DOCUMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH OR CONTEMPLATED HEREBY,
SHALL CONSTITUTE AN ASSIGNMENT OR ASSUMPTION THEREOF, OR ATTEMPTED ASSIGNMENT OR
ATTEMPTED ASSUMPTION THEREOF, IF SUCH ASSIGNMENT OR ATTEMPTED ASSIGNMENT, OR
ASSUMPTION OR ATTEMPTED ASSUMPTION, WOULD CONSTITUTE A BREACH THEREOF.
(B)
IF, PRIOR TO THE CLOSING, SELLERS HAVE NOT OR CANNOT OBTAIN
SUCH CONSENT OR APPROVAL NECESSARY FOR THE ASSIGNMENT AND ASSUMPTION OF ANY OF
THE PURCHASED CONTRACTS (EACH A "NONASSIGNED ASSET"), SELLERS AND PURCHASER
AGREE TO USE COMMERCIALLY REASONABLE EFFORTS TO SECURE SUCH ASSIGNMENT AS SOON
AS PRACTICABLE.
UNLESS AND UNTIL SUCH NONASSIGNED ASSETS ARE ASSIGNED BY
SELLERS AND ASSUMED BY PURCHASER, SUCH NONASSIGNED ASSETS SHALL NOT CONSTITUTE
PURCHASED ASSETS, NOR SHALL ANY LIABILITIES RELATED THERETO CONSTITUTE ASSUMED
LIABILITIES.
1.3.
EXCLUDED ASSETS. ALL THE ASSETS OF SELLERS WHICH ARE NOT
SPECIFICALLY INCLUDED AS PURCHASED ASSETS HEREUNDER SHALL REMAIN THE ASSETS OF
SELLERS AND SHALL NOT BE SOLD OR CONVEYED HEREUNDER (THE "EXCLUDED ASSETS").
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PURCHASED ASSETS SHALL NOT
INCLUDE (A) CASH, RESTRICTED CASH, CASH EQUIVALENTS OR ACCOUNTS RECEIVABLE OF
ANY SELLER, (B) MARKETABLE SECURITIES HELD BY ANY SELLER, (C) THE CAPITAL STOCK,
MEMBERSHIP INTEREST OR OTHER EQUITY INTEREST OF ANY SELLER, (D) ANY SELLER'S
WEBSITES, INCLUDING EACH SUCH SITE'S CONTENT, LOOK AND FEEL, VERBIAGE AND
IMAGES, (E) THE DOMAIN NAMES LISTED ON SCHEDULE 1.3(E), (F) ALL EMPLOYMENT AND
CONSULTANT AGREEMENTS OF EITHER SELLER AND (G) THE OTHER ASSETS LISTED ON
SCHEDULE 1.3(F).
1.4.
ASSUMED LIABILITIES.
THE "ASSUMED LIABILITIES" SHALL CONSIST
SOLELY OF THE LIABILITIES AND OBLIGATIONS ARISING ON OR AFTER CLOSING UNDER EACH
PROPERLY ASSIGNED AND ASSUMED PURCHASED CONTRACT.
THE ASSUMED LIABILITIES SHALL
NOT INCLUDE ANY OUTSTANDING LIABILITIES OF SELLERS RELATED TO SELLERS'
PERFORMANCE (OR LACK THEREOF) UNDER ANY SUCH PURCHASED CONTRACT PRIOR TO
CLOSING.
AT THE CLOSING AND SUBJECT TO THE TERMS AND CONDITIONS SET FORTH
HEREIN, PURCHASER AND SELLERS SHALL EXECUTE AN "ASSUMPTION AGREEMENT", IN THE
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO ALL OF THE PARTIES, WHEREBY
PURCHASER WILL SOLELY AND EXCLUSIVELY UNDERTAKE, ASSUME AND AGREE TO PERFORM,
PAY, BECOME LIABLE FOR AND DISCHARGE WHEN DUE THE ASSUMED LIABILITIES.
1.5.
EXCLUDED LIABILITIES.
EXCEPT FOR THE ASSUMED LIABILITIES,
PURCHASER SHALL NOT ASSUME AND SHALL HAVE NO RESPONSIBILITY FOR ANY LIABILITIES
OF SELLERS OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE
ARISING IN CONNECTION WITH, OR RELATED TO, THE PURCHASED ASSETS.
SELLERS SHALL
HAVE NO RESPONSIBILITY FOR ANY LIABILITIES ARISING IN CONNECTION WITH, OR
RELATED TO, THE PURCHASED ASSETS AFTER THE CLOSING.
1.6.
NO EXPANSION OF THIRD PARTY RIGHTS.
THE ASSUMPTION BY PURCHASER
OF THE ASSUMED LIABILITIES SHALL IN NO WAY EXPAND THE RIGHTS OR REMEDIES OF ANY
THIRD PARTY AGAINST
3
PURCHASER, SELLERS OR ANY AFFILIATE OF ANY OF THEM AS COMPARED TO THE RIGHTS AND
REMEDIES WHICH SUCH THIRD PARTY WOULD HAVE HAD AGAINST THE SELLERS HAD PURCHASER
NOT ASSUMED SUCH OBLIGATIONS (OTHER THAN THE RIGHT TO ENFORCE ANY ASSUMED
LIABILITIES DIRECTLY AGAINST PURCHASER AS A RESULT OF THE ASSUMPTION OF THE
ASSUMED LIABILITIES BY PURCHASER).
2.
PURCHASE PRICE