Exhibit 10.1


 


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
PORTIONS OF THIS AGREEMENT.  CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.


EXECUTION COPY


 


ASSET PURCHASE AGREEMENT


 


among


 


MIVA, Inc.,


 


B &
B Advertising, Inc.


 


and


 


MIVA (UK)
Limited


 


as the Sellers


 


and


 


U.S. Acquisition Sub, Inc.,


 


Ajax Media Ltd.


 


and


 


Adknowledge, Inc.


 


as the Buyers


 


 


Dated as of March 12, 2009


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Certain Defined Terms

  	
   

  	
  1

  
	
  Section 1.2

  	
   

  	
  Table of Definitions

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II PURCHASE AND
  SALE

  	
   

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  Purchase and Sale of
  Assets

  	
   

  	
  10

  
	
  Section 2.2

  	
   

  	
  Excluded Assets

  	
   

  	
  10

  
	
  Section 2.3

  	
   

  	
  Assumed Liabilities

  	
   

  	
  11

  
	
  Section 2.4

  	
   

  	
  Excluded Liabilities

  	
   

  	
  11

  
	
  Section 2.5

  	
   

  	
  Consideration

  	
   

  	
  11

  
	
  Section 2.6

  	
   

  	
  Closing

  	
   

  	
  11

  
	
  Section 2.7

  	
   

  	
  Post-Closing Adjustment of
  Purchase Price

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III
  REPRESENTATIONS AND WARRANTIES OF THE SELLER

  	
   

  	
  15

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Organization and
  Qualification

  	
   

  	
  15

  
	
  Section 3.2

  	
   

  	
  Authority

  	
   

  	
  16

  
	
  Section 3.3

  	
   

  	
  No Conflict; Required
  Filings and Consents

  	
   

  	
  16

  
	
  Section 3.4

  	
   

  	
  Transferred Assets

  	
   

  	
  17

  
	
  Section 3.5

  	
   

  	
  Financial Statements; No
  Undisclosed Liabilities

  	
   

  	
  17

  
	
  Section 3.6

  	
   

  	
  Absence of Certain Changes
  or Events

  	
   

  	
  18

  
	
  Section 3.7

  	
   

  	
  Compliance with Law;
  Permits

  	
   

  	
  19

  
	
  Section 3.8

  	
   

  	
  Litigation

  	
   

  	
  19

  
	
  Section 3.9

  	
   

  	
  Employee Plans

  	
   

  	
  19

  
	
  Section 3.10

  	
   

  	
  Labor and Employment
  Matters

  	
   

  	
  20

  
	
  Section 3.11

  	
   

  	
  Insurance

  	
   

  	
  21

  
	
  Section 3.12

  	
   

  	
  Real Property

  	
   

  	
  21

  
	
  Section 3.13

  	
   

  	
  Intellectual Property

  	
   

  	
  21

  
	
  Section 3.14

  	
   

  	
  Taxes

  	
   

  	
  22

  
	
  Section 3.15

  	
   

  	
  Material Contracts

  	
   

  	
  23

  
	
  Section 3.16

  	
   

  	
  Personal Property

  	
   

  	
  24

  
	
  Section 3.17

  	
   

  	
  Brokers

  	
   

  	
  24

  
	
  Section 3.18

  	
   

  	
  Prohibited Payments

  	
   

  	
  24

  
	
  Section 3.19

  	
   

  	
  Solvency

  	
   

  	
  24

  
	
  Section 3.20

  	
   

  	
  Disclosure

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS
  AND WARRANTIES OF THE BUYER

  	
   

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Organization and
  Qualification

  	
   

  	
  25

  



 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


i

















 


TABLE OF CONTENTS

(Continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.2

  	
   

  	
  Authority

  	
   

  	
  25

  
	
  Section 4.3

  	
   

  	
  No Conflict; Required
  Filings and Consents

  	
   

  	
  26

  
	
  Section 4.4

  	
   

  	
  Financing

  	
   

  	
  26

  
	
  Section 4.5

  	
   

  	
  Brokers

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V COVENANTS

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Covenants Regarding
  Information

  	
   

  	
  27

  
	
  Section 5.2

  	
   

  	
  Intercompany Arrangements

  	
   

  	
  28

  
	
  Section 5.3

  	
   

  	
  Confidentiality

  	
   

  	
  28

  
	
  Section 5.4

  	
   

  	
  Consents and Filings;
  Further Assurances

  	
   

  	
  28

  
	
  Section 5.5

  	
   

  	
  Refunds and Remittances

  	
   

  	
  30

  
	
  Section 5.6

  	
   

  	
  Payment of Liabilities

  	
   

  	
  30

  
	
  Section 5.7

  	
   

  	
  Bulk Transfer Laws

  	
   

  	
  30

  
	
  Section 5.8

  	
   

  	
  Media Business Employees

  	
   

  	
  30

  
	
  Section 5.9

  	
   

  	
  MIVA, Findwhat,
  Searchfeed, and eSpotting Names

  	
   

  	
  33

  
	
  Section 5.10

  	
   

  	
  Non-Competition;
  Non-Solicitation

  	
   

  	
  33

  
	
  Section 5.11

  	
   

  	
  Public Announcements

  	
   

  	
  35

  
	
  Section 5.12

  	
   

  	
  Litigation Support

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI TAX MATTERS

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Price Allocation

  	
   

  	
  36

  
	
  Section 6.2

  	
   

  	
  Tax Indemnity Adjustment

  	
   

  	
  36

  
	
  Section 6.3

  	
   

  	
  Transfer Taxes

  	
   

  	
  37

  
	
  Section 6.4

  	
   

  	
  Information

  	
   

  	
  37

  
	
  Section 6.5

  	
   

  	
  VAT

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII
  INDEMNIFICATION

  	
   

  	
  37

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Survival of
  Representations, Warranties

  	
   

  	
  37

  
	
  Section 7.2

  	
   

  	
  Indemnification by the
  Sellers

  	
   

  	
  38

  
	
  Section 7.3

  	
   

  	
  Indemnification by the
  Buyers

  	
   

  	
  38

  
	
  Section 7.4

  	
   

  	
  Tax Allocation

  	
   

  	
  39

  
	
  Section 7.5

  	
   

  	
  Procedures

  	
   

  	
  39

  
	
  Section 7.6

  	
   

  	
  Limits on Indemnification

  	
   

  	
  41

  
	
  Section 7.7

  	
   

  	
  Exclusivity

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII GENERAL PROVISIONS

  	
   

  	
  43

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Fees and Expenses

  	
   

  	
  43

  
	
  Section 8.2

  	
   

  	
  Amendment and Modification

  	
   

  	
  43

  



 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


ii

















 


TABLE OF CONTENTS

(Continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.3

  	
   

  	
  Waiver

  	
   

  	
  43

  
	
  Section 8.4

  	
   

  	
  Notices

  	
   

  	
  43

  
	
  Section 8.5

  	
   

  	
  Interpretation

  	
   

  	
  44

  
	
  Section 8.6

  	
   

  	
  Entire Agreement

  	
   

  	
  44

  
	
  Section 8.7

  	
   

  	
  No Third-Party
  Beneficiaries

  	
   

  	
  44

  
	
  Section 8.8

  	
   

  	
  Governing Law

  	
   

  	
  45

  
	
  Section 8.9

  	
   

  	
  Arbitration

  	
   

  	
  45

  
	
  Section 8.10

  	
   

  	
  Assignment; Successors

  	
   

  	
  47

  
	
  Section 8.11

  	
   

  	
  Enforcement

  	
   

  	
  47

  
	
  Section 8.12

  	
   

  	
  Currency

  	
   

  	
  47

  
	
  Section 8.13

  	
   

  	
  Severability

  	
   

  	
  47

  
	
  Section 8.14

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  48

  
	
  Section 8.15

  	
   

  	
  Counterparts

  	
   

  	
  48

  
	
  Section 8.16

  	
   

  	
  Facsimile Signature

  	
   

  	
  48

  
	
  Section 8.17

  	
   

  	
  Time of Essence

  	
   

  	
  48

  
	
  Section 8.18

  	
   

  	
  No Presumption Against
  Drafting Party

  	
   

  	
  48

  
	
  Section 8.19

  	
   

  	
  Joint and Several

  	
   

  	
  48

  



 


	
  Exhibit 1

  	
  –

  	
  IP
  Assignment

  
	
   

  	
   

  	
   

  
	
  Exhibit 2

  	
  –

  	
  Premises
  License Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit 3

  	
  –

  	
  Transition
  Services Agreement

  



 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


iii

















 


ASSET
PURCHASE AGREEMENT


 


ASSET PURCHASE AGREEMENT, dated as of March 12, 2009 (this “Agreement”),
among MIVA, Inc., a Delaware corporation (the “MIVA”), B &
B Advertising, Inc., a Delaware corporation (“B&B”), MIVA (UK)
Limited, a company formed under the laws of England and Wales (“MIVA (UK)”,
collectively with MIVA and B&B, the “Sellers” and each a “Seller”)
U.S. Acquisition Sub, Inc., a Delaware corporation (the “U.S.
Acquisition Sub”),
Ajax Media Ltd., a company formed under the laws of England and Wales (the “European
Acquisition Sub,” collectively with the U.S. Acquisition Sub, the “Acquisition
Subs”), and Adknowledge, Inc., a Delaware corporation (“Adknowledge,”
collectively with the Acquisition Subs, the “Buyers” and each a “Buyer”)).


 


RECITALS


 


A.            The Sellers are
engaged among other things, in the business of owning and operating a
pay-per-click network connecting advertisers and third party publishers (the “Media
Business”) in North America (the “U.S. Media Business”) and Europe
(the “European Media Business”) both directly and through Subsidiaries.


 


B.            The Sellers wish to
sell to (i) the U.S. Acquisition Sub, and the U.S. Acquisition Sub wishes
to purchase from the Sellers, the entire U.S. Media Business, and in connection
therewith the U.S. Acquisition Sub is willing to assume the U.S. Assumed
Liabilities, and (ii) the European Acquisition Sub, and the European
Acquisition Sub wishes to purchase from the Sellers, the entire European Media
Business, and in connection therewith the European Acquisition Sub is willing
to assume the European Assumed Liabilities, in each case, upon the terms and
subject to the conditions set forth herein.


 


AGREEMENT


 


In consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.1          Certain Defined Terms.  For purposes of this Agreement:


 


“Action” means any claim, action, suit, arbitration or
proceeding by or before any Governmental Authority, or any other litigation,
arbitration, mediation or similar proceeding.


 


“Affiliate” means, with respect to any Person, any other Person
that directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such first Person.


 


“Ancillary Agreements” means the Transition Services Agreement,
the Premises License Agreement, the Intellectual Property Assignment, the
Assignment and Assumption


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 

















 


Agreement, the Bill of Sale,
the Sellers Solvency Certificate, the Lane’s Gifts Fulfillment Agreement and
the Perot Management Agreement.


 


“Assets and Properties” of any Person means all assets and
properties of every kind, nature, character and description (whether real,
personal or mixed, whether tangible or intangible, whether absolute,
contingent, accrued, fixed or otherwise and wherever situated, including the
goodwill related thereto), operated owned or leased by such Person, including
without limitation, evidences of indebtedness, stocks, securities, accounts and
notes receivable, chattel paper, documents, instruments, general intangibles,
real estate, equipment, inventory, goods and Intellectual Property.


 


“Assignment and Assumption Agreement” means the assignment and
assumption agreement for the Transferred Assets and the Assumed Liabilities,
dated as of the date hereof.


 


“Assumed Liabilities” means collectively the U.S. Assumed
Liabilities and the European Assumed Liabilities.


 


“Bill of Sale” means the bill of sale for the Transferred
Assets, as of the date hereof.


 


“Books and Records” means all books of account, general,
financial, accounting and personnel records, files, invoices, customers’ and
suppliers’ lists, other distribution lists, billing records, sales and
promotional literature, manuals and customer and supplier correspondence owned
by the Sellers or an Affiliate of the Sellers relating to the Media Business.


 


“Business Day” means any day that is not a Saturday, a Sunday or
other day on which banks are required or authorized by Law to be closed in the
City of New York.


 


“Business Employees” means all individuals employed by the
Sellers or any of their Subsidiaries immediately prior to the Closing Date
(including (i) those on military leave and family and medical leave, (ii) those
on approved leaves of absence, but only to the extent they have reemployment
rights guaranteed under federal, state or foreign law, under any applicable
collective bargaining agreement or under any leave of absence policy of the
employer and (iii) those on short-term disability under the Seller’s
short-term disability program), whose duties relate primarily to the operations
of the Media Business regardless of the company payroll on which such
individuals are listed.


 


“Business Intellectual Property” means all Intellectual Property
that is included in the U.S. Media Assets or the European Media Assets.


 


“Buyer Material Adverse Effect” means any event, change,
occurrence or effect that would prevent, materially delay or materially impede
the performance by the Buyers of their obligations under this Agreement or the
Ancillary Agreements or the consummation of the transactions contemplated
hereby or thereby.


 


“Code” means the Internal Revenue Code of 1986, as amended.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


2

















 


“Contracts” means all contracts and agreements to which a Seller
is a party or by which a Seller is bound that arise out of the operation of the
Media Business, including all contracts and agreements listed in Schedule 1.1(a) of
the Disclosure Schedules;


 


“control,” including the terms “controlled by” and “under
common control with,” means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, as trustee or executor, as
general partner or managing member, by contract or otherwise.


 


“Employee Plans” means all “employee benefit plans” within the
meaning of Section 3(3) of ERISA (whether or not subject to ERISA),
and all other compensation and benefit plans, contracts, policies, programs and
arrangements (other than routine administrative procedures) of the Sellers or
any of their Subsidiaries in effect as of the date hereof, including all pension,
profit sharing, savings and thrift, bonus, stock bonus, stock option or other
cash or equity-based incentive or deferred compensation, severance pay and
medical and life insurance plans, in which any of the Business Employees or
their dependents participate or under which any of the Business Employees or
their dependents are covered.


 


“Encumbrance” means any charge, limitation, condition, equitable
interest, mortgage, lien, option, pledge, security interest, easement,
encroachment, right of first refusal, or pre-emption, adverse claim,
restriction or third party right of any kind, including any restriction on or
transfer or other assignment, as security or otherwise, of or relating to use,
quiet enjoyment, voting, transfer, receipt of income or exercise of any other
attribute of ownership.


 


“European Closing Working Capital” means the net book value of
the consolidated European Included Assets less the consolidated European
Included Liabilities, as shown on the European Closing Net Working Capital Statement.


 


“European Included Assets” means, solely with respect to the
European Media Assets, the current assets included in the European Media
Assets, including prepaid expenses but excluding Excluded Assets and deferred
tax assets and receivables from any of the Sellers’ Affiliates, directors,
employees or officers and any of their Affiliates, in each case calculated as
of the close of business on the Closing Date and determined in accordance with
GAAP applied on basis consistent with the preparation of the Financial
Statements and in accordance with Schedule 2.7(a).


 


“European Included Liabilities” means, solely with respect to
the European Media Assets, the current liabilities included in the European
Assumed Liabilities, including accrued compensation and accrued expenses (including customer deposits
or deferred revenue), but excluding payables to any of the Sellers’ Affiliates
that are extinguished at Closing and Excluded Liabilities, in each case
calculated as of the close of business on the Closing Date and determined in
accordance with GAAP applied on a basis consistent with the preparation of the
Interim Financial Statements and in accordance with Schedule 2.7(a).


 


“European Media Assets” means all of the Sellers’ and/or their
Affiliate’s right, title and interest, direct or indirect, in and to all of the
Contracts, assets, properties and rights of


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


3

















 


every nature, kind and description (wherever
located), whether tangible or intangible, used or held for use in the European
Media Business (other than the Excluded Assets), as they exist at the time of
the Closing, including, without limitation, the Contracts, assets, properties
and rights set forth on Schedule 1.1(b) of the Disclosure
Schedules.


 


“European Targeted Working Capital” means [***].


 


“European Working Capital
Adjustment” means an amount equal to the European Targeted
Working Capital less the European Closing Working Capital as finally
determined pursuant to Section 2.7.


 


“Exon-Florio Provision” means Section 721 of the Defense
Production Act of 1950, as amended, and the regulations promulgated thereunder.


 


“Foreign Plans” means Employee Plans that are maintained or contributed to solely for the benefit of
employees of a Seller or any of their Subsidiaries who are not resident in the
United States, and the employee policies and practices applicable to such
employees.


 


“GAAP” means United States generally accepted accounting
principles and practices as in effect on the date hereof.


 


“Governmental Authority” means any United States or non-United
States national, federal, state or local governmental, regulatory or
administrative authority, agency or commission or any judicial or arbitral
body.


 


“Immediate Family” means, with respect to any individual, that
individual’s (i) spouse and (ii) the parents, siblings and children
of that individual or of that individual’s spouse.


 


“Intellectual Property” means all intellectual property rights
arising under the laws of the United States or any other jurisdiction with
respect to the following:  (i) trade
names, trademarks and service marks (registered and unregistered), domain
names, trade dress and similar rights and applications to register any of the
foregoing (including pending “intent-to-use” and similar applications that
reserve the right to obtain or that establish or may establish a priority date
with respect to any of the foregoing) (collectively, “Marks”); (ii) patents
and patent applications (including provisional applications and all other
filings that establish or may establish priority dates), inventions (including
all rights to file, obtain or own any patent applications or patents that
relate to any inventions), and rights in respect of utility models or
industrial designs (collectively, “Patents”); (iii) copyrights and
registrations and applications therefor (collectively, “Copyrights”);
and (iv) know-how, inventions, discoveries, methods, processes, technical
data, specifications, research and development information, technology, data
bases and other proprietary or confidential information, including customer
lists, in each case that derives economic value from not being generally known
to other Persons who can obtain economic value from its disclosure
(collectively, “Trade Secrets”).


 


“Intellectual Property Assignment” means the assignment of
Intellectual Property in the form of Exhibit 1 to this Agreement.


 






[***] = Confidential treatment requested for redacted portion; redacted
portion has been filed separately with the Securities and Exchange Commission.


 


4
















 


“IRS” means the Internal Revenue Service of the United States.


 


“Knowledge” with respect to a Seller, means the actual knowledge
of the persons listed on Schedule 1.1(c)(i) of the Disclosure
Schedules, and with respect to a Buyer, means the actual knowledge of the
persons listed on Schedule 1.1(c)(ii) of the Disclosure Schedules,
and in each case, such knowledge as would be imputed to such persons upon
reasonable inquiry.


 


“Law” means any statute, law, ordinance, regulation, rule, code,
injunction, judgment, decree or order of any Governmental Authority.


 


“Leased Real Property” means all real property leased, subleased
or licensed to the Sellers or any of its Subsidiaries or which any of them
otherwise has a right or option to use or occupy, in each case used or intended
to be used in connection with the Media Business, together with all structures,
facilities, fixtures, systems and improvements located thereon, or attached or
appurtenant thereto, and all easements, rights and appurtenances relating to
the foregoing.


 


“Material Adverse Effect” means any event, change, circumstance,
occurrence, effect or state of facts that (i) is materially adverse to the
business, assets, financial condition or results of operations of the Media
Business taken as a whole, or (ii) materially impairs the ability of any
of the Sellers, to consummate, or prevents or materially delays, any of the
transactions contemplated by this Agreement; provided, however,
that none of the following, either alone or in combination, will constitute, or
be considered in determining whether there has been, a Material Adverse Effect,
any event, change, circumstance, effect or other matter directly resulting from
or related to (a) any outbreak or escalation of war or major hostilities
or any act of terrorism, (b) changes in Laws, GAAP or enforcement or
interpretation thereof, (c) changes that generally affect the industries
and markets in which the Business operates that do not have a disproportionate
impact in any material respect on the Business, (d) changes in financial
markets, general economic conditions (including prevailing interest rates,
exchange rates, commodity prices and fuel costs) or political conditions that
do not have a disproportionate impact in any material respect on the Business,
or (e) effects or changes resulting from the execution or delivery of this
Agreement, the consummation of the transactions contemplated by this Agreement
or the public announcement or other publicity with respect to any of the
foregoing.


 


“Permitted Encumbrance” means (i) statutory liens for
current Taxes not yet due or delinquent (or which may be paid without interest
or penalties) or the validity or amount of which is being contested in good
faith by appropriate proceedings, (ii) mechanics’, carriers’, workers’,
repairers’ and other similar liens arising or incurred in the ordinary course
of business relating to obligations as to which there is no default on the part
of the Sellers for a period greater than 60 days, or the validity or amount of
which is being contested in good faith by appropriate proceedings, or pledges,
deposits or other liens securing the performance of bids, trade contracts,
leases or statutory obligations (including workers’ compensation, unemployment
insurance or other social security legislation), (iii) zoning,
entitlement, conservation restriction and other land use and environmental
regulations by Governmental Authorities and (iv) defects, easements,
rights of way, restrictions, covenants, claims, subleases or similar items
relating to


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


5

















 


real property that do not, individually or in
the aggregate, have a material adverse effect on the present use or occupancy
of the real property subject thereto.


 


“Person” means an individual, corporation, partnership, limited
liability company, limited liability partnership, syndicate, person, trust,
association, organization or other entity, including any Governmental
Authority, and including any successor, by merger or otherwise, of any of the
foregoing.


 


“Personal Property” means all machinery, equipment, furniture,
furnishings, rolling stock, tools, office supplies, vehicles, computer hardware
and other tangible personal property owned or leased by any Person and related
to, used or held for use in connection with the Media Business.


 


“Premises License Agreement” means the premises license agreement
in the form of Exhibit 2 to this Agreement.


 


“Purchase Price” means collectively the U.S. Purchase Price and
the European Purchase Price.


 


“Related Party,” with respect to any specified Person, means: (i) any
Affiliate of such specified Person, or any director, executive officer, general
partner or managing member of such Affiliate; (ii) any Person who serves
or within the past four years has served as a director, executive officer,
partner, member or in a similar capacity of such specified Person; (iii) any
Immediate Family member of a Person described in clause (ii); or (iv) any
other Person who holds, individually or together with any Affiliate of such
other Person and any member(s) of such Person’s Immediate Family, more
than 5% of the outstanding voting equity or ownership interests of such
specified Person.


 


“Representatives” means, with respect to any Person, the
officers, directors, employees, agents, accountants, advisors, bankers and
other representatives of such Person.


 


“Seller Taxes” means all Taxes (i) arising from or with
respect to the Transferred Assets or the operation of the Media Business that
are incurred in or attributable to any period, or any portion of any period,
ending on or prior to the Closing Date (including any Taxes that are the
liability of Sellers pursuant to Section 7.4); (ii) of the Sellers for
any period that is not related to the Transferred Assets or the Media Business,
and for Taxes of the Sellers for any period that could become a liability of,
or be assessed or collected against, the Buyers, or that could become an
Encumbrance on the Transferred Assets; and (iii) of the Sellers that arise as a result of the
transactions contemplated by this Agreement (including but not limited to any
Transfer Taxes that are assessed upon or with respect to the transfer of the
Transferred Assets and for which the Sellers are responsible under the terms of
this Agreement).


 


“Small Business Solutions Agreements” means the asset purchase
agreement, license agreement, and transition services agreement, in each case
dated August 1, 2007 and in each made by and among MIVA Small Business
Solutions, Inc., a Delaware corporation, MIVA


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


6

















 


and MSB Acquisition, Inc., a California
corporation, together with all others agreements and documents contemplated
therein.


 


“Small Business Solutions License Agreement” means the license
agreement, dated August 1, 2007, by and among MIVA Small Business
Solutions, Inc., a Delaware corporation, MIVA and MSB Acquisition, Inc.,
a California corporation.


 


“Subsidiary” means, with respect to any Person, any other Person
of which at least 50% of the outstanding voting securities or other voting
equity interests are owned, directly or indirectly, by such first Person.


 


“Tangible Personal Property” means all machinery, equipment,
furniture, furnishings, parts, spare parts, vehicles and other tangible
personal property owned by any of the Sellers and/or their Affiliates and used
or held for use in the Media Business.


 


“Tax Return” means any return, declaration, report, statement,
information statement and other document required to be filed with respect to
Taxes.


 


“Taxes” means:  (i) all
federal, state, local, foreign and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, registration,
license, lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs,
duties or other taxes, fees, assessments, levies, duties, contributions or
charges of any kind whatsoever whether of the United States, the United
Kingdom, the European Union, or elsewhere, together with any interest and any
penalties, additions to tax or additional amounts with respect thereto; (ii) any
liability for payment of amounts described in clause (i) whether as a
result of transferee liability, of being a member of an affiliated,
consolidated, combined or unitary group for any period or otherwise through
operation of law; and (iii) any liability for the payment of amounts
described in clauses (i) or (ii) as a result of any tax sharing, tax
indemnity or tax allocation agreement or any other express or implied agreement
to indemnify any other Person.


 


“Transferred Assets” means collectively the U.S. Media Assets
and the European Media Assets.


 


“Transfer Tax” means any tax imposed on the transferor or
transferee of property by any taxing jurisdiction by reason of the transfer, or
any tax that becomes a lien on the property transferred by reason of the
transfer, including without limitation any stamp duty, sales, use, excise,
documentary, valued added, real estate transfer taxes or taxes of a similar
nature, including any interest, penalties or additions to tax that become payable
with respect to such tax. “Transfer Tax” shall not include any taxes imposed on
a seller or transferor of property that is measured by reference to the net
income or gain of the seller or transferor.


 


“Transition Services Agreement” means the transition services
agreement in the form of Exhibit 3 to this Agreement.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


7

















 


“U.S. Closing Working Capital” shall mean the net book value of
the consolidated U.S. Included Assets less the consolidated U.S.
Included Liabilities, as shown on the U.S. Closing Net Working Capital
Statement.


 


“U.S. Included Assets” means, solely with respect to the U.S.
Media Assets, the current assets included in the U.S. Media Assets, including
accounts receivable and prepaid expenses but excluding Excluded Assets and
deferred tax assets and receivables from any of the Sellers’ Affiliates,
directors, employees or officers and any of their Affiliates, determined in
accordance with GAAP applied on a basis consistent with the preparation of the
Financial Statements, in each case calculated as of the close of business on
the Closing Date and determined in accordance with GAAP applied on a basis
consistent with the preparation of the Financial Statements and in accordance
with Schedule 2.7(a).


 


“U.S. Included Liabilities” means, solely with respect to the
U.S. Media Assets, the current liabilities included in the U.S. Assumed
Liabilities, including accrued compensation and accrued expenses (including customer deposits
or deferred revenue), but excluding payables to any of the Sellers’ Affiliates
that are extinguished at Closing and Excluded Liabilities, in each case
calculated as of the close of business on the Closing Date and determined in
accordance with GAAP applied on a basis consistent with the preparation of the
Interim Financial Statements and in accordance with Schedule 2.7(a).


 


“U.S. Media Assets” means all of the Sellers’ and/or their
Affiliate’s right, title and interest, direct or indirect, in and to all of the
assets, properties and rights of every nature, kind and description (wherever
located), whether tangible or intangible, used or held for use in the U.S.
Media Business (other than the Excluded Assets), as they exist at the time of
the Closing, including, without limitation, the assets, properties and rights
set forth on Schedule 1.1(d) of the Disclosure Schedules.


 


“U.S. Targeted Working Capital” means [***].


 


“U.S. Working Capital Adjustment” means an amount equal to the
U.S. Targeted Working Capital less the U.S. Closing Working Capital as
finally determined pursuant to Section 2.7.


 


“VAT” means the tax imposed by VAT Directive 2006/112/EC of the
European Communities and any national legislation implementing that directive
together with legislation supplemental thereto or any similar sales or turnover
tax whether of the European Union or elsewhere.


 


“Welfare Plan” means any employee welfare benefit plan within
the meaning of Section 3(1) of ERISA, any short-term disability
program classified as a “payroll practice,” any group health plan within the
meaning of Section 105 of the Code, any cafeteria plan within the meaning
of Section 125 of the Code, any dependent care assistance program within
the meaning of Section 129 of the Code, any adoption assistance plan
within the meaning of Section 137 of the Code, any tuition assistance plan
within the meaning of Section 127 of the Code, and any qualified
transportation plan within the meaning of Section 132 of the Code.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


8

















 


Section 1.2                              Table of Definitions.  The following terms have the meanings set
forth in the Sections referenced below:


 


	
  Definition

  	
   

  	
  Location

  
	
   

  	
   

  	
   

  
	
  AAA

  	
   

  	
  10.9(a)

  
	
  Acquisition Subs

  	
   

  	
  Preamble

  
	
  Adknowledge

  	
   

  	
  Preamble

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  B&B

  	
   

  	
  Preamble

  
	
  Business Patents

  	
   

  	
  3.13(a)

  
	
  Business Registered Copyrights

  	
   

  	
  3.13(a)

  
	
  Business Registered IP

  	
   

  	
  3.13(a)

  
	
  Business Registered Marks

  	
   

  	
  3.13(a)

  
	
  Buyer

  	
   

  	
  Preamble

  
	
  Buyers

  	
   

  	
  Preamble

  
	
  Cap

  	
   

  	
  8.6(a)(i)

  
	
  Closing

  	
   

  	
  2.6(a)

  
	
  Closing Date

  	
   

  	
  2.6(a)

  
	
  Closing Net Working Capital Statements

  	
   

  	
  2.7(a)

  
	
  Confidential Information

  	
   

  	
  5.3(a)

  
	
  [***]

  	
   

  	
  7.1(a)

  
	
  Disclosing Parties

  	
   

  	
  10.9(c)

  
	
  Disclosure Schedules

  	
   

  	
  Article III

  
	
  European Acquisition Sub

  	
   

  	
  Preamble

  
	
  European Assumed Liabilities

  	
   

  	
  2.3(b)

  
	
  European Balance Sheet

  	
   

  	
  3.5(a)

  
	
  European Carveout Procedures

  	
   

  	
  3.5(a)

  
	
  European Closing Net Working Capital
  Statement

  	
   

  	
  2.7(a)

  
	
  European Media Business

  	
   

  	
  Recitals

  
	
  European Purchase Price

  	
   

  	
  2.5(b)

  
	
  Excluded Assets

  	
   

  	
  2.2

  
	
  Excluded Liabilities

  	
   

  	
  2.4

  
	
  Financial Statements

  	
   

  	
  3.5(a)

  
	
  HSR Act

  	
   

  	
  3.3(b)

  
	
  Indemnified Party

  	
   

  	
  8.5(a)

  
	
  Indemnifying Party

  	
   

  	
  8.5(a)

  
	
  Independent Accounting Firm

  	
   

  	
  2.7(c)

  
	
  Interim Financial Statements

  	
   

  	
  3.5(a)

  
	
  Losses

  	
   

  	
  8.2

  
	
  Material Contracts

  	
   

  	
  3.15(a)

  
	
  Media Business

  	
   

  	
  Recitals

  
	
  MIVA

  	
   

  	
  Preamble

  



 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


9

















 


	
  Definition

  	
   

  	
  Location

  
	
   

  	
   

  	
   

  
	
  MIVA (UK)

  	
   

  	
  Preamble

  
	
  New York Convention

  	
   

  	
  10.9(b)

  
	
  Notice of Disagreement

  	
   

  	
  2.7(b)

  
	
  Order

  	
   

  	
  6.4

  
	
  Permits

  	
   

  	
  3.7(b)

  
	
  Post-Closing Tax Period

  	
   

  	
  8.4

  
	
  Pre-Closing Tax Period

  	
   

  	
  8.4

  
	
  Price Allocation

  	
   

  	
  6.1

  
	
  Proposed Expert

  	
   

  	
  10.9(c)

  
	
  [***]

  	
   

  	
  2.3(b)

  
	
  Restricted Contract

  	
   

  	
  5.4(a)

  
	
  Restricted Period

  	
   

  	
  5.10(a)

  
	
  Seller Solvency Certificate

  	
   

  	
  2.6(b)(ii)(D)

  
	
  Seller(s)

  	
   

  	
  Preamble

  
	
  Third Party Claim

  	
   

  	
  8.5(a)

  
	
  Transferring Employees

  	
   

  	
  5.8(a)

  
	
  TUPE

  	
   

  	
  5.8(d)

  
	
  U.S. Assumed Liabilities

  	
   

  	
  2.3(a)

  
	
  U.S. Balance Sheet

  	
   

  	
  3.5(a)

  
	
  U.S. Carveout Procedures

  	
   

  	
  3.5(a)

  
	
  U.S. Closing Net Working Capital Statement

  	
   

  	
  2.7(a)

  
	
  U.S. Media Business

  	
   

  	
  Recitals

  
	
  U.S. Purchase Price

  	
   

  	
  2.5(a)

  
	
  US Acquisition Sub

  	
   

  	
  Preamble

  



 


ARTICLE II

PURCHASE AND SALE


 


Section 2.1                              Purchase and Sale of
Assets.  Upon the terms and subject
to the conditions of this Agreement, at the Closing, the Sellers shall, or
cause its Subsidiaries to, sell, assign, transfer, convey and deliver to (a) the
U.S. Acquisition Sub all of the Sellers’ and/or their Affiliate’s right, title
and interest as of the Closing Date in and to the U.S. Media Assets, and the
U.S. Acquisition Sub shall purchase, acquire, accept and pay for the U.S. Media
Assets and assume the U.S. Assumed Liabilities and (b) the European
Acquisition Sub all of the Sellers’ and/or their Affiliate’s right, title and
interest as of the Closing Date in and to the European Media Assets, and the
European Acquisition Sub shall purchase, acquire, accept and pay for the
European Media Assets and assume the European Assumed Liabilities.


 


Section 2.2                              Excluded Assets.  Notwithstanding anything contained in Section 2.1
to the contrary, the Sellers are not selling, and the Acquisition Subs are not
purchasing, any assets listed on Schedule 2.2 of the Disclosure
Schedules, all of which shall be retained by the Sellers (collectively, the “Excluded
Assets”).


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


10

















 


Section 2.3                              Assumed Liabilities.


 


(a)                                  In
connection with the purchase and sale of the U.S. Media Assets pursuant to this
Agreement, at the Closing, the U.S. Acquisition Sub shall assume and pay,
discharge, perform or otherwise satisfy the liabilities and obligations of the
Sellers related to the U.S. Media Business and set forth on Schedule 2.3(a) of
the Disclosure Schedules (the “U.S. Assumed Liabilities”).


 


(b)                                 In
connection with the purchase and sale of the European Media Assets pursuant to
this Agreement, at the Closing, the European Acquisition Sub shall assume and
pay, discharge, perform or otherwise satisfy the liabilities and obligations of
the Sellers related to the European Media Business and set forth on Schedule
2.3(b) of the Disclosure Schedules (the “European Assumed
Liabilities”)


 


Section 2.4                              Excluded Liabilities.
Notwithstanding the provisions of Section 2.3 or any other
provision of this Agreement, any Disclosure Schedule hereto or any Ancillary
Agreement to the contrary, except for the Assumed Liabilities, neither of the
Acquisition Subs shall assume, and neither shall have any Liability for, any
Liabilities of any Seller (including without limitation those relating to the
Media Business and any Seller Taxes) of any kind, character or nature
whatsoever (the “Excluded Liabilities”). 
[***].


 


Section 2.5                              Consideration.


 


(a)                                  In
full consideration for the sale, assignment, transfer, conveyance and delivery
of the U.S. Media Assets to the U.S. Acquisition Sub, at the Closing, the U.S.
Acquisition Sub shall (a) pay, or cause to be paid, to the Sellers, an
amount equal to $6,966,600 (the “U.S. Purchase Price”) in immediately
available funds in United States dollars and (b) assume the U.S. Assumed
Liabilities.  The U.S. Purchase Price
shall be subject to adjustment as provided in Section 2.7.


 


(b)                                 In
full consideration for the sale, assignment, transfer, conveyance and delivery
of the European Media Assets to the European Acquisition Sub, at the Closing,
the European Acquisition Sub shall (a) pay, or cause to be paid, to the
Sellers, an amount equal to $4,644,400 (the “European Purchase Price”)
in immediately available funds in United States dollars and (b) assume the
European Assumed Liabilities.  The
European Purchase Price shall be subject to adjustment as provided in Section 2.7.


 


Section 2.6                              Closing.


 


(a)                                  The
sale and purchase of the Transferred Assets shall take place simultaneously
with the execution of this Agreement at a closing (the “Closing”) to be
held at the offices of Gibson, Dunn & Crutcher LLP, 200 Park Avenue,
New York, NY 10166. The day on which the Closing takes place is referred to as
the “Closing Date.”


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


11

















 


(b)                                 Closing
Deliveries.


 


(i)                                     At
the Closing, the Buyers shall deliver:


 


(A)                              to MIVA, both for itself
and as trustee for the other Sellers, by wire transfer from the U.S.
Acquisition Sub to a bank account designated in writing by the Sellers to the
Buyers, an amount equal to the Purchase Price in immediately available funds in
United States dollars;


 


(B)                                to the Sellers, a duly
executed counterpart of the Assignment and Assumption Agreement;


 


(C)                                to the Sellers, a duly
executed counterpart of the Bill of Sale;


 


(D)                               to the Sellers, a duly
executed counterpart of the Perot Management Agreement;


 


(E)                                 to the Sellers, a duly
executed counterpart of the Lane’s Gifts Fulfillment Agreement;


 


(F)                                 to the Sellers, a duly
executed counterpart of the Transition Services Agreement; and


 


(G)                                to the Sellers, a duly
executed counterpart of the Premises License Agreement.


 


(ii)                                  At
the Closing, the Sellers shall deliver or cause to be delivered to the Buyers:


 


(A)                              a duly executed
counterpart of the Bill of Sale;


 


(B)                                a duly executed
counterpart of the Assignment and Assumption Agreement;


 


(C)                                all Books and Records;


 


(D)                               a solvency certificate
signed by the Chief Financial Officer of MIVA (the “Seller Solvency
Certificate”);


 


(E)                                 the Intellectual
Property Assignment duly executed by the Sellers;


 


(F)                                 a duly executed
counterpart of the Perot Management Agreement;


 


(G)                                a duly executed
counterpart of the Lane’s Gifts Fulfillment Agreement;


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


12
















 


(H)          a duly executed
counterpart of the Transition Services Agreement; and


 


(I)            a duly executed
counterpart of the Premises License Agreement.


 


(J)            such other bills of
sale, assignments and other instruments of assignment, transfer or conveyance,
in form and substance reasonably satisfactory to the Buyers, as the Buyers may
reasonably request or as may be otherwise necessary or desirable to evidence
and effect the sale, assignment, transfer, conveyance and delivery of the
Transferred Assets to the Acquisition Sub and to put the Buyers in actual
possession or control of the Transferred Assets, duly executed by the Sellers;
and


 


(K)          an affidavit of non-foreign status that complies with
Section 1445 of the Code for each of MIVA and B&B.


 


Section 2.7          Post-Closing
Adjustment of Purchase Price.


 


(a)           Within 90 days after the Closing
Date, (i) the U.S. Acquisition Sub shall deliver to the Sellers a
consolidated net working capital statement (the “U.S. Closing Net Working
Capital Statement”) of the U.S. Media Business, consisting of the U.S.
Included Assets and the U.S. Included Liabilities, and (ii) the European
Acquisition Sub shall deliver to the Sellers a consolidated net working capital
statement (the “European Closing Net Working Capital Statement”) of the
European Media Business, consisting of the European Included Assets and the
European Included Liabilities, in each case, including all notes thereto, dated
as of the Closing Date (collectively, the “Closing Net Working Capital
Statements”).  Each aforementioned Closing
Net Working Capital Statement shall be prepared in accordance with GAAP applied
on a basis consistent with the preparation of the Balance Sheets, and the
respective European Targeted Working Capital and U.S. Targeted Working Capital
calculations as set forth by way of example on Schedule 2.7(a) (other
than the inclusion of any normal and recurring year-end adjustments that would
be required under GAAP and the absence of notes thereto); provided that no purchase accounting adjustments in
respect of the transactions contemplated by this Agreement shall be made; provided
further, that in the event of a conflict between the applicable GAAP and
consistent application thereof, the applicable GAAP shall prevail.  The Sellers shall cause their employees and the
employees of their respective Subsidiaries to assist the Buyers and their
auditors in the preparation of the Closing Statements and shall provide the
Buyers and their Representatives reasonable access, during normal business
hours and upon reasonable prior notice, to the personnel, properties, books and
records of the Sellers and their Subsidiaries for such purpose.


 


(b)           During the 20 Business Day period
following the Sellers’ receipt of the Closing Statements, the Buyers shall
provide the Sellers and their Representatives with access to the working papers
of the Buyers relating to the Closing Statements, and the Buyers shall
cooperate with the Sellers and their Representatives to provide them with any
other information used in preparing the Closing Statements reasonably requested
by the Sellers and their Representatives. 
Each Closing Statement shall become final and binding on the 20th
Business


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


13

















 


Day following delivery thereof, unless prior to the
end of such period, the Sellers deliver to the Buyers written notice of their
disagreement (a “Notice of Disagreement”) specifying the nature and
amount of any disputed item.  The Sellers
shall be deemed to have agreed with all items and amounts in a Closing
Statement not specifically referenced in a Notice of Disagreement, and such
items and amounts shall not be subject to review in accordance with this Section 2.7(b).


 


(c)           During the ten Business Day period
following delivery of a Notice of Disagreement by the Sellers to the Buyers,
the parties in good faith shall seek to resolve in writing any differences that
they may have with respect to the matters specified therein.  During such ten Business Day period, the
Sellers shall use their commercially reasonable efforts to provide the Buyers
and their Representatives with access to the working papers of the Sellers and
their accountants relating to such Notice of Disagreement, and the Sellers and
its Subsidiaries and their accountants shall cooperate with the Buyers and
their Representatives to provide them with any other information used in
preparation of such Notice of Disagreement reasonably requested by the Buyers
or their Representatives.  Any disputed
items resolved in writing between the Sellers and the Buyers within such ten
Business Day period shall be final and binding with respect to such items, and
if the Sellers and the Buyers agree in writing on the resolution of each
disputed item specified by the Sellers in the Notice of Disagreement and the
amount of the Closing Statement, the amount so determined shall be final and
binding on the parties for all purposes hereunder.  If the Sellers and the Buyers have not
resolved all such differences by the end of such ten Business Day period, the
Sellers and the Buyers shall submit, in writing, to an independent public accounting
firm (the “Independent Accounting Firm”), their briefs detailing their
views as to the correct nature and amount of each item remaining in dispute and
the amounts of the Closing Working Capital. 
Sellers and Buyers will also furnish to the Independent Accounting Firm
such other work papers, documentation and information directly relating to the
disputed items as the Independent Accounting Firm may reasonably request.  The Independent Accounting Firm shall make a
written determination as to each such disputed item and the amounts of the Closing
Working Capital, which determination shall be final and binding on the parties
for all purposes hereunder.  The
Independent Accounting Firm shall be authorized to resolve only those items
remaining in dispute between the parties in accordance with the provisions of
this Section 2.7 within the range of the difference between the
Buyers’ position, on the one hand, with respect thereto and the Sellers’
position, on the other hand, with respect thereto.  The determination of the Independent
Accounting Firm shall be accompanied by a certificate of the Independent
Accounting Firm that it reached such determination in accordance with the
provisions of this Section 2.7. 
For purposes of this Section 2.7, the Independent Accounting
Firm shall be Grant Thornton LLP or, if such firm is unable or unwilling to
act, such other independent public accounting firm as shall be agreed in
writing by the Sellers and the Buyers. 
The Sellers and the Buyers shall use their commercially reasonable
efforts to cause the Independent Accounting Firm to render a written decision
resolving the matters submitted to it within 20 Business Days following the
submission thereof.  The fees and
expenses of the Independent Accounting Firm shall be borne by the parties in
inverse proportion as they may prevail on the matters resolved by the
Independent Accounting Firm, which proportionate allocation shall be calculated
on an aggregate basis based on the relative dollar values of the amounts in
dispute and shall be determined by the Independent 


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


14

















 


Accounting Firm at the time the determination of such
firm is rendered on the merits of the matters submitted.  Except as aforesaid, all fees and expenses
incurred by a party in connection with any dispute resolution pursuant to this Section 2.7,
including without limitation the fees and disbursements of the auditors and
other Representatives of each party incurred in connection with their
preparation or review of a Closing Net Working Capital Statement, preparation
or review of any Notice of Disagreement and presentation of issues to the
Independent Accounting Firm, shall be borne by such party.


 


(d)           Upon final determination of the
amounts on the Closing Statements as provided in Section 2.7(c) above,
(1) if the U.S. Working Capital Adjustment or the European Working Capital
Adjustment is positive, the Sellers shall promptly, but no later than five
Business Days after such final determination, pay to the Buyers (or if
requested by the Buyers, to a specified Person) the relevant Working Capital
Adjustment in United States dollars in immediately available funds by wire
transfer to an account designated in writing by the Buyers to the Sellers and (2) if
the U.S. Working Capital Adjustment or the European Working Capital Adjustment
is negative, the Buyers shall promptly, but no later than five Business Days after
such final determination, pay to the Sellers the absolute value of the relevant
Working Capital Adjustment.  Any amounts
to be paid pursuant to Section 7.2 or this Section 2.7
not paid within the five Business Day period following such final determination
shall bear interest from the Closing Date to the date of such payment at a rate
equal to six percent (6%).  For purposes
hereof, each of the U.S. Working Capital Adjustment and the European Working
Capital Adjustment shall be considered separately and neither shall be netted
against the other.  If the European
Working Capital Adjustment is negative, the amount of such adjustment shall be
paid by disbursing to MIVA or its nominee the amount of such adjustment from
the European Acquisition Sub.


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES

OF THE SELLER


 


Except as set
forth in the Disclosure Schedules attached hereto (collectively, the “Disclosure
Schedules”), the Sellers hereby represent and warrant, jointly and
severally, to the Buyers as follows:


 


Section 3.1          Organization
and Qualification.  Each Seller is a
corporation or other limited liability company duly organized or formed,
validly existing and in good standing under the laws of its jurisdiction of
organization or formation and has all necessary corporate power and authority
to own, lease and operate the Transferred Assets owned by it and to carry on
the Media Business as it is now being conducted.  Except as set forth on Schedule 3.1 of
the Disclosure Schedules, each Seller is duly qualified or licensed as a
foreign corporation or other legal entity to do business, and is in good
standing, in each jurisdiction where the ownership or operation of the
Transferred Assets or the conduct or operation of the Media Business makes such
qualification or licensing necessary, except, in each case, for any such
failures that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on such Seller or the Media
Business.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


15

















 


Section 3.2          Authority.  Each Seller has full corporate power and
authority to execute and deliver this Agreement and each of the Ancillary
Agreements to which it is a party, to perform its respective obligations
hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby.  The execution, delivery and
performance by each Seller of this Agreement and each of the Ancillary
Agreements to which it is a party and the consummation by each Seller of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action, and the Sellers represent and
warrant that the consent of MIVA’s stockholders is not required to consummate
the transactions contemplated hereby. 
This Agreement and each of the Ancillary Agreements to which any Seller
is a party have been duly executed and delivered by such Seller.  This Agreement and each of the Ancillary Agreements
to which any Seller is a party constitute the legal, valid and binding
obligations of such Seller, enforceable against such Seller in accordance with
their respective terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general principles of equity (regardless of
whether considered in a proceeding in equity or at law).


 


Section 3.3          No
Conflict; Required Filings and Consents.


 


(a)           Except as set forth on Schedule
3.3(a) of the Disclosure Schedules, the execution, delivery and
performance by the Sellers of this Agreement and each of the Ancillary
Agreements to which any Seller is a party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not:


 


(i)            conflict with or violate the
certificate of incorporation or bylaws or similar charter or organizational
document of any Seller;


 


(ii)           conflict with or violate any Law
applicable to any Seller, the Media Business or any of the Transferred Assets
or by which any Seller, the Media Business or any of the Transferred Assets may
be bound or affected; or


 


(iii)          conflict with, result in any breach
of, constitute a default (or an event that, with notice or lapse of time or
both, would become a default) under, require any consent of any Person pursuant
to, or give to others any rights of termination, acceleration or cancellation
of, any Material Contract;


 


except, in the
case of clause (ii) or (iii), for any such conflicts, violations,
breaches, defaults or other occurrences that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or that
arise as a result of any facts or circumstances relating to the Buyers or any
of their Affiliates.


 


(b)           No Seller is required to file, seek
or obtain any notice, authorization, approval, order, permit or consent of or
with any Governmental Authority in connection with the execution, delivery and
performance by such Seller of this Agreement or any Ancillary Agreements to
which any Seller is a party or the consummation of the transactions
contemplated hereby or thereby or in order to prevent the termination of any
right, privilege, license or qualification of the Media Business, except for (i) any
filings required to be made


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


16

















 


under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended (the “HSR Act”), (ii) where failure to obtain
such consent, approval, authorization or action, or to make such filing or
notification, would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect or (iii) as may be necessary as
a result of any facts or circumstances relating to the Buyers or any of their
Affiliates.


 


Section 3.4          Transferred
Assets.


 


(a)           The sale of the Transferred Assets by
Sellers to Buyer(s) pursuant to this Agreement will effectively convey to
Buyer(s) the entire Media Business and all of the tangible and intangible
property used by Sellers or any of their respective Affiliates (whether owned,
leased or held under license by Sellers, by any of Sellers Affiliates or by
others) in connection with the conduct of the Media Business as heretofore
conducted by the Sellers (except for the Excluded Assets and those assets to be
provided pursuant to the terms of the Ancillary Agreements) including, without
limitation, all tangible Assets and Properties of the Sellers reflected in the
Balance Sheet and assets and properties acquired since the date of the Balance
Sheet, other than Excluded Assets and assets and properties disposed of since
the date of the Balance Sheet. Except as disclosed in Schedule 3.4 of
the Disclosure Schedules, there are no shared facilities used in connection
with the Media Business.  None of the
Transferred Assets are owned or held by any Person other than MIVA, B&B or
MIVA (UK).


 


(b)           The Sellers have good and valid title
to or a valid leasehold interest in all of the Transferred Assets, free and
clear of any Encumbrance, other than Permitted Encumbrances.  The delivery to the Buyers of the Bill of
Sale and other instruments of assignment, conveyance and transfer pursuant to
this Agreement and the Ancillary Agreements will transfer to the Buyers good
and valid title to or a valid leasehold interest in all of the Transferred
Assets, free and clear of any Encumbrance other than Permitted
Encumbrances.  Except for the Excluded
Assets and assets to be made available to Buyer(s) under the Ancillary
Agreements, the Transferred Assets constitute all of the assets, properties and
rights necessary and sufficient for the conduct and operation of the Media
Business.


 


Section 3.5          Financial
Statements; No Undisclosed Liabilities.


 


(a)           True and complete copies of (i) the
consolidated audited balance sheet of MIVA as at December 31, 2007, and
the related consolidated statements of results of operations and cash flows of
MIVA together with all related notes and schedules thereto, (ii) the
consolidated unaudited balance sheet of MIVA as at March 31, 2008, June 30,
2008 and September 30, 2008, and the related consolidated statements of
results of operations and cash flows of MIVA together with all related notes
and schedules thereto, (iii) the unaudited balance sheet of the U.S. Media
Business as at December 31, 2008, and the related statements of results of
operations of the U.S. Media Business together with all related notes and
schedules thereto (including the worksheet reflecting the adjustments or
elimination entries used in the preparation of the U.S. Balance Sheet and
related financial statements (the “U.S. Carveout Procedures”)), and (iv) the
unaudited balance sheet of the European Media Business as at December 31,
2008, and the related statements of results of operations of the European Media
Business together with all related notes and schedules thereto (including the
worksheet


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


17

















 


reflecting the adjustments or elimination entries used
in the preparation of the European Balance Sheet and related financial
statements (the “European Carveout Procedures”)) (collectively referred to as
the “Financial Statements”) and (i) the unaudited balance sheet of
the U.S. Media Business as at January 31, 2009 (the “U.S. Balance Sheet”),
and the related statements of results of operations, together with all related
notes and schedules thereto, and (ii) the unaudited balance sheet of the
European Media Business as at January 31, 2009 (the “European Balance
Sheet”), and the related statements of results of operations, together with
all related notes and schedules thereto (collectively referred to as the “Interim
Financial Statements”), are attached hereto as Schedule 3.5(a) of
the Disclosure Schedules.  Each of the
Financial Statements and the Interim Financial Statements (A) has been
prepared based on the books and records of the Seller pertaining to the Media
Business (except as may be indicated in the notes thereto), (B) has been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods indicated (except as may be indicated in the notes thereto) and (C) fairly
presents, in all material respects, the consolidated financial position,
results of operations and (in the case of (i) and (ii) above only)
cash flows of the Media Business as at the respective dates thereof and for the
respective periods indicated therein, except as otherwise noted therein and
subject, in the case of the Interim Financial Statements, to normal and
recurring year-end adjustments and the absence of notes that will not,
individually or in the aggregate, be material. 
The adjustments and elimination entries included in the U.S. Carveout
Procedures and the European Carveout Procedures, in each case, were determined
in the reasonable, good faith estimation of Miva’s management to be
meaningfully necessary for purposes of the preparation of the standalone U.S.
Balance Sheet and European Balance Sheet, and the financial statements of the
results of operations for the US Media Business and the EU Media Business at December 31,
2008 are complete and consistent with the historic practices of Miva management
for purposes of evaluating and measuring the results of operations and
financial position of the Media Business and, except as specifically footnoted
on the statements (which footnotes relate to the U.S. Carveout Procedures and
European Carveout Procedures), do not exclude operating expenses that were
incurred in respect of the operation of the Media Business for the period
covered by such financial statements of the results of operations.


 


(b)           Except (A) as set forth on Schedule
3.5(b) of the Disclosure Schedules and (B) as and to the extent
adequately accrued or reserved against in the reviewed balance sheet of the
Media Business as at the date of the Balance Sheet, there are no debts,
liabilities or obligations, whether accrued or fixed, absolute or contingent,
matured or unmatured or determined or determinable, of the Media Business of a
nature required to be reflected on a balance sheet prepared in accordance with
GAAP, other than any such debts, liabilities or obligations (i) reflected
or reserved against on the Financial Statements or the notes thereto, (ii) incurred
since the date of the Balance Sheet in the ordinary course of business, (iii) for
Taxes, or (iv) that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


Section 3.6          Absence of
Certain Changes or Events.  Except as
set forth on Schedule 3.6 of the Disclosure Schedules, since September 30,
2008, (a) the Sellers have conducted the Media Business, in all respects,
in the ordinary course of business consistent with past practice and (b) there
has not occurred any Material Adverse Effect.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


18

















 


Section 3.7          Compliance
with Law; Permits.


 


(a)           Except as set forth on Schedule
3.7(a) of the Disclosure Schedules, to the Knowledge of the Sellers,
the Media Business is and has been conducted in compliance with all applicable
Laws.  The Sellers, their Subsidiaries or
any of their executive officers have not received during the past five years,
nor, to the Knowledge of such individuals, is there any basis for, any notice,
order, complaint or other communication from any Governmental Authority or any
other Person that any part of the Media Business is not in compliance in any
material respect with any Law applicable to it.


 


(b)           Except as set forth on Schedule
3.7(b) of the Disclosure Schedules, the Sellers are in possession of
all permits, licenses, franchises, approvals, certificates, consents, waivers,
concessions, exemptions, orders, registrations, notices or other authorizations
of any Governmental Authority necessary for it to own, lease and operate the
Transferred Assets and to carry on the Media Business as currently conducted
(the “Permits”), each of which is in full force and effect, except where
the failure to have, or the suspension or cancellation of, any of the Permits
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.  All aspects of
the Media Business has been conducted in compliance in all material respects
with all such Permits.  No suspension,
cancellation, modification, revocation or nonrenewal of any Permit is pending
or, to the Knowledge of the Sellers, threatened or likely to be threatened.


 


Section 3.8          Litigation.  Except as set forth on Schedule 3.8 of
the Disclosure Schedules, as of the date hereof, there is no Action by or
against the Sellers in connection with the Media Business or which could affect
the Transferred Assets pending, or to the Knowledge of the Sellers, threatened
in writing (a) seeking damages in excess of $100,000, (b) pursuing
any criminal sanctions or penalties, (c) seeking equitable or injunctive
relief or (d) that would otherwise, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or would affect the
legality, validity or enforceability of this Agreement or any Ancillary
Agreement or the consummation of the transactions contemplated hereby or
thereby.


 


Section 3.9          Employee
Plans.


 


(a)           Schedule 3.9 of the
Disclosure Schedules sets forth all material Employee Plans.  The Sellers have made available to the Buyers
a true and complete copy of the following documents:  (i) each writing constituting an
Employee Plan or a written description of any Employee Plan not in writing, (ii) the
current summary description of each Employee Plan and any material
modifications thereto and (iii) the most recent determination letter from
the IRS, if any, with respect to any Employee Plan qualified under Section 401(a) of
the Code.


 


(b)           With respect to the Employee
Plans:  (i) no event (including, but
not limited to, the undertaking of the transactions contemplated by this
Agreement, either alone or in conjunction with any other event) or omission has
occurred and, to the Knowledge of the Sellers, there exists no condition or set
of circumstances in connection with which the Buyer or its Affiliates would
incur a material liability after Closing under the terms of any Employee


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


19

















 


Plan, ERISA or the Code, (ii) to the Knowledge of
the Sellers, each of the Employee Plans has been operated and administered in
all material respects in accordance with its terms, applicable Law, and the rules or
regulations of any Governmental Authority, including ERISA and the Code, (iii) there
is no claim pending or, to the Knowledge of the Seller, threatened, against or
in connection with any Employee Plan by any Business Employee or any
Governmental Authority that would be a liability of Buyer or its Affiliates
after Closing, and (iv) each Employee Plan intending to be “qualified”
within the meaning of Section 401(a) of the Code has received a
favorable determination or opinion letter as to such qualification from the IRS
and, to the Knowledge of the Sellers, no event has occurred, either by reason
of any action or failure to act, which would cause the loss of any such
qualification.


 


(c)           Except as would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect,
none of the Employee Plans is a “multiemployer plan” (within the meaning of Section 3(37)
or of ERISA), a “multiple employer plan” (within the meaning of Section 4063
or 4064 of ERISA), or subject to Section 412 of the Code or Title IV of
ERISA.


 


(d)           Except as set forth in Section 3.9
of the Disclosure Schedules, (i) all Foreign Plans that are required to be
funded are fully funded, and with respect to all other Foreign Plans, adequate
reserves therefor have been established on the accounting statements of the
Sellers in accordance with GAAP as of the Closing Date;  (ii) all contributions, insurance
premiums, tax and expenses due to and in respect of the Foreign Plans have been
duly paid; and (iii) any Foreign Plan that provides for pension, lump sum,
death or ill-health benefits provides only money purchase benefits and no
assurance, promise or guarantee has been made or given to any person of a
particular level or amount of benefit to be provided for or in respect of him
on death, retirement or leaving service.


 


Section 3.10        Labor and
Employment Matters.


 


(a)           None of the Sellers are a party to
any labor or collective bargaining contract that pertains to any Business
Employees.  To the Knowledge of the
Sellers, (a) there are no organizing activities or collective bargaining
arrangements that could affect the Media Business pending or under discussion
with any labor organization or Business Employees and (b) there are no
lockouts, strikes, slowdowns or work stoppages pending or threatened by or
with respect to any Business Employees that would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


(b)           Neither the Sellers nor any of their
Subsidiaries has engaged or is engaging in any unfair labor practice affecting
Business Employees.  No unfair labor
practice or labor charge or complaint is pending or, to the Knowledge of the
Sellers, threatened with respect to any Business Employee by any Governmental
Authority.  Except as set forth on Schedule
3.10(b) of the Disclosure Schedules, the Sellers and their
Subsidiaries have complied with all applicable federal, state, local, European
and foreign laws, rules and regulations respecting employment, employment
practices, labor, terms and conditions of employment and wages and hours in
connection with the Business Employees.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


20
















 


(c)                                  In
respect of all Business Employees based in the UK (the “UK Business
Employees”), Schedule 3.10(c) of the Disclosure
Schedules sets forth an accurate and complete list of: (i) the particulars
of all UK Business Employees including remuneration, variable compensation and
other benefits (whether contractual, discretionary or otherwise), date of
commencement of employment, age or date of birth, period of continuous
employment and notice periods; (ii) complete particulars of the terms and
conditions of employment applicable to each UK Business Employee; (iii) details
of any employee who would have been a UK Business Employee had they not been
dismissed in the 12 months prior to the date of this Agreement; (iv) details
of any UK Business Employee who is absent on sick leave or otherwise inactive; (v) full
details of any severance or enhanced redundancy arrangements (whether applied
on a contractual, customary or discretionary basis) applicable to any of the UK
Business Employees; and (v) details of any material change to the terms
and conditions of employment that have been made, promised or proposed.  All the persons identified by the Seller as
an independent contractor are properly classified as such.


 


Section 3.11                                Insurance.  Schedule 3.11 of the Disclosure
Schedules sets forth a true and complete list of all insurance policies in
force with respect to the Media Business and the Transferred Assets, which
includes a brief summary of the coverage and terms of each such policy.


 


Section 3.12                                Real
Property.


 


(a)                                  Schedule 3.12(a) of
the Disclosure Schedules lists the street address of each parcel of Leased Real
Property and the identity of the lessor of each such parcel of Leased Real
Property.  Neither the Sellers nor any of
their Subsidiaries owns any real property that is used in connection with the
Media Business.  The Sellers have a valid
leasehold estate in all Leased Real Property, free and clear of all
Encumbrances, other than Permitted Encumbrances.  All leases in respect of the Leased Real
Property and all amendments and modifications thereto are in full force and
effect, the Sellers have not received any written notice of a breach of default
thereunder, and to the Knowledge of the Sellers, no event has occurred that,
with notice or lapse of time or both, would constitute a breach or default
thereunder.  Except as set forth on Schedule
3.12(a) of the Disclosure Schedules, none of the Companies has
assigned any lease of Leased Real Property, nor have the Companies subleased
any Leased Real Property.


 


(b)                                 All
utilities required for the present and normal use and operation of the Media
Business at any Leased Real Property are all connected and operating pursuant
to valid Permits, to the extent Permits are necessary to such operations, are
adequate to service the business of such Seller, and such facilities are
connected by means of one or more public or private easements extending from a
property line to one or more public streets, public rights-of-way or utility
facilities.


 


Section 3.13                                Intellectual
Property.


 


(a)                                  Schedule 3.13(a)(i) of
the Disclosure Schedules sets forth an accurate and complete list of all
registered Marks and applications for registration of Marks included in the
Business Intellectual Property (collectively, the “Business Registered Marks”),


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


21

















 


Schedule 3.13(a)(ii) of
the Disclosure Schedules sets forth an accurate and complete list of all
Patents and applications for Patent included in the Business Intellectual
Property (collectively, the “Business Patents”) and Schedule 3.13(a)(iii) of
the Disclosure Schedules sets forth an accurate and complete list of all
registered Copyrights and all applications for registration of Copyrights
included in the Business Intellectual Property (collectively, the “Business
Registered Copyrights” and, together with the Business Registered Marks and
the Business Patents, the “Business Registered IP”).  No Business Registered IP is involved in any
interference, reissue, reexamination, opposition or cancellation
proceeding.  All filing, examination,
issuance, post registration and maintenance fees, annuities and the like
associated with or required with respect to any of the Business Registered IP
have been paid.


 


(b)                                 The
Sellers together own all right, title and interest in and to the Business
Registered IP, free and clear of any claims or encumbrances, and, to the
Knowledge of the Sellers, all issued Business Registered IP is valid,
subsisting and enforceable.  The Sellers
have not received within the prior six years any notice or claim asserting that
any Business Intellectual Property is invalid or unenforceable, asserting any
encumbrance or other claim with respect to the Business Intellectual Property
or challenging the Sellers’ sole ownership of any Business Intellectual
Property.  No Business Intellectual
Property is subject to any outstanding order, judgment, decree, stipulation or
agreement restricting the use or licensing thereof by the Sellers or any
Affiliate thereof or which would restrict the use thereof by the Buyers.


 


(c)                                  To
the Knowledge of the Sellers, none of the products or services distributed,
sold or offered by the Media Business, nor any activity or conduct of Sellers
in connection with the Media Business, infringes upon or misappropriates any
Intellectual Property of any third party, and the Sellers have not received
within the prior three years any notice or claim (including offers to license)
asserting that any such infringement or misappropriation has or may have
occurred.  To the Knowledge of the
Sellers, no third party is misappropriating or infringing any Business
Intellectual Property.


 


(d)                                 Except
as specifically set forth on Schedule 3.13(d) of the Disclosure
Schedules, no Seller has entered into any license, covenant not to sue,
concurrent-use agreement, consent to use or similar agreement that grants any
right to use, or consents to any use of, any Mark included in the Business
Intellectual Property.


 


Section 3.14                                Taxes.  To the extent a breach or inaccuracy of any
of the following could result in a Liability of the Buyers to any Person,
whether as a result of applicable Law, contract or otherwise:  (i) the Sellers have timely paid and
will continue to pay all Taxes when the same have become due, (ii) there
is no outstanding claim, audit or other examination or proceeding with respect to
Taxes, (iii) there is no basis for a claim by any Governmental Authority
for Taxes and (iv) the Sellers have timely filed all Tax Returns they are
required to have filed and will continue to file such Tax Returns as they
become due and all Tax Returns filed, or to be filed, by the Sellers have been
and will be true, correct, and complete. 
Other than Taxes not yet due and payable, there are no Taxes of the
Sellers that form or could form the basis for a Lien on any of the Transferred
Assets.  The Sellers have complied with
all applicable Laws relating to record retention (including, without
limitation, to the extent necessary to claim any exemption from


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


22

















 


sales tax collection and maintaining adequate and current
resale certificates to support any such claimed exemptions).


 


Section 3.15                                Material
Contracts.


 


(a)                                  Schedule 3.15
of the Disclosure Schedules lists each of the following written Contracts (such
Contracts as described in this Section 3.15(a) being “Material
Contracts”):


 


(i)                                     The
top 50 partner/publisher Contracts for the US Media Business, based on revenues
for the month of December, 2008;


 


(ii)                                  The
top 50 advertiser Contracts for the US Media Business, based on revenues for
the month of December, 2008;


 


(iii)                               The
top 50 partner/publisher Contracts for the EU Media Business, based on revenues
for the calendar quarter ended December 31, 2008;


 


(iv)                              The
top 50 advertiser Contracts for the EU Media Business, based on revenues for
the month of December, 2008;


 


(v)                                 all
Contracts relating to indebtedness for borrowed money;


 


(vi)                              all
Contracts that limit or purport to limit the ability of the Media Business to
compete in any line of business or with any Person or in any geographic area or
during any period of time;


 


(vii)                           any
Contract with any Governmental Authority;


 


(viii)                        any
Contract relating to the Media Business that involves a Related Party of a Seller
or any of its Subsidiaries;


 


(ix)                                all
joint venture, legal partnership or similar Contracts;


 


(x)                                   any
Contract relating to the lease, sale or purchase of real property used or
intended to be used in the Media Business;


 


(xi)                                any
Contract relating to settlement of any administrative or judicial proceedings
within the past five years;


 


(xii)                             any
commercial agency agreement within the meaning of the UK Commercial Agents
(Council Directive) Regulations 1993; or


 


(xiii)                          other
than in respect of any partner/publisher or advertiser Contract, any other
Contract potentially involving $50,000 payments  per
annum either to any of the Sellers or owed by any of the Sellers in relation to
the Media Business.


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


23

















 


(b)                                 Each
Material Contract is valid and binding on a Seller and, to the Knowledge of the
Sellers, the counterparties thereto, and is in full force and effect.  None of the Sellers is in breach of, or
default under, any Material Contract to which it is a party, except for such
breaches or defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  The Sellers have delivered or made available
to the Buyers true and complete copies of all Material Contracts, including any
amendments thereto.  There are no
guaranteed minimum payments, orders or volume requirements imposed upon any of
the Sellers or that will be imposed upon any of the Buyers immediately after
Closing under any Material Contact specified by clause (i), (ii), (iii) or
(iv) of the foregoing Section 3.15(a).  Sellers
represent and warrant that the Collocation Service Agreement effective December 27,
2005 by and between NTT America, Inc. and MIVA Direct, as amended to
date, will not terminate sooner than that date which is 30 days from the
date hereof.


 


Section 3.16                                Personal
Property.


 


(a)                                  Schedule
3.16(a) of the Disclosure Schedules sets forth a true and complete
list of (i) all Personal Property which is included in the Transferred
Assets and having an original cost of $50,000 or more or, and (ii) each
lease of Personal Property which is included in the Transferred Assets,
including, in each case, the expiration date thereof and a brief description of
the property covered.


 


(b)                                 All
of the Personal Property set forth on Schedule 3.17(a) has been
maintained in all material respects in accordance with past practice and
generally accepted industry practice. 
Each item of such Personal Property is in all material respects in good
operating condition and repair, ordinary wear and tear excepted, and is
adequate for the uses to which it is being put. 
All leased Personal Property set forth on Schedule 3.17(a) is
in all material respects in the condition required of such property by the
terms of the lease applicable thereto.


 


Section 3.17                                Brokers.  Except for Petsky Prunier, the fees of which
will be paid by the Sellers, no broker, finder or investment banker is entitled
to any brokerage, finder’s or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on behalf
of the Sellers.


 


Section 3.18                                Prohibited
Payments.  None of the Sellers, their
Subsidiaries nor any of their respective directors, officers, agents or
employees in their capacity as such has (a) used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to political
activity, (b) made any unlawful payments to foreign or domestic government
officials or employees or to foreign or domestic political parties or campaigns
or violated any provision of the Foreign Corrupt Practices Act of 1977, as
amended, or (c) made any other unlawful payment, or agreed to make any
such payment.


 


Section 3.19                                Solvency.  Immediately after giving effect to the
transactions contemplated hereby, the Sellers and each of their Subsidiaries
shall be able to pay their respective debts as they become due and shall own
property which has a fair saleable value greater than the amounts required to
pay their respective debts (including a reasonable estimate of the amount of
all


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


24

















 


contingent liabilities).  For purposes of this Section 3.20,
“debt”
means a liability in connection with another Person’s (a) right to
payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (b) right to any equitable
remedy for breach of performance if such breach gives rise to a right of
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.  Immediately after giving
effect to the transactions contemplated hereby, the Seller and each of its
Subsidiaries shall have adequate capital to carry on their respective
businesses.  No transfer of property is
being made and no obligation is being incurred in connection with the
transactions contemplated by this Agreement with the intent to hinder, delay or
defraud either present or future creditors of the Seller or its Subsidiaries.


 


Section 3.20                                Disclosure.  To the actual knowledge of those persons
listed in Schedule 1.1(c)(i) of the Disclosure Schedules, none of
the representations or warranties of any of the Sellers contained in this
Agreement or any Ancillary Agreement and none of the information contained in
any schedule, certificate, or other document delivered pursuant hereto or thereto
or in connection with the transactions contemplated hereby or thereby contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements herein or therein not misleading.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF THE BUYER


 


The Buyers hereby represent and warrant, jointly and severally, to the
Sellers as follows:


 


Section 4.1                                      Organization
and Qualification.  Each of the
Buyers is a corporation or other limited liability company duly organized or
formed, validly existing and in good standing under the laws of its
jurisdiction of organization or formation, and each has all necessary corporate
power and authority to own, lease and operate its properties and to carry on
its business as it is now being conducted. 
Each Buyer is duly qualified or licensed as a foreign corporation or
other legal entity to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary, except, in each case, for any such failures that would not,
individually or in the aggregate, reasonably be expected to have a Buyer
Material Adverse Effect.


 


Section 4.2                                      Authority.  Each of the Buyers has full corporate power
and authority to execute and deliver this Agreement and each of the Ancillary
Agreements to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.  The execution, delivery and performance by
each of the Buyers of this Agreement and each of the Ancillary Agreements to
which either is a party and the consummation by the Buyer of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary corporate action.  This
Agreement and each of the Ancillary Agreements to which either Buyer is a party
have been duly and validly executed and


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


25

















 


delivered by such Buyer. 
This Agreement and each of the Ancillary Agreements to which either
Buyer is a party constitute the legal, valid and binding obligations of the
Buyers, enforceable against the Buyers in accordance with their respective
terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ rights
generally and by general principles of equity (regardless of whether considered
in a proceeding in equity or at law).


 


Section 4.3                                      No
Conflict; Required Filings and Consents.


 


(a)                                  The
execution, delivery and performance by the Buyers of this Agreement and each of
the Ancillary Agreements to which either of the Buyers is a party, and the
consummation of the transactions contemplated hereby and thereby, do not and
will not:


 


(i)                                     conflict
with or violate the certificate of incorporation or bylaws of either Buyer;


 


(ii)                                  conflict
with or violate any Law applicable to the Buyers; or


 


(iii)                               conflict
with, result in any breach of, constitute a default (or an event that, with
notice or lapse of time or both, would become a default) under, require any
consent of any Person pursuant to, or give to others any rights of termination,
acceleration or cancellation of, any material contract or agreement to which
the Buyer is a party;


 


except, in the case of clause (ii) or (iii), for any such
conflicts, violations, breaches, defaults or other occurrences that would not,
individually or in the aggregate, reasonably be expected to have a Buyer
Material Adverse Effect or that arise as a result of any facts or circumstances
relating to the Seller or any of its Affiliates.


 


(b)                                 The
Buyers are not required to file, seek or obtain any notice, authorization,
approval, order, permit or consent of or with any Governmental Authority in
connection with the execution, delivery and performance by the Buyers of this
Agreement and each of the Ancillary Agreements to which it is party or the
consummation of the transactions contemplated hereby or thereby or in order to
prevent the termination of any right, privilege, license or qualification of
the Buyer, except for (i) any filings required to be made under the HSR
Act, (ii) where failure to obtain such consent, approval, authorization or
action, or to make such filing or notification, would not, individually or in
the aggregate, reasonably be expected to have a Buyer Material Adverse Effect
or (iii) as may be necessary as a result of any facts or circumstances
relating to the Sellers or any of their Affiliates.


 


Section 4.4                                      Financing.  The Buyers have sufficient funds to permit
the Buyers to consummate the transactions contemplated by this Agreement and
the Ancillary Agreements.


 


Section 4.5                                      Brokers.  No broker, finder or investment banker is
entitled to any brokerage, finder’s or other fee or commission in connection
with the transactions contemplated hereby based upon arrangements made by or on
behalf of the Buyer.


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


26

















 


ARTICLE V

COVENANTS


 


Section 5.1                                      Covenants
Regarding Information.


 


(a)                                  On
or as soon as practicable after the Closing Date, and in any event within five
Business Days thereafter, the Sellers will deliver or cause to be delivered to
the Buyers all original agreements, documents, books and records and files
stored on computer disks or tapes or any other storage medium relating to the
Media Business and in the possession of the Seller or any Affiliate of the
Seller.


 


(b)                                 In
order to facilitate the resolution of any claims made against or incurred by
the Sellers (as it relates to the Media Business) or for any other legitimate
business purpose, including without limitation (i) the preparation of
financial statements, (ii) U.S. Securities and Exchange Commission
reporting requirements, and (iii) Excluded Liabilities, for a period of
seven years after the Closing or, if shorter, the applicable period specified
in the Buyers’ document retention policy, one of the Buyers shall (i) retain
the books and records relating to the Media Business relating to periods prior
to the Closing and (ii) afford the Representatives of the Sellers
reasonable access (including the right to make, at the Sellers’ expense,
photocopies), during normal business hours, to such books and records; provided,
however, that a Buyer shall notify the Sellers in writing at least 30
days in advance of destroying any such books and records prior to the seventh
anniversary of the Closing Date in order to provide the Sellers the opportunity
to copy such books and records in accordance with this Section 5.1(b),
and (iii) assist Seller and Seller’s Representatives in the preparation
of, review or audit of financial statements that are reasonably required to
enable Seller to comply on a timely basis with applicable United States federal
securities Laws.


 


(c)                                  In
order to facilitate the resolution of any claims made against or incurred by a
Buyer or for any other legitimate business purpose, including without
limitation (i) the preparation of financial statements, (ii) U.S.
Securities and Exchange Commission reporting requirements, and (iii) Assumed
Liabilities, for a period of seven years after the Closing or, if shorter, the
applicable period specified in the Sellers’ document retention policy, the
Sellers shall (i) retain the books and records relating to the Media
Business relating to periods prior to the Closing which shall not otherwise
have been delivered to a Buyer, (ii) upon reasonable notice, afford the
Representatives of the Buyers reasonable access (including the right to make,
at a Buyer’s expense, photocopies), during normal business hours, to such books
and records to the extent relating exclusively to the Media Business; provided,
however, that the Sellers shall notify the Buyers in writing at least 30
days in advance of destroying any such books and records prior to the seventh
anniversary of the Closing Date in order to provide the Buyers the opportunity
to copy such books and records in accordance with this Section 5.1(c),
and (iii) assist Buyers and Buyers’ Representatives in the preparation of,
review or audit of financial statements that are reasonably required to enable
Buyers to comply on a timely basis with applicable United States federal
securities Laws.


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


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Section 5.2                                      Intercompany
Arrangements.  All intercompany and
intracompany accounts or contracts between the Media Business, on the one hand,
and the Sellers and their Affiliates, on the other hand, shall be cancelled
without any consideration or further liability to any party and without the
need for any further documentation, immediately prior to the Closing.


 


Section 5.3                                      Confidentiality.


 


(a)                                  For
a period of five years following the Closing Date, the Sellers shall not, and
the Sellers shall cause each of their Affiliates and the respective
Representatives of the Sellers and their Affiliates not to, use for its or
their own benefit or divulge or convey to any third party, any Confidential
Information; provided, however, that the Sellers or their
Affiliates may furnish such portion (and only such portion) of the Confidential
Information as the Sellers or such Affiliate reasonably determines it is
legally obligated to disclose if:  (i) it
receives a request to disclose all or any part of the Confidential Information
under the terms of a subpoena, civil investigative demand or order issued by a
Governmental Authority; (ii) to the extent not inconsistent with such
request, it notifies the Buyers of the existence, terms and circumstances
surrounding such request and consults with the Buyers on the advisability of
taking steps available under applicable Law to resist or narrow such request; (iii) it
exercises its commercially reasonable efforts to obtain an order or other
reliable assurance that confidential treatment will be accorded to the
disclosed Confidential Information; and (iv) disclosure of such
Confidential Information is required to prevent the Sellers or such Affiliate
from being held in contempt or becoming subject to any other penalty under
applicable Law.  For purposes of this
Agreement, “Confidential Information” consists of all information and
data relating to the Media Business or the transactions contemplated hereby
(other than data or information that is or becomes generally available to the
public other than as a result of a breach of this Section 5.3).


 


(b)                                 Effective
as of the Closing, the Sellers hereby assign to the Buyers all of the Sellers’
right, title and interest in and to any confidentiality agreements entered into
by the Sellers (or their Affiliates or Representatives) and each Person (other
than the Buyers and their Affiliates and Representatives) who entered into any
such agreement or to whom Confidential Information was provided in connection
with the Media Business.  From and after
the Closing, the Sellers will take all actions reasonably requested by either
of the Buyers in order to assist in enforcing the rights so assigned.  The Sellers shall use their commercially
reasonable efforts to cause any such Person to return to the Sellers any
documents, files, data or other materials constituting Confidential Information
that was provided to any Person in connection with the consideration of any
transaction involving the Media Business or any portion thereof.


 


Section 5.4                                      Consents
and Filings; Further Assurances.


 


(a)                                  Without
limiting the Sellers’ obligations hereunder, including under this Section 5.4,
if any consent approval or authorization necessary or desirable to preserve for
the Buyers any right or benefit under any lease, license, commitment or other
Contract which is included in the Transferred Assets (a “Restricted Contract”)
is not obtained prior to the Closing, then
this Agreement shall not constitute a sale, assignment, transfer,
conveyance or delivery of such Restricted
Contract and, subject to Section 5.13, the Sellers, on the
one hand, and the


 






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redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


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Buyers, on the other,
shall cooperate with one another in structuring and documenting any lawful and
reasonable arrangement under which the Buyers shall obtain the economic
benefits of the asset, claim or right with respect to which the consent has not
been obtained in accordance with this Agreement and the Sellers will,
subsequent to the Closing, cooperate with the Buyers in attempting to obtain
such consent, approval or authorization as promptly thereafter as
practicable.  Such reasonable arrangement
may include (i) the subcontracting, sublicensing or subleasing to a Buyer
of any and all rights of the Sellers against the other party to such Restricted
Contract, (ii) the enforcement by the Sellers of such rights in respect of
such Restricted Contract, and (iii) the performance by a Buyer of the
obligations under such Restricted Contract as the relevant Sellers’ agent. From
and after Closing, (i) Sellers will promptly pay to Buyers when received
all moneys relating to the period on or after the Closing Date received by it
under any Restricted Contract (other than any Excluded Assets), and (ii) Buyers
will promptly pay, perform or discharge when due any Liabilities arising
thereunder after the Closing Date under any Restricted Contract.  Liabilities arising after the Closing under a
Restricted Contract shall constitute Assumed Liabilities.  As soon as the relevant consent for the sale,
assignment, transfer, conveyance, delivery or assumption of a Restricted
Contract is obtained, Sellers shall promptly assign, transfer, convey and
deliver such Restricted Contract to the relevant Buyer, and such Buyer shall
assume such Restricted Contract from and after the date of assignment to Buyer
pursuant to a special-purpose assignment and assumption agreement substantially
similar in terms to those of the Assignment and Assumption Agreement or in such
other terms as may be required by the relevant third party.  If Sellers shall have complied with their
obligations under this Section 5.4(a), the inability to secure the
consent to the transfer or assignment of a Restricted Contract shall not
constitute a breach of any of Sellers’ covenants or obligations under this
Agreement and no reduction shall be made to the Purchase Price in respect
thereof.


 


(b)                                 The
Sellers and the Buyers agree, and the Sellers agree to cause each of the
Licensors (as defined in the Premises License Agreement), to use their
commercially reasonable efforts to promptly obtain the consents of the
landlords as contemplated under the Premises License Agreement.  The parties further agree, and the Sellers
agree to cause each of the Licensors, to negotiate in good faith with one
another and the applicable landlord any changes or modifications to a Sublease
or Assignment (in each case, as defined in the Premises License Agreement) and
to promptly execute (or cause the applicable Affiliate to execute) the final
agreed upon Sublease or Assignment.  MIVA
separately agrees to guarantee the obligations of each of the Licensors under
the Premises License Agreement, including, without limitation, any breaches by
a Licensor of any provision of the Premises License Agreement, and to cause
such Licensor to fully and timely perform its obligations thereunder.


 


(c)                                  At
any time or from time to time after the Closing, at the request of any party to
this Agreement and without further consideration, the other parties shall
execute and deliver, at their own expense, such other documents, instruments of
sale, transfer, conveyance, assignment and confirmation, provide such materials
and information and take such other actions as the requesting party may
reasonably require in order to carry out the intent of this Agreement and the
transactions contemplated by this Agreement.


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


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Section 5.5                                      Refunds
and Remittances.  After the
Closing:  (a) if the Sellers or any
of their Affiliates receive any refund or other amount that is a Transferred
Asset or is otherwise properly due and owing to the Buyers in accordance with
the terms of this Agreement, the Sellers promptly shall remit, or shall cause
to be remitted, such amount to the Buyers and (b) if the Buyers or any of
their Affiliates receive any refund or other amount that is an Excluded Asset
or is otherwise properly due and owing to the Sellers or any of their
Affiliates in accordance with the terms of this Agreement, the Buyers promptly
shall remit, or shall cause to be remitted, such amount to the Sellers.


 


Section 5.6                                      Payment
of Liabilities.


 


(a)                                  The
Sellers shall pay or otherwise satisfy in the ordinary course of business,
after the Closing, the Excluded Liabilities.


 


(b)                                 The
Buyers shall pay or otherwise satisfy in the ordinary course of business, after
the Closing, the Assumed Liabilities and all other liabilities and obligations
incurred in connection with the Media Business after the Closing.


 


Section 5.7                                      Bulk
Transfer Laws.  Buyers and Sellers
hereby waive compliance by Buyers and Sellers with bulk sales and any other
similar Laws in any applicable jurisdiction in respect of the transactions
contemplated by this Agreement and the Ancillary Agreements; provided, however,
that Sellers shall pay and discharge when due all claims of creditors asserted
against Buyer or the Transferred Assets by reason of such noncompliance and
shall take promptly all necessary actions required to remove any Encumbrance
(except any Permitted Encumbrance) which may be placed upon any of the
Transferred Assets by reason of such noncompliance; provided, further, however,
that nothing herein shall affect the obligation of Buyers to pay and discharge
the Assumed Liabilities and no indemnity is made under this Section 5.7
with respect to the Assumed Liabilities.


 


Section 5.8                                      Media
Business Employees.


 


(a)                                  The
Buyers shall, or shall cause one of their Affiliates to, continue to employ
(where employment continues automatically by operation of law) or extend offers
of employment (where employment does not continue automatically by operation of
law) to each Business Employee who is listed on Schedule 5.8(a) (all
such employees who transfer automatically by operation of applicable Law, or
who accept a Buyer’s offer of employment are referred to as the “Transferring
Employees”).    Such offers of
employment shall be on terms and conditions substantially similar in the
aggregate to the terms and conditions of their employment as of February 28,
2009.  The Buyers would provide in
writing to each such U.S. Business Employee to whom an offer of employment is
made an explanation of the material terms and conditions of the offer
and a reasonable period of time to accept the offer.  The Sellers shall terminate the employment of
all U.S. Transferring Employees employed by such Seller immediately prior to
the Closing and shall cooperate with and use its reasonable best efforts to
assist the Buyers in their efforts to secure satisfactory employment
arrangements with those Business Employees to whom a Buyer makes an offer of
employment.  In addition, the parties
hereto agree as follows:


 






[***] = Confidential treatment requested for
redacted portion; redacted portion has been filed separately with the
Securities and Exchange Commission.


 


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(i)                                     The
Sellers shall be solely responsible for, and shall discharge and
shall indemnify the Buyers in respect of, any and all liabilities, obligations,
costs, expenses, claims and demands arising out of or relating to the
employment (and/or the termination of employment) of employees of the
Sellers who do not become Transferring Employees, whether such liabilities
arise before, on or after the Closing Date;


 


(ii)                                  The
Sellers shall be solely responsible for, and shall discharge and
shall indemnify the Buyers in respect of, any and all liabilities, obligations,
costs, expenses, claims and demands arising out of or relating to the
employment (and/or the termination of employment) of, or accruing with
respect to, any Transferring Employee before the date such employee actually
commences work with a Buyer and its Affiliates pursuant to this Section 5.8  (except that in respect of the UK
Transferring Employees the Sellers shall not be liable for any redundancy
payments which become due to a UK Transferring Employee as a result of a
dismissal by a Buyer or its Affiliates after the date on which they become
employed by a Buyer or its Affiliates solely because such redundancy payment is
calculated or due as a result of their period of service prior to the date on which
they became employed by the Buyer or its Affiliates). For avoidance of doubt,
the Sellers shall be solely responsible for any and all severance payments or
change in control payments which arise as a result of an act of the Seller or
directly as a result of their employment with the Seller being terminated (but
excluding any subsequent termination by a Buyer or its Affiliates) or directly
as a result of the occurrence of the transactions contemplated by this
Agreement, and salary or other compensation, and accrued bonus or commission
payments made or owing to employees or independent contractors of the Sellers
in respect of the period of their employment by the Seller;


 


(iii)                               For
avoidance of doubt, the Sellers shall be solely responsible for any and all severance
payments, change in control payments, salary or other compensation, and accrued
bonus or commission payments made or owing to employees or independent
contractors of the Sellers;


 


(iv)                              The
Buyers shall be solely responsible for, shall discharge and shall indemnify the
Sellers in respect of, any and all liabilities, costs, obligations, expenses,
claims and demands (including for the avoidance of doubt all compensation, pay
and accrued bonus or commission payments) arising from or in respect of any of
the Transferring Employees after Closing and not relating to any matters,
events or occurrences arising before Closing;


 


(v)                                 The
Sellers shall be solely responsible for, and shall discharge and shall
indemnify the Buyers in respect of, any and all liabilities, obligations,
costs, expenses, claims and demands arising out of or relating to the
employment (and/or the termination of employment) of any employee or former
employee of the Sellers whose employment (and/or associated liabilities)
transfers to the Buyers under operation of law but who are not identified on Schedule
5.8(a) of the Disclosure Schedules; 
provided, however, that this Section 5.8(a)(iv) shall not
apply with respect to the continuing costs of employing any individual
described in this subsection if the Buyers decide to employ such individual in
the Media Business on an ongoing basis;


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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(vi)                              For
avoidance of doubt, the Sellers shall be responsible for any and all payments
to Transferring Employees (including any employer-related withholding and
social security obligations) in connection with stock options, restricted stock
units, or other equity awards granted under an equity incentive plan of the
Sellers; and


 


(vii)                           For
avoidance of doubt, the Sellers shall be responsible for the provision of COBRA
benefits to employees of Seller receiving such benefits as of the Closing Date,
and to any employee who does not become a Transferring Employee, under a group
health plan of the Sellers on and after the Closing Date.


 


(b)                                 The Sellers shall be responsible for the
payment of all vacation pay earned but not paid to its employees until and
through the date of termination of each such employee. The Buyers shall, in
respect of the U.K. Transferring Employees, reimburse to Miva UK within 28 days
of the Closing an amount equal to all outstanding sums due to Miva UK from the
U.K. Transferring Employees in respect of any interest-free season ticket
travel loans made by Miva UK to U.K. Transferring Employees.


 


(c)                                  From
and after the Closing Date, Buyers shall offer to U.S. Transferring Employees
such benefit plans and arrangements that are substantially similar to those
provided by the Sellers and their Affiliates to the U.S. Transferring Employees
immediately prior to the Closing.  With
respect to the coverage of the Transferring Employees under Buyer’s Welfare
Plans, (i) each such employee’s credited service with Seller and its
Affiliates shall be credited against any waiting period applicable to
eligibility for enrollment of new employees under Buyer’s Welfare Plans to the
same extent such service was credited under the similar Seller Welfare Plan; (ii) limitations
on benefits due to pre-existing conditions shall be waived for any U.S.
Transferring Employee enrolled in any Seller Welfare Plan as of the Closing
Date; (iii) any out-of-pocket annual maximums and deductibles taken into
account under the Seller Welfare Plan for any U.S. Transferring Employee in the
calendar year which contains the Closing Date shall be credited under Buyer’s
Welfare Plan for the same calendar year; and (iv) with respect to aggregate
lifetime maximum benefits available under Buyer’s Welfare Plans, a Transferring
Employee’s prior claim experience under any of Seller Welfare Plan will not be
taken into account, in each of clauses (i) through (iv) above, to the
extent permitted under the terms and conditions of Buyer’s Welfare Plans as of
the Closing;  provided, however, that if
the items described in clauses (i) through (iv) above are not
permitted under the terms and conditions of Buyer’s Welfare Plans, Buyer agrees
to use commercially reasonable efforts to negotiate with its insurance carriers
to effectuate the intent of clauses (i) through (iv) above, to the
extent doing so does not result in significant cost to Buyer, as determined in
Buyer’s sole discretion.  .  For purposes of this Section 5.8(c),
the term Buyer’s Welfare Plans shall mean Welfare Plans sponsored or maintained
by Buyer or its Affiliates and Seller Welfare Plans shall mean Welfare Plans
sponsored or maintained by Seller or its Affiliates.


 


(d)                                 Sellers
and Buyers shall comply with their respective obligations under the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) in
respect of the UK Transferring Employees, including without limitation, the
Seller’s obligation to inform and/or consult with the employee representatives.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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(e)                                  Seller
covenant not to sue in respect of any non-solicitation, non-competition,
non-disclosure, and confidentiality provisions or agreements entered into
between any Seller and any Transferred Employee prior to Closing that would
restrict any Transferred Employee’s employment and/or conduct in connection as
an employee of a Buyer or an Affiliate of a Buyer after Closing.


 


(f)                                    Nothing
in this Section 5.8 is intended to or shall confer upon any Person
other than the parties to this Agreement and their respective successors and
permitted assigns any right to employment or any other legal or equitable
right, benefit or remedy of any nature.


 


Section 5.9                                      MIVA,
Findwhat, Searchfeed, and eSpotting Names.


 


(a)                                  Within
90 days of the date hereof, MIVA agrees to take or cause to be taken such
actions as are required to change the respective names of MIVA, Inc. and
any of its Affiliates or any name being used by the Sellers or any of their
Affiliates (including any name used for “doing business as” purposes) in MIVA’s
or such Affiliate’s jurisdiction of organization and in any state or foreign
state or country where the Sellers or such Affiliate are qualified and
registered to do business, so that neither the name of MIVA, Inc. nor any
of the Sellers’ Affiliates contains any of the following words or derivatives
thereof:  MIVA, eSpotting, FindWhat or
SearchFeed.  Concurrently herewith the
Sellers are executing and delivering an Intellectual Property Assignment
assigning all such names and any other Intellectual Property included in the
Transferred Assets to the Buyers.  The
Sellers agree that neither it nor any of its Affiliates shall use any of the
names listed above or any derivative thereof for any business, commercial,
professional or other endeavor.


 


(b)                                 Buyers
acknowledge that Sellers and their Affiliates have provided certain rights to
use the “MIVA” name and mark under the Small Business Solutions Agreements.
Notwithstanding anything herein to the contrary, Buyers hereby grant, and shall
cause Buyers’ Affiliates to grant, to Sellers and Sellers’ Affiliates a
royalty-free right and license to use such Intellectual Property rights
entailed in the U.S. Media Assets as are necessary in order for MIVA and its
Affiliates to comply with the terms and conditions of the Small Business
Solutions License Agreement. In addition, neither the Buyers nor Buyers’
Affiliates will use the MIVA MERCHANT mark or any variant containing “MIVA
MERCHANT,” for any product or service during the term of the license granted
under the Small Business Solutions License Agreement.


 


Section 5.10                        Non-Competition;
Non-Solicitation.


 


(a)                                  For
a period of five years following the Closing (the “Restricted Period”),
or for such shorter period as expressly set forth below, each of the Sellers
agrees not to, and shall cause their Affiliates not to, directly or indirectly
through any Person or contractual arrangement:


 


(i)                                     engage
in any business activity with, have any economic or ownership interest in or
loan any money to, or perform any services or provide any advice for, any
person, firm, corporation, business or entity (whether as a shareholder,
member, partner, investor, proprietor, principal, agent, security holder,
trustee, beneficiary, creditor lending credit


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


33

















 


or money for the purpose
of establishing or operating any such business or otherwise, alone or in association
with any other Person or entity) which is the same as, substantially similar
to, or substantially competitive with, the Media Business within the United
States and Europe; provided, however, that nothing herein shall
prevent (A) for the avoidance of doubt, any individual member of the board
of directors of any of the Sellers or Sellers’ Affiliates from being a member
of the board of directors of any other entity in their personal capacity and
not in their capacity as a member of the board of directors of MIVA or any of
MIVA’s Affiliates, (B) Sellers or their Affiliates from owning and
operating toolbar, homepage and desktop products, through its MIVA Direct
division as operated by them at Closing or (C) a third party that acquires
the Sellers or any of their Affiliates from operating a Media Business; provided,
that with respect to clause (B), such party does not cause the Sellers or any
Seller acquired Affiliate to operate a Media Business.


 


(ii)                                  Each
of the Sellers covenants and agrees that it is unlikely that it could undertake
any of the activities described in this Section 5.10(a)(ii) without
necessarily benefiting from and making use of the Confidential
Information.  Each of the Sellers
therefore covenants and agrees that during the period beginning on the date
hereof and ending on the second anniversary of the date hereof neither it nor
any of its Affiliates shall, for itself, themselves or any third party,
directly or indirectly, (i) divert from any of the Buyers or any of their
Affiliates any business of any kind in which either the Sellers were engaged
with respect of the Media Business or the Buyers were engaged in at the
Closing, including, without limitation, the solicitation or inducement of or
interference with, any past, existing or prospective client, customer or source
of financing of the Sellers, the Buyers or any Affiliate of the Buyers, (ii) employ
or solicit for employment person employed by any of the Buyers, any Affiliate
of the Buyers or any Transferring Employees or induce any Transferring Employee
or employee of any of the Buyers or any Affiliate of the Buyers to leave the
employ of the Buyers or any Affiliate of the Buyers for any reason whatsoever,
unless such person will have ceased to be employed or engaged by a Buyer for a
period of at least six months prior thereto or (iii) attempt to do any of
the foregoing; provided, however, that nothing herein shall
prevent any Seller or any of its Affiliates from engaging in general media
advertising or solicitation that may be targeted to a particular geographic or
technical area but that is not targeted toward Transferring Employees; or


 


(iii)                               disparage
the Buyers or any of their Affiliates in any way that could adversely affect
the goodwill, reputation or business relationships of the Media Business, the
Buyers or any of their Affiliates with the public generally, or with any of
their customers, suppliers or employees.


 


(b)                                 Each
of the Buyers covenants and agrees that during the period beginning on the date
hereof and ending on the second anniversary of the date hereof neither it nor
any of its Affiliates shall, for itself, themselves or any third party,
directly or indirectly, (i) employ or solicit for employment person
employed by any of the Sellers or any Affiliate of the Buyers (other than the
Transferring Employees) or induce any employee of any of the Sellers or any
Affiliate of the Sellers (other than the Transferring Employees) to leave the
employ of the Sellers or any Affiliate of the Sellers for any reason
whatsoever, unless such person will have ceased to be employed or engaged by a
Seller for a period of at least six months prior thereto or


 






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the Securities and Exchange Commission.


 


34

















 


(ii) attempt to do
any of the foregoing; provided, however, that nothing herein
shall prevent any Buyer or any of its Affiliates from (A) engaging in
general media advertising or solicitation that may be targeted to a particular
geographic or technical area but that is not targeted toward Transferring
Employees or (B) within 60 days of Closing, offering employment to those
Business Employees set forth in Schedule 5.10(b) of the Seller
Disclosure Schedules and, if and upon such person’s acceptance, employing such
person(s).


 


(c)                                  Each
of the Sellers acknowledges and agrees that its compliance with the covenants
contained in this Section 5.10 hereof is necessary to protect the
value of the ongoing business and assets (including the goodwill) and other
proprietary interests being acquired pursuant to this Agreement.  Each of the Sellers further acknowledges and
agrees that a breach of the covenants in this Section 5.10 will
result in irreparable and continuing damage to the Buyers for which there will
be no adequate remedy at law, and agrees that in the event of any breach or
threatened breach of such covenants, the Buyers shall be entitled to interim
relief in the form of a temporary restraining order, preliminary injunction or
injunction and to have such covenants specifically enforced by any court having
equity jurisdiction in addition to such other and further relief as may be
proper.


 


(d)                                 Subject
to Section 5.10(a)(i), it is the intention of the parties hereto
that the scope and effect of the covenants contained in this Section 5.10
shall be as broad in time and geography, and in all other respects, as is
permitted pursuant to applicable Law. 
The provisions of this Section 5.10 are severable and
independent and shall be interpreted and applied consistently with requirements
of reasonableness and equity.  If any
provision of this Section 5.10 shall be held to restrict
competition to a greater degree than is permitted by applicable Law or to be invalid
or otherwise unenforceable, in whole or in part, such term or provision shall
be adjusted rather than voided, and the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby, and shall remain in
full force and effect to the maximum extent possible.


 


Section 5.11                        Public
Announcements.  The Sellers and the
Buyers shall consult with each other before issuing, and provide each other the
opportunity to review and comment upon, any press release or other public
statement with respect to the transactions contemplated hereby, and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable Law or any securities
exchange regulation, in which case the party proposing to issue such
publication or press release shall make reasonable efforts to consult in good
faith with the other party or parties before issuing any such publication or
press release and shall provide a copy thereof to the other party or parties
prior to such issuance.


 


Section 5.12                        Litigation
Support.  In the event and for so
long as a Seller actively is pursuing, contesting or defending against any
action, investigation, charge, claim, or demand by a third party (including any
stockholder derivative action) in connection with (a) any transaction
contemplated by this Agreement, or (b) any fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action failure to act, or transaction on or before the Closing Date involving
the Media Business, the Buyers will, and will cause their Affiliates to, upon
reasonable advanced written notice from the Sellers, reasonably cooperate


 






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the Securities and Exchange Commission.


 


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with the Sellers and the
Sellers’ Affiliates and their counsel in the contest or defense of such causes
of action, reasonably make available its personnel, and reasonably provide such
testimony and access to their books, records and other materials as shall be
reasonably necessary in connection with the contest or defense, all at the sole
cost and expense of the Sellers (including, without limitation, travel expenses
and the pro-rated reimbursement of the Buyers for such person’s wages allocable
to the time such person is providing assistance hereunder).  Notwithstanding the foregoing, the Buyers and
their Affiliates will not be required to provide the cooperation called for by
this Section 5.12 if in the reasonable opinion of the Buyers the
rendering of such cooperation would be reasonably likely to jeopardize an
attorney-client privilege of a Buyer, violate any applicable Law or create a
material conflict of interest to a Buyer.


 


ARTICLE VI

TAX MATTERS


 


Section 6.1                              Price Allocation.  Within one hundred and twenty (120)  days following the Closing Date,
the Buyers shall prepare and deliver to the Sellers a schedule allocating (i) the
U.S. Purchase Price (plus any U.S. Assumed Liabilities that are treated as
consideration for the U.S. Media Assets for Tax purposes) among the U.S. Media
Assets and (ii) the European Purchase Price (plus any European Assumed
Liabilities that are treated as consideration for the European Media Assets)
among the European Media Assets for Tax purposes (collectively, the “Price Allocation”).  Within thirty (30) days of delivery of the
Price Allocation, the Sellers shall notify the Buyers of any proposed changes.  The parties shall consult with each other and
attempt in good faith to resolve any issues arising as a result of the Price
Allocation.  If the parties cannot agree
on the Price Allocation, the dispute shall be resolved by an independent
nationally recognized accounting firm acceptable to the Buyers and the
Sellers.  The Price Allocation with
respect to the U.S. Media Assets shall be prepared in a manner consistent with Section 1060
of the Code and the Treasury regulations promulgated thereunder.  Each party agrees to timely file an IRS Form 8594
reflecting the Price Allocation with respect to the U.S. Media Assets for the
taxable year that includes the Closing Date and to make any timely filing
required by applicable state or local laws. 
To the extent the Purchase Price is adjusted after the Closing Date, the
parties agree to revise IRS Form 8594 as appropriate.  The Price Allocation made pursuant to this Section 6.1
shall be binding on the Buyers and the Sellers for all Tax reporting
purposes.  Neither the Buyers nor the
Sellers shall take any position inconsistent with the Price Allocation in
connection with any Tax proceeding, except that the Buyers’ cost for the
Transferred Assets may differ from the amount so allocated to the extent
necessary to reflect its capitalized acquisition costs not included in the
amount realized by Transferred Assets. 
If any taxing authority disputes the Price Allocation, the party
receiving notice of the dispute shall promptly notify the other party hereto of
such dispute and the parties hereto shall cooperate in good faith in responding
to such dispute in order to preserve the effectiveness of the Price Allocation.


 


Section 6.2                              Tax Indemnity
Adjustment.  Any indemnification
payment under the terms of this Agreement shall be treated as an adjustment to
the Purchase Price for federal and United Kingdom income Tax purposes.  Any payments subsequent to the Closing Date
(such as indemnity payments under the terms of this Agreement) that are treated
as an adjustment to the


 






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the Securities and Exchange Commission.


 


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Purchase Price of the
Transferred Assets for Tax purposes shall be reflected as an adjustment to the
price allocated to either the U.S. Media Assets or the European Media Assets
that gave rise to the adjustment.  The
amount of any such adjustment shall be allocated among the U.S. Media Assets or
the European Media Assets in accordance with the Price Allocation provided in Section 6.1.


 


Section 6.3                              Transfer Taxes.  Transfer Taxes arising as a result of the
transactions contemplated by this Agreement shall be the responsibility of the
party on whom the Transfer Tax is imposed under the laws of the applicable
taxing jurisdiction, provided, however, that (a) responsibility for VAT
shall be dealt with in accordance with Section 6.5 of this
Agreement, and (b) for the sake of clarity, the Buyers shall not be liable
for any Transfer Taxes that are imposed on a Seller under the laws of the
applicable taxing jurisdiction, but for which a Buyer becomes liable as a
result of transferee liability, successor liability, or as a result of such
Taxes giving rise to a lien on the Transferred Assets.


 


Section 6.4                              Information.  The Buyers and the Sellers agree to utilize
the standard procedure set forth in Rev. Proc. 2004-53 with respect to wage
reporting.


 


Section 6.5                              VAT.  All sums payable under the Transaction
Documents are exclusive of and Buyers shall be responsible for and bear the
cost of any VAT. Buyers shall be responsible for any VAT payable in addition to
the Consideration.  MIVA UK and European
Acquisition Sub agree that
the sale of the UK Media Assets constitutes the transfer of a business as a
going concern, and shall use all reasonable eforts to procure that the
provisions of Section 49 and article 5 of the Value Added Tax (Special
Provisions) Order 1995 (SI/1995/1268) (the “Order”) apply
to the sale and purchase of the UK Media Assets such that the sale of such UK
Media Assets falls to be treated as neither a supply of goods nor a supply of
services for VAT purposes and that no VAT shall be chargeable in respect
thereof. If, not withstanding the foregoing, HM Revenue & Customs
determine in writing that VAT is chargeable in respect of the sale of any of
the UK Media Assets, MIVA UK shall forthwith provide to European Acquisition
Sub a copy of such written determination, together with a valid VAT invoice
complete in all respects in relation to any VAT chargeable. The VAT so
chargeable shall be paid by European Acquisition Sub Buyer to MIVA UK on the
later of two Business Days after the receipt by European Acquisition Sub of
credit or repayment from HM Revenue & Customs in respect of such VAT
and two Business Days prior to the date on which MIVA UK is liable to account
for the same to HM Revenue & Customs.  Buyers represent and warrant that
the European Acquisition Sub has applied to become a registered taxable person
for the purposes of VAT and is not a member of a partly exempt VAT group.


 


ARTICLE VII

INDEMNIFICATION


 


Section 7.1                              Survival of
Representations, Warranties.  The
representations and warranties of each of the Sellers and each of the Buyers
contained in this Agreement and any schedule, certificate or other document
delivered pursuant hereto shall survive the Closing for a period of [***]
following the Closing Date; provided, however, that:


 






[***] = Confidential treatment
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the Securities and Exchange Commission.


 


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(a)                                  the
representations and warranties set forth in [***] shall survive [***],[***]
shall survive [***] ([***] are collectively referred to herein as the “[***]”),
[***] shall survive [***];


 


(b)                                 any
representation in the case of [***], shall survive [***].


 


Neither the Sellers nor the Buyers shall have any liability whatsoever
with respect to any such representations and warranties unless a claim is made
hereunder prior to the expiration of the survival period for such
representation and warranty, in which case such representation and warranty
shall survive as to such claim until such claim has been finally resolved.


 


Section 7.2                              Indemnification by the
Sellers.


 


(a)                                  Subject
to Section 7.2(b), the Sellers shall jointly and severally save,
defend, indemnify and hold harmless each of the Buyers and their Affiliates and
their respective Representatives, successors and assigns from and against any
and all losses, damages, liabilities, deficiencies, claims, diminution of
value, interest, awards, judgments, penalties, costs and expenses (including
attorneys’ fees, costs and other out-of-pocket expenses incurred in
investigating, preparing or defending the foregoing) (hereinafter collectively,
“Losses”), asserted against, incurred, sustained or suffered by any of
the foregoing as a result of, arising out of or relating to:


 


(i)                                     any
breach of any representation or warranty made by either Seller contained in
this Agreement or any schedule, certificate or other document delivered
pursuant hereto (without giving effect to any materiality, Material Adverse
Effect or similar qualification);


 


(ii)                                  any
breach of any covenant or agreement by either Seller contained in this
Agreement or any schedule, certificate or other document delivered pursuant
hereto;


 


(iii)                               any
and all Excluded Liabilities (including, without limitation, any Seller Taxes);
and


 


(iv)                              any
Action brought by shareholders of the Sellers and relating to the transactions
contemplated hereby.


 


(b)                                 [***].


 


Section 7.3                              Indemnification by the
Buyers.  The Buyers shall jointly and
severally save, defend, indemnify and hold harmless the Sellers and their
Affiliates and the respective Representatives, successors and assigns of each
of the foregoing from and against any and all Losses asserted against,
incurred, sustained or suffered by any of the foregoing as a result of, arising
out of or relating to:


 


(a)                                  any
breach of any representation or warranty made by either Buyer contained in this
Agreement or any schedule, certificate or other document delivered pursuant
hereto(without giving effect to any materiality, Material Adverse Effect or
similar qualification);


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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(b)                                 any
breach of any covenant or agreement by either Buyer contained in this Agreement
or any schedule, certificate or other document delivered pursuant hereto or in
connection with the transactions contemplated hereby; and


 


(c)                                  any
Assumed Liability.


 


Section 7.4                              Tax Allocation.  All Taxes and similar ad valorem
obligations levied with respect to the Transferred Assets for a taxable period
that includes (but does not end on) the Closing Date shall be apportioned
between Sellers, on the one hand, and the Buyers, on the other hand, as of the
Closing Date based on the number of days of such taxable period included in the
period through and including the Closing Date (“Pre-Closing Tax Period”)
and the number of days of such taxable period included in the period commencing
on the day after the Closing Date (“Post-Closing Tax Period”).  The Sellers shall be jointly and severally
liable for the proportionate amount of such Taxes that is attributable to the
Pre-Closing Tax Period, and the Buyers shall be liable for the proportionate
amount of such Taxes that is attributable to the Post-Closing Tax Period.  Within a reasonable period, the Sellers and
the Buyers shall present a statement to the other setting forth the amount of
reimbursement to which each is entitled under this Section 7.4,
together with such supporting evidence as is reasonably necessary to calculate
the proration amount.  The proration
amount shall be paid by the party owing it to the other party within ten
(l0) days after delivery of such statement.  Any payment required under this Section 7.4
and not made within ten (10) days after delivery of the statement shall
bear interest at the rate per annum determined, from time to time, under the
provisions of Section 6621(a)(2) of the Code for each day until paid.


 


Section 7.5                              Procedures.


 


(a)                                  In
order for a party (the “Indemnified Party”) to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of
or involving a Loss or a claim or demand made by any person against the
Indemnified Party (a “Third Party Claim”), such Indemnified Party shall
deliver notice thereof to the party against whom indemnity is sought (the “Indemnifying
Party”) with reasonable promptness after receipt by such Indemnified Party
of written notice of the Third Party Claim and shall provide the Indemnifying
Party with such information with respect thereto as the Indemnifying Party may
reasonably request.  The failure to
provide such notice, however, shall not release the Indemnifying Party from any
of its obligations under this Article VIII except to the extent
that the Indemnifying Party is significantly prejudiced by such failure.


 


(b)                                 If
(i) the Indemnifying Party acknowledges in writing, within 30 days after
receipt of notice from the Indemnified Party of the commencement of a Third
Party Claim, its obligation to indemnify the Indemnified Party against any and
all Losses involving claims that may result from such Third Party Claim
pursuant to the terms of this Agreement; (ii) the Indemnifying Party
provides the Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have the financial resources to defend
against such Third Party Claim and fulfill its indemnification obligations
hereunder; (iii) the Third Party Claim involves only money damages and
does not seek an injunction or other equitable relief; (iv) settlement or
an adverse judgment of the Third Party Claim will not


 






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the Securities and Exchange Commission.


 


39

















 


materially adversely
affect the continuing business interests of the Indemnified Party, the
Indemnifying Party shall have the right, upon written notice to the Indemnified
Party provided within thirty (30) days after receipt of notice from the
Indemnified Party of the commencement of a Third Party Claim, to assume the
defense thereof at the expense of the Indemnifying Party (which expenses shall
not be applied against any indemnity limitation herein) with counsel selected
by the Indemnifying Party and reasonably satisfactory to the Indemnified
Party.  The Indemnifying Party shall be
liable for the fees and expenses of counsel employed by the Indemnified Party
for any period during which the Indemnifying Party has failed to assume the
defense thereof if and to the extent that it is ultimately determined that such
Indemnifying Party has an indemnity obligation for indemnifiable Losses as
provided under Section 7.2 or 7.3, as applicable, with
respect to such counsel fees and expenses. 
If the Indemnifying Party does not expressly elect to assume the defense
of such Third Party Claim within the time period and otherwise in accordance
with the first sentence of this Section 7.5(b), the Indemnified
Party shall have the right to assume the defense of and to settle such Third
Party Claim; provided, however, that the Indemnifying Party may, at its own
option and at its own expense, participate in the defense of such Third Party
Claim through Representatives and counsel of its own choosing, cost and
expense.  If the Indemnifying Party
assumes the defense of such Third Party Claim, the Indemnified Party shall have
the right to employ separate counsel and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of the
Indemnified Party unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Indemnifying Party or (ii) the
Indemnified Party reasonably determines that representation by counsel to the
Indemnifying Party of both the Indemnifying Party and such Indemnified Party
would present such counsel with a conflict of interest.  If the Indemnifying Party assumes the defense
of any Third Party Claim, the Indemnified Party shall, at the Indemnifying
Party’s expense, cooperate with the Indemnifying Party in such defense and make
available to the Indemnifying Party all witnesses, pertinent records, materials
and information in the Indemnified Party’s possession or under the Indemnified
Party’s control relating thereto as is reasonably required by the Indemnifying
Party.  If the Indemnifying Party assumes
the defense of any Third Party Claim, the Indemnifying Party shall not, without
the prior written consent of the Indemnified Party, enter into any settlement
or compromise or consent to the entry of any judgment with respect to such
Third Party Claim if such settlement, compromise or judgment (i) involves
a finding or admission of wrongdoing, (ii) does not include an
unconditional written release by the claimant or plaintiff of the Indemnified
Party from all liability in respect of such Third Party Claim or (iii) imposes
equitable remedies or any obligation on the Indemnified Party other than solely
the payment of money damages for which the Indemnified Party will be
indemnified hereunder.


 


(c)                                  If,
in connection with a Third Party Claim, the Indemnifying Party has, in
accordance with Section 7.5(b), acknowledged in writing its
obligation to indemnify the Indemnified Party against any and all Losses in
respect thereof, the indemnification required hereunder in respect of that
Third Party Claim shall be made by prompt payment by the Indemnifying Party of
the amount of actual Losses in connection therewith, as and when bills are
received by the Indemnifying Party or Losses incurred have been notified to the
Indemnifying Party, together with interest on any amount not repaid as
necessary to the Indemnified Party by the Indemnifying Party within ten
Business Days after receipt of notice of


 






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the Securities and Exchange Commission.


 


40

















 


such Losses, from the
date such Losses have been notified to the Indemnifying Party, at the rate of
interest described in Section 2.7(d).


 


(d)                                 The
Indemnifying Party shall not be entitled to require that any action be made or
brought against any other Person before action is brought or claim is made
against it hereunder by the Indemnified Party.


 


(e)                                  In
the event any Indemnified Party should have a claim against any Indemnifying
Party hereunder that does not involve a Third Party Claim being asserted
against or sought to be collected from such Indemnified Party, the Indemnified
Party shall deliver notice of such claim with reasonable promptness to the
Indemnifying Party.  The failure to
provide such notice, however, shall not release the Indemnifying Party from any
of its obligations under this Article VIII except to the extent
that the Indemnifying Party is significantly prejudiced by such failure and
shall not relieve the Indemnifying Party from any other obligation or liability
that it may have to the Indemnified Party or otherwise than pursuant to this Article VIII.  If the Indemnifying Party does not notify the
Indemnified Party within 30 days following its receipt of such notice that the
Indemnifying Party disputes its liability to the Indemnified Party hereunder,
such claim specified by the Indemnified Party in such notice shall be
conclusively deemed a liability of the Indemnifying Party hereunder and the
Indemnifying Party shall pay the amount of such liability to the Indemnified
Party on demand.  If the Indemnifying Party
agrees that it has an indemnification obligation but asserts that it is
obligated to pay a lesser amount than that claimed by the Indemnified Party,
the Indemnifying Party shall pay such lesser amount promptly to the Indemnified
Party, without prejudice to or waiver of the Indemnified Party’s claim for the
difference.


 


(f)                                    Notwithstanding
the provisions of Section 8.9 (Arbitration), in the event an Action
is brought against any Indemnified Party in respect of a Third Party Claim,
such Indemnified Party may, at its sole option, join any Indemnifying Party to
such Action for purposes of resolving any claim the Indemnified Party may have
under this Agreement with respect to such Action or the matters alleged
therein.  Each Indemnifying Party hereby
consents to the jurisdiction of any court in which such Action is pending and
hereby irrevocably and unconditionally agrees that process may be served by
satisfying the notice requirements set forth in Section 8.4 or in
any other manner permitted by law.


 


Section 7.6                              Limits on
Indemnification.


 


(a)                                  Notwithstanding
anything to the contrary contained in this Agreement:


 


(i)                                     the
maximum aggregate amount of indemnifiable Losses that may be recovered from the
Sellers or the Buyers pursuant to [***], as the case may be, shall be [***],
except with respect to (i) the [***], for which the maximum aggregate
amount of indemnifiable Losses that may be recovered from the Sellers or the
Buyers, as the case may be, when aggregated with all other indemnifiable Losses
that may be recovered from the Sellers or the Buyers, pursuant to [***], as the
case may be, shall be [***] (the “Cap”, and (ii) [***], for which
the maximum aggregate amount of indemnifiable Losses that may be recovered from
the Sellers, when aggregated with all other indemnifiable Losses that may be
recovered from the


 






[***] = Confidential treatment
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the Securities and Exchange Commission.


 


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Sellers pursuant to
[***], shall be [***]). The maximum aggregate amount of indemnifiable Losses
that may be recovered from the Sellers or the Buyers pursuant to [***], as the
case may be, shall in no event exceed an amount equal to [***];


 


(ii)           an Indemnifying Party
shall not be liable to any Indemnified Party for any claim for indemnification
pursuant to [***], as the case may be, unless and until the aggregate amount of
indemnifiable Losses that may be recovered from such Indemnifying Party equals
or exceeds [***]; and


 


(iii)          no party hereto shall
have any liability under any provision of this Agreement for any incidental,
consequential, special or indirect damages, including business interruption,
loss of future revenue, profits or income, or loss of business reputation or
opportunity relating to the breach or alleged breach of this Agreement;


 


provided that the foregoing clauses (i) and
(ii) shall not apply to [***]; provided, further, that
clause (ii) shall not apply to any Losses arising out of or relating to
[***],.  The Indemnified Party may not
make a claim for indemnification under [***], as the case may be, for breach by
the Indemnifying Party of a particular representation or warranty after the
expiration of the survival period thereof specified in Section 7.1,
except as otherwise provided in such Section.


 


(b)           The Buyers and the
Sellers shall cooperate reasonably with each other with respect to resolving
any claim, liability or Loss for which indemnification may be required
hereunder.


 


(c)            [***].


 


(d)           The Indemnified Party
will use its commercially reasonable efforts to mitigate any Losses with
respect to which it may be entitled to seek indemnification pursuant to this
Agreement.


 


(e)            No Party shall be
entitled to indemnification under this Article VII for any Losses
with respect to any matter to the extent that such matter was raised in the
calculation of the adjustment of the Purchase Price pursuant to Section 2.7.


 


Section 7.7          Exclusivity.  Except as specifically set forth in this
Agreement, effective as of the Closing, in the absence of fraud, intentional
misrepresentation of fact by an Indemnifying Party, the Indemnified Party, on
behalf of itself and the other Indemnified Parties, waives any rights and
claims any Indemnified Party may have against the Indemnifying Party, whether
in law or equity, relating to the Media Business, the Transferred Assets, the
Assumed Liabilities and/or the transactions contemplated hereby.  After the Closing, subject to the foregoing,
this Article VIII will provide the exclusive remedy against the a
party hereto for any breach of any representation, warranty, covenant or other
claim arising out of or relating to this Agreement and/or the transactions
contemplated hereby.


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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ARTICLE VIII

GENERAL PROVISIONS


 


Section 8.1          Fees and Expenses.  Except as otherwise provided herein, all fees
and expenses incurred in connection with or related to this Agreement and the
Ancillary Agreements and the transactions contemplated hereby and thereby shall
be paid by the party incurring such fees or expenses, whether or not such transactions
are consummated.


 


Section 8.2          Amendment and
Modification.  This Agreement may not
be amended, modified or supplemented in any manner, whether by course of
conduct or otherwise, except by an instrument in writing specifically
designated as an amendment hereto, signed on behalf of the Sellers, on the one
hand, and the Buyers, on the other hand.


 


Section 8.3          Waiver.  No failure or delay of either party in
exercising any right or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such right or power, or any
course of conduct, preclude any other or further exercise thereof or the
exercise of any other right or power. 
The rights and remedies of the parties hereunder are cumulative and are
not exclusive of any rights or remedies which they would otherwise have
hereunder.  Any agreement on the part of
any of the parties to any such waiver shall be valid only if set forth in a
written instrument executed and delivered by a duly authorized officer on
behalf of such party.


 


Section 8.4          Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed duly given (a) on the
date of delivery if delivered personally, or if by facsimile, upon written
confirmation of receipt by facsimile, e-mail or otherwise, (b) on the
first Business Day following the date of dispatch if delivered utilizing a
next-day service by a recognized next-day courier or (c) on the earlier of
confirmed receipt or the fifth Business Day following the date of mailing if
delivered by registered or certified mail, return receipt requested, postage
prepaid.  All notices hereunder shall be
delivered to the addresses set forth below, or pursuant to such other
instructions as may be designated in writing by the party to receive such
notice:


 


(i)                                   if
to any Seller, to:


 


MIVA, Inc.


5220 Summerlin Commons Blvd.

Suite 500

Ft. Myers, Florida 33907


Attention:
John B. Pisaris


Facsimile:
(239) 561-7224


 


with a copy (which shall not constitute notice) to:


 


Baker & McKenzie LLP


One Prudential Plaza, Suite 3500


Chicago, Illinois, 60601


Attention: 
Edward J. West


Facsimile: (312) 861-2899


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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(ii)           if to any Buyer, to:


 


Adknowledge, Inc.

4600 Madison

10th Floor

Kansas City, MO 64112

Attention:  Scott Lynn

Facsimile:  816-931-1769


 


with a copy (which shall not constitute
notice) to:



Gibson, Dunn & Crutcher LLP

333 South Grand Avenue

Los Angeles, CA 90071

Attention:  J. Keith Biancamano

Facsimile:  213-229-6775


 


Section 8.5          Interpretation.  When a reference is made in this Agreement to
a Section or Article such reference shall be to a Section or Article of
this Agreement unless otherwise indicated. 
The table of contents and headings contained in this Agreement are for
convenience of reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. 
All words used in this Agreement will be construed to be of such gender
or number as the circumstances require. 
The word “including” and words of similar import when used in this Agreement
will mean “including, without limitation,” unless otherwise specified.


 


Section 8.6          Entire Agreement.  This Agreement (including the Disclosure
Schedules hereto), the Ancillary Agreements and the Confidentiality Agreement
constitute the entire agreement, and supersede all prior written agreements,
arrangements, communications and understandings and all prior and
contemporaneous oral agreements, arrangements, communications and
understandings between the parties with respect to the subject matter hereof
and thereof.  Notwithstanding any oral
agreement or course of action of the parties or their Representatives to the
contrary, no party to this Agreement shall be under any legal obligation to
enter into or complete the transactions contemplated hereby unless and until
this Agreement shall have been executed and delivered by each of the parties.


 


Section 8.7          No Third-Party
Beneficiaries.  Except as provided in
Article VIII, nothing in this Agreement, express or implied, is
intended to or shall confer upon any Person other than the parties and their
respective successors and permitted assigns any legal or equitable right,
benefit or remedy of any nature under or by reason of this Agreement.


 






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requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


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Section 8.8          Governing Law.  This Agreement and all disputes or
controversies arising out of or relating to this Agreement or the transactions
contemplated hereby shall be governed by, and construed in accordance with, the
internal laws of New York, without regard to the laws of any other jurisdiction
that might be applied because of the conflicts of laws principles of New York.


 


Section 8.9          Arbitration.


 


(a)        Any dispute, controversy,
or claim arising out of or relating to any provision of this Agreement or the
Ancillary Agreements, or the interpretation, enforceability, performance,
breach, termination, or validity of this Agreement or the Ancillary Agreements,
including, without limitation, this arbitration clause, shall be solely and
finally settled by arbitration in Kansas City, Missouri in accordance with the
Commercial Arbitration Rules and Supplementary Procedures for
International Commercial Arbitration of the American Arbitration Association (“AAA”)
in effect as of the date hereof as modified by the provisions of this Section 8.9.


 


(b)           The
award shall be deemed a United States award for purposes of the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the “New
York Convention”).  The English
language shall be used in the arbitral proceedings, and all documents,
exhibits, and other evidence shall be translated into the English language.  If any party so elects, iterative translation
into languages other than English may be provided at said party’s expense.


 


(c)           All
papers, documents, or evidence, whether written or oral, filed with or
presented to the arbitrator shall be deemed by the parties and the arbitrator
to be confidential information.  No
party, expert, or arbitrator shall disclose in whole or in part to any other
person any confidential information submitted by any other person in connection
with the arbitration proceedings, except to the extent (i) required by law
or regulation, (ii) reasonably necessary to assist counsel in the
arbitration or preparation for arbitration of the dispute, or (iii) that
such “confidential” information was previously (or subsequently becomes) known
to the disclosing party without restrictions on disclosure, was independently
developed by such disclosing party, or becomes publicly known through no fault
of the disclosing party.  Confidential
information may be disclosed to (1) attorneys, (2) parties, and (3) “qualified
outside experts” requested by any party’s counsel to furnish technical or
expert services or to give testimony at the arbitration proceedings.  Outside experts shall be qualified by
agreement of the parties or by order of the arbitrator in the following
manner:  before disclosure of
confidential information is made to a proposed outside expert (the “Proposed
Expert”), all parties (the “Disclosing Parties”) whose confidential
information will be disclosed to the Proposed Expert shall be provided with the
Proposed Expert’s identity, address, and a brief description of the Proposed
Expert’s professional and employment background and qualifications.  The Disclosing Parties shall, prior to the
disclosure, be entitled to object to such disclosure on the ground that it
could reasonably be expected that the disclosed information will not remain
confidential.  Such objection shall be
served to all other parties within ten Business Days after receipt of notice,
shall be stated in reasonable detail, and shall be in writing.  If the parties are unable to agree as to the
merits of the objection within ten Business Days after its receipt, the matter
shall be submitted to the


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 


45

















 


arbitrator. 
Before a Proposed Expert shall be qualified, the Proposed Expert shall
deliver to counsel for the Disclosing Parties a legally binding written
statement that the Proposed Expert (x) is fully familiar with the terms of
this Section 8.9, (y) agrees to comply with the
confidentiality terms of this Section 8.9, and (z) will not
use any disclosed confidential information for personal or business advantage.


 


(d)           The
arbitrator is empowered to render awards in accordance with any provision of
this Agreement by:  (i) enjoining a
party from performing any act prohibited, or compelling a party to perform any
act required, by the terms of this Agreement and any order entered pursuant to
this Agreement or deemed necessary by the arbitrator to resolve disputes
arising under or relating to this Agreement or any order; (ii) where, and
only where, violations of this Agreement have been found, shortening or
lengthening any period established by this Agreement or any order; and (iii) ordering
such other legal or equitable relief, including any provisional legal or
equitable relief, or specifying such procedures as the arbitrator deems appropriate,
to resolve any dispute submitted to it for arbitration.  There shall be no pre-hearing discovery of
any kind, nor shall either party be required to produce documents or witnesses
either at or prior to the arbitration hearing. 
The arbitrator shall not be empowered to award consequential or punitive
damages.


 


(e)           Either
party may file an application in any proper court for a provisional remedy in
connection with an arbitrable controversy hereunder, but only upon the ground
that the award to which the applicant may be entitled may be rendered
ineffectual without provisional relief.


 


(f)            The
arbitrator shall issue a written explanation of the reasons for the award and a
full statement of the facts as found and the rules of law applied in
reaching the decision to both parties.


 


(g)           Any
monetary awards shall be made and shall be payable in U.S. dollars free of any
tax or any other deduction.  Monetary
awards shall include interest from the date of breach or other violation of
this Agreement to the date when the award is paid in full.  The interest rate or rates applied during
such period shall be that set forth in Section 2.7(d) of this
Agreement.


 


(h)           The
award of the arbitral tribunal will be the sole and exclusive remedy between
the parties regarding any and all claims and counterclaims with respect to the
subject matter of the arbitrated dispute. 
An award rendered in connection with an arbitration pursuant to this Section 8.9
shall be final and binding upon the parties, and any judgment upon such an award
may be entered and enforced in any court of competent jurisdiction.  The parties hereby waive all jurisdictional
defenses in connection with any arbitration hereunder or the enforcement of an
order or award rendered pursuant thereto (assuming that the terms and
conditions of this arbitration clause have been complied with) and defenses
based on the general invalidity of the underlying Agreement or this arbitration
clause.  For purposes of the New York
Convention, the relationship between the parties is commercial in nature, and
any disputes between the parties related to this Agreement shall be deemed
commercial.  With respect to any order
issued by the arbitrator pursuant to this Agreement, the parties expressly agree
and consent (i) to the bringing of an action by one party against the
other in the courts of Missouri, California or New York to enforce and confirm
such order; (ii) that such order shall be conclusive proof of the validity
of 


 






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the Securities and Exchange Commission.


 


46

















 


the determination(s) of the arbitrator(s) underlying
such order; and (iii) that either the State or any federal court sitting
in Missouri, California or New York may enter judgment upon and enforce such
order, whether pursuant to the New York Convention, the U.S. Arbitration Act,
or otherwise.


 


(i)            Whether
or not this Section 8.9 is deemed a separate agreement, independent
from this Agreement, Sections 7.6, 8.1, 8.4, and 8.8
are incorporated herein by reference.


 


Section 8.10        Assignment; Successors.  Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any of the parties
without the prior written consent of the Sellers and the Buyers, and any such
assignment without such prior written consent shall be null and void; provided,
however, that the Buyers may assign this Agreement to any Affiliate of
either Buyer without the prior consent of the Sellers; provided  still
further, that no assignment shall limit the assignor’s obligations
hereunder.  Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.


 


Section 8.11        Enforcement.  The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached.  Accordingly, each of the
parties shall be entitled to specific performance of the terms hereof,
including an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement in any
California state or federal court sitting in the City of Los Angeles (or, if
such court lacks subject matter jurisdiction, in any appropriate California
state or federal court), this being in addition to any other remedy to which
such party is entitled at law or in equity. 
Each of the parties hereby further waives (a) any defense in any
action for specific performance that a remedy at law would be adequate and (b) any
requirement under any law to post security as a prerequisite to obtaining
equitable relief.  The non-prevailing
party or parties with respect to any enforcement brought under this Section 8.11
shall be liable to pay all costs, including reasonable attorneys’ fees and
expenses that the prevailing party or parties may incur, whether or not
litigation is actually commenced and including litigation of any appeal.


 


Section 8.12        Currency.  All references to “dollars” or “$” or “US$”
in this Agreement or any Ancillary Agreement refer to United States dollars,
which is the currency used for all purposes in this Agreement and any Ancillary
Agreement.


 


Section 8.13        Severability.  Whenever possible, each provision or portion
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable Law, but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or unenforceable
in any respect under any applicable Law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.


 






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the Securities and Exchange Commission.


 


47

















 


Section 8.14        Waiver of Jury Trial.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


Section 8.15        Counterparts.  This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party.


 


Section 8.16        Facsimile Signature.  This Agreement may be executed by facsimile
signature and a facsimile signature shall constitute an original for all
purposes.


 


Section 8.17        Time of Essence.  Time is of the essence with regard to all
dates and time periods set forth or referred to in this Agreement.


 


Section 8.18        No Presumption Against
Drafting Party.  Each of the Buyers
and the Sellers acknowledges that each party to this Agreement has been represented
by counsel in connection with this Agreement and the transactions contemplated
by this Agreement.  Accordingly, any rule of
law or any legal decision that would require interpretation of any claimed
ambiguities in this Agreement against the drafting party has no application and
is expressly waived.


 


Section 8.19        Joint and Several.  Notwithstanding anything else contained
herein, All obligations of the Sellers hereunder shall be joint and several
among the Sellers and all obligations of the Buyers hereunder shall be joint
and several among the Buyers.


 


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the Securities and Exchange Commission.


 


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IN WITNESS WHEREOF, the Sellers and the Buyers have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.


 


 


	
   

  	
  MIVA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Corrao

  
	
   

  	
   

  	
  Name:
  Peter A. Corrao

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  B&B ADVERTISING, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Corrao

  
	
   

  	
   

  	
  Name:
  Peter A. Corrao

  
	
   

  	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MIVA (UK) LIMITED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter A. Corrao

  
	
   

  	
   

  	
  Name:
  Peter A. Corrao

  
	
   

  	
   

  	
  Title:
  Director

  



 


 


ASSET PURCHASE AGREEMENT SIGNATURE PAGE


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.


 

















 


	
   

  	
  U.S. ACQUISITION SUB, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Lynn

  
	
   

  	
   

  	
    Name: Scott Lynn

  
	
   

  	
   

  	
    Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AJAX MEDIA LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Lynn

  
	
   

  	
   

  	
    Name: Scott Lynn

  
	
   

  	
   

  	
    Title: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ADKNOWLEDGE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott
  Lynn

  
	
   

  	
   

  	
    Name: Scott Lynn

  
	
   

  	
   

  	
    Title: Chief Executive Officer

  



 


ASSET PURCHASE AGREEMENT SIGNATURE PAGE


 






[***] = Confidential treatment
requested for redacted portion; redacted portion has been filed separately with
the Securities and Exchange Commission.