Exhibit 10.48
ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT, dated as of October 22, 2001 (the "Effective
Date") by and between INDIVIDUAL INVESTOR GROUP, INC., a Delaware corporation
with executive offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Seller")
and TELESCAN, INC., a Delaware corporation with executive offices at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Purchaser"),
W I T N E S S E T H:
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WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase, certain assets specified herein, on and subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. Purchase and Sale of Assets; Agreement Not to Compete.
1.1 Transferred Assets. Upon the terms hereof, Purchaser hereby agrees
to purchase from Seller, and Seller hereby agrees to sell to Purchaser, all of
Seller's right, title and interest in and to the assets specified on Schedule
1.1 hereto (the "Transferred Assets") at the Closing specified in Section 2.5.
1.2 Excluded Assets. No assets other than the Transferred Assets are
being sold pursuant to this Agreement. Without limiting the foregoing and
notwithstanding anything to the contrary herein, the Transferred Assets to be
sold, conveyed, assigned, transferred and delivered hereunder shall not include:
(a) any cash, cash equivalents, accounts receivable or investments owned by
Seller; (b) any property related to Individual Investor's Special Situations
Report newsletter ("SSR"), ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ("ShortInterest"), the
America's Fastest Growing Companies family of stock indexes; or (c) Seller's
rights to receive payment from Interep Interactive, Inc. ("Interep"), Winstar
Interactive Media Sales, Inc. ("▇▇▇▇") and their affiliates related to the Asset
Purchase Agreement dated as of June 25, 2001 between Interep, ▇▇▇▇ and Winstar
New Media Company, Inc. Seller's accounts receivable include without limitation
the pro rata portion earned up to and including the date of the Closing (as
defined below) with respect to any Partially Served Insertion Orders (as defined
below). "Partially Served Insertion Orders" shall mean any insertion orders for
online or email advertising with respect to which, as of the date of the
Closing, Seller has served a portion but not all of the contracted advertising.
Without limiting the foregoing, Seller also shall retain all rights to accounts
receivable accrued after the date of the Closing related to ShortInterest, SSR
and Seller's stock index licensing operations. The parties acknowledge and agree
that (i) any advertiser who placed with Seller an insertion order for online or
email advertising that, as of the date of the Closing, remains wholly or
partially unserved by Seller ("Open Orders"), may deem the execution of this
Agreement to be an impermissble assignment by Seller of Seller's rights under
such Open Order and (ii) neither party shall have any liability to the other on
account of the cancellation of any Open Order.
1.3 Non-Assigned Contracts. Seller shall not assign to Purchaser and
Purchaser shall not assume any liability with respect to any agreements to which
Seller is a party that relate to ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ("Non-Assigned
Contracts"). Seller represents that Purchaser shall not be liable to any third
party with respect to any Non-Assigned Contract. Notwithstanding the foregoing,
Seller and Purchaser shall use reasonable efforts to obtain the consent of
Interep for the assignment to Purchaser of Seller's rights and obligations from
and after the date of the Closing pursuant to the Advertising Sales
Representative Agreement dated as of April 1, 2000 between Seller and ▇▇▇▇
("▇▇▇▇ Sales Representative Agreement").
1.4 Agreement Not to Compete. Seller agrees that for a period five (5)
years from the Closing, Seller shall not own or operate a web site devoted to
investing content (an "Investing Site"). Notwithstanding the foregoing, neither
ShortInterest nor ▇▇▇.▇▇▇▇.▇▇▇ shall be deemed an "Investing Site."
2. Consideration.
2.1 Shares. As consideration for the sale, conveyance, assignment and
transfer of the Transferred Assets, contemplated by Section 1, Purchaser shall
convey, assign, transfer and deliver to Seller, free of any liens or
encumbrances, one million sixty-three thousand five hundred and thirty-one
(1,063,531) shares of common stock of Seller (the "Shares"). Purchaser
represents that as of the Closing, the Shares constitute all of the shares of
common stock of Seller in which Purchaser or INVESTools, Inc. ("INVESTools") has
an interest. Purchaser represents that immediately after Purchaser's delivery of
the Shares, neither Purchaser nor INVESTools shall have an interest in any
shares of common stock of Seller.
2.2 Amendment of Service Agreement. The letter agreement (the "Service
Agreement") dated as of September 29, 1999 between Seller and Purchaser is
hereby amended to (a) provide that Purchaser's total monthly fee for hosting
pages of ShortInterest as requested by Seller shall be four thousand dollars
$4,000 per month (without limiting the foregoing, there shall be no additional
amounts owing with respect to revenue sharing); and (b) provide that Seller may
assign its rights and obligations under the Service Agreement with respect to
ShortInterest with the consent of Purchaser, which consent Purchaser shall not
unreasonably withhold or delay. Notwithstanding the foregoing, the amendment of
Purchaser's fee set forth in clause (a) of this Section 2.2 shall not become
effective until the three (3) month anniversary of the Closing (or, if earlier,
upon such date as Seller assigns its rights and obligations under the Service
Agreement with respect to ShortInterest). The parties acknowledge that Seller
has paid the Aggregate License Fee (as defined in the Service Agreement).
2.3 Share Escrow and Web Site Maintenance. (a) Seller will maintain the
web site located at URL ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ until 5:00 p.m., Eastern
time, on November 30, 2001 (the "Maintenance Period"). On the date of the
Closing (defined below), Seller will deliver to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as escrow agent
("Escrow Agent"), at Escrow Agent's offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, as Escrow Agent, one of more stock certificates that shall in the
aggregate represent all of the Shares, duly endorsed for transfer to Seller with
such endorsement Medallion guaranteed and accompanied by appropriate standard
corporate resolutions authorizing conveyance of the Shares to Seller. Escrow
Agent will hold the Shares in escrow during the Maintenance Period. Provided
Seller maintains the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site for the full Maintenance
Period, at the end of the Maintenance Period Seller shall be entitled to receive
the Shares as set forth below. Seller shall be deemed to have maintained the
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site if all current functionality of the site,
including quote feeds and news feeds, have been maintained for the complete
Maintenance Period. Upon the mutual agreement of Purchaser and Seller, the
Maintenance Period may be shortened and the Shares delivered to Seller upon the
termination of the shortened Maintenance Period. If the DNS entry for the
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ domain is changed (by Purchaser or by Seller at
Purchaser's written request) to point to Purchaser's servers, Purchaser shall,
within two (2) days of the date of the change in the DNS entry, notify the
Escrow Agent and Seller in writing that the Maintenance Period has been
shortened, and that Escrow Agent should deliver the Shares to Seller.
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(b) Escrow Agent shall deliver the stock certificates representing in
the aggregate all of the Shares to Seller at 5:00 p.m., Eastern time, on
December 3, 2001, unless Escrow Agent has prior to such time received from
Purchaser a written notice ("Rescission Notice") indicating that Seller has
failed to maintain the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ web site during the Maintenance
Period and that as result of such failure, Purchaser desires to rescind this
Agreement. Purchaser shall deliver a copy of the Rescission Notice to Seller at
the time delivery is made to Escrow Agent. If Purchaser timely delivers a
Rescission Notice to Escrow Agent and Seller, Purchaser shall, within two (2)
business days after delivery of the Rescission Notice, return all of the
Transferred Assets to Seller and provide written evidence to Escrow Agent that
all of the Transferred Assets have been returned to Seller. Upon Escrow Agent's
receipt of such written evidence, Escrow Agent shall deliver the stock
certificates representing in the aggregate all of the Shares to Purchaser. If a
Rescission Notice is not timely delivered, or if Purchaser does not return all
of the Transferred Assets to Seller (and provide to Escrow Agent written
evidence of such return) within the time provided above, the Rescission Notice
shall be deemed null and void and Escrow Agent shall deliver to Seller the stock
certificates representing in the aggregate all of the Shares. If (x) Purchaser
timely delivers a Rescission Notice, returns all of the Transferred Assets to
Seller (and provides Escrow Agent written evidence of such return) within the
time provided above and (y) Escrow Agent delivers to Purchaser the stock
certificates representing in the aggregate all of the Shares, this Agreement
shall be deemed rescinded and no party shall have any further liability or
obligation whatsoever, except that each party's obligations pursuant to the
Mutual Confidentiality Agreement dated as of July 26, 1999 shall remain in full
force and effect (without limiting the foregoing and for avoidance of doubt, in
the event of rescission of this Agreement, neither party shall use for any
purpose whatsoever, and shall not disclose to any third party, any Confidential
Information of the other party). In the event that Escrow Agent prior to
December 1, 2001 receives written notice from Purchaser indicating that the
Maintenance Period has been shortened and that Escrow Agent should deliver the
Shares to Seller, Escrow Agent shall promptly after receipt of such notice
deliver the stock certificates representing in the aggregate all of the Shares
to Seller.
2.4 License to Board Software. Purchaser hereby grants Seller an
irrevocable, perpetual royalty-free license, with right of sublicense and
without duty to account, to the Board Software (as defined on Schedule 1.1);
provided, however, that for purposes of this Section 2.3, the Board Software
shall not be deemed to include any of the content of the discussion boards on
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
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2.5 Closing; Deliveries. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take place at Seller's
offices, at 10:00 a.m. New York City time on October 26, 2001 or such other date
as may be mutually agreed upon in writing by the parties hereto. At the Closing,
(a) Seller shall deliver to Purchaser the contents of the Database (as defined
on Schedule 1.1) and shall arrange for delivery to Purchaser, by United Parcel
Service, Federal Express or such other reputable common carrier as Seller and
Purchaser jointly may choose, of the web server component of the Hardware (as
defined on Schedule 1.1) and Board Software (as defined on Schedule 1.1) and (b)
Purchaser shall deliver to Escrow Agent one or more stock certificates that
shall in the aggregate represent all of the Shares, duly endorsed for transfer
to Seller with such endorsement Medallion guaranteed and accompanied by
appropriate standard corporate resolutions authorizing the conveyance of the
Shares to Seller. All deliverables shall be deemed delivered simultaneously and
all transactions contemplated thereby shall be deemed to take place
simultaneously. On or before November 5, 2001, Seller shall deliver to
Purchaser, by United Parcel Service, Federal Express or such other reputable
common carrier as Seller and Purchaser jointly may choose, the database server
component of the Hardware.
3. Representations and Warranties of Seller.
Seller represents and warrants to Purchaser, as of the date hereof and
as of the Closing, as follows:
3.1 Due Incorporation and Qualification of Seller. Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware. Seller is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which ownership or leasing of its properties
or the character of its operations requires such qualification, except where the
failure to qualify would not have a material adverse effect on its business,
financial condition or results of operations considered as a whole (a "Material
Adverse Effect"). Seller has full corporate power and authority to own, lease
and operate its properties and to carry on its business in the places and in the
manner currently conducted.
3.2 Authority; Due Authorization; Valid Obligation.
(a) Seller has all requisite corporate power and authority to execute
and deliver this Agreement and the Additional Agreements (as defined below) and
to consummate the transactions contemplated hereby and thereby. Seller has taken
all corporate action necessary for the execution and delivery by it of this
Agreement and the Additional Agreements and for the consummation of the
transactions contemplated hereby and thereby.
(b) This Agreement and the Additional Agreements constitute the valid
and binding obligations of Seller and are enforceable against Seller in
accordance with their respective terms, except as may be limited by principles
of equity or by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally.
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3.3 No Conflicts or Defaults. The execution and delivery by Seller of
this Agreement and the Additional Agreements and the consummation of the
transactions contemplated hereby and thereby do not (a) contravene Seller's
Certificate of Incorporation or By-laws or (b) with or without the giving of
notice or the passage of time, or both, violate or conflict with, or result in a
breach of, or a default or loss of rights under, any material agreement,
mortgage, indenture, lease, instrument, permit or license to which Seller is a
party or by which Seller or any of the Transferred Assets are bound, or any
judgment, order, decree, law, rule or regulation to which Seller or any of the
Transferred Assets are subject, except any such violation, conflict, breach,
default or loss of rights as would not have a Material Adverse Effect.
3.4 Authorizations. No authorization, approval, order, license, permit
or consent of, or filing or registration with, any court or governmental
authority, or consent of any other party, is required in connection with the
execution, delivery and performance by Seller of this Agreement or the
Additional Agreements; provided, however, that (a) the consent of Network
Solutions Inc. ("NSI") is required in order to transfer to Purchaser the
registration of the Domain Names (as defined on Schedule 1.1), (b) the consent
of ▇▇▇▇ and/or Interep would be necessary in order to assign to Purchaser
Seller's rights pursuant to the ▇▇▇▇ Sales Representative Agreement and (c) the
consent of the advertiser would be necessary in order for Purchaser to be
entitled to the benefit of any Open Order.
3.5 Transferred Assets. Seller has, and will deliver to Purchaser at
the Closing, good and marketable title to the Transferred Assets, free and clear
of all encumbrances, liens, charges or other restrictions of any kind or
character (collectively, "Liens"), except for any Liens incurred by Purchaser
prior to the Closing. The equipment included in the Transferred Assets are
generally in good operating condition and a good state of maintenance and
repair, reasonable wear and tear excepted, and are suitable for use in the
operation of ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ as currently conducted.
3.6 Litigation. There is no claim, action, suit, proceeding,
investigation or criminal proceeding, at law or in equity, before any national,
state or provincial, local or other governmental authority, court, arbitration
tribunal or other forum (collectively, "Proceedings") pending against Seller,
and Seller has not received notice of any threatened Proceedings that, if
adversely determined, would, singly or in the aggregate, materially adversely
affect the consummation of the transactions contemplated by this Agreement or
the Additional Agreements, or which challenge the validity or propriety of the
transactions contemplated by this Agreement or the Additional Agreements.
3.7 Disclosure. Purchaser acknowledges that Seller does not make any
explicit or implicit representation as to the level of revenues and expenses
that Purchaser might generate and incur, respectively, in connection with
Purchaser's operation of the Transferred Assets.
4. Representations and Warranties of Purchaser.
Purchaser represents and warrants to Seller, as of the date hereof and
as of the Closing, as follows:
4.1 Due Organization and Qualification. Purchaser is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and operate
its properties and to carry on its business in the places and in the manner
currently conducted.
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4.2 Authority; Due Authorization; Valid Obligation.
(a) Purchaser has all requisite corporate power and authority to
execute and deliver this Agreement and the Additional Agreements and to
consummate the transactions contemplated hereby and thereby. Purchaser has taken
all corporate action necessary for the execution and delivery by it of this
Agreement and the Additional Agreements and for the consummation of the
transactions contemplated hereby and thereby.
(b) This Agreement and the Additional Agreements constitute the valid
and binding obligations of Purchaser and are enforceable against Purchaser in
accordance with their respective terms, except as may be limited by principles
of equity or by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally.
4.3 No Conflicts or Defaults. The execution and delivery by Purchaser
of this Agreement and the Additional Agreements and the consummation of the
transactions contemplated hereby and thereby do not (a) contravene Purchaser's
Certificate of Incorporation or By- Laws or (b) with or without the giving of
notice or the passage of time, or both, violate or conflict with, or result in a
breach of, or a default or loss of rights under, any material agreement,
mortgage, indenture, lease, instrument, permit or license to which Purchaser is
a party or by which it or any material portion of its assets is bound, or any
judgment, order, decree, law, rule or regulation to which it or any material
portion of its assets is subject, except any such violation, conflict, breach,
default or loss of rights as would not have a Material Adverse Effect.
4.4 Authorizations. No authorization, approval, order, license, permit
or consent of, or filing or registration with, any court or governmental
authority, or consent of any other party, is required in connection with the
execution, delivery and performance by Purchaser of this Agreement or the
Additional Agreements.
4.5 Shares. Purchaser has, and will deliver to Seller at the Closing,
good and marketable title to the Shares, free and clear of all Liens, except for
any Liens incurred by Seller prior to the Closing.
4.6 Litigation. There are no Proceedings pending against Purchaser, and
Purchaser has not received notice of any threatened Proceedings, that, if
adversely determined, would, singly or in the aggregate, materially adversely
affect the consummation of the transactions contemplated by this Agreement or
the Additional Agreements, or which challenge the validity or propriety of the
transactions contemplated by this Agreement or the Additional Agreements.
5. Acts and Instruments of Transfer; Correspondence.
5.1 Acts and Instruments. Whenever reasonably requested to do so by
either party, on or after the Closing, the other party and its officers shall
do, execute, acknowledge and deliver all such acts, bills of sale, assignments,
confirmations, consents, other instruments of assignment, transfer and
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conveyance, and any and all such further instruments and documents ("Additional
Agreements"), in form reasonably satisfactory to the requesting party and its
counsel, as shall be reasonably necessary or advisable to carry out the intent
of this Agreement and to (a) vest in Purchaser all the right, title and interest
of Seller in and to the Transferred Assets and (b) vest in Seller all the right,
title and interest of Purchaser in and to the Shares. Without limiting the
foregoing, for each of the Domain Names (i) Purchaser shall request NSI,
registrar of such Domain Name, to record Purchaser as the registrant of such
Domain Name, (ii) Purchaser shall, upon receipt of the rejection by NSI
containing a NIC Tracking Number, complete a Registrant Name Change Agreement
(using the approved NSI form), filling in all applicable information (including
the NIC Tracking Number), sign such Registrant Name Change Agreement and deliver
the Registrant Name Change Agreement to Seller; and (iii) upon receipt of a
Registrant Name Change Agreement properly filled in and executed by Purchaser,
Seller shall sign and deliver to NSI such Registrant Name Change Agreement. The
parties acknowledge and agree that NSI may take several weeks to process the
Registrant Name Change Agreement; in the event that NSI offers expedited
processing upon payment of a fee, Purchaser may send Seller, together with the
Registrant Name Change Agreement, a check payable to NSI in the amount of the
expedited processing fee and Seller shall submit to NSI such check together with
the fully-executed Registrant Name Change Agreement.
6. Indemnification.
6.1 Seller's Indemnification. Seller hereby agrees to indemnify, defend
and hold harmless Purchaser, its officers, directors, shareholders and each
other person who controls Purchaser (without duplication), from and after the
Closing, against and in respect of any loss, cost, damage, deficiency or expense
(including any related loss, cost, damage, deficiency or expense arising
pursuant to Section 6.3) (collectively, "Damages") arising from or related to:
(i) Seller's breach or non-performance of any agreement, representation,
warranty or undertaking contained in this Agreement, (ii) any lawsuit or any
court, administrative or other proceeding initiated against Purchaser by any
third party arising out of or relating to Seller's operation of the Transferred
Assets prior to the end of the Maintenance Period, and (iii) any lawsuit or any
court, administrative or other proceeding initiated against Purchaser by any
third party alleging that Purchaser's use of the ▇▇▇▇ "▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"
in Purchaser's operation of a world wide web site accessed via the URL
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ infringes upon a valid trademark of such third party
(provided that Seller or Purchaser is the valid registrant of the URL
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇).
6.2 Purchaser's Indemnification. Purchaser hereby agrees to indemnify,
defend and hold harmless Seller, its officers, directors, shareholders and each
other person who controls Seller (without duplication), from and after the
Closing, against and in respect of any Damages arising from or related to: (i)
Purchaser's breach or non-performance of any agreement, representation, warranty
or undertaking contained in this Agreement or (ii) except for matters as to
which Purchaser is entitled to indemnification from Seller pursuant to Section
6.1(iii), any lawsuit or any court, administrative or other proceeding initiated
against Seller by any third party arising out of or relating to Purchaser's
operation of the Transferred Assets from and after the Closing.
6.3 Related Costs and Expenses. Each indemnifying party hereto shall,
in addition to such indemnifying party's obligations under Section 6.1 or 6.2,
as applicable, indemnify and hold harmless the indemnified party hereto from,
against and in respect of any and all actions, suits, proceedings, demands,
assessments, judgments, settlements, costs (including reasonable attorneys' fees
and disbursements) and legal and other expenses of the indemnified party
incident to any matter as to which the indemnified party is entitled to
indemnification under such Sections 6.1 or 6.2, or incident to any allegations
or claims which, if true, would give rise to Damages subject to indemnification
thereunder, or incident to the enforcement by the indemnified party of this
Section 6.
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6.4 Third Party Claims. If a claim by a third party is made against an
indemnified party, and if the indemnified party intends to seek indemnity with
respect thereto under this Section 6, such indemnified party shall promptly
notify the indemnifying party of such claim in writing ("Notice of
Indemnification Claim"). The indemnifying party shall have thirty (30) calendar
days after receipt of such Notice of Indemnification Claim to undertake, conduct
and control, through counsel of its own choosing (subject to the consent of the
indemnified party, such consent not to be unreasonably withheld or delayed) and
at its expense, the settlement or defense therefor, and the indemnified party
shall co-operate with the indemnifying party at the indemnifying party's expense
as the indemnifying party reasonably may request in connection therewith;
provided that: (i) the indemnifying party shall not thereby permit to exist any
Lien upon any assets of any indemnified party; (ii) the indemnifying party shall
permit the indemnified party to participate in such settlement or defense
through counsel chosen by the indemnified party, provided that the fees and
expenses of such counsel shall be borne by the indemnified party unless both the
indemnifying party and the indemnified party are named parties to the action and
the defense of both parties by the same counsel would be inappropriate due to
actual or potential conflict of interest, and provided further that such
participation shall not affect the control of the matter by the indemnifying
party; and (iii) the indemnifying party shall promptly reimburse the indemnified
party for the full amount of any loss resulting from such claim and all related
expense incurred by the indemnified party within the limits of this Section 6.
If the indemnifying party does not notify the indemnified party within thirty
(30) calendar days after receipt of the Notice of Indemnification Claim that the
indemnifying party elects to undertake the defense thereof, the indemnified
party shall have the right to contest, settle or compromise the claim in the
exercise of its exclusive discretion at the expense of the indemnifying party.
So long as the indemnifying party is reasonably contesting any such claim in
good faith, the indemnified party shall not pay or settle any such claim.
Notwithstanding the foregoing, the indemnified party shall have the right to pay
or settle any such claim if, in the reasonable judgment of the indemnifying
party (consent to such payment or settlement not to be unreasonably denied or
delayed) the payment or settlement of such claim will not adversely affect the
indemnifying party, provided that in the event of such payment or settlement the
indemnified party shall waive any right to indemnity therefor by the
indemnifying party. The indemnified party shall join in a settlement of a third
party claim proposed by the indemnifying party, provided that such settlement
shall be at the expense of the indemnifying party, that such settlement shall
achieve the release and discharge of the indemnified party by such third party
and that such settlement shall not prejudice in any material respect the
indemnified party's rights against such third party claimant or any other third
party with respect to matters unrelated to the third party claim in issue.
6.5 Survival of Representations and Warranties, Limitations of Claims.
(a) The representations and warranties and indemnities set forth in
this Agreement shall survive the Closing; provided, that the provisions of this
Section 6 shall constitute the sole remedy of any party for breach of any
representations or warranties in connection with the transactions contemplated
by this Agreement.
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(b) Any claim between the parties hereto (other than a claim for
indemnification in respect of third party claims for unpaid taxes) predicated on
a breach of warranty or representation contained in this Agreement shall survive
the Closing but shall be barred after the second (2nd) anniversary of the
Closing.
(c) Claims for indemnification in respect of third party claims,
including third party claims for taxes, shall survive the Closing but shall be
barred after the applicable statute of limitations.
(d) No payment shall be required to be made by Seller or Purchaser
pursuant to Section 6.1 or Section 6.2 except to the extent that the amount of
Damages suffered by Purchaser or Seller or their related indemnified parties in
connection with such claim, together with all claims asserted therewith or
previously asserted under this Section 6 by any of them, exceeds ten thousand
dollars ($10,000) in the aggregate.
(e) THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE ONLY
WARRANTIES THAT APPLY TO THE TRANSFERRED ASSETS AND THESE WARRANTIES ARE IN LIEU
OF, AND SELLER EXPRESSLY DISCLAIMS, ANY AND ALL OTHER WARRANTIES EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
(f) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE
MAXIMUM LIABILITY OF EITHER SELLER OR PURCHASER TO ANY PERSON, CORPORATION OR
OTHER ENTITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY
ARISES FROM A CLAIM BASED IN TORT, CONTRACT (EXPRESS OR IMPLIED), WARRANTY,
STATUTE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE SUM OF ONE HUNDRED THOUSAND
DOLLARS ($100,000).
(g) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AND
REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON,
CORPORATION OR OTHER ENTITY FOR ANY LOST PROFITS, LOSS OF USE, COST OF OBTAINING
SUBSTITUTE GOODS OR SERVICES, OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL,
INDIRECT OR EXEMPLARY DAMAGES ARISING UNDER OR IN ANY WAY RELATING TO THIS
AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS
OR DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION ON LIABILITY SHALL NOT APPLY
TO LIABILITY OF EITHER PURCHASER OR SELLER AS AN INDEMNIFYING PARTY AGAINST ANY
THIRD PARTY CLAIM.
9
7. Miscellaneous.
7.1 Entire Agreement. This Agreement, together with the Additional
Agreements and the other documents and instruments delivered pursuant to this
Agreement, sets forth the entire understanding of the parties with respect to
its subject matter, and merges and supersedes all prior and contemporaneous
understandings of the parties hereto with respect to its subject matter;
provided, that the Service Agreement shall continue in full force and effect, as
modified pursuant to Section 2.2 hereof. This Agreement may not be modified, in
whole or in part, except by a writing signed by each of the parties hereto, and
may not be waived, in whole or in part, except by a writing signed by the party
granting such waiver. No waiver of any provision of this Agreement in any
instance shall be deemed to be a waiver of the same or any other provision of
this Agreement in any other instance. Failure of any party to enforce any
provision of this Agreement shall not be construed as a waiver of its rights
under such provision or any other provision.
7.2 Communications. All notices, consents and other communications
given under this Agreement shall be in writing and shall be deemed to have been
duly given (a) when delivered by hand or by Federal Express or a similar
overnight courier to, or (b) five (5) calendar days after being deposited in any
United States post office enclosed in a postage prepaid registered or certified
envelope addressed to the party for whom intended, at the address for such party
set forth below, or to such other address and/or contact person as may be
furnished by such party by notice in the manner provided herein; provided,
however, that any notice of change shall be effective only upon receipt.
If to Purchaser:
Telescan, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President
with a copy to:
Telescan, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
If to Seller:
Individual Investor Group, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Escrow Agent:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
10
7.3 Successors and Assigns. This Agreement shall be binding on,
enforceable against and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, and nothing herein is intended to
confer any right, remedy or benefit upon any other person. Either party hereto
may assign its rights under this Agreement to any wholly-owned subsidiary, or to
the successor of all or substantially all of such party's assets and Purchaser
may assign its rights hereunder to INVESTools; provided in each case that the
assignee agrees in writing to be bound by the assignor's obligations hereunder.
Except as set forth in the previous sentence, no party hereto may assign its
rights under this Agreement, nor may a party hereto delegate its obligations
under this Agreement, without the express written consent of Purchaser or
Seller, as applicable, and any attempt to do so shall be null and void.
7.4 Public Announcements. The parties shall endeavor in good faith to
agree upon the text of a press release describing the execution of this
Agreement. Notwithstanding the foregoing, either party may make public
disclosure of any term of this Agreement to the extent required by applicable
securities laws or otherwise required by law.
7.5 Expenses. Each of the parties hereto shall bear and pay, without
any right of reimbursement from the other party, and indemnify, defend and hold
harmless the other party against, all costs, expenses and fees incurred by it or
on its or his behalf incident to the preparation, execution and delivery of this
Agreement and the performance of such party's obligations hereunder, whether or
not the transactions contemplated by this Agreement are consummated, including,
without limitation, the fees and disbursements of attorneys, accountants and
consultants employed by such party, and all brokers, investment bankers, finders
and financial advisors retained or utilized by it, or otherwise acting on its
behalf, or otherwise making any claim in the nature of a broker's or finder's
fee arising out of or resulting from any action or agreement of the indemnifying
party or its affiliated parties, in connection with the transactions
contemplated by this Agreement, and shall indemnify and hold harmless the other
party from and against all such fees, costs and expenses.
7.6 Knowledge of a Party. Where any representation or warranty
contained in this Agreement is expressly qualified by reference to the knowledge
of a party, such knowledge shall be deemed to refer only to the actual knowledge
of the officers of Purchaser or Seller, as the case may be.
7.7 Governing Law. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and fully to be performed in such state, without giving effect
to conflicts of law principles that otherwise might call for application of the
substantive law of another jurisdiction.
11
7.8 Savings Clause. If any provision of this Agreement is held to be
invalid or unenforceable by any court or tribunal of competent jurisdiction, the
remainder of this Agreement shall not be affected thereby, and such provision
(and the remainder of this Agreement) shall be carried out as nearly as possible
according to its original terms and intent to eliminate such invalidity or
unenforceability.
7.9 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures received via
facsimile shall be deemed originals for all purposes.
7.10 Construction. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
References herein to the Agreement shall be deemed to include all Schedules and
Exhibits hereto, and references herein to Sections, Schedules and Exhibits are
to the sections, schedules and exhibits of this Agreement. As used herein, the
singular includes the plural, and the masculine, feminine and neuter gender each
includes the others where the context so indicates. The language in all parts of
this Agreement shall be interpreted according to its fair meaning, and
specifically shall not be interpreted strictly for or against either of the
parties to this Agreement on the basis of such party's being (or being deemed to
be) the drafter of this Agreement.
7.11 Escrow Agent. It is agreed that the duties and obligations of
Escrow Agent under Section 2.3 are only such as are specifically provided
therein and no other. Escrow Agent's duties are as a depositary only, and Escrow
Agent shall incur no liability whatsoever, except for its willful misconduct or
gross negligence. Escrow Agent shall not be bound by any modification of its
duties unless the same shall be in writing and signed jointly by Seller and
Purchaser and agreed to by Escrow Agent. In the event that Escrow Agent shall be
uncertain as to its duties or rights hereunder or shall receive instructions,
claims or demands which, in its opinion, are in conflict with any of the
provisions of Section 2.3, it shall be entitled to refrain from taking any
action other than to keep safely all property held in escrow until it shall be
directed otherwise in writing and signed jointly by Seller and Purchaser or by a
final judgment of a court of competent jurisdiction. Escrow Agent shall be fully
protected in relying upon any written notice, demand, certificate or document
which it, in good faith, believes to be genuine. Escrow Agent shall not
responsible or liable in any respect on account of the identity, authority or
rights of the persons executing or delivering or purporting to execute or
deliver any notice to it. This Agreement shall not create any fiduciary duty on
Escrow Agent's part to Seller or Purchaser, nor disqualify Escrow Agent from
representing Seller in any dispute with Purchaser. Seller and Purchaser, jointly
and severally, hereby indemnify and hold Escrow Agent harmless from and against
any and all loss, damage, tax, liability and expense that may be incurred by
Escrow Agent, arising out of or in connection with its acceptance of appointment
as Escrow Agent hereunder, or the performance of its duties pursuant to this
Escrow Agreement, including all legal costs and expenses of Escrow Agent
defending itself against any claim or liability in connection with its
performance hereunder.
12
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
INDIVIDUAL INVESTOR GROUP, INC. TELESCAN, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: CEO Title: Senior ▇.▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Partner
13
Schedule 1.1
Transferred Assets
1. Seller's registration to the domain names ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇, and
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ (collectively, the "Domain Names").
2. Seller's right, title and interest in and to the trademark
"▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇"; provided that Seller is not assigning any
rights it may have pursuant to that certain Trademark License Agreement
dated as of June 19, 1992 between Financial Data Systems, Inc.
(predecessor to Seller) and the American Association of Individual
Investors.
3. Seller's rights in and to the registered user database of
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the "Database") and delivery of the
Database to Purchaser. As of August 7, 2001, the Database had the
characteristics set forth on Exhibit A hereto.
4. Seller's right, title and interest in the discussion boards of
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ and a database server and web server
(collectively, the "Hardware") and software ("Board Software") upon
which the discussion boards of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ may be operated
so as to provide the end user of the discussion boards with the
experience provided as of the Closing, together with the database
related to such discussion boards, provided, however, the Board
Software shall not include, and Seller shall not transfer any right,
title and interest in and to, any Windows server software (including
without limitation, Windows NT 4.0 or Windows 2000), SQL database
software or Microsoft site server software.
14
Exhibit A
A. As of August 7, 2001, the Database contained:
1. 243,002 total users.
2. 88,203 subscribers to the Daily Dividend e-mail.
3. 16,282 subscribers to the Magic25 Alert e-mail.
4. 14,965 subscribers to IIGP products and services emails.
5. 2,632 subscribers to new products and services emails.
B. The Database has the following fields, a majority of which are "empty"
for most subscribers:
Table 1 - User_
uname| fname| mname| lname |momName | add1| add2| city| state| zip| tel
|fax|email |subId |tempSubId |subscriber| ssr| connection| country|
tele |emailDisable |emailBounces |lastBounce |age|sex |day_tel|
job_title | job_function| B2B_Industry
Table 2 - Access
Username |Password |User_Group |bit1| bit2| bit3| bit4| bit5| bit6
|bit7| bit8 date_entered |invEmail| m25alert |active
Table 3 - User marketing
uname |email_block| can_share| our_promo| all_product| investments
financial_services| high_tech_products| good_life| email_location|
email_vertion| birthday
Table 4 - Forum user
uname | name | city | state | sex | birthdate |email | hobby website
link stock |style cap val portfolio lovecomm addfixcomm |quotecomm |
MajorHoldings | TopStockWhy | InvestingGuru |FBook |FMoovie | FTeam |
MartialStatus | Occupation | Education |AlmaMater |children
|YearsOFinvesting |DollarSizeOfPortfolio
15
C. The following questions currently are asked on the registration form.
There is no requirement to answer the questions. The answers populate
the Database.
Please tell us about your work.
-- Choose Job Title -- General Manager-GM Chairman CEO CFO CIO
President Vice President Director Manager Administrative-Clerical
Supervisor Assistant Consultant Owner
Choose Job Function -- Executive/Corporate Production/Manufacturing
Accounting/Finance Research Marketing/Promotions/PR Human Resources
Sales/Client Services Business Development IS/Systems Technology Office
Manager Creative/Graphic Artists Professional & Technical General
Office/administration Administrative Support Customer Service Skilled
Trade
Choose Industry -- Advertising/Marketing Agriculture Automotive
Building & Construction Chemical Consulting/Business Services Education
Entertainment Financial Service/Insurance Food & Beverage Government
Healthcare Hospitality Information Technology Internet Legal
Manufacturing Media, Publishing & Printing Metals Real Estate Retail
Telecommunication Transportation
I would like to hear about financial products and services, exclusive
discounts and other offers from ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇'s strategic
partners.
I would like to receive a free subscription to the Individual Investor
Dividend daily email newsletter.
I would like to receive a free subscription to the Magic25 Alert daily
email newsletter.
I would like to receive information about Individual Investor Group
products and services.
I prefer: Plain text email HTML email (when available)
I am most interested in receiving information about the following:
16
Investments Financial Services & Resources
All
Small Cap Stocks
Tech Stocks
Biotech Stocks
Options & Futures
Oil & Gas Investments
Global Investments
Mutual Funds
Insurance
Real Estate
IPOs
Venture Capital
Socially Conscious
Investments
All
Online Trading
Day Trading
Personal Financial Planning
Retirement Planning
Online Banking
Small Business Services
Investment Seminars
Financial Newsletters
Free and Discounted Books on Finance and Investing
High Tech Products The Good Life
All
Investment Software
Internet Hardware and Software
Internet Service Providers
Website Products and Services
Personal Computer Equipment
Home Office Products
PDAs
Cell Phones
Computer Games
Other
Consumer Electronics
All
Automobiles
Travel
Vacation Homes
Golf
Corporate Gifts
Gambling
17
D. The following fields currently are asked on the update user profile
form. There is no requirement to answer the questions. The answers
populate the Database.
Name:
City:
State:
Email Address:
Birthdate:
Martial Status:
Children:
Occupation:
Education:
▇▇▇▇ Mater:
Gender:
Years Investing:
Major Holdings (separated by commas):
Top Stock Pick(s), separated by commas:
Investment Style:
Portfolio Size:
Value or Growth:
Favorite Web site(s), separated by commas:
I visit ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ because:
Investing Guru/Mentor:
Favorite Book:
Favorite Movie:
Favorite Team:
Hobbies, Interests:
Personal Quote:
18
