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Asset Purchase Agreement

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Title:

Asset Purchase Agreement

Entities:

JPMorgan Chase Bank; Jupitermedia Corp.; Royal Bank of Scotland plc; Willkie Farr & Gallagher

Date:

2005

Size:

156KB total

Price:

$66

ID:

#923047

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ASSET PURCHASE AGREEMENT

by and between

INCISIVE MEDIA PLC

and

JUPITERMEDIA CORPORATION

August 2, 2005

Table of Contents


ARTICLE I SALE OF ASSETS AND TERMS OF PAYMENT			1

	1.01	Assets Being Sold	1

	1.02	Excluded Assets	4

	1.03	Assumed Liabilities	4

	1.04	Excluded Liabilities	5

	1.05	Payment	6

	1.06	Allocation of the Purchase Price	6

	1.07	Purchase Price Adjustments	7

	1.08	Absolute Sale	9

	1.09	Consents	9

	1.10	Bulk Sales Laws	10

ARTICLE II RELATED AGREEMENTS			10

	2.01	Escrow Agreement	10

	2.02	Assignment, Bill of Sale and Assumption	10

	2.03	Trademark Assignment	10

	2.04	Transition Services Agreement	10

	2.05	Assignment of Consulting Agreements	10

	2.06	Cash Realisation Agreement	11

	2.07	Incisive Side Letter Agreement	11

	2.08	RBS Side Letter	11

	2.09	Incisive Side Letter	11

ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER			11

	3.01	Organization and Good Standing	11

	3.02	Authorization, Compliance with Other Instruments and Law	11

	3.03	Financial Statements	12

	3.04	Operation of the Seller in the Ordinary Course	13

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	3.05	Tax Matters	14

	3.06	Material Contracts and Commitments	14

	3.07	Licenses, Permits and Authorizations	15

	3.08	Title to Purchased Assets	16

	3.09	Transferred Intellectual Property	16

	3.10	[Intentionally Omitted]	18

	3.11	Litigation and Other Claims	18

	3.12	Material Adverse Events	18

	3.13	Sufficiency of Purchased Assets	18

	3.14	Compliance with Laws	18

	3.15	Insurance	18

	3.16	Accounts Receivable	19

	3.17	Labor Matters	19

	3.18	Condition of Purchased Assets	20

	3.19	Absence of Certain Payments	20

	3.20	Delegates and Subscribers	20

	3.21	Full Disclosure	21

	3.22	Subsidiaries	21

	3.23	San Jose and Chicago Conference Events	21

ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER			21

	4.01	Organization	21

	4.02	Due Authorization	21

	4.03	Consents	22

	4.04	Financing	22

ARTICLE V COVENANTS PENDING CLOSING			22

	5.01	Conduct of SES Business Prior to the Closing	22

	5.02	Access to Information	23

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	5.03	Consents	23

	5.04	Public Announcements	23

	5.05	Confidentiality.	24

	5.06	Related Agreements	25

	5.07	No-Shop	25

	5.08	Efforts to Close	25

	5.09	Filings and Approvals	25

	5.10	Financing	25

	5.11	Notice of Developments	25

	5.12	Software License	26

ARTICLE VI CLOSING CONDITIONS			26

	6.01	Conditions to Each Partys Obligations to Effect the Transactions Contemplated Hereby	26

	6.02	Conditions to the Obligations of the Seller to Effect the Transactions Contemplated Hereby	26

	6.03	Conditions to the Obligations of the Buyer to Effect the Transactions Contemplated Hereby	27

ARTICLE VII THE CLOSING			28

	7.01	Time and Place of Closing	28

	7.02	Closing	29

ARTICLE VIII TRANSFERRED EMPLOYEES			29

	8.01	Employment with the Seller; Transferred Employees	29

	8.02	Comparable Employee Benefits	31

	8.03	Vacation	31

	8.04	Third Parties	32

ARTICLE IX WORKERS COMPENSATION			32

	9.01	Workers Compensation	32

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ARTICLE X POST-CLOSING COVENANTS			32

	10.01	Further Assurances	32

	10.02	Commissions and Fees	33

	10.03	Sales, Transfer and Use Taxes	33

	10.04	Nondisclosure; Noncompetition	34

	10.05	Indemnification	35

	10.06	Defense of Claims	36

	10.07	Expenses	38

ARTICLE XI MISCELLANEOUS			38

	11.01	Binding Effect	38

	11.02	No Assignment	38

	11.03	Counterparts	38

	11.04	Governing Law	39

	11.05	Suits in New York	39

	11.06	Survival	39

	11.07	Notices	39

	11.08	Amendment and Modification	40

	11.09	Waiver of Compliance	40

	11.10	Interpretation	40

	11.11	Entire Agreement	41

	11.12	Severability of Covenants	41

	11.13	No Third-Party Beneficiaries	41

ARTICLE XII TERMINATION AND ABANDONMENT			41

	12.01	Termination	41

	12.02	Procedure and Effect of Termination	42

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SCHEDULES


Schedule		Description
1.01(a)		Intellectual Property

1.01(b)		Equipment or Assets Primarily Related to the SES Business

1.01(c)		Purchased Material Contracts

1.01(e)		Governmental Licenses, Permits and Authorizations

1.01(f)		Accounts Receivable

1.01(g)		Cash Receipts

1.01(h)		Prepaid Expenses

1.02		Excluded Assets

1.03		List of Refund Requests with Refund Request Break Down

2.05		Consulting Agreements

3.02		Liens and Encumbrances

3.03		Financial Statements

3.04		Operation of SES Business in Ordinary Course

3.05		Tax Matters

3.06		Material Contracts in connection with SES Business

3.07		Licenses, Permits and Authorizations

3.08		Title Exceptions

3.09(b)		Third Party Complaints for Infringement

3.09(c)		Patent or Registration issued to the Seller with respect to Transferred Intellectual Property

3.09(d)		Items of Transferred Intellectual Property used by the Seller pursuant to Licenses, Sublicenses, Agreement or Permission

3.09(f)		The Mailing Lists

3.11		Litigation and Other Claims

3.13		Sufficiency of Purchased Assets

3.15		Insurance

3.16		Accounts Receivable

3.17		Labor Matters

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3.20		Customers of the Sellers SES Business that have paid for Upcoming Conference Events.

5.03		List of all Consents required from Third Parties including Governmental Authorities to Consummate the Transaction Contemplated by this Agreement

10.02		Commissions and Fees

-vii-

EXHIBITS


Exhibit		Description
A		Form of Escrow Agreement

B		Form of Assignment, Bill of Sale and Assumption Agreement

C		Form of Trademark Assignment

D		Form of Transition Services Agreement

E		Form of Cash Realisation Agreement

F		Side Letter Agreement

G		RBS Side Letter

H		Incisive Side Letter

Appendix I		Definitions

-viii-

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (the Agreement) is made the 2nd day of August, 2005 by and between JUPITERMEDIA CORPORATION, a Delaware corporation with its principal place of business at 23 Old Kings Highway South, Darien, Connecticut -06820 (the Seller) and INCISIVE MEDIA PLC, a limited company registered in England and Wales with its principal place of business at Haymarket House, 28-29 Haymarket, London, SW1Y 4RX, UK (the Buyer).

WHEREAS, the Seller maintains a business which is engaged in organizing Search Engine Strategies conferences and trade shows using the Search Engines Strategies name (the Conferences), maintains the ClickZ.com network of websites, which includes the SearchEngineWatch.com and SEMlist.com websites (the Websites) and is engaged in advertising activities (the Conferences together with the Websites and the advertising activities, the SES Business); and

WHEREAS, the Buyer desires to acquire and the Seller desires to sell certain assets and liabilities of the Seller representing the SES Business under the terms and conditions set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

ARTICLE I

SALE OF ASSETS AND TERMS OF PAYMENT

1.01 Assets Being Sold. The Seller agrees to sell and the Buyer agrees to purchase at the Closing all right, title, and interest to all of the assets (other than the Excluded Assets) constituting the SES Business as they shall exist on the Closing Date including, without limitation, the following assets (whether now owned or hereafter acquired prior to the Closing Date) to the extent that such assets relate primarily to the SES Business (the Purchased Assets):

(a) Intellectual Property. (i) all trademarks, service marks, trade dress, logos, slogans, brands, trade names, internet domain names, including the names Search Engine Strategies (also used in the abbreviated form of SES), SearchEngineWatch.com (also used in the abbreviated form of SEW), ClickZ.com and SEMlist.com, SES and SEW, together with all translations, adaptations, derivations, and combinations thereof, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (ii) all copyrightable works, all copyrights, and all applications, registrations, and renewals in connection therewith, (iii) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, processes and techniques, technical data, designs, drawings, specifications, house file databases, mailing lists, customer and supplier lists,

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