-------------------------------------------------------------------------------
ASSET PURCHASE AND FORBEARANCE AGREEMENT
by and among
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
and
THINK NEW IDEAS, INC.
-------------------------------------------------------------------------------
Dated as of May 31, 1997
ASSET PURCHASE AND FORBEARANCE AGREEMENT
----------------------------------------
ASSET PURCHASE AND FORBEARANCE AGREEMENT (the "AGREEMENT") dated as of
the close of business on May 31, 1997 (the "EFFECTIVE DATE") by and among
▇▇▇▇▇▇▇ COMMUNICATIONS, INC., a Pennsylvania corporation (the "COMPANY") and
THINK NEW IDEAS, INC., a Delaware corporation (the "PURCHASER").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company wishes to sell, and the Purchaser wishes to
purchase, certain of the assets of the Company relating to its advertising
business in Los Angeles, California being conducted under the Fathom tradename
(the "BUSINESS"), subject to certain of the Company's liabilities, upon the
terms and subject to the conditions of this Agreement; and
WHEREAS, the Purchaser is desirous of servicing the Oracle account (the
"ACCOUNT") now being serviced by the Business and the Company is agreeable to
permit the Purchaser to service the Account, upon the terms and subject to the
conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
ARTICLE I
---------
SALE AND PURCHASE OF ASSETS AND FORBEARANCE AGREEMENT
-----------------------------------------------------
SECTION 1.1 ASSETS TRANSFERRED. The Company hereby sells, transfers,
conveys, assigns and delivers to the Purchaser, and the Purchaser hereby
purchases, all right, title and interest of the Company in and to the following
assets of the Business (the "ASSETS"), free and clear of all liens and
encumbrances:
(i) all job orders and work-in-process relating to the Account;
(ii) the accounts receivable of the Business relating to the Account
reflected on the Closing Date Balance Sheet (as defined in Section
1.2);
(iii) all contracts, agreements and commitments of the Business
relating to the Account; and
(iv) the books, files and records of the Business relating to the
Account.
Except as set forth above, the Company is not transferring, and the Purchaser is
not acquiring, any other assets of the Company.
SECTION 1.2 ASSUMED LIABILITIES. Within 30 days after the Closing, the
Purchaser shall deliver to the Company an unaudited balance sheet of the
Business as at the Effective Date (the "CLOSING DATE BALANCE Sheet"), setting
forth the Assets to be acquired and the liabilities to be assumed by the Company
(the "ASSUMED LIABILITIES"). The Closing Date Balance Sheet shall be prepared in
accordance with generally accepted accounting principles consistently applied.
In consideration of the sale, transfer, conveyance, assignment and delivery of
the Assets pursuant to this Agreement, the Purchaser hereby assumes and agrees
to pay, perform and discharge when due the Assumed Liabilities.
SECTION 1.3 FORBEARANCE AGREEMENT. The Company agrees that as of the
Effective Date, the Business will cease to render services to the Account and
hereby acknowledges the right of the Purchaser or one of its subsidiaries to
commence rendering services to the Account. In connection therewith and in
consideration of the delivery to it at the Closing (as defined in Section l.5
below) of 120,000 shares of common stock, par value $.0001 per share of the
Purchaser (the "ISSUED STOCK"), the Company hereby agrees (i) to waive any and
all rights that it may have to render services to the Account on and after the
Effective Date, (ii) to receive any compensation in respect of any notice period
under the terms of its agency-client agreement with the Account and (iii) not to
commence any proceeding, assert any claim, pursue any legal action or seek
recovery of any kind whatsoever against the Purchaser and any of its
subsidiaries with respect to or in anyway relating to the Account as of the
Effective Date.
SECTION 1.4 CLOSING. The Closing under this Agreement (the "CLOSING")
shall be deemed to have taken place at the close of business on May 31, 1997, at
the offices of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Such
date is herein referred to as the "CLOSING DATE".
SECTION 1.5 FURTHER ASSURANCE; POST CLOSING COOPERATION. All
transactions at the Closing shall be deemed to have taken place simultaneously.
The Company will, from time to time, at the request of the Purchaser, whether at
or after the Closing Date, execute and deliver such instruments of conveyance
and assignment, as the Purchaser or its counsel may reasonably require for the
effective conveyance and transfer of the Assets to the Purchaser, and the
Company will assist the Purchaser in the collections and reduction to possession
of the Assets. Following the Closing, each party will afford the other party,
its counsel and its accountants, during normal business hours, reasonable access
to the books, records and other data relating to the Business in its possession
with respect to periods prior to the Closing and the right to make copies and
extracts therefrom, to the extent that such access may be reasonably required by
the requesting party in connection with (i) the preparation of tax returns, (ii)
the determination or enforcement of rights and obligations under this Agreement,
(iii) compliance with the requirements of any Governmental or Regulatory
2
Authority (as defined in Section 2.3.1), (iv) the determination or enforcement
of the rights and obligations of any Indemnified Party (as defined in Section
5.5) or (v) in connection with any actual or threatened action or proceeding.
ARTICLE II
----------
REPRESENTATIONS OF THE COMPANY
------------------------------
The Company represents, warrants and agrees to and with the Purchaser
as follows:
SECTION 2.1 EXISTENCE AND GOOD STANDING. The Company is a corporation
duly organized and validly existing under the laws of the State of Pennsylvania,
with full corporate power and authority to own its property and to carry on its
business all as and in the places where such properties are now owned or
operated or such business is now being conducted.
SECTION 2.2 EXECUTION AND VALIDITY OF AGREEMENT. The Company has the
full corporate power and authority to enter into this Agreement and to perform
its obligations hereunder. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all required corporate action on behalf of
the Company. This Agreement has been duly and validly executed and delivered by
the Company and, assuming due authorization, execution and delivery by the
Purchaser, constitute the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its terms.
SECTION 2.3 NON-CONTRAVENTION; APPROVALS AND CONSENTS.
2.3.1 NON-CONTRAVENTION. The execution, delivery and
performance by the Company of its obligations hereunder and the consummation of
the transactions contemplated hereby, do not (a) violate, conflict with or
result in the breach of any provision of the Articles of Incorporation or
By-laws of the Company, or (b) result in the violation by the Company of any
statute, law, rule, regulation or ordinance (collectively, "LAWS"), or any
judgment, decree, order, writ, permit or license (collectively, "ORDERS"), of
any court, tribunal, arbitrator, authority, agency, commission, official or
other instrumentality of the United States, any foreign country or any domestic
or foreign state, county, city or other political subdivision (a "GOVERNMENTAL
OR REGULATORY AUTHORITY"), applicable to the Company or any of the Assets or (c)
conflict with, result in a violation or breach of, constitute (with or without
notice or lapse of time or both) a default under, or require the Company to
obtain any consent, approval or action of, make any filing with or give any
notice to, or result in or give to any Person (as defined in Section 6.3 below)
any right of payment or reimbursement, termination, cancellation, modification
or acceleration of, or result in the creation or imposition of any lien upon any
of the Assets, under any of the terms, conditions or provisions of any note,
bond, mortgage, security agreement, indenture, license, franchise, permit,
3
concession, contract, lease or other instrument, obligation or agreement of any
kind (collectively, "INSTRUMENTS") to which the Company is a party or by which
the Company or any of its assets or properties is bound.
2.3.2 APPROVALS AND CONSENTS. No consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority or other
public or private third party is necessary or required under any of the terms,
conditions or provisions of any Law or Order of any Governmental or Regulatory
Authority or any Instrument to which the Company is a party or its assets
(including without limitation, the Assets) or properties is bound for the
execution and delivery of this Agreement by the Company, the performance by the
Company of its obligations hereunder or the consummation of the transactions
contemplated hereby.
SECTION 2.4 LITIGATION. There is no action, suit, proceeding at law or
in equity by any Person, or any arbitration or any administrative or other
proceeding by or before (or to the best knowledge, information and belief of the
Company, any investigation by) any Governmental or Regulatory Authority, pending
or, to the best knowledge, information and belief of the Company, threatened,
against the Company with respect to the Assets, this Agreement or the
transactions contemplated hereby.
SECTION 2.5 EMPLOYEES. SCHEDULE A to this Agreement is a list setting
forth the names and positions of all employees of the Business, together with a
statement of the current annual salary, the bonus compensation paid with respect
to calendar year 1996, and the material fringe benefits of such employees not
generally available to all employees of the Business. None of such employees has
an employment agreement with the Company.
SECTION 2.6 CLOSING DATE BALANCE SHEET. The Assumed Liabilities as
reflected on the Closing Date Balance Sheet shall be equal to the Assets
reflected on the Closing Date Balance Sheet.
ARTICLE III
-----------
REPRESENTATIONS OF THE PURCHASER
--------------------------------
The Purchaser, represents, warrants and agrees to and with the Company
as follows:
SECTION 3.1 EXISTENCE AND GOOD STANDING. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and authority to own its property
and to carry on its business all as and in the places where such properties are
now owned or operated or such business is now being conducted.
SECTION 3.2 EXECUTION AND VALIDITY OF AGREEMENT. The Purchaser has the
full corporate power and authority to enter into this Agreement and to perform
its obligations hereunder. The execution and delivery of this Agreement by the
4
Purchaser and the consummation of the transactions contemplated hereby have been
duly authorized by all required corporate action on behalf of the Purchaser.
This Agreement has been duly and validly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery by the Company,
constitutes the legal, valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms.
SECTION 3.3 NON-CONTRAVENTION; APPROVALS AND CONSENTS.
----------- -----------------------------------------
3.3.1 NON-CONTRAVENTION. The execution, delivery and
performance by the Purchaser of its obligations hereunder and the consummation
of the transactions contemplated hereby, do not (a) violate, conflict with or
result in the breach of any provision of the certificate of incorporation or
by-laws of the Purchaser, or (b) result in the violation by the Purchaser of any
Laws or Orders of any Governmental or Regulatory Authority, applicable to the
Purchaser or any of its assets or properties, or (c) conflict with, result in a
violation or breach of, constitute (with or without notice or lapse of time or
both) a default under, or require the Purchaser to obtain any consent, approval
or action of, make any filing with or give any notice to, or result in or give
to any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of any
lien upon any of the assets or properties of the Purchaser, under any of the
terms, conditions or provisions of any Instruments to which the Purchaser is a
party or by which the Purchaser or any of its assets or properties are bound.
3.3.2 APPROVALS AND CONSENTS. No consent, approval or action
of, filing with or notice to any Governmental or Regulatory Authority or other
public or private third party is necessary or required under any of the terms,
conditions or provisions of any Law or Order of any Governmental or Regulatory
Authority or any Instrument to which the Purchaser is a party or by which the
Purchaser or any of its assets or properties is bound for the execution and
delivery of this Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder or the consummation of the transactions contemplated
hereby.
SECTION 3.4 LITIGATION. There is no action, suit, proceeding at law or
in equity by any Person, or any arbitration or other proceeding by or before (or
to the best knowledge, information and belief of the Purchaser, any
investigation by) any Governmental or Regulatory Authority, pending or, to the
best knowledge, information and belief of the Purchaser, threatened against the
Purchaser with respect to this Agreement or the transactions contemplated
hereby.
SECTION 3.5 ISSUED STOCK. The shares of Issued Stock delivered at the
Closing to the Company pursuant to this Agreement are validly issued and
outstanding, fully paid and non-assessable, free and clear of all claims, liens
and encumbrances other than restrictions on resale arising by virtue of any
Federal or state securities laws of the United States, and are not subject to
any preemptive rights of shareholders of the Purchaser.
5
SECTION 3.6 FINANCIAL STATEMENTS AND NO MATERIAL CHANGES. The Purchaser
has previously furnished to the Company a true and complete copy of its
Quarterly Report on Form 10-Q for the three and six months ended December 31,
1996 and March 31, 1997, respectively. Since March 31, 1997, there has been no
material adverse change in the assets or liabilities, or in the business or
condition, financial or otherwise, or the results of consolidated operations, of
the Purchaser and its subsidiaries. As of the dates of filing with the
Securities and Exchange Commission ("SEC"), such Forms 10-Q did not contain any
untrue statement of a material fact, or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances in which they were made, not misleading.
ARTICLE IV
OTHER AGREEMENTS
SECTION 4.1 PRIVATE PLACEMENT. The Issued Stock is being issued on the
date hereof without registration under the Securities Act of 1933, as amended
(the "SECURITIES ACT") based upon the "private offering exemption" in reliance
on the agreements set forth in Sections 4.2 and 4.3 below.
SECTION 4.2 INVESTMENT REPRESENTATIONS. The Company represents that it
is acquiring the Issued Stock for its own account for investment and not with a
view to the sale or distribution thereof or with any present intention of
selling or distributing the Issued Stock, except in conformity with the
Securities Act. The Company understands and agrees that it must bear the
economic risk of its investment in the Issued Stock for an indefinite period of
time because, among other things, the Issued Stock has not been the subject of
registration under the Securities Act or under the securities laws of any state
and, therefore, cannot be resold or otherwise disposed of except (i) pursuant to
an effective registration statement under the Securities Act, (ii) pursuant to
Rule 144 or any successor rule under the Securities Act, (iii) pursuant to a
no-action letter issued by the SEC to the effect that the proposed transfer may
be made without registration under the Securities Act, or (iv) upon the
Purchaser's receipt of an opinion of counsel of the Company reasonably
acceptable to the Purchaser and/or its counsel to the effect that the proposed
transfer is exempt from registration or qualification under the Securities Act
and relevant state securities laws.
SECTION 4.3 INVESTMENT LEGEND AND STOP TRANSFER NOTATION. Each
certificate representing shares of Issued Stock shall (unless otherwise
permitted or unless the shares evidenced by such certificate shall have been
registered under the Securities Act) be stamped or otherwise imprinted with a
legend in the following form (in addition to any legend required under
applicable state securities laws):
6
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or any state securities laws and may not be
sold except pursuant to an effective registration statement
under the Securities Act and pursuant to registration or
qualification under any applicable state securities laws or
upon the receipt by the Corporation of an opinion of counsel
reasonably acceptable to the Corporation to the effect that
the proposed transfer is exempt from registration or
qualification under the Securities Act and relevant state
securities laws."
The Purchaser shall have the right to place a "stop transfer" notation on the
transfer records of the Purchaser's transfer agent to implement the provisions
of this Section 4.3.
SECTION 4.4 AGREEMENTS REGARDING EMPLOYEES AFTER CLOSING
----------- --------------------------------------------
4.4.1 AFFECTED EMPLOYEES. The Purchaser shall offer employment
to all employees of the Company listed on SCHEDULE A hereto effective as of the
Effective Date (including those employees who are on vacation, temporary
lay-off, leave of absence, sick leave or short- or long-term disability). Such
personnel who accept such employment (the "AFFECTED EMPLOYEES") will be employed
on substantially equivalent terms (including, without limitation, salaries and
wages) under which such personnel were employed by the Company immediately prior
to the Closing Date, but nothing contained in this Section 4.4.1 shall be deemed
to create an employment contract between the Purchaser and/or any of its
subsidiaries and any such Affected Employee. From and after the Closing Date the
Affected Employees will be eligible to participate in the health, welfare and
other employee plans and benefits as provided by the Purchaser and its
subsidiaries to its employees, which plans and benefits may be different than
that provided by the Company. With respect to any welfare benefits plans (within
the meaning of Section 3(1) of ERISA) maintained by the Purchaser or one of its
subsidiaries in which an Affected Employee may participate on or after the
Closing Date, the Purchaser shall (i) cause to be waived any pre-existing
condition limitations, (ii) give effect, in determining any deductible and
maximum out-of-pocket limitations, to claims incurred and amounts paid by, and
amounts reimbursed to, such employees with respect to similar types of plans
maintained by the Business prior to the Closing Date and (iii) permit those
Affected Employees who are eligible as of the Closing Date to participate in the
Company's applicable welfare plans to participate immediately in any applicable
welfare plan of the Purchaser (or one of its subsidiaries). Employees of the
Company that become employees of the Purchaser or one of its subsidiaries shall
be subject to all rules, regulations, requirements and policies applicable to
all new hires of the Purchaser (subject to the provisions of Section 4.4.2
below), and any such employees who may be subsequently terminated will be
entitled to severance benefits in accordance with the policy of the Purchaser as
then applicable.
7
4.4.2 SERVICE CREDIT. The Purchaser shall recognize under its
employee benefit plans, programs, arrangements and policies in which an Affected
Employee will participate the service credited to the Affected Employee as of
the Closing Date to the extent recognized under the Company's plans or
continuity of service rules for purposes of any waiting period, eligibility
conditions and benefits.
SECTION 4.5 SUCCESSOR EMPLOYER. The Purchaser agrees that it shall
elect treatment as a "successor employer" for withholding tax purposes with
respect to the 1997 calendar year.
ARTICLE V
---------
SURVIVAL; INDEMNITY
-------------------
SECTION 5.1 SURVIVAL. Notwithstanding any right of any party hereto
fully to investigate the affairs of any other party, and notwithstanding any
knowledge of facts determined or determinable pursuant to such investigation or
right of investigation, each party hereto shall have the right to rely fully
upon the representations, warranties, covenants and agreements of the other
parties contained in this Agreement. The respective representations, warranties,
covenants and agreements of the Company and the Purchaser contained in this
Agreement shall survive the Closing.
SECTION 5.2 OBLIGATION OF THE COMPANY TO INDEMNIFY. The Company hereby
agrees, to indemnify and hold harmless the Purchaser from all losses, damages
and expenses (including reasonable attorneys' fees) that may be imposed on or
incurred by the Purchaser as a consequence of or in connection with (i) any
inaccuracy or breach of any representation or warranty contained in Article II
hereof; and (ii) any breach of or failure by the Company to comply with or
perform any of its agreements contained in this Agreement.
SECTION 5.3 OBLIGATION OF THE PURCHASER TO INDEMNIFY. The Purchaser
hereby agrees to indemnify and hold harmless the Company from any and all
losses, damages and expenses (including reasonable attorneys' fees) that may be
imposed on or incurred by the Company as a consequence of or in connection with
(i) any inaccuracy or breach of any representation or warranty contained in
Article III hereof and (ii) any breach of or failure by the Purchaser to comply
with or perform any of its agreements contained in this Agreement.
SECTION 5.4 INDEMNIFICATION AS A SOLE REMEDY. The liability of each of
the parties hereto with respect to any matter set forth in Sections 5.2 or 5.3,
as the case may be, shall be the sole remedy of the parties hereto and no party
will have any claim, right or remedy under this Agreement except for
indemnification as provided in this Article V.
SECTION 5.5 THIRD-PARTY CLAIMS. If any claim for indemnification
hereunder arises out of a claim against a party entitled to indemnification
under Sections 5.2 or 5.3 above (the "INDEMNIFIED PARTY") by a third party (a
8
"THIRD PARTY CLAIM"), the Indemnified Party will promptly notify the party
against which the claim for indemnification is made (the "INDEMNIFYING PARTY"),
and the Indemnifying Party shall have the right, at its own expense, to
compromise, settle or defend, at its own expense, the Third-Party Claim. The
Indemnified Party shall have the right to employ separate counsel to represent
it, if in the Indemnified Party's reasonable judgment, it is advisable for the
Indemnified Party to be represented by separate counsel, and in that event, the
fees and expenses of such separate counsel shall be paid by the Indemnified
Party. The Indemnified Party shall have the right to control the defense of any
Third-Party Claim if it notifies the Indemnifying Party that it is assuming the
defense of such claim and that the Indemnifying Party is relieved of its
obligations to the Indemnified Party with respect to such Third-Party Claim,
whereupon the Indemnifying Party shall be relieved of its obligations under this
Article V with respect to such Third-Party Claim and any alleged breach of a
representation or warranty relating to such Third-Party Claim. Except as
provided in the preceding sentence, if the Indemnifying Party does not elect to
compromise, settle or defend the Third-Party Claim, it shall be bound by the
results obtained by the Indemnified Party with respect to such Third-Party
Claim. Each of the parties hereto agrees to render to each other such assistance
as may reasonably be requested in order to insure the proper and adequate
defense of any Third-Party Claim.
ARTICLE VI
----------
MISCELLANEOUS
-------------
SECTION 6.1 EXPENSES. The parties hereto shall pay all of their own
expenses relating to the transactions contemplated by this Agreement, including,
without limitation, the fees and expenses of their respective counsel.
SECTION 6.2 GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of New York without reference to its conflict of laws provisions.
SECTION 6.3 "PERSON" DEFINED. "PERSON" shall mean and include an
individual, a partnership, a joint venture, a corporation, a limited liability
company, a trust, an unincorporated organization and a government or other
department or agency thereof.
SECTION 6.4 CAPTIONS. The Article and Section captions used herein are
for reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 6.5 NOTICES. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any party to any
other party shall be in writing and shall be deemed to have been given (a) upon
personal delivery, if delivered by hand, (b) three days after the date of
deposit in the mails, postage prepaid, if mailed by certified or registered
mail, or (c) the next business day if sent by facsimile transmission (if receipt
9
is electronically confirmed) or by a prepaid overnight courier service, and in
each case at the respective addresses or numbers set forth below or such other
address or number as such party may have fixed by notice:
If to the Company, addressed to:
Diversified Agency Services Group
Division of Omnicom Group Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Purchaser, addressed to:
Think New Ideas Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇
Suite 400
1818 N Street, N.W.
Washington, D.C. 20036-2492
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (202) ▇▇▇- ▇▇▇▇
SECTION 6.6 PARTIES IN INTEREST. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
10
of law, without the prior written consent of the other party hereto. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
permitted assigns.
SECTION 6.7 SEVERABILITY. In the event any provision of this Agreement
is found to be void and unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same effect as though the void or unenforceable part had been
severed and deleted.
SECTION 6.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
SECTION 6.9 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
SECTION 6.10 AMENDMENTS. This Agreement may not be amended,
supplemented or modified orally, but only by an agreement in writing signed by
the Purchaser and the Company.
SECTION 6.11 THIRD PARTY BENEFICIARIES. Each party hereto intends that
this Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto and their respective
successors and assigns as permitted under Section 6.6.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as
of the close of business on May 31, 1997.
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
By: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
THINK NEW IDEAS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
By: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
EXHIBIT A
Transfers To New Agency
-----------------------
Fringe 1996
Name Benefits* Bonus Annual
Salary
-------------------------------------------------------------------------
Permanent & Transferring to Think
1. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ $ 49,236
2. ▇▇▇▇ ▇▇▇▇▇▇ 131,256
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 60,000
4. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 44,000
5. ▇▇▇▇ ▇▇▇▇▇ 26,000
6. ▇▇▇ ▇▇▇▇▇▇▇▇▇ 55,000
7. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 20,800
8. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 85,000
9. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 32,000
10. ▇▇▇▇▇ ▇▇▇▇▇▇ 10,000 200,000 330,000
10. ▇▇▇▇▇▇▇ ▇▇▇▇▇ 40,000
11. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 97,200
12. ▇▇▇▇ ▇▇▇▇▇▇ 4,500 80,000
13. ▇▇▇▇▇▇ ▇▇▇▇▇ 48,000
14. ▇▇▇▇▇▇ ▇▇▇▇▇ 44,136
15. ▇▇▇ Somerset 10,000 20,000 185,000
16. ▇▇▇ ▇▇▇▇▇▇▇ 10,000 145,000
*Company car or car allowance
EXHIBIT A (Con't)
I. These employees have been with Fathom on a part-time basis but will be
full-time permanent employees at Fathom/Think. The annual salaries indicated are
the planned full-time salaries.
Temporary To Permanent
1. ▇▇▇▇▇▇ ▇▇▇▇▇ 26,000/yr
3. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 40,000/yr
4. ▇▇▇▇▇ ▇▇▇▇▇▇▇ 30,000/yr
II. The following are employees who will transfer to Fathom/Think and retain
their "freelance" status working 8 hour days (except where indicated) for an
extended amount of time (TBD).
TEMPORARY TO TEMPORARY
1. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 20.00/hour
2. ▇▇▇ ▇▇▇▇▇ 35.00/hour
3. ▇▇▇▇ ▇▇▇▇▇** 25.00/hour
4. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 20.00/hour
5. ▇▇▇▇ ▇▇▇▇▇ 35.00/hour
6. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 35.00/hour
7. ▇▇▇▇ ▇▇▇▇▇▇▇** 65.00/hour
** 3 days/week for 1-3 months
III. The following are former Fathom/▇▇▇▇▇▇▇ employees who will work at
Fathom/Think for a limited amount of time.
SHORT TERM FREELANCE ON FATHOM/THINK PAYROLL
1. Ceebs ▇▇▇▇▇▇ (6 mos.) $500/day
2. ▇▇▇▇ ▇▇▇▇▇▇▇ (3 mos.) 550/day
3. ▇▇▇ ▇▇▇▇▇▇▇ (1 mo.) 650/day