/o
Xxxxxxxxxxx Xxxxxxx, General Counsel
Xxxxxxxx
Curhan Ford Group, Inc.
000
Xxxxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax: (000)
000-0000
|
|
|
with
a required copy to:
|
|
|
Xxxx
X. Xxxxx, Esq.
|
|
|
Xxxxxx
& Xxxx LLP
|
|
|
000
Xxxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxxxxxxx, XX 00000
|
|
|
0
(000) 000-0000
|
|
|
Telecopy:
0 (000) 000-0000
|
|
(ii)
|
if
to Buyer, to:
|
|
|
Panel
Intelligence, LLC
|
|
|
000
Xxxxxxxxxxxxx Xxxxx
|
|
|
Xxxxxxxxx,
Xxxxxxxxxxxxx 00000
|
|
|
Telecopy:
(000) 000-0000
|
|
|
Attn:
President
|
|
|
with
a required copy to:
|
|
|
Xxxxx
Xxxxxx, Esq.
|
|
|
0
Xxxxxxxxx Xx.
|
|
|
Xxxxxxxxx XX 00000
|
Any Party
may change the address to which notice (or copies) to it shall be addressed by
giving notice of that change to the other Parties in accordance with this Section.
7.4 Currency. All
currency references in this Agreement are to United States dollars, except where
specified otherwise.
7.5 Governing Law and
Arbitration. This Agreement shall be governed by and construed
under the laws of New York applicable to contracts made and to be performed
entirely within the State of New York. Any dispute, claim or controversy arising
out of or relating to this Agreement or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the scope or
applicability of this agreement to arbitrate, shall be determined by binding
arbitration in the City and County of San Francisco, before one
arbitrator. The arbitration shall be administered by
JAMS. Judgment on the award may be entered in any court having
jurisdiction. This clause shall not preclude the Parties from seeking
provisional remedies in aid of arbitration from a court of appropriate
jurisdiction. Each Party will bear its own costs for
arbitration. The prevailing party in arbitration shall be entitled to
reasonable attorneys’ fees. The provisions of this Section 7.5 shall survive any
termination of this Agreement.
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7.6 Assignment. This
Agreement and all the rights and powers granted by this Agreement shall bind and
inure to the benefit of the Parties and their respective successors and
permitted assigns. This Agreement and the rights, interests and
obligations under this Agreement may not be assigned by any Party without the
prior written consent of the other Parties.
7.7 Consideration;
Recitals. The Parties acknowledge the mutual receipt and
sufficiency of valuable consideration for the formation of the legally binding
contract represented by this Agreement. That consideration includes
all of the representations, warranties, covenants and obligations contained in
this Agreement. The recitals set forth on page one of this Agreement
are incorporated into this Agreement and made a part of this
Agreement.
7.8 Venue. In
the event of any proceeding not covered by Section 9.5, Each Party
submits to the nonexclusive jurisdiction of the United States District Court for
the Northern District of California and of any California state court sitting in
the City and County of San Francisco for purposes of all legal proceedings
arising out of or relating to this Agreement or the transactions contemplated
hereby. Each Party irrevocably waives any objection that it may now
or hereafter have to the laying of venue in any proceeding brought in such a
court, and any claim that any such proceeding was brought in an inconvenient
forum.
7.9 Amendment and
Waiver; Cumulative Effect. To be effective, any amendment or
waiver under this Agreement must be in writing and signed by the Party against
whom enforcement of the same is sought. Neither the failure of any
Party to exercise any right, power or remedy provided under this Agreement or to
insist upon compliance by any other Party with its obligations under this
Agreement, nor any custom or practice of the Parties at variance with the terms
of this Agreement, shall constitute a waiver by such Party of its right to
exercise any such right, power or remedy or to demand such
compliance. To the maximum extent permitted by applicable law, (i) no
claim or right arising out of this Agreement or any of the documents referred to
in this Agreement can be discharged by one Party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by the
other Party; (ii) no waiver that may be given by a Party will be applicable
except in the specific instance for which it is given; and (iii) no notice to or
demand on one Party will be deemed to be a waiver of any obligation of that
Party or of the right of the Party giving such notice or demand to take further
action without notice or demand as provided in this Agreement or the documents
referred to in this Agreement.
7.10 Entire Agreement;
No Third-Party Beneficiaries. This Agreement and the Schedules and Exhibits set forth a complete
and exclusive statement of all of the promises, covenants, agreements,
conditions and undertakings between the Parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior or
contemporaneous agreements and understandings, negotiations, inducements or
conditions, express or implied, oral or written, among the
Parties. Except for the provisions of Sections 5.2 and 5.3
relating to Buyer Indemnitees and Seller Indemnitees, this Agreement is not
intended to confer upon any person other than the Parties any rights or remedies
under this Agreement.
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7.11 Severability. If
any term or other provision of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced under any
applicable Legal Requirement in any particular respect or under any particular
circumstances, then, so long as the economic or legal substance of the
Contemplated Transactions is not affected in any manner materially adverse to
any Party, (i) such term or provision shall nevertheless remain in full force
and effect in all other respects and under all other circumstances, and (ii) all
other terms, conditions and provisions of this Agreement shall remain in full
force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the Parties as closely as possible in an acceptable manner so that the
Contemplated Transactions are fulfilled to the fullest extent
possible.
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7.12 Counterparts. This
Agreement may be executed in more than one counterparts each of which shall be
deemed to be an original but all of which together shall be deemed to be one and
the same instrument. The exchange of copies of this Agreement and of
signature pages by facsimile transmission or by .pdf shall constitute effective
execution and delivery of this Agreement as to the Parties and may be used in
lieu of the original Agreement for all purposes. Signatures of the
Parties transmitted by facsimile shall be deemed to be their original signatures
for all purposes.
The Parties, each intending to be
legally bound by this Agreement, have executed this Agreement effective as of
the first date identified in the first sentence of this Agreement.
|
BUYER
|
|||
|
PANEL
INTELLIGENCE, LLC
|
|||
|
a
Massachusetts limited liability company
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxxxx
X. Xxxxx
|
||
|
Title
|
President
|
||
|
SELLER
|
|||
|
PANEL
INTELLIGENCE, LLC
|
|||
|
a
Delaware limited liability company
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxx
Xxxxxxx
|
||
|
Title:
|
Chief
Financial Officer
|
||
|
XXXXXXXX
CURHAN FORD GROUP, INC.
|
|||
|
a
Delaware corporation
|
|||
|
By:
|
|
||
|
Name:
|
Xxxxx
Xxxxxxx
|
||
|
Title:
|
Chief
Financial Officer
|
||
- 20
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SCHEDULES
AND EXHIBITS
|
Schedule
1.2
|
Assets
and Excluded Assets
|
|
Schedule
1.3
|
Assumed
Liabilities
|
|
Schedule
1.9
|
Employees
|
|
Schedule
1.10
|
Contracts
|
|
Schedule
2.1
|
Allocation
of Purchase Price
|
- 21
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Schedule
1.2
Assets
The
acquired Assets include but are not limited to:
1. All
Seller’s Confidential Information and Intellectual Property, including but
not limited to, Company’s website, common law and
registered trademarks, copyrights, trade secrets, tradename “Panel Intelligence”
related to the Business.
|
|
2.
|
The
library of reports prepared by Company as part of the
Business.
|
|
|
3.
|
All
Seller’s accounts receivable
|
|
|
4.
|
All
Seller’s prepaid expenses
|
|
|
5.
|
All
Seller’s revenue in excess of
xxxxxxxx
|
|
|
6.
|
All
Seller’s contract rights including those referenced in Section 1.10 of the
Agreement
|
|
|
7.
|
All
Seller’s relationships with customers and
vendors
|
|
|
8.
|
All
seller’s rights to the equipment, computers, phone systems, furniture,
fixtures and other personal property located at Seller’s Cambridge
office
|
|
|
9.
|
Seller’s
Bank of America account number 004611935395 and all cash therein at
closing
|
|
|
10.
|
All
Seller’s contract rights
|
|
|
11.
|
All
Seller’s Governmental Authorizations used in the conduct of the Business
and all pending applications therefor or renewals thereof, in each case to
the extent transferable to Buyer
|
|
|
12.
|
All
Seller’s telephone, telecopy and e-mail addresses and listings, web
addresses and websites.
|
|
|
13.
|
All
insurance benefits, including rights and proceeds, arising from or
relating to the Assets or the Assumed Liabilities prior to the Effective
Date, unless expended in accordance with this
Agreement.
|
|
|
14.
|
All
claims of Seller against third parties relating to the Assets, whether
xxxxxx or inchoate, known or unknown, contingent or
noncontingent
|
|
|
15.
|
Community
database consisting of experts contact information( both contacts within
website database and any files within the PI servers pertaining to PI
work)
|
|
|
16.
|
Technology
platform and all licenses associated with both the qualitative and
quantitative research services
|
|
|
17.
|
All
trademarks and websites previously owned by MedPanel and formed during the
last 2 years at Panel Intelligence.
|
|
|
18.
|
All
content within the Panel Intelligence and MedPanel library generated by
clients in the financial sector
|
|
|
19.
|
All
client lists within XXXXXXXXXX.xxx (CRM) dedicated to Panel
Intelligence
|
|
|
20.
|
All
marketing materials (including the booth, brochures,
etc…)
|
|
|
21.
|
All
pre-existing Panel Intelligence work product and client
project
|
- 22
-
Excluded
Assets
The
following constitute the Assets being excluded from transfer to Buyer in
addition to the other excluded items listed in Section 1.2.
|
1.
|
All
minute books, ownership records, and company
seals.
|
|
2.
|
All
insurance policies and rights thereunder (except to the extent assigned to
Buyer).
|
|
3.
|
All
personnel records and other records that Seller is required by law to
retain in its possession.
|
|
4.
|
All
claims for refund of prepaid Taxes and other governmental charges of
whatever nature.
|
|
5.
|
All
rights in connection with and assets of any employee
plans.
|
- 23
-
Schedule
1.3
Assumed
Liabilities
The
following constitute Assumed Liabilities being assumed by Buyer in addition to
those listed or described in Section 1.3.
|
|
A.
|
The
obligations under the contracts and agreements assumed under Section
1.7.
|
|
|
B.
|
Seller’s
accounts payable as of the Closing
|
|
|
C.
|
Seller’s
accrued expenses as of the Closing
|
|
|
D.
|
Seller’s
deferred revenue as of the closing
|
- 24
-
Schedule2.6
Allocation of Purchase
Price
This is
an estimate based on unaudited December 31, 2008 numbers. The parties will
adjust this schedule no later than March 31, 2009 to reflect actual numbers as
of January 30, 2009. Adjustments to this schedule have no impact on the purchase
price for the Assets, which is fixed as of the date hereof.
|
Allocated
|
||||||||
|
Assets
|
Purchase Price
|
|||||||
|
Cash
|
222,891 | 222,891 | ||||||
|
Accounts
Receivable, Net
|
1,102,681 | 1,102,681 | ||||||
|
Prepaid
Expenses
|
59,091 | 59,091 | ||||||
|
Revenue
in excess of Xxxxxxxx
|
126,375 | 126,375 | ||||||
|
Fixed
Assets
|
163,505 | 163,505 | ||||||
|
Deposit
|
750 | 750 | ||||||
|
Goodwill
|
474,332 | |||||||
| 1,675,293 | 2,149,625 | |||||||
- 25
-
Schedule
1.10
Contracts
|
|
1.
|
Agreement
between Panel Intelligence, LLC, Delaware, and Tremblant Capital, LP,
dated April 23, 2008.
|
|
|
2.
|
Agreement
between Panel Intelligence, LLC, Delaware, and OrbiMed Advisors, LLC,
dated March 6, 2008.
|
|
|
3.
|
Agreement
between Panel Intelligence, LLC, Delaware, and Xxxxxxx & Xxxxxx, dated
June 20, 2008.
|
|
|
4.
|
Agreement
between Panel Intelligence, LLC, Delaware, and Merlin Biomed Group, dated
January 15, 2009.
|
|
5.
|
All
biopharma industry and financial industry client individual project
proposals.
|
|
|
6.
|
Agreement
between Panel Intelligence, LLC, Delaware, and Vericenter (nka SunGard),
dated June 29, 2007.
|
|
|
7.
|
Agreement
between Panel Intelligence, LLC, Delaware, and xxxxxxxxxxxxxxx.xxx, dated
November 24, 2008.
|
- 26
-
Schedule
1.9
Employees
|
Name
|
Job
Title
|
|
Xxxxxx,
Xxxxxxx
|
Mngr
Research Service
|
|
Xxxxxxx,
Xxxxx
|
VP
Community Develop
|
|
Brick,
Xxxxxx
|
Chief
Operating Officer
|
|
Xxxxx,
Xxxxxxxx
|
Analyst,
Research
|
|
Xxxxxxxxx,
Xxxx Xxx
|
Director
of Product
|
|
Xxxxx,
Xxxxxx
|
Dir
Research Service
|
|
Xxxx,
Xxxxxxx
|
Director
|
|
Xxxxx,
Xxxxxxx
|
CEO,
Panel Intelligence
|
|
Xxxxxx,
Xxxxxxx
|
IT
Manager
|
|
Xxxxxxx,
Xxxxx
|
Xx.
VP Sales
|
|
Xxxxxxx,
Xxxxx
|
Analyst
|
|
Xxxx,
Xxxxxx
|
Manager,
Recruitment
|
|
Xxxxx,
Xxxxxx
|
Associate
|
|
Xxxxxxx,
Xxxxx
|
Vice
President
|
|
Xxxxxx,
Xxxxxxxx
|
VP,
Sales
|
|
Xxxxxxxxx,
Xxxx
|
Analyst,
Research
|
|
Xxxxx,
Xxxxxxx
|
Senior
Director
|
- 27
-
TABLE OF
CONTENTS
Page
|
ARTICLE
I.
|
THE SALE AND PURCHASE TRANSACTION; TERMINATION OF MEMBERSHIP AGREEMENT |
2
|
|
|
1.1
|
Sale
and Purchase of Assets
|
2
|
|
|
1.2
|
Assets
Defined
|
2
|
|
|
1.3
|
Purchase
Price; Payment
|
2
|
|
|
1.4
|
Security
Agreement
|
2
|
|
|
1.5
|
Deliveries
|
3
|
|
|
1.8
|
Tradenames,
Trademarks, and Service Marks
|
3
|
|
|
1.9
|
Employees
and Key Management
|
4
|
|
|
1.10
|
Assignment
of Contracts
|
4
|
|
|
1.11
|
Allocation
of Expenses
|
4
|
|
|
1.12
|
Waiver
and Termination of Membership Agreement
|
4
|
|
|
ARTICLE
II.
|
CERTAIN COVENANTS |
5
|
|
|
2.1
|
Certain
Tax Matters
|
5
|
|
|
2.2
|
Publicity
|
5
|
|
|
2.3
|
Confidentiality;
Privilege
|
5
|
|
|
2.4
|
Retention
of Records
|
6
|
|
|
ARTICLE
III.
|
REPRESENTATIONS AND WARRANTIES OF SELLER |
6
|
|
|
3.1
|
Organization;
Qualification
|
6
|
|
|
3.2
|
Authorization;
Enforceability
|
6
|
|
|
3.3
|
No
Violation of Laws or Agreements; Legal Approvals; Consents
|
6
|
|
|
3.4
|
Legal
Proceedings
|
7
|
|
|
3.5
|
Contracts;
Compliance
|
7
|
|
|
3.6
|
Governmental
Authorizations
|
7
|
|
|
3.7
|
Disclaimer
of Other Representations and Warranties
|
7
|
|
|
ARTICLE
IV.
|
REPRESENTATIONS AND WARRANTIES OF BUYER |
9
|
|
|
4.1
|
Organization
|
9
|
|
|
4.2
|
Authorization;
Enforceability
|
9
|
|
|
4.3
|
No
Violation of Laws or Agreements; Legal Approvals; Consents
|
9
|
|
|
ARTICLE
V.
|
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION; MUTUAL RELEASE |
10
|
|
|
5.1
|
Survival
of Representations
|
10
|
|
|
5.2
|
Indemnification
by Seller
|
10
|
|
|
5.3
|
Indemnification
by Buyer
|
10
|
|
|
5.4
|
Limitation
on Indemnification and Liability
|
10
|
|
|
5.5
|
Notice
of Claims
|
11
|
|
|
5.6
|
Third-Party
Claims.
|
11
|
|
|
ARTICLE
VI.
|
DEFINITIONS; CONSTRUCTION |
12
|
|
|
6.1
|
Definitions
|
12
|
|
|
6.2
|
Construction
|
16
|
|
-i-
TABLE OF
CONTENTS
(continued)
Page
|
ARTICLE
VII.
|
MISCELLANEOUS |
16
|
|
|
7.1
|
Costs
and Expenses
|
16
|
|
|
7.2
|
Further
Assurances
|
16
|
|
|
7.3
|
Notices
|
16
|
|
|
7.4
|
Currency
|
17
|
|
|
7.5
|
Governing
Law and Arbitration
|
17
|
|
|
7.6
|
Assignment
|
18
|
|
|
7.7
|
Consideration;
Recitals
|
18
|
|
|
7.8
|
Venue
|
18
|
|
|
7.9
|
Amendment
and Waiver; Cumulative Effect
|
18
|
|
|
7.10
|
Entire
Agreement; No Third-Party Beneficiaries
|
18
|
|
|
7.11
|
Severability
|
19
|
|
|
7.12
|
Counterparts
|
20
|
|
-ii-
