ASSET PURCHASE AGREEMENT

ASSET PURCHASE AGREEMENT

by and between

ADEX MEDIA, INC .

and

BAY HARBOR MARKETING, LLC

August 29, 2008

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement ( “ Agreement ”) is entered into and made effective as of August 29, 2008 (“Effective Date”) by and between AdEx Media, Inc., a Delaware corporation (“ Buyer ”) and Bay Harbor Marketing, LLC, a California limited liability company (“ Company ”, and with Buyer, the “ Parties ” or individually “ Party ”).

RECITALS

WHEREAS, Company owns certain assets that it uses in the conduct of the Business (as defined below); and  

WHEREAS, Buyer desires to purchase from the Company, and the Company desires to sell to Buyer, the Purchased Assets (as defined below), upon the terms and subject to the conditions of this Agreement.

NOW THEREFORE, in consideration of the respective covenants and promises contained herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

As used herein, the terms below shall have the following meanings:

1.1   “ Action ” shall mean any action, claim, suit, litigation, proceeding, arbitral action, governmental audit, criminal prosecution, governmental investigation or unfair labor practice charge or complaint.

1.3   “ Ancillary Agreements ” shall mean the ancillary agreements to be entered into in connection with the consummation of the transactions contemplated by this Agreement.

1.4    “ Books and Records ” shall mean (a) all records and lists pertaining to the Business, including records and lists of Company relating to the customers, suppliers or personnel of the Business, (b) all product, business and marketing plans of Company relating to the Business, and (c) all books, ledgers, files, reports, plans, drawings and operating records of every kind maintained by Company relating to the Business.

1.5   “ Business ” shall mean Company’s online marketing business, including but not limited to Company’s lead generation platforms, networks and programs, Company’s proprietary financial guides and all content therein, and all associated Proprietary Rights, which Buyer shall continue to operate subsequent to the Closing with the Purchased Assets.

1.6   “ Business Day(s) ” shall mean any day other than a Saturday, Sunday, national holiday or other day on which banks are generally closed in the State of California.

1.9   “ Contract ” shall mean any agreement, contract, sub-contract, note, loan, evidence of indebtedness, lease, purchase order, letter of credit, indenture, security or pledge agreement, franchise agreement, undertaking, covenant not to compete, employment agreement, license, instrument, obligation or commitment to which the Company is a party or is bound, whether oral or written, that is necessarily related to one or more Purchased Assets or otherwise is material to the Business.

1.12   “ Court Order ” shall mean any judgment, writ, decision, consent decree, injunction, determination, ruling, or order of any federal, state or local court or governmental agency, department or authority that is binding on any person or its property under applicable law.

1.13   “ Damages ” shall mean damages, Liabilities, losses ( including diminution in value), obligations, deficiencies, claims, demands, Taxes, fines, penalties, costs, and expenses of any kind or nature whatsoever (whether or not arising out of third-party claims), including interest, costs of mitigation, lost profits, attorneys’ fees and all amounts paid in investigation, defense, or settlement of any of the foregoing.

1.14   “ Default ” shall mean (a) a breach of or default under any Contract, (b) the occurrence of an event that with the passage of time or the giving of notice or both would constitute a breach of or default under any Contract, or (c) the occurrence of an event that with or without the passage of time or the giving of notice or both would (i) give rise to a termination, renegotiation or acceleration under any Contract, or (ii) give rise to a right of termination, renegotiation or acceleration under any Contract.

1.15   “ Disclosure Schedule ” shall mean a schedule executed and delivered by the Company to Buyer as of the date hereof that sets forth the exceptions to the representations and warranties contained in Section 4 and certain other information called for by this Agreement.  Unless otherwise specified, each reference in this Agreement to any numbered schedule is a reference to that numbered schedule that is included in the Disclosure Schedule.

1.16   “ Encumbrance ” shall mean any claim, lien, pledge, option, charge, easement, security interest (including any security interest filed pursuant to a financing statement in order to perfect and/or establish the priority of such security interest), deed of trust, mortgage, right-of-way, encroachment, building or use restriction, conditional sales agreement, encumbrance or other right of third parties, whether voluntarily incurred or arising by operation of law, and includes any agreement to give any of the foregoing in the future, and any contingent sale or other title retention agreement or lease in the nature thereof.

1.18   “ Escrow Agreement ” means the escrow agreement entered into by Buyer, the Company and the Escrow Agent, in the form attached hereto as Exhibit C .

1.20   “ Financial Statements ” shall mean (i) the audited statement of results of operations of the Company and the Subsidiaries that covers the years ended December 31, 2006 and December 31, 2007, (ii) the audited balance sheets of the Company and the Subsidiaries as of December 31, 2006 and December 31, 2007, and (iii) the unaudited statements of results of operations of the Company and the Subsidiaries as of July 31, 2008.  The July 31, 2008, balance sheet is hereinafter referred to as the “ Most Recent Balance Sheet ” and July 31, 2008, is hereinafter referred to as the “ Most Recent Balance Sheet Date .”

1.22    “ IT Assets ” shall mean those Purchased Assets comprised of any computers, computer software, firmware, middleware, servers, workstations, routers, hubs, switches, data communications lines, and other information technology equipment, and all associated documentation.

1.23   “ Knowledge ” shall mean, with respect to the Company and the Subsidiaries, the knowledge of a particular fact, circumstance, event or matter in question of any manager, member, executive officer or director, or any employee having direct responsibility for the matter at issue (each, an “Entity Representative”).  Any such Entity Representative will be deemed to have knowledge of a particular fact, circumstance, event or other matter if (i) such Entity Representative has actual knowledge of the fact, circumstance or event or (ii) knowledge of such fact, circumstance or event would be obtained by reasonable inquiry under the circumstances.

1.24   “ Liabilities ” shall mean any direct or indirect liability, indebtedness, obligation, commitment, expense, claim, guaranty or endorsement of or by any person of any type, whether accrued, absolute, contingent, matured, unmatured or other.

1.25   “ Material Adverse Effect ” shall mean (a) with respect to the Business or the Purchased Assets, any material adverse effect or change in the condition (financial or other), business, results of operations, prospects, assets, Liabilities or operations of the Business and/ or the Purchased Assets or on the ability of the Company to consummate the transactions contemplated hereby, or any event or condition that could, with the passage of time, constitute a material adverse effect or material adverse change, and (b) with respect to Buyer, any material adverse effect or change in the condition (financial or other), business, results of operations, prospects, assets, Liabilities or operations of Buyer or on the ability of Buyer to consummate the transactions contemplated hereby, or any event or condition that could, with the passage of time, constitute a material adverse effect or material adverse change.

1.27   “ Ordinary Course of Business ” or “ Ordinary Course ” or any similar phrase shall mean the ordinary course of the Business consistent with the Company’s past commercially reasonable business practice ( including with respect to frequency and quantity).

1.28   “ Patents ” shall mean United States and foreign patents, letters patent, applications for any of the foregoing, all continuations, continuations in part, divisions, reissues, substitutions and extensions thereof, any and all rights corresponding thereto, and all inventions and discoveries that are or may be patentable.

1.29   “ Permits ” shall mean all licenses, registrations, certifications, permits, franchises, approvals, authorizations, consents or orders of, or filings with, any governmental authority, whether foreign, federal, state or local, or any other person, necessary or desirable for the present conduct of, or relating to the operation of the Business.

1.30   “ Proprietary Rights ” shall mean all Copyrights, Trademarks, Patents, technology rights and licenses, computer software ( including any source or object codes therefor or documentation relating thereto, other than generally commercially available third party software (a) that has not been materially modified by Company, (b) for which Company can either freely assign its rights to a successor of Company or that Buyer may separately obtain on reasonable terms, and (c) that is either subject only to a shrink wrap license agreement, or is immaterial to the Business), Trade Secrets, franchises, know-how, inventions, website and other media and text content, whether copyrighted, copyrightable or otherwise, designs, specifications, plans, processes, drawings, mask works, utility models, URLs and Domain Names, protocols, moral rights, internal operating systems and intellectual property rights of Company, including the Owned Proprietary Rights and the Licensed Proprietary Rights; and any renewal, extension, reissue, continuation, or division rights, applications, and/or registrations for any of the foregoing.

1.32   “ Regulations ” shall mean any laws, statutes, ordinances, regulations, rules, court decisions, principles of law, orders and other provisions of any foreign, federal, state or local government and any other governmental department or agency, including environmental laws, energy, motor vehicle safety, public utility, zoning, building and health codes, import and export laws, Foreign Corrupt Practices Act, and occupational safety and health and laws respecting employment practices, employee documentation, terms and conditions of employment and wages and hours.

2.1   Sale of Assets.  Upon the terms and subject to the conditions contained herein, at the Closing, Company shall sell, convey, transfer, assign, and deliver to Buyer, and Buyer shall purchase and acquire from Company, the Purchased Assets, free and clear of all Encumbrances, for the consideration specified below in Section 2.3 .    Schedule  2.1 contains an accurate list and summary descriptions of all Purchased Assets.

 

 

 

2.2   No Assumption of Liabilities .  The Buyer shall not assume, shall have no obligation to pay, perform or discharge, and shall not otherwise be responsible for, any obligations or Liabilities of the Company, any Subsidiary or any Affiliates, whether arising out of occurrences prior to, on or after the Closing Date, including but not limited to any (a) Taxes of Company; (b) Liabilities with respect to employees of Company and their dependents and beneficiaries, including Liabilities with respect to violations of labor or immigration laws, with respect to employment agreements, with respect to any benefits or benefit programs, including accrued vacation time, and with respect to any Tax withholdings to the extent existing or arising at or prior to the Closing Date; (c) Liabilities for tort claims that are based on acts or events that occurred at or prior to the Closing Date; (d) Liabilities with respect to alleged or actual infringement of proprietary rights or other intellectual property rights of any third party in connection with any products developed, produced, manufactured, marketed, sold, or offered for sale by the Business, in each case, at or prior to the Closing Date; (e) Liabilities relating to or arising out of any Default occurring prior to or upon the Closing Date; (f) litigation or other matters set forth on Schedule 4.14 ; or (g) Liabilities related to any trade or creditor debt.

(a)   At the Closing, Buyer will pay Company the sum of Fifty Thousand Dollars ($50,000) (the “ Cash Consideration ”) less any amounts deducted and withheld pursuant to Section 2.5 ;

(b)   At the Closing, Buyer will issue to Company fifty thousand (50,000) restricted shares of Buyer’s common stock (the “ Closing Shares ”), subject to Section 2.3.2;

(c)   At the Closing, Buyer will issue to Dufficy one hundred fifty two thousand one hundred fifty one (152,151) restricted shares of Buyer’s common stock (the “ Dufficy Shares ”) in consideration for Dufficy’s assumption of certain outstanding unsecured obligations of the Company to certain Company creditors;

(d)   At the Closing, Buyer will issue to Remington Partners, Inc. (“ Remington ”), a creditor of the Company, one hundred forty-seven thousand two hundred seventy-three (147,273) restricted shares of the Company’s common stock (the “ Remington Shares ”) in satisfaction in full of that certain outstanding obligation of the Company to Remington, evidenced by that certain Secured Promissory Note and Security Agreement dated May 24, 2007, by and between Company and Remington;

(e)   At the Closing, Buyer and the Company will enter into the Escrow Agreement, pursuant to which Buyer will issue to the Escrow Agent a number of restricted shares of Buyer’s common stock (the “ Earn Out Shares ”) as follows and subject to Section 2.3.2:

(i)   Buyer will deliver to the Escrow Agent a certificate, or certificates, representing one hundred fifty thousand (150,000) restricted shares of Buyer’s common stock in the name of the Company, to be held and distributed by the Escrow Agent in accordance with the terms of this Agreement and the Escrow Agreement.

(ii)   During the sixty-day period (the “ Earn Out Audit Period ”) following the expiration of the period commencing on the Closing Date and terminating on the twelve-month anniversary of the Closing Date (the “ Earn Out Period ”), Buyer shall conduct and complete an internal audit of the aggregate revenues generated by the Business during the Earn Out Period.

(iii)   If, at the conclusion of Buyer’s audit, the number of Earn Out Shares earned by the Company according to the Earn Out formula set forth on Schedule B (the “ Earned Shares ”) is greater than zero, then no later than ten days after the expiration of the Earn Out Audit Period (the “ Earn Out Payment Date ”), Buyer will instruct the Escrow Agent to release the Earned Shares from escrow and deliver the Earned Shares to the Company.  Buyer’s instruction of the Escrow Agent shall include a written instruction from Buyer to Buyer’s transfer agent, instructing such transfer agent to issue a new certificate in the amount of the Earned Shares to the Escrow Agent in the name of the Company.  Upon receipt of such instruction from Buyer, Escrow Agent shall promptly surrender the certificate(s) representing the Earn Out Shares to the Buyer’s transfer agent for cancellation together with the letter of instruction to issue a new certificate.  Promptly after Escrow Agent’s receipt of a certificate representing the Earned shares, Escrow Agent shall deliver such certificate to the Company.

(iv)   If, at the conclusion of Buyer’s audit, the amount of the Earned Shares is zero, Buyer will instruct the Escrow Agent to surrender the certificate(s) representing the Earn Out Shares to the Buyer’s transfer agent for cancellation and the Company shall have no further interest in the Earn Out Shares.

2.3.2   The Closing Shares and the Earn Out Shares will be subject to a lockup and share release schedule as set forth on Schedule C .  The Company will enter into a Lock-Up and Share Release Agreement with the Buyer substantially in the form attached hereto as Exhibit A .

2.3.3   The Closing Shares, the Dufficy Shares, the Remington Shares and the Earn Out Shares (collectively, the “ Shares ”), along with the Cash Consideration, shall constitute the total purchase price (the “ Purchase Price” ) for the Purchased Assets.

2.3.4   Buyer shall issue share certificates (“ Share Certificates ”) evidencing the Shares as soon as reasonably practicable after Closing.  The Parties agree and acknowledge that the issuance of Share Certificates by Buyer is not a condition precedent to Closing.

2.4   Purchase Price Allocation .  The Purchase Price shall be allocated among the Purchased Assets in the manner determined by Buyer and as required by Section 1060 of the Code (the “ Allocation ”).  The Allocation shall be conclusive and binding upon Buyer and the Company for all purposes, and Buyer and the Company agree that all returns and reports and all financial statements shall be prepared in a manner consistent with (and Buyer and Company shall not otherwise file a Tax Return position inconsistent with) the Allocation unless required by the Internal Revenue Service (“ IRS ”) or any other applicable taxing authority.   Buyer shall provide the allocation to the Company as soon as reasonably practicable following the Closing Date.   Buyer and the Company shall each prepare and file on a timely basis with the IRS substantially identical initial and supplemental IRS Forms 8594 “ Asset Acquisition Statements Under Section 1060” consistent with the Allocation.

 

 

 

2.5   Withholding .    Buyer shall be entitled to deduct and withhold from the Purchase Price such amounts as Buyer is required to deduct and withhold under the Code, or any provision of state, local, provincial or other tax law, with respect to the making of such payment. To the extent that amounts are so withheld by Buyer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid and delivered to the Company .

3.1   Closing .  Unless this Agreement is earlier terminated, and subject to the satisfaction or waiver of each of the conditions set forth herein in writing executed by the Parties, the closing of the acquisition of the Purchased Assets (the “ Closing ”) shall be held at the offices of Bullivant Houser Bailey PC, 601 California Street, Suite 1800, San Francisco, CA 94108 on August 29, 2008, or on such other date as Buyer and the Company may mutually agree in writing (the “ Closing Date ”).  All transactions at the Closing shall be deemed to take place simultaneously, and no transaction shall be deemed to have been completed and no documents or certificates shall be deemed to have been delivered until all other transactions are completed and all other documents and certificates are delivered.

3.2   Closing Transactions .  Upon the terms and subject to the conditions set forth in this Agreement, following execution of this Agreement and simultaneously with the Closing:

3.2.1   To effect the sale and transfer referred to in Section  2.1 , Buyer and Company shall execute and deliver or cause to be executed and delivered to the other Party, as applicable:

(a)   one or more Bills of Sale, conveying in the aggregate all of the Company’s owned personal property included in the Purchased Assets;

(b)   one or more Assignments of Contract Rights, to the extent necessary to assign in the aggregate all Contract Rights included in the Purchased Assets;

(c)   one or more Trademark Assignments, in recordable form to the extent necessary to assign in the aggregate all Trademarks included in the Purchased Assets;

(d)   one or more Domain Name Assignments, in recordable form to the extent necessary to assign in the aggregate all URLs and Domain Names included in the Purchased Assets; and

(e)   such other instruments as shall be reasonably requested by Buyer to vest in Buyer title in and to the Purchased Assets in accordance with the provisions hereof.

3.2.6   The Company shall file (where necessary) and deliver to Buyer all documents necessary, and shall have otherwise made any and all payments and taken any other actions necessary, to release the Purchased Assets from all Encumbrances, which documents shall be in form and substance reasonably satisfactory to Buyer.

3.2.7   The Company shall deliver to Buyer all third party consents required for the valid transfer of the Purchased Assets as contemplated by this Agreement.

3.2.9   The Company shall deliver to Buyer a Members’ Consent (“Members’ Consent ”) signed by the Members of the Company holding membership interests in the Company constituting, in the aggregate, a Percentage Interest (as defined in the Company’s Operating Agreement) in the Company that is greater than sixty percent (60%), approving this Agreement and the asset purchase transaction contemplated hereby, and further authorizing the Managing Member of the Company to execute and deliver this Agreement and all additional documents required to be executed and delivered by and on behalf of the Company under this Agreement and to take such additional actions as may be reasonably necessary to close this transaction.

3.2.10   The Company shall deliver to Buyer a certificate signed by the managing Member of the Company (the “ Seller Closing Certificate ”), stating that (i) Buyer’s acquisition of the Company’s assets and the execution of this Agreement have been approved by the Members of the Company in accordance with the Company Organizational Documents; (ii) the Members of the Company have authorized Dufficy to execute this Agreement and all Ancillary Agreements on the Company’s behalf; (iii) the representations and warranties of the Company are true and correct in all material respects as of the Closing Date, as if made as of the Closing Date; and (iv) the covenants and agreements of the Company to be performed on or prior to the Closing have been duly performed in all material respects.

4.1   Making of Representations and Warranties .  As a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated hereby and except as set forth on corresponding sections of the Disclosure Schedule , the Company hereby makes to Buyer the unqualified representations and warranties contained in this Article 4 .

4.2   Organization and Qualifications of Company .   The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California with corporate power and authority to conduct the Business in the manner and in the places where the Business is currently conducted or currently proposed to be conducted.  The copies of the Company’s Articles of Organization, as amended to date, certified by the Secretary of State of the State of California (the “ Company Charter ”), and of the Company’s other organizational documents, as amended to date (together with the Company Charter, the “ Company Organizational Documents ”), are complete and correct, and no amendments, restatements, supplements or modifications thereto are pending.   The Company is not in violation of any term of the Company Organizational Documents.   The Company is duly qualified or authorized to do business as a California limited liability company and is in good standing under the laws of California and each jurisdiction in which the conduct of the Business requires such qualification or authorization.

 

 

 

4.3   Authority of Company . The Company has full power and authority to enter into this Agreement and Ancillary Agreements and to carry out the transactions contemplated hereby or thereby.  The execution and delivery by the Company of this Agreement and, subject to requisite Member approval, the performance by the Company of this Agreement and the Ancillary Agreements and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of the Company. Without limiting the generality of the foregoing, the Members of the Company, by a vote in accordance with the Company Organizational Documents, determined that the transactions contemplated by this Agreement are fair to and in the best interests of the Company and its Members. This Agreement has been duly and validly executed and delivered by the Company and constitutes, and each of the Ancillary Agreements, upon its execution and delivery by the Company, will constitute, a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting or relating to creditors rights generally, and is subject to general principles of equity.

4.4.1   will not conflict with or violate any provision of the Company Organizational Documents or the charter, by-laws or other organizational document of any Subsidiary;

4.4.2   will not violate any applicable Regulations, including the laws of the United States and the State of California, or any state or other jurisdiction applicable to the Company or any Subsidiary or require the Company or any Subsidiary to obtain any approval, consent or waiver of, or make any notice to or filing with, any person or entity (governmental or otherwise) that has not been obtained or made, which would cause a Material Adverse Effect; and

4.4.3   will not result in a breach of, constitute a Default under, accelerate any obligation under, or give rise to a right of termination of any Contract, Permit, Court Order or arbitration award to which the Company or any Subsidiary is a party or by which the real or personal property of the Company or any Subsidiary is bound or affected, or result in the creation or imposition of any security interest or Encumbrance on any of Company’s assets.

4.5   Purchased Assets . The Company has and will transfer to Buyer good, valid and marketable title to the Purchased Assets and upon the consummation of the transactions contemplated hereby, Buyer will acquire good, valid and marketable title to all of the Purchased Assets, free and clear of any Encumbrances.  The Purchased Assets include all assets necessarily used in the Business as currently conducted or currently proposed to be conducted , as further set forth on Schedule 2.1 .

4.6   Subsidiaries .  Each Subsidiary is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. Each Subsidiary is duly qualified to conduct business and is in good standing under the laws of each jurisdiction in which the nature of its businesses or the ownership or leasing of its properties requires such qualification. Each Subsidiary has all requisite power and authority to carry on the businesses in which it is engaged and to own and use the properties owned and used by it. The Company has delivered to the Buyer complete and accurate copies of the charter, by-laws or other organizational documents of each Subsidiary. No Subsidiary is in default under or in violation of any provision of its charter, by-laws or other organizational documents. All of the issued and outstanding shares of capital stock of each Subsidiary are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. All shares of each Subsidiary that are held of record or owned beneficially by either the Company or any Subsidiary are held or owned free and clear of any restrictions on transfer (other than restrictions under the Securities Act, as amended and state securities laws), claims, security interests, options, warrants, rights, contracts, calls, commitments, equities and demands.  There are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Company or any Subsidiary is a party or which are binding on any of them providing for the issuance, disposition or acquisition of any capital stock of any Subsidiary. There are no outstanding stock appreciation, phantom stock or similar rights with respect to any Subsidiary. There are no voting trusts, proxies or other agreements or understandings with respect to the voting of any capital stock of any Subsidiary.  The Company does not control directly or indirectly or have any direct or indirect equity participation or similar interest in any corporation, partnership, limited liability company, joint venture or other business association or entity which is not a Subsidiary.

4.7.1   The Company has provided to Buyer true, complete and correct copies of the Financial Statements.  The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby, fairly present the financial condition, results of operations and cash flows  of the Business as of the respective dates thereof and for the periods referred to therein and are consistent with the Books and Records.

4.7.2   As of the date hereof and as of the Closing Date, Company has not had and will not have any Liabilities relating to the Business or the Purchased Assets of any nature, whether accrued, absolute or contingent ( including Liabilities as guarantor or otherwise with respect to obligations of others, or Liabilities for Taxes due or contingent or potential Liabilities relating to activities of Company with respect to the operation of the Business prior to the date hereof or the Closing, as the case may be, regardless of whether claims in respect thereof had been asserted as of such date), except Liabilities (i) stated or adequately reserved against on the Most Recent Balance Sheet or the notes thereto, (ii) incurred in the Ordinary Course of Business of the Company consistent with the terms of this Agreement since the Most Recent Balance Sheet Date or (iii) relating to future performance obligations under Contracts, none of which relates to any Default, breach of warranty, tort infringement, or violation of any Regulations or Court Orders or arose out of any Action.

4.8.1   Any change in the Business and its real or personal properties, assets, results of operations, financial condition, Liabilities, or prospects of the Company, which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could have a Material Adverse Effect;

4.8.2   Any contingent Liability incurred by the Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, the Company with respect to the operation of the Business;

4.8.4   Any Liability incurred by the Company in the Business other than Liabilities incurred in the Ordinary Course of Business consistent with the obligations under this Agreement (it being understood that claims relating to the failure to perform or the improper performance of services shall not be deemed to be incurred in the Ordinary Course of Business);

4.8.5   Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the real or personal properties or assets of the Company used in the Business other than in the Ordinary Course of Business;

4.8.6   Any damage, destruction or loss, whether or not covered by insurance, materially adversely affecting the Purchased Assets or the Business;

4.8.7   Any material dispute with employees or claim of unfair labor practices related to the Business; any change in the compensation payable or to become payable by the Company to any of its officers, managers, employees, agents or independent contractors involved in the operation of the Business; or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors;

4.8.8   Any payment or discharge of a material Encumbrance or Liability of the Company relating to the Business that was not shown on the Most Recent Balance Sheet or incurred in the