AND SELLER'S
SHAREHOLDERS ARE READY, WILLING AND ABLE TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED TO BE PERFORMED THEREBY AS OF THE CLOSING DATE HEREUNDER, AND ALL
CLOSING CONDITIONS REQUIRED HEREUNDER TO BE PERFORMED OR SATISFIED BY SELLER OR
SELLER'S SHAREHOLDERS OR THEIR RESPECTIVE DESIGNEES HAVE BEEN SO PERFORMED AND
SATISFIED; AND (II) (X) PURCHASER AND TRAFFIX HAVE NOT RECEIVED THE FAIRNESS
OPINION DUE TO ANY REASON OTHER THAN THE FAILURE OF SELLER OR SELLER'S
SHAREHOLDERS TO REASONABLY COOPERATE WITH THE PURCHASER AND TRAFFIX AND THEIR
DESIGNEES IN THE PREPARATION OF THE FAIRNESS OPINION, OR (Y) THE FAIRNESS
OPINION OPINES, INTER ALIA, THAT THE TRANSACTIONS CONTEMPLATED HEREBY ARE NOT
FAIR TO THE STOCKHOLDERS OF TRAFFIX FROM A FINANCIAL POINT OF VIEW, THEN EITHER
SELLER OR PURCHASER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO THE OTHER,
WHEREUPON SELLER MAY RETAIN THE $200,000 PAID IN ACCORDANCE WITH SECTION 4.1
HEREOF AS A TERMINATION FEE AND THEREAFTER NEITHER PARTY HERETO SHALL HAVE ANY
FURTHER RIGHTS AGAINST OR OBLIGATIONS TO THE OTHER.
(b)
In the event that (i) Seller and Seller's Shareholders have not
reasonably cooperated with the Purchaser and Traffix and their designees in
their preparation of the Fairness Opinion, or (ii) on June 30, 2004, Seller and
Seller's Shareholders are not ready, willing and able to consummate the
transactions contemplated to be performed thereby as of the Closing Date
hereunder, or all Closing conditions required hereunder to be performed or
satisfied by Purchaser and Traffix or their respective designees have not been
so performed and satisfied, then, in either of such instances, Seller shall
immediately return the $200,000 paid in accordance with Section 4.1 and this
Agreement shall continue in full force and effect, with the Closing Date being
July 15, 2004, time being of the essence.
4.3
Deliveries by Seller at Closing.
At the Closing, Seller shall deliver, or cause to be delivered, to Traffix and
New Send:
(1)
(A)
A CERTIFICATE ISSUED BY THE SECRETARY OF STATE OF THE STATE
OF NEW YORK, CERTIFYING THAT ST IS A CORPORATION DULY ORGANIZED AND EXISTING IN
GOOD STANDING UNDER THE LAW OF THE STATE OF NEW YORK, AND COPIES OF ST'S
CERTIFICATE OF INCORPORATION, INCLUDING ALL AMENDMENTS, CERTIFIED BY THE OFFICE
OF THE SECRETARY OF STATE OF NEW YORK, AND A CERTIFICATE FROM THE APPROPRIATE
OFFICE OF EACH OTHER STATE IN WHICH ST HAS QUALIFIED TO DO BUSINESS, TO THE
EFFECT THAT ST IS IN GOOD STANDING IN EACH STATE AND THAT IT OWES NO TAXES; AND
(b)
a certificate issued by the Secretary of State of the State of New York,
certifying that TG is a limited liability company duly organized and existing in
good standing under the law of the State of New York, and copies of TG's
Certificate of Formation and Articles of Organization, including all amendments,
certified by the office of the Secretary of State of New York, and a certificate
from the appropriate office of each other state in which TG has qualified to do
business, to the