PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of the 5th day of
May, 1999, by and among Ergovision, Inc. (the "Purchaser"), a Delaware
corporation, Starsystems, (the "Seller"), a New Hampshire sole proprietorship,
and Xxxxxx Xxxxxxxx ("Xxxxxxxx") an individual residing at 000 Xxx Xxxxxxxx
Xxxx, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, the Seller is the sole and exclusive owner of the domain
name "xxxxx.xxx" (the "Domain"); and
WHEREAS, Xxxxxxxx is the sole proprietor of the Seller; and
WHEREAS, the Purchaser desires to acquire from the Seller, and the
Seller desires to sell to the Purchaser, all of Seller's right, title in and to
the Domain.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Article 1.
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
"Ergovision Stock" means the Common Stock, par value $0.001 per
share, of the Purchaser.
"Ergovision Stock Price" means, with respect to any business day,
the closing asked price of a share of Ergovision Stock as quoted on the Over the
Counter Bulletin Board System, the NASDAQ National Market System, the NASDAQ
Small Cap Market, or on any national securities exchange on which the Ergovision
Stock is then traded and quoted, for any such day.
"Governmental Body" means any federal, state, local or foreign
governmental authority or regulatory body, any subdivision, agency, commission
or authority thereof (including, without limitation, environmental protection,
planning and zoning), or any quasi-governmental or private body exercising any
regulatory authority thereunder (including, without limitation, Network
Solutions, Inc.) and any person directly or indirectly owned by and subject to
the control of any of the foregoing, or any court, arbitrator or other judicial
or quasi-judicial tribunal.
"Governmental Rules" means any statute, law, treaty, rule, code,
ordinance, regulation, policy, permit, certificate or order of any Governmental
Body or any judgment, decree, injunction, writ, order or like action of any
Governmental Body.
"Lien" means any mortgage, charge, pledge, lien, security interest,
claim, encumbrance or restriction, of any kind or nature.
Article 2.
PURCHASE AND SALE
Section 2.01 Purchase of the Domain and Payment of Purchase Price. (a)
Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Seller does hereby irrevocably, absolutely and
permanently sell, transfer, assign and deliver to the Purchaser its successors
and assigns, all of Seller's right, title and interest in and to the Domain,
free and clear of all Liens, and the Purchaser does hereby purchase from the
Seller the Domain in consideration of the aggregate purchase price (the
"Purchase Price") of (i) $30,000 in cash and (ii) $15,000 in shares of
Ergovision Common Stock (the "Purchase Shares") as determined pursuant to
Section 2.01(b) hereof. The Purchaser shall deliver to the Seller the
certificates representing all of the Purchased Shares within five (5) business
days of the date hereof.
(b) The number of shares of Ergovision Common Stock to be issued in
satisfaction of the portion of Purchase Price comprised of the Purchase Shares
shall be equal to the quotient of $15,000 divided by the average of the
Ergovision Stock Price for the five (5) trading days ending on the close of
business on the day prior to the date hereof.
Section 2.02 Domain Name Transfer. Simultaneously with the execution of
this Agreement, Seller has executed that certain Registrant Name Change
Agreement, a copy of which is attached hereto as Exhibit A, with respect to the
Domain.
Section 2.03 Banner Advertisement. The Seller agrees that within three
days of receiving notice of the launch of the Purchaser's "xxxxxxx.xxx" web
site, it shall place a banner advertisement and link (the "Banner") to the
"xxxxxxx.xxx" web site (or such other web site operated and/or owned by the
Purchaser as the Purchaser may designate) in a prominent location on the primary
page of the Seller's "xxxxxxx.xxx" web site, or, in the event that such site is
cancelled, deleted or withdrawn by the Seller, on the primary page of the web
site operated by the Seller at such time which then receives the greatest
average number of unique visitors per day (provided, however, that the Seller
may, at his discretion, place Banners on additional pages of the "xxxxxxx.xxx"
web site and/or on other web sites operated by the Seller, provided, further,
that the Seller shall promptly remove the Banner from any such other page or
site at the Purchaser's request). The Banner shall be comparable in size to
those banner advertisements on the "xxxxxxx.xxx" web site which are placed by
the Seller's then-primary advertisers. The Banner shall appear on the
"xxxxxxx.xxx" web site for a period beginning on the launch date of the
"xxxxxxx.xxx" web site (or such earlier date as the Purchaser may select in its
sole discretion) and ending one year thereafter. All images, software, links and
information comprising or used in connection with the Banner shall be provided
at the Purchaser's sole cost and expense, and the Purchaser shall indemnify and
hold harmless the Seller and Xxxxxxxx from any Losses (as defined in Section
7.01 hereof) resulting from or arising in connection with the Seller's hosting
of the Banner.
Section 2.04 Power of Attorney. The Seller hereby constitutes and appoints
the Purchaser the true and lawful attorney of the Seller with full power of
substitution, in the name of the Seller or in the name of the Purchaser, for the
benefit of the Purchaser and at no cost,
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expense or liability to Seller, subject to Section 7.01 hereof, (a) to collect,
assert or enforce any claim, right or title of any kind in or to the Domain, to
institute and prosecute all actions, suits and proceedings which the Purchaser
may reasonably deem proper in order to collect, assert or enforce any such
claim, right or title, and to do all such acts and things in relation thereto as
the Purchaser shall reasonably deem advisable and (b) to take all action which
the Purchaser may reasonably deem proper in order to provide for the Purchaser
the benefits of or under of the Domain where any required consent of a third
party to the assignment thereof to the Purchaser shall not have been obtained.
The Seller acknowledges that such powers are coupled with an interest and shall
not be revocable by it in any manner or for any reason, and that the Purchaser
shall be entitled to retain for its own account any amounts collected pursuant
to such powers, including any amounts payable as interest in respect thereof.
Article 3.
REPRESENTATIONS AND WARRANTIES OF THE SELLER AND XXXXXXXX
The Seller and Xxxxxxxx, jointly and severally, represent and
warrant to the Purchaser, that:
Section 3.01 Organization and Good Standing. The Seller is a sole
proprietorship duly organized, validly existing and in good standing under the
laws of the State of New Hampshire on the date hereof and has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted.
(b) The Seller and Xxxxxxxx each have the power and authority to
execute and deliver this Agreement and all other documents hereby contemplated
to be executed by the Seller and Xxxxxxxx, to consummate the transactions hereby
and thereby contemplated and to take all other actions required to be taken by
them pursuant to the provisions hereof and thereof. The execution, delivery and
performance of this Agreement and all other documents hereby contemplated to be
executed by the Seller and the Xxxxxxxx has been, and the consummation by the
Seller of the transactions hereby and thereby contemplated has been, duly
authorized by all necessary action, corporate, shareholder or otherwise, of the
Seller and Xxxxxxxx. This Agreement and all other documents hereby contemplated
to be executed by the Seller and/or Xxxxxxxx constitute the legal, valid and
binding obligations of the Seller and/or Xxxxxxxx, as applicable, enforceable
against the Seller and/or Xxxxxxxx in accordance with their respective terms.
Section 3.02 No Violation of Other Instruments or Obligations. The
execution and delivery by the Seller and Xxxxxxxx of this Agreement or any other
documents hereby contemplated the consummation of the transactions hereby and
thereby contemplated by the Seller and Xxxxxxxx shall not (i) constitute a
default under or a violation or breach of, or result in the acceleration of any
obligation under, any provision of any contract, mortgage or other instrument to
which the Seller is a party or by which any of its assets may be affected or
secured, (ii) violate any Governmental Rule affecting the Seller or any of its
assets, (iii) result in the creation of any Lien on the Domain or any of the
assets or properties of the Seller, or (iv) result in the termination of any
license, franchise, lease or permit to which the Seller is a party or by which
it is bound.
Section 3.03 Compliance with Law; Consents and Approvals. The Seller has
complied in all material respects with all Governmental Rules applicable to the
Domain. The Seller has
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maintained in full force and effect all licenses, approvals, permits and
consents for the lawful operation of the Domain. Neither the Seller nor Xxxxxxxx
is in violation of any Governmental Rule applicable to the Domain, and has not
received any notice of any such violation. Except for the Registrant Name Change
Agreement or as set forth on Schedule 3.03 hereof, no authorization, approval,
order, license, permit, franchise or consent, and no registration, declaration,
notice or filing by or with any domestic or foreign Governmental Body by the
Seller is required in connection with the execution and delivery by the Seller
of this Agreement and the consummation by the Seller and Xxxxxxxx of the
transactions hereby contemplated.
Section 3.04 Title to Assets. (a) Except for Liens (i) for any current
taxes or assessments not yet delinquent or (ii) created by statute of carriers,
warehousemen, mechanics, laborers and materialmen incurred in the ordinary
course of business for sums not yet due, the Seller has good and marketable
title, free and clear of all Liens, to the Domain. There are no options,
agreements, limitations, rights of first refusal or other arrangements with any
third party with respect to the Domain or the transfer thereof.
(b) The Domain does not constitute all, substantially all or a
significant part of the assets of the Seller.
Section 3.05 Litigation. There are no claims, actions, suits, litigations,
proceedings, audits, controversies or investigations, pending or, to the
knowledge of the Seller or Xxxxxxxx, threatened against or affecting the Domain,
and the Seller has not been charged with or, to the knowledge of the Seller or
Xxxxxxxx, threatened with a charge of any violation of, and is not under
investigation with respect to a possible violation of, any provision of any
federal, state or local law or administrative ruling or regulation relating to
the Domain.
Section 3.06 Intellectual Property. The Seller owns and has the sole and
exclusive right to use the term "icity" in connection with the Domain. The
Seller (i) is not bound by or a party to any options, licenses, or agreements of
any kind with respect to the Domain and (ii) has not assigned, licensed or in
any manner encumbered or impaired any rights in the Domain. To the best of the
Seller's and Xxxxxxxx'x knowledge, the Domain name does not infringe or violate
any personal, property, statutory or common law or any other rights of any third
parties (including, without limitation, copyright, trademark and the rights of
privacy and publicity), and no claim alleging any such infringement or violation
by the Seller or Xxxxxxxx or the Domain has been received by the Seller or
Xxxxxxxx.
(b) No royalties, honoraria or fees are payable to and no consents
or approvals are needed from any third persons or entities in connection with
the ownership, use or exploitation of the Domain.
Article 4.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller and Xxxxxxxx
that:
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Section 4.01 Organization and Good Standing. The Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has the corporate power and authority to own or
lease all of its properties and assets and carry on its business as it is now
being conducted.
Section 4.02 Authority Relative to Agreement. The Purchaser has the
corporate power and authority to execute and deliver this Agreement, and all
other documents hereby contemplated, to consummate the transactions hereby and
thereby contemplated and to take all other actions required to be taken by it
pursuant to the provisions hereof and thereof. The execution, delivery and
performance of this Agreement and all other documents hereby contemplated to be
executed by the Purchaser has been, and the consummation by the Purchaser of the
transactions hereby and thereby contemplated has been, duly authorized by any
and all necessary corporate action of the Purchaser. This Agreement and all
other documents hereby contemplated to be executed by the Purchaser constitute
the legal, valid and binding obligations of the Purchaser, enforceable against
the Purchaser in accordance with their respective terms.
Section 4.03 No Violation of Other Instruments or Obligations. Neither the
execution and delivery of this Agreement or any other documents hereby
contemplated nor the consummation of the transactions hereby and thereby
contemplated shall (i) constitute any violation or breach of the Certificate of
Incorporation or By-laws of the Purchaser, (ii) constitute a default under or a
violation or breach of, or result in acceleration of any obligation under, any
provision of any contract, lease, mortgage or other instrument to which it is a
party, or (iii) violate any judgment, order, writ, injunction, decree, statute,
rule or regulation affecting the Purchaser or any of its assets.
Section 4.04 Common Stock. The Ergovision Stock to be issued pursuant to
the provisions of this Agreement will, upon such issuance, be duly authorized,
legally and validly issued, and fully paid and nonassessable.
Article 5.
COVENANTS
Section 5.01 No Use of Similar Names. Each of the Seller and Xxxxxxxx
covenants that neither it nor any person, firm or corporation, anywhere in the
world, directly or indirectly owned or controlled by any of them will use a name
(whether as a company name, or as an internet domain name, or in connection with
the marketing of goods or services, or otherwise) that includes the word "icity"
or "eyecity" or any words that are substantially similar to those words or to
the name of the Purchaser.
Section 5.02 Further Assurances. From and after the date hereof, the
Seller and Xxxxxxxx shall, at any time and from time to time, at Purchaser's
sole cost and expense, make, execute and deliver, or cause to be made, executed
and delivered, such assignments, deeds, drafts, checks, stock certificates,
returns, filings and other instruments, agreements, consents and assurances and
take or cause to be taken all such actions as counsel for the Purchaser may
reasonably request for the effectual consummation, confirmation and
particularization of this Agreement and the transactions hereby contemplated.
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Article 6.
INVESTMENT INTENT; RESTRICTIONS ON TRANSFER
Section 6.01 Investment Representation. The Seller (i) represents and
warrants to the Purchaser that it is acquiring all of the shares of Ergovision
Stock to be issued to it pursuant to the provisions of this Agreement for its
own account and for the purposes of investment and not with a view to, or for
sale in connection with, any distribution thereof, and (ii) agrees that it will
not at anytime sell or otherwise transfer, or permit the sale or other transfer
of, such shares of Ergovision Stock other than in transactions that are not in
violation of the Securities Act of 1933 or the provisions of any other
applicable securities laws, rules or regulations.
Section 6.02 Stock Legend. All certificates representing shares of
Ergovision Stock to be delivered to the Seller under this Agreement shall bear
the following legend:
"The securities represented hereby have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of any
state and may not be sold, assigned, transferred, pledged or otherwise
disposed of except in compliance with, or pursuant to an exemption from,
the requirements of such Act or such laws."
Article 7.
MISCELLANEOUS
Section 7.01 Indemnification. The Seller and Xxxxxxxx, jointly and
severally, on the one hand, and the Purchaser, on the other hand, each agrees to
indemnify and hold harmless the other party and its directors, officers,
employees and agents (the "Indemnified Parties") against, and to reimburse the
Indemnified Parties on demand with respect to, any and all losses, liabilities,
obligations, suits, proceedings, demands, judgments, damages, claims, expenses
and costs (including, without limitation, reasonable fees, expenses and
disbursements of counsel) (collectively, "Losses") which the Indemnified Party
may suffer, incur or pay by reason of (i) the breach by such party of any
representation or warranty made by such party in this Agreement or in any
agreement, certificate or other document executed by such party and delivered to
the Indemnified Party pursuant to the provisions of this Agreement; (ii) the
failure of such party to perform any agreement required by this Agreement or any
agreement executed pursuant to the provisions of this Agreement; (iii) the
allegation by any third party of the existence of any liability, obligation,
lease, agreement, contract, other commitment or state of facts which, if such
allegation were true, would constitute a breach by such party of any
representation or warranty made such party in this Agreement or in any
agreement, certificate or other document delivered by or on behalf of such party
to the Indemnified Party pursuant to the provisions of this Agreement or of any
covenant made by the such party herein or therein.
Section 7.02 Merger Provision. All prior or contemporaneous agreements,
contracts, promises, representations and statements, if any, among the parties
hereto as to the subject matter hereof, are merged into this Agreement. This
Agreement, together with all agreements, schedules, exhibits, documents and
other instruments to be attached hereto or delivered herewith sets forth the
entire understanding between the parties, and there are no terms, conditions,
representations, warranties or covenants other than those contained herein and
in such
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agreements, schedules, exhibits, documents and other instruments to be attached
hereto or delivered herewith.
Section 7.03 Amendment and Modification. No term or provision of the
Agreement may be amended, released, discharged or modified in any respect except
in writing signed by the party to be charged and only to the extent therein set
forth.
Section 7.04 Waiver. No waiver shall be deemed to be made by any of the
parties to any of its rights hereunder unless that waiver shall be in a writing
signed by the waiving party and only to the extent therein set forth. No failure
of any of the parties to exercise any power given such party hereunder or to
insist upon strict compliance by any other party with its obligations hereunder,
and no custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of the right of any party to demand precise compliance with
the terms of the Agreement.
Section 7.05 Notices. (a) All notices, consents, demands or other
communications required or permitted to be given pursuant to the Agreement shall
be in writing and shall be delivered personally, by telecopy (with prompt
confirmation by mail) during a business day to the appropriate location listed
as the address below, by United States registered or certified first class mail,
return receipt requested with postage and fees prepaid, or by overnight courier.
Such notices, consents, demands or other communications shall be addressed
respectively to the Seller and Xxxxxxxx, to Xxx Xxxxxxxx, 000 Xxx Xxxxxxxx Xxxx,
Xxxxxxxxx, XX 00000, with a copy to Xxx Xxxxx, Esq., Sheehan, Phinney, Bass &
Green, 0000 Xxx Xxxxxx, Xxxxxxxxxx, XX 00000, and to the Purchaser; to
Ergovision, Inc., Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, Attn: Xxxx X.
Xxxxx, with a copy to: Rosenman & Colin LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Xxxx X. Xxxxxx, Esq., or to any other address or telecopy
number which such party may have subsequently communicated to the other parties
in writing. Except as otherwise provided in this Agreement, any notice, consent,
demand or other communication given hereunder may be signed on behalf of a party
by any duly authorized representative of that party.
Section 7.06 Governing Law; Service of Process. This Agreement and any
other agreement entered into in connection herewith shall be governed by, and
construed under and in accordance with, the laws of the State of New Hampshire
applicable to contracts made and wholly to be performed therein by residents
thereof, without giving effect to the conflict of laws principles thereof. All
actions or proceedings seeking the interpretation and/or enforcement of this
agreement shall be brought only in the state or federal courts located in New
Hampshire, all parties hereby submitting themselves to the jurisdiction of such
courts for such purpose. Any process in any action or proceeding commenced in
the courts of the State of New Hampshire arising out of any claim, dispute or
disagreement, may, among other methods, be served upon any party by delivering
or mailing the same, via registered or certified mail, addressed to such party
pursuant to Section 7.05 hereof. Any such delivery or mail service shall be
deemed to have the same force and effect as personal service within the State of
New Hampshire.
Section 7.07 Severability. If any term or provision of this Agreement, the
application thereof to any person, or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of the Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held void or unenforceable, shall not be affected thereby, and each term
and provision of the Agreement shall be valid and be enforced to the fullest
extent permitted by law.
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Section 7.08 Cumulative Rights and Remedies. The rights and remedies
provided for in this Agreement are cumulative and in addition to, and shall not
restrict or limit, any other rights and remedies available at law or in equity.
Section 7.09 Costs of Enforcement. The prevailing party in any proceeding
brought to enforce any provision of the Agreement shall be entitled to recover
the reasonable fees and costs of its counsel, plus all other costs of such
proceeding.
Section 7.10 Third Parties Other than the parties hereto, no person shall
have any rights under or to enforce any provision of this Agreement.
Section 7.11 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
administrators, executors, successors and assigns; provided, however, that this
Agreement may not be assigned by any of the parties hereto other than by and
among the Purchaser and its subsidiaries.
Section 7.12 Counterparts. The Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute a single agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the 5th day of May, 1999.
ERGOVISION, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: President
STARSYSTEMS
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Proprietor
/s/ Xxxxxx Xxxxxxxx
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XXXXXX XXXXXXXX
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