EXHIBIT 10.1(E)
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ASSET PURCHASE AGREEMENT
By and Between
MODEM MEDIA . ▇▇▇▇▇ ▇▇▇▇▇, INC.
and
TRUE NORTH COMMUNICATIONS INC.
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TABLE OF CONTENTS
PAGE
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ARTICLE I
CERTAIN DEFINITIONS...................................................... 1
ARTICLE II
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES......................... 1
2.1 Transfer of Assets................................................. 2
2.2 Assumed Liabilities................................................ 2
ARTICLE III
PURCHASE AND SALE OF THE ASSETS.......................................... 2
3.1 Purchase Price..................................................... 2
3.2 Sales and Transfer Taxes........................................... 2
ARTICLE IV
REPRESENTATIONS AND WARRANTIES........................................... 2
4.1 Mutual Representations............................................. 2
4.2 No Additional Representations or Warranties........................ 3
ARTICLE V
COVENANTS................................................................ 3
5.1 Regulatory Filings................................................. 3
5.2 Third Party Consents............................................... 4
5.3 Further Assurances................................................. 4
ARTICLE VI
MISCELLANEOUS PROVISIONS................................................. 4
6.1 Notices............................................................ 4
6.2 Expenses........................................................... 5
6.3 Successors and Assigns............................................. 5
6.4 Entire Agreement................................................... 5
6.5 Amendments......................................................... 5
6.6 Applicable Law..................................................... 5
6.7 Counterparts; Severability......................................... 5
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EXHIBITS
A - Instrument of Assignment and Assumption
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ASSET PURCHASE AGREEMENT
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This Asset Purchase Agreement (this "Agreement") is made and entered into
this _____ day of February, 1999, with effect from October 1, 1998, by and
between Modem Media . ▇▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware corporation ("Seller"), and
True North Communications Inc., a Delaware corporation ("Buyer").
ARTICLE I
CERTAIN DEFINITIONS
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"Assumed Liabilities" means, collectively, the Liabilities of Seller
related to the Transferred Assets, the Transferred Business and the Transferred
Agreements, including but not limited to any Liabilities relating to
KnowledgeNet.
"Liabilities" means any and all debts, liabilities and obligations, whether
accrued, contingent or reflected on a balance sheet, including, without
limitation, those arising under any law, rule, regulation, action, order or
consent decree of any governmental entity or any judgment of any court of any
kind or any award of any arbitrator of any kind, and those arising under any
contract, commitment or undertaking, whether arising before or after the date
hereof.
"Transaction Documents" shall mean this Agreement and the Instrument of
Assignment and Assumption in the form attached as Exhibit A.
"Transferred Agreements" shall mean the agreements of Seller related to the
Transferred Business and Transferred Assets.
"Transferred Assets" shall mean (i) all of the assets and properties of
Seller (including, without limitation, all accounts receivable, goodwill, work-
in-process, cash advances, accrued revenues and employee advances) used in or
related to the Transferred Business; (ii) all of the issued and outstanding
capital stock of Christiansen, Fritsch, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., a
Washington corporation, and (iii) all right, title and interest in and to the
trademark and service ▇▇▇▇ "TN Technologies Inc.," but shall not include any
right title or interest in or to the trademark or service ▇▇▇▇ "Relationship
Technology Group."
"Transferred Business" shall mean, collectively, the business conducted by
Northern Lights Interactive -- San Francisco, Northern Lights Interactive --
Hong Kong, Relationship Technology Group, Database Marketing Group and
Intellectual Property Group ("IPG").
ARTICLE II
TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES
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2.1 Transfer of Assets. On the date hereof, Seller shall sell, transfer
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and assign to Buyer, and Buyer shall purchase and accept from Seller, all of
Seller's right, title and interest in and to the Transferred Assets and the
Transferred Agreements.
2.2 Assumed Liabilities. On the date hereof, Buyer shall assume all of
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the Assumed Liabilities. The parties acknowledge that no liabilities or
obligations shall be retained by Seller with respect to the Transferred Assets,
Transferred Business or Transferred Agreements.
ARTICLE III
PURCHASE AND SALE OF THE ASSETS
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3.1 Purchase Price. The purchase price for the Transferred Assets shall
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be 479,339 shares of Seller's Class B Common Stock, par value $0.001 per share,
held by Buyer (the "Class B Shares"), such Class B Shares to be delivered by
Buyer to Seller on the date hereof.
3.2 Sales and Transfer Taxes. Buyer and Seller agree to cooperate to
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determine the amount of sales, transfer or other taxes or fees (including,
without limitation, all real estate, patent, copyright and trademark transfer
taxes and recording fees) payable in connection with the transactions
contemplated by this Agreement (the "Transaction Taxes"). Buyer agrees to file
promptly and timely the returns for such Transaction Taxes with the appropriate
taxing authorities and remit payment of the Transaction Taxes and Seller will,
if required, join in the execution of any such tax returns or other
documentation. Payment of all such Transaction Taxes shall be the responsibility
of Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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4.1 Mutual Representations. Each party represents and warrants to the
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other party as follows:
(a) Corporate Organization. It is a corporation duly organized,
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validly existing and in good standing under the laws of the state of its
incorporation.
(b) Authorization and Effect of Transaction Documents. It has the
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requisite corporate power to execute and deliver each of the Transaction
Documents and to perform the transactions
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contemplated hereby and thereby to be performed by it. The execution and
delivery by it of each of the Transaction Documents and the performance by it of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on its part. It has duly executed and validly
delivered this Agreement and each of the Transaction Documents. This Agreement
and each of the other Transaction Documents constitute its legal, valid and
binding obligation, enforceable in accordance with their respective terms,
subject to laws of general application relating to bankruptcy, insolvency,
reorganization, moratorium or other rules of law governing specific performance,
injunctive relief or other equitable remedies.
(c) Non-Contravention. The execution, delivery and performance of
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this Agreement and each of the Transaction Documents by such party do not, and
the performance by it of the transactions contemplated hereby and thereby to be
performed by it will not, conflict with, or result in any violation of, or
constitute a default under, any provision of its charter or bylaws or under any
Transferred Agreement.
(d) Consents. No consent, approval or authorization of any local,
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state, federal or international governmental authority or agency which has
jurisdiction over the parties (a "Governmental Authority") or any other person
is required to be obtained by it in connection with the execution and delivery
of this Agreement or the Transaction Documents or the performance by it of the
transactions contemplated hereby and thereby.
4.2 No Additional Representations or Warranties. Buyer understands and
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agrees that Seller is not, in this Agreement or in any other agreement or
document contemplated by this Agreement, representing and warranting to Buyer in
any way (i) as to the value or freedom from encumbrances of, or any other matter
concerning, any Transferred Assets or (ii) as to the legal sufficiency of the
attempt to convey title to any Transferred Assets or of the execution, delivery
and filing of the Instrument of Assignment and Assumption, IT BEING UNDERSTOOD
AND AGREED THAT ALL SUCH ASSETS ARE BEING TRANSFERRED "AS IS, WHERE IS" and that
subject to Section 5.3, Seller shall not bear the economic and legal risk that
(x) any conveyance of such assets shall prove to be insufficient or (y) Buyer's
title to any such assets shall be other than good and marketable and free from
encumbrances. Similarly, Buyer understands and agrees that Seller is not, in
this Agreement or in any other agreement or document contemplated by this
Agreement, representing or warranting to Buyer in any way that the obtaining of
the consents or approvals, the execution and delivery of any amendatory
agreements and the making of the filings and applications contemplated by this
Agreement shall satisfy the provisions of all applicable agreements or the
requirements of all applicable laws or judgments, it being understood and agreed
that, subject to Section 5.3 hereof, Seller shall not bear the economic and
legal risk that any necessary consent or approvals are not obtained or that any
requirements of law or judgments are not complied with.
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ARTICLE V
COVENANTS
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5.1 Regulatory Filings. Each party shall use its reasonable best efforts
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to obtain, and to cooperate with the other in obtaining, all authorizations of
Governmental Authorities that may be necessary in connection with the
consummation of the transactions contemplated by the Transaction Documents
following the date hereof.
5.2 Third Party Consents. Each party shall use its reasonable efforts to
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obtain, and will cooperate with the other in obtaining, any third party consents
required for the transfer of the Transferred Agreements following the date
hereof.
5.3 Further Assurances. From time to time, as and when requested by
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either Seller or Buyer, the other party shall execute and deliver, or cause to
be executed and delivered, all such documents and instruments as may be
reasonably necessary to consummate the transactions contemplated by the
Transaction Documents. Buyer and Seller shall cooperate and take such action as
may be reasonably requested by the other in order to effect an orderly transfer
of the Transferred Assets and Transferred Agreements.
5.4 No Further Use of Trademark. Seller acknowledges the ownership of the
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trademark and service ▇▇▇▇ "TN Technologies Inc." (and derivations thereon) (the
"Trademark") by Buyer and agrees (i) to immediately cease to use the Trademark
and (ii) to do nothing inconsistent with ownership of the Trademark by Buyer.
As soon as practicable after the date hereof, Seller shall change the names of
TN Technologies Ltd. (Hong Kong) and TN Technologies Ltd. (UK) and take such
other actions as may be necessary to terminate use of the Trademark in its
business operations.
ARTICLE VI
MISCELLANEOUS PROVISIONS
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6.1 Notices. All notices and other communications required or permitted
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hereunder shall be in writing and, unless otherwise provided in this Agreement,
shall be deemed to have been duly given when delivered in person or when
dispatched by electronic facsimile transfer (confirmed in writing by mail
simultaneously dispatched) to the appropriate party at the address specified
below:
(a) If to Buyer, to:
True North Communications Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Secretary
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(b) If to Seller, to:
Modem Media . ▇▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
6.2 Expenses. Buyer shall pay any expenses incurred by Buyer or Seller in
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connection with this Agreement and each of the other Transaction Documents.
6.3 Successors and Assigns. This Agreement shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
assigns.
6.4 Entire Agreement. This Agreement and the other Transaction Documents
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supersede any other agreement, whether written or oral, that may have been made
or entered into by the parties relating to the matters contemplated hereby and
thereby and constitute the entire agreement by and among the parties hereto.
6.5 Amendments. This Agreement may be amended or supplemented, or any
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provisions therein waived, only by written instrument signed by Seller and
Buyer.
6.6 Applicable Law. This Agreement shall be governed by and construed in
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accordance with the substantive laws of the State of Illinois.
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6.7 Counterparts; Severability. This Agreement may be executed in two or
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more counterparts. If any term or other provision of this Agreement is found to
be invalid or unenforceable, all other terms and provisions of this Agreement
shall nevertheless remain in full force and effect.
"SELLER:" "BUYER:"
MODEM MEDIA . ▇▇▇▇▇ ▇▇▇▇▇, INC. TRUE NORTH COMMUNICATIONS INC.
By:_________________________________ By:__________________________________
Name: ▇.▇. ▇'▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer Title: Senior Vice President
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Exhibit A
INSTRUMENT OF ASSIGNMENT AND ASSUMPTION