Asset Purchase and Assumption of Liabilities Agreement - Concrete Media Inc. and Concrete Media Construction LLC
ASSET PURCHASE AND ASSUMPTION OF LIABILITIES AGREEMENT
BY AND BETWEEN
CONCRETE MEDIA, INC.
AND
CONCRETE MEDIA CONSTRUCTION, LLC
DECEMBER 30, 1998
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This ASSET PURCHASE AND ASSUMPTION OF LIABILITIES AGREEMENT (this
"Agreement") is entered into this 30th day of December, 1998, by and between
CONCRETE MEDIA, INC., a Delaware corporation ("CMI"), and CONCRETE MEDIA
CONSTRUCTION, LLC, a Delaware limited liability company ("Concrete Media
Construction").
WHEREAS, CMI now desires to sell and transfer to Concrete Media
Construction all of the assets as listed on the attached Exhibit 1.01 (the
"Assets"); and
WHEREAS, Concrete Media Construction desires to purchase and acquire the
Assets and desires to become liable for paying, performing and discharging the
liabilities and obligations arising out of or relating to the business of
website development services as previously conducted by CMI or arising out of or
relating to the Assets, of whatever kind or nature, whether contingent or
absolute, whether known or unknown, whether arising prior to or on or after
December 30, 1998, including without limitation, those listed on Exhibit 1.02
and all of the foregoing liabilities and obligations described in this Agreement
(the "Liabilities").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
ARTICLE I
TRANSFER AND SALE OF ASSETS
SECTION 1.01 Transfer and Sale of the Assets. On the terms and subject to
the conditions of this Agreement, CMI agrees to sell, convey, transfer, assign
and deliver to Concrete Media Construction, and Concrete Media Construction
agrees to receive from CMI on December 30, 1998, the Assets pursuant to a Bill
of Sale in the form of Exhibit 1.03 attached hereto.
SECTION 1.02 Consideration for the Assets. In consideration for the
purchase and sale of the Assets, upon the terms and subject to the conditions
set forth in this Agreement, on December 30, 1998, Concrete Media Construction
shall execute a promissory note dated December 30, 1998, payable to CMI in the
principal amount of $315,000 due December 30, 2001 and also shall execute a
promissory note dated December 30, 1998, payable to CMI in the principal amount
of $105,000 due January 15, 1999. The closing of the transactions contemplated
hereby (the "Closing") shall take place at 10:00 a.m., eastern standard time, on
December 30, 1998 (or if the conditions to the Closing shall not have been
satisfied or waived by such date then as soon as practicable thereafter (the
"Closing Date").
SECTION 1.03 Assumption of Liabilities and Covenant to Satisfy all
Liabilities. As of the close of business on December 30, 1998, Concrete Media
Construction shall assume and satisfy, discharge and be primarily liable for
paying, performing and discharging the Liabilities.
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Notwithstanding the provisions of this Agreement or any exhibit hereto,
Concrete Media Construction shall assume any and all liabilities, obligations or
commitments with respect to the Concrete Media Construction business (the
"Website Business") or the Assets, of any nature whatsoever, whether known or
unknown, contingent or otherwise, including, but not limited to, any such
liabilities, obligations or commitments to any affiliate of CMI or any other
third party from the beginning of time to the date hereof.
SECTION 1.04 Concrete Media Construction Indemnification of CMI. Concrete
Media Construction, by its officers and managers, covenants and agrees to
defend, indemnify and hold harmless CMI (and its successors-in-interest), its
stockholders, officers, directors, employees, agents, advisers, representatives
and affiliates (collectively, the "CMI Indemnitees") from and against, and shall
pay or reimburse CMI Indemnitees for, any and all actions, causes of actions,
suits, debts, losses, charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages, and expenses (including attorney
fees and costs actually incurred), of any nature whatsoever, in law or equity
(collectively "Claims"), which arise out of or are related to (i) the conduct of
the Website Business or (ii) the Assets, regardless of whether known or unknown
or incurred before or after the date of this Agreement.
SECTION 1.05 Further Assurances. At any time and from time to time after
December 30, 1998, at the request of any party hereto and without further
consideration CMI and Concrete Media Construction shall execute and deliver such
other instruments of sale, transfer, conveyance, assignment and confirmation as
may be reasonably requested in order more effectively to sell, transfer, convey
and assign to Concrete Media Construction and to confirm Concrete Media
Construction's title to the Assets and Concrete Media Construction's obligations
with respect to the Liabilities.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF CMI
CMI represents and warrants to Concrete Media Construction as follows:
SECTION 2.01 Organization and Qualification. CMI is a corporation duly
organized, validly existing and in good standing under the laws of State of
Delaware and is duly licensed or qualified to transact business as a foreign
corporation in the State of New York and is in good standing in the State of New
York.
SECTION 2.02 Corporate Power and Authority. CMI has the corporate power
and authority to own and hold its properties and to carry on its business. CMI
has the corporate power and authority to execute, deliver and perform this
Agreement and the other documents and instruments contemplated hereby. The
execution, delivery and performance of this Agreement and the documents
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby have been duly authorized and approved by CMI. This Agreement and
each of the other agreements, documents and instruments to be executed and
delivered by CMI have
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been duly executed and delivered by, and constitute the legal, valid and binding
obligation of, CMI enforceable against CMI in accordance with their terms.
SECTION 2.03 Validity, Etc. Neither the execution and delivery of this
Agreement and the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) violate, conflict with or
result in any breach of any trust agreement, certificate of incorporation,
bylaw, judgment, decree, order, statute or regulation applicable to CMI, (ii)
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority or (iii) violate,
conflict with or result in a breach, default or termination of, or give rise to
any right of termination, cancellation or acceleration of the maturity of any
payment date of, any of the obligations of CMI.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CONCRETE MEDIA CONSTRUCTION
Concrete Media Construction represents and warrants to CMI as follows:
SECTION 3.01 Organization. Concrete Media Construction is duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to transact business as a foreign corporation in each
jurisdiction in which the failure to so qualify would have a material adverse
impact on the Concrete Media Construction's ability to purchase the Assets and
Concrete Media Construction's ability to assume the Liabilities herein.
SECTION 3.02 Concrete Media Construction Power and Authority. Concrete
Media Construction has the corporate power and authority to execute, deliver and
perform this Agreement and the other documents and instruments contemplated
hereby. The execution, delivery and performance of this Agreement and the
documents contemplated hereby and the consummation of the transactions
contemplated hereby and thereby have been duly authorized and approved by
Concrete Media Construction. This Agreement and each of the other agreements,
documents and instruments to be executed and delivered by Concrete Media
Construction have been duly executed and delivered by, and constitute the valid
and binding obligation of Concrete Media Construction enforceable against
Concrete Media Construction in accordance with their terms.
SECTION 3.03 Validity, Etc. Neither the execution and delivery of this
Agreement nor the other documents and instruments contemplated hereby, the
consummation of the transactions contemplated hereby or thereby, nor the
performance of this Agreement and such other agreements in compliance with the
terms and conditions hereof and thereof will (i) conflict with or result in any
breach of any trust agreement, certificate of organization, bylaw, judgment,
decree, order, statute or regulation applicable to Concrete Media Construction
(ii) require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority, (iii) result in a
breach of or default (or give rise to any right of termination, cancellation or
acceleration) under any law, rule or regulation or any judgment,
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decree, order, governmental permit, license or order or any of the terms,
conditions or provisions of any mortgage, indenture, note, license, agreement or
other instrument to which Concrete Media Construction is a party or (v) violate
any order, writ, injunction, decree, statute, rule or regulation applicable to
Concrete Media Construction.
SECTION 3.04 No Violation of Laws or Contracts. Neither the execution and
performance of this Agreement, the Note or the other agreements executed by
Concrete Media Construction in accordance with the terms hereof, nor the
consummation of the transactions contemplated hereby and thereby, will violate
any provisions of law, any order of any court or other agency or government, or
any ordinance, indenture or agreement to which Concrete Media Construction is a
party.
ARTICLE IV
FORWARD COMMUNICATIONS
SECTION 4.01. Forward Communications. Any written communication received
at any time by CMI with respect to any of the Assets or Liabilities shall be
transmitted by CMI to Concrete Media Construction within two (2) business days
of receipt.
ARTICLE V
COVENANT OF CMI
SECTION 5.01. Use of Name. CMI hereby covenants and agrees that it shall
use the name "Concrete Media" only for so long and up until such time as it
merges with Bolt Media, Inc. Effective upon the merger, the name of the
surviving corporation will be Bolt Media, Inc.
ARTICLE VI
COVENANT OF CONCRETE MEDIA CONSTRUCTION
SECTION 6.01. Permission to Use Name. Concrete Media Construction hereby
covenants and agrees that it shall allow CMI to continue to use the name
"Concrete Media" only for so long and up until such time as CMI merges with Bolt
Media, Inc. Upon the effective date of the merger, CMI shall cease using the
name "Concrete Media."
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IN WITNESS WHEREOF, Concrete Media, Inc. and Concrete Media Construction
LLC have each executed this Asset Purchase and Assumption of Liabilities
Agreement as of the day and year first above written.
CONCRETE MEDIA, INC.
By: /s/ Daniel A. Pelson
-----------------------------------
Name: Daniel A. Pelson
Title: CEO
CONCRETE MEDIA CONSTRUCTION, LLC
By: /s/ Aaron Cohen
-----------------------------------
Name: Aaron Cohen
Title: President
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EXHIBITS
1.01 List of Assets
1.02 List of Liabilities
1.03 Bill of Sale
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EXHIBIT 1.01
LIST OF ASSETS
Twelve (12) Work Stations (i.e. computer hard drive, monitor, modem).
Two (2) Servers (i.e., two mainframe computers).
The Name "Concrete Media".
All agreements, contracts and understandings relating to the services
provided to the following customers:
ABC
Bertelsmann
Hachette Filipacchi New Media
iBalls (Site design and maintenance only)
Isiah International/Isiah Investment, LLC
The Princeton Review (Site design and maintenance only)
Time Warner
Toymax
Tripod (Site design and maintenance only)
Village Voice (Site design and maintenance only)
Employees to be Transferred
Glaucia W. Cappelozza
Christopher Cody
Aaron Cohen
Hanna K. Dunston
Jennifer A. Fixman
David S. Goodman
William H. Hadley
Douglas McLellan
Phuong-Dao T. Nguyen
Liza Pagano
Jorge E. Pedroza
Anh Tuan Pham
Enja H. Schenck
Alvin R. Townsend, Jr.
Yuri Bogdanowsky
Michael Human
Diane J. Goodman
Shannon McGarity
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EXHIBIT 1.02
LIST OF LIABILITIES
(1) Warranty Liability, in the amount of seventy-five thousands dollars
($75,000.00).
(2) Vacation Accrual, in the amount of fifteen thousand dollars ($15,000).
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EXHIBIT 1.03
BILL OF SALE
This Bill of Sale dated December 30, 1998 is executed and delivered by
Concrete Media, Inc., a Delaware corporation (the "Seller"), in connection with
the Asset Purchase and Assumption of Liabilities Agreement (the "Asset Purchase
Agreement") dated December 30, 1998, by and between the Seller and Concrete
Media Construction, LLC (the "Buyer").
WHEREAS, pursuant to the Asset Purchase Agreement, the Seller has agreed
to sell, transfer, convey, assign and deliver to the Buyer the assets listed on
the attached Exhibit A.
NOW, THEREFORE, in consideration of the execution and delivery of the
Asset Purchase Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged subject to the terms of
the Asset Purchase Agreement, the Seller hereby agrees as follows:
1. The Seller hereby sells, transfers, conveys, assigns and delivers to
the Buyer and its successors and assigns, all right, title and interest in and
to all of the assets, properties and rights of the Seller as listed on the
attached Exhibit A.
2. The Seller hereby agrees to execute and deliver after December 30, 1998
such other instruments or documents and to take such additional actions as may
be reasonably requested by the other in order to effect or complete the transfer
contemplated hereby.
3. This Bill of Sale is intended to evidence the consummation of the sale
and transfer by the Seller to the Buyer of the Assets as listed on the attached
Exhibit A, all as contemplated by the Asset Purchase Agreement. The Seller, by
its execution of this Bill of Sale, and the Buyer, by its acceptance of this
Bill of Sale, each hereby acknowledge and agree that the remedies of any party
under the Asset Purchase Agreement shall not be deemed to be enlarged, modified
or altered in any way by this Bill of Sale. Any inconsistencies or ambiguities
between this Bill of Sale and the Asset Purchase Agreement shall be resolved in
favor of the Asset Purchase Agreement.
4. This Bill of Sale shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflict of law
principles thereof.
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this instrument
to be duly executed under seal as of and on the date first above written.
CONCRETE MEDIA, INC., as Seller
By: _________________________________
Name:
Title:
AGREED AND ACCEPTED:
CONCRETE MEDIA CONSTRUCTION, LLC,
as Buyer
By: _______________________________
Name:
Title:
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EXHIBIT A
LIST OF ASSETS
Twelve (12) Work Stations (i.e. computer hard drive, monitor, modem).
Two (2) Servers (i.e., two mainframe computers)
The Name "Concrete Media".
All agreements, contracts and understandings relating to the services
provided to the following customers:
ABC
Bertelsmann
Hachette Filipacchi New Media
iBalls (Site design and maintenance only)
Isiah International/Isiah Investment, LLC
The Princeton Review (Site design and maintenance only)
Time Warner
Toymax
Tripod (Site design and maintenance only)
Village Voice (Site design and maintenance only)
Employees to be Transferred
Glaucia W. Cappelozza
Christopher Cody
Aaron Cohen
Hanna K. Dunston
Jennifer A. Fixman
David S. Goodman
William H. Hadley
Douglas McLellan
Phuong-Dao T. Nguyen
Liza Pagano
Jorge E. Pedroza
Anh Tuan Pham
Enja H. Schenck
Alvin R. Townsend, Jr.
Yuri Bogdanowsky
Michael Human
Diane J. Goodman
Shannon McGarity
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