Exhibit 10.2


 


AMENDMENT NO. 1 TO ASSET ACQUISITION AGREEMENT


 


This Amendment
is dated June 29, 2004 and is made by and among TRAFFIX, INC., a Delaware
corporation, having an address at One Blue Hill Plaza, Fifth Floor, Pearl
River, New York 10965, (hereafter referred to as “Traffix”); NEW SEND, INC., a
Delaware corporation, having an address at One Blue Hill Plaza, Fifth Floor,
Pearl River, New York 10965 (hereafter referred to as “New Send” or
“Purchaser”); SENDTRAFFIC.COM INC., a New York corporation, having an address
at 16 Atlantic Avenue, 2nd Floor, Lynbrook, New York 11563
(hereafter referred to as “ST”); THE TRAFFIC GROUP, LLC, a New York limited
liability company having an address at 16 Atlantic Avenue, 2nd
Floor, Lynbrook, New York 11563 (“TG”, and, collectively with ST, the
“Seller”); CRAIG HANDLEMAN, an individual having an address at 16 Atlantic
Avenue, 2nd Floor, Lynbrook, New York 11563 (hereafter referred to
as “Craig”); and GREG BYRNES, an individual having an address at16 Atlantic
Avenue, 2nd Floor, Lynbrook, New York 11563 (hereafter referred to
as “Greg”).


 


W I T N E S S E T H:


 


WHEREAS, the
parties hereto were also parties to that certain Asset Acquisition Agreement
dated as of June 9, 2004 (the “Agreement”); and


 


WHEREAS, the
parties hereto are desirous of amending the Agreement as set forth herein.


 


NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed that:


 


1.             All capitalized terms
not otherwise defined herein shall have the same meaning ascribed thereto in
the Agreement.


 


2.             All references in the
Agreement to “SendTraffic, Inc.”, “TrafficGroup, LLC” and “Craig Handelman”
shall be revised to read “SENDTRAFFIC.COM INC.”, “THE TRAFFIC GROUP, LLC” and
“Craig Handleman”, respectively.


 


3.             Section
4.4(7) is hereby revised to read as follows:


 


“(7)         options to purchase up to
an aggregate of 70,000 shares of Common Stock issued in the names of those
employees of Seller designated at Closing by Seller, provided such designated
individuals are employees of Traffix (or any subsidiary thereof) at Closing
(such options vesting in equal installments on each of their date of grant and
the first and second anniversaries of their date of grant and otherwise
governed in accordance with the terms and provisions of Traffix’s 1996 Employee
Stock Option Plan, as then amended and restated (the “Plan”)); provided,
however, that if Seller elects at Closing that the designated employees be
issued options for less than 70,000 shares of Common Stock, Seller’s Shareholders
shall have the right subsequent to the Closing to cause Traffix to issue
additional options for such shortfall amount to those employees of NewSend
designated by Seller’s Shareholders (such options vesting in equal installments
on each of their date of grant and the first and second anniversaries of their
date of grant and otherwise governed in accordance with the terms and
provisions of the Plan.”


 


4.             The
limitations on Indemnity provided in Section 8.5 of the Agreement shall not
apply to any Claims of Traffix or New Send against Seller, Craig and/or Greg
arising as a result of (i) Seller’s failure to be authorized to do business or
otherwise comply with the Laws of Connecticut or North Carolina; (ii) Seller’s
failure to pay any and all franchise taxes due the State of New York; (iii)
Seller’s failure to be in good standing in New York State; (iv) Seller’s
assignment of the Lease (provided that this shall not limit New Send’s
obligations under the


 

















 


Assignment and Assumption Agreement); (v) the delivery of the Agreement
or any Other Document to which any Seller’s Shareholder is a party not
constituting the valid and binding obligations of each Seller’s Shareholder,
enforceable against them in accordance with their respective terms; (vi) either
the execution and delivery of the Agreement or any Other Document to which any
Seller’s Shareholder is a party, or the consummation of the transactions
contemplated thereby, or compliance with and fulfillment of the terms and
conditions of the Agreement or any Other Document to which Seller’s Shareholder
is a party, by a Seller’s Shareholder, conflicting with, or resulting in a
breach of the terms, conditions or provisions of, or constituting a default
under the articles of incorporation or bylaws (or equivalent documents) of
Seller; (vii) failure to give notice to or obtain authorization of any
Government Entity required by federal or New York state Law to be obtained by
any Seller’s Shareholder for the consummation by any Seller’s Shareholder of
the transactions contemplated by the Agreement; and (viii) the consummation by
any Seller’s Shareholder of the transactions described in the Agreement
violating or resulting in a breach or default under any federal or New York
state Law applicable to any Seller’s Shareholder and resulting in the creation
or imposition of any Lien upon any of the Acquired Assets.


 


5.             The
limitations on Indemnity provided in Section 8.5 of the Agreement shall not
apply to any Claims of Seller, Craig and/or Greg against Traffix or New Send
arising as a result of a claim by Traffix or New Send against the landlord
under the Lease and a corresponding claim by landlord against Seller, Craig
and/or Greg under the Consent to Assignment and Assumption of Lease by and
among the landlord, ST and New Send.


 


6.             Schedule 5.16 to the
Agreement shall be as annexed hereto as Exhibit A.


 


Signature page to follow


 

















 


IN
WITNESS WHEREOF, the individual parties have executed and the corporate parties
have each caused its corporate name to be hereunto subscribed by their
respective duly authorized officers on the date first written above.


 


	
   

  	
  TRAFFIX,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Josh Gillon

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NEW
  SEND, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Josh Gillon

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SENDTRAFFIC.COM
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Handleman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  TRAFFIC GROUP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Handleman

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/

  	
   

  
	
   

  	
  CRAIG
  HANDLEMAN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/

  	
   

  
	
   

  	
  GREG
  BYRNES