meanings specified in this Section 1.
Certain additional
defined terms are set forth elsewhere in this Agreement.
1.1
Acquired Assets.
"Acquired Assets" means, except as set forth on Schedule 1.1, assets of every
kind, character and description, whether tangible or intangible, whether real,
personal or mixed, and wherever situated, employed or held in connection with
the business or operations of Seller, including, without limitation, the
following:
(1)
ALL CASH, CASH EQUIVALENTS, ACCOUNTS RECEIVABLE AND ALL PROCEEDS
THEREOF;
(2)
ALL INVENTORY, WORK IN PROCESS, PRODUCT OR SERVICE IDEAS OR
PROPOSALS, SUPPLIES, SPARE PARTS AND OTHER TANGIBLE ASSETS USED IN CONNECTION
WITH THE SELLER'S BUSINESS;
(3)
ALL TRADE RIGHTS AND SPECIFICATIONS;
(4)
THE DOMAIN NAMES, INCLUDING, WITHOUT LIMITATION, THOSE LISTED ON
SCHEDULE 1.25 HEREOF, TOGETHER WITH THE GOODWILL ASSOCIATED WITH AND SYMBOLIZED
BY ANY DOMAIN NAMES AND REGISTRATION THEREOF AND ALL INTELLECTUAL PROPERTY
RIGHTS ASSOCIATED THEREWITH, INCLUDING, WITHOUT LIMITATION, ALL TRADE NAMES,
TRADEMARKS, SERVICE MARKS, COPYRIGHTS, COMMON LAW RIGHTS AND OTHER INTELLECTUAL
PROPERTY RIGHTS WHATSOEVER OR ANY INTEREST THEREIN (WHETHER OR NOT REGISTRABLE
UNDER COPYRIGHT, TRADEMARK OR SIMILAR STATUTES OR SUBJECT TO ANALOGOUS
PROTECTION), TOGETHER WITH ALL CLAIMS FOR DAMAGES BY REASON OF PAST INFRINGEMENT
OF SAID DOMAIN NAMES, WITH THE RIGHT TO SUE FOR AND COLLECT THE SAME FOR
PURCHASER'S OWN USE AND FOR THE USE OF ITS SUCCESSORS, ASSIGNS OR OTHER LEGAL
REPRESENTATIVES;
(5)
ALL OF THE FOLLOWING RELATING TO THE SELLER'S BUSINESS AND THE
TRADE RIGHTS: CUSTOMER LISTS, CUSTOMER INFORMATION AND IDENTIFICATIONS
(INCLUDING INTERNET ELECTRONIC MAIL ADDRESSES), DATABASES, ACCOUNT RECORDS,
PRICING INFORMATION, SALES LITERATURE, PROMOTIONAL LITERATURE AND ALL OTHER
BOOKS AND RECORDS, FILES, INVOICES, SUPPLIER LISTS, BLUEPRINTS, SPECIFICATIONS,
DESIGNS, DRAWINGS, PROTOTYPES, LETTERS OF CREDIT, PREPAID ITEMS AND DEPOSITS,
AND THE NAMES "SENDTRAFFIC" AND "TRAFFICGROUP" TOGETHER WITH ANY GOODWILL
ASSOCIATED THEREWITH;
(6)
ALL MACHINERY AND EQUIPMENT;
(7)
GOODWILL; AND
(8)
ALL CONTRACTS AND ALL WARRANTIES, CLAIMS AND CAUSES OF ACTION
AGAINST THIRD PARTIES RELATING TO ANY OF THE ACQUIRED ASSETS.
1.2
Acquired Liabilities.
"Acquired Liabilities" means only those liabilities of Seller listed on Schedule
1.2, but shall in any case exclude the Excluded Liabilities.
1.3
Affiliate.
"Affiliate" means, with respect to any Person, any other Person, directly or
indirectly controlling, controlled by or under common control with such Person.
1.4
Asserted Liability.
"Asserted Liability" has the meaning given in Section 8.4(a).
1.5
Balance Sheet Date.
"Balance Sheet Date" means March 31, 2004.
1.6
Bill of Sale.
"Bill of Sale" means the Bill of Sale in the form of Schedule 1.6.
1.7
Blue Sky Laws.
"Blue Sky Laws" means the laws of any state, the District of Columbia, or any
territory or other jurisdiction in the United States governing the purchase
and/or sale of securities in such jurisdiction.
1.8
Business Day.
"Business Day" means a day, other than Saturday, Sunday or a day on which banks
in New York City are required or permitted to be closed.
1.9
Cash Component.
"Cash Component" means $3,750,000, subject to increase as provided in Section
1.67.
2
1.10
Claims.
"Claims" has the meaning