PURCHASE AGREEMENT
This Purchase Agreement ("Agreement") is made between CyberMalls, Inc.,
a Nevada corporation ("CyberMalls"), its subsidiary, Cyber Football, Inc., a
Nevada corporation "CFI") and, BRIA Communications Corporation, a New Jersey
corporation ("Client"), with respect to the following:
RECITALS
WHEREAS, CyberMalls builds and sells virtual malls on the information
superhighway (Internet) and provides the necessary support and maintenance
services to companies that desire to market and/or promote their products and/or
services on the information superhighway; and
WHEREAS, Client wishes to purchase from CyberMalls, Cyber Football,
Inc., a Nevada corporation ("CFI"); and
WHEREAS, CFI markets and promotes products and services that relate to
the sport of football; and
WHEREAS, Client desires that CyberMalls develops a virtual mall for CFI
on the Internet to promote and market products and services relating to sports
and specifically to the sport of football.
DEFINITIONS
1. "Virtual mall" is a theme-based shopping center located on the
information superhighway which will contain a diversity of multiple retailers.
2. "Virtual mall owner" is the proprietor of a theme-based virtual
shopping center with multiple retailers offering products and/or services within
the mall theme.
3. "Retailer" is a lessee of advertising and/or sales of services
and/or products in a CyberMalls' virtual mall.
4. "CyberService Protocols" are unique services that CyberMalls will
use its best efforts to provide to retailers which shall include, among other
things, the following:
A. "Virtual shopping cart" that can select goods not only from
retailers within that virtual mall, but within other CyberMalls
virtual malls, and potentially in other virtual shopping
enterprises.
B. Payment for all purchases in virtual shopping cart at
conclusion of shopping experience.
C. Payment made at one point-of-sale.
D. Best efforts shall be used to ensure that purchases will be
protected by computer security software to ensure
confidentiality of payment data.
5. "WebSafari(TM) Protocols" are proprietary technologies that include,
but are not limited to:
A. The WebSafari(TM) search engine.
B. The CyberMalls' inventory Distributed Database provided to each
retailer and virtual mall owner.
C. Reverse link icons.
D. Equipment and technology pertaining to WebSafari(TM).
6. "WebSafari(TM) Mall Membership" includes, but is not limited to:
A. Up to 250,000 search engine references to said mall per month;
B. 250,000 inventory database items for one year;
C. Up to 5,000 web pages, either manual or auto-created;
D. High-speed information superhighway backbone connection;
E. Use of all necessary server-based equipment; and,
F. Up to 100 hours of consultation and training.
7. "Virtual Mall Viability" refers to the point in development where
CyberMalls, in its professional judgment, believes the virtual mall is able to
continue as a free-standing information superhighway virtual mall, with
sufficient retailers to be profitable, and without the development assistance
from CyberMalls' development team, but not to exceed two (2) years.
8. "Act" refers to the Securities Act of 1933, as amended, pertinent
portions available if requested by Client.
AGREEMENT
IN CONSIDERATION OF the mutual promises made by CyberMalls, CFI and
Client, and the terms and conditions hereafter set forth, the receipt and
adequacy of such consideration being mutually acknowledged, CyberMalls, CFI and
Client therefore agree to the following:
1. Terms of Purchase Agreement:
A. Sale and Purchase. CyberMalls agrees to sell to Client and Client
agrees to purchase from CyberMalls, Cyber Football, Inc., a Nevada
corporation ("CFI"). As a condition to the purchase of the CFI, CFI
further agrees to purchase from CyberMalls a virtual mall as more fully
explained herein. CyberMalls shall then design and build for CFI a
virtual mall containing WebSafari(TM) Protocols meeting Client's
specific needs. During development, which shall not exceed two (2)
years, Client shall have use of CyberMalls' CyberService Protocols, and
any other services and/or technologies CyberMalls develops that are
intended for virtual malls. The CFI mall shall be designed to
accommodate WebSafari Mall Membership protocols. Client and CFI agree
that during the two year development period, Client and CFI will remain
in compliance with WebSafari(TM)Mall Membership protocols and for so
long as CFI has a membership with WebSafari. CFI's virtual mall shall
contain and be provided with the following:
1. use of CyberMalls' data communication line, as needed; use of
CyberMalls' computer hardware and software, as needed; use of
CyberMalls' graphic design team for CFI web pages designs and
other virtual mall requirements, as needed; use of
CyberMalls' copy writing and editing team in CFI web pages
designs and other virtual mall requirements, as needed; and
use of CyberMalls' scanning systems, facsimile systems,
photocopiers, and any other equipment specifically for
construction and development of CFI virtual mall, as needed.
2. any necessary standardized forms.
3. the standard WebSafari(TM) Mall Membership for the duration
of the business relationship between CyberMalls and CFI. The
fees for this Membership which are set forth in detail in the
WebSafari Mall Membership Agreement, which shall be
incorporated into this Agreement, shall be submitted to
Client within 30 days from the date of the signing of this
Agreement.
B. Compensation . According to the specific terms herein, the
compensation shall be as follows:
1. In consideration for the purchase of a majority interest in
CFI, upon the execution of this Agreement, BRIA will issue to
CyberMalls 1,875,000 shares of its Class A Common Stock at
1/2 the present bid price or, $0.375 per share. CFI will
issue to BRIA 9,101,019 shares of its restricted common stock
which reflects approximately 90.1% of the authorized, issued
and outstanding shares of CFI.
2. Further, for the purchase of the virtual mall from
CyberMalls, CFI will execute a Promissory Note in favor of
CyberMalls in the amount of $11,500,000 bearing an interest
rate of 9% per annum, to be payable three (3) years from the
date of the execution of this Agreement. The Note shall be
secured by the CFI trademark and domain rights. BRIA shall be
a guarantor on said Note to the extent that such guarantee
shall be secured by 100% of BRIA's interest in CFI's common
stock. Said Note is attached hereto as Exhibit "A".
3. Additionally, as compensation for services to be provided
with regard to the creation, development and initial
servicing of the virtual mall, CFI shall equally divide with
CyberMalls the proceeds realized from a Regulation D Rule 504
Offering pursuant to a Financial Consulting Agreement entered
into between the Client, CFI and Canton Financial Services
Corporation on behalf of CFI, dated August 31, 1996, a copy
of which is attached hereto as Exhibit "B".
4. Further, once an aggregate of $4 million in gross revenues
has been realized by CFI, CFI shall issue to CyberMalls
100,000 shares of its free-trading stock, for services
rendered, with such shares being registered, or if
registration is impractical then such shares being issued
pursuant to an available exemption from registration under
the Act.
5. Moreover, as long as CyberMalls is providing services to CFI,
it shall receive 3% of the quarterly gross revenues of CFI,
which are to be disbursed on a quarterly basis.
6. Immediately upon receipt by CFI of lease payments received
from any "tenants" directly procured by CyberMalls and placed
under CFI's virtual mall, CFI shall compensate CyberMalls 15%
of such payments in stock or in cash, at CyberMall's option.
C. Expenses:
1. Client shall be responsible for all costs associated with the
construction, development and continuing service of the CFI
virtual mall. Such costs shall include rental of CyberMalls
equipment and CyberMalls materials, which at the time of
execution of this Agreement is approximately $5,000 per
month, which shall be waived for a period of ninety (90) days
in accordance with paragraph C(3) below. CyberMalls shall
provide Client a monthly itemized statement of all costs
incurred for Client. Any fees and expenses that are not due
directly to CyberMalls for services rendered, shall be borne
by Client.
2. All time spent on each matter by CyberMalls, any
subcontractor of CyberMalls or any of its subsidiaries, shall
be recorded and charged at their respective hourly rate and
shall be subject to periodic review based on the status of
the person performing the work. In the event that any
compensation or expense is not remitted within thirty (30)
days, the CyberMalls' statement detailing such compensation
or expense shall incur interest at 12% per annum, compounded
annually.
3. In the event of a dispute over expenses to be paid by Client
to CyberMalls, Client shall present CyberMalls with written
document detailing the nature of the dispute. CyberMalls and
Client shall first attempt to resolve the matter among
themselves. If, after 30 days from the date of Client's
dispute letter, the matter has not been resolved in writing
and signed by both parties, it shall next be submitted to
arbitration, outlined in section 3.
D. Term of Service and Development. CyberMalls shall be obligated to
provide all services necessary to achieve the development of CFI's
virtual mall to Client's specifications for a period of two years from
the date of this Agreement.
E. Official Notices. All official communications or legal notices shall
be given in writing by registered or certified mail, addressed to the
respective party at the postal address or other address(es) as each
party may hereafter designate in writing, or when sent by facsimile
transmission, charges prepaid. The present addresses of the parties are
as follows:
CYBERMALLS, INC.
000 Xxxx 000 Xxxxx, Xxx, 000
(000) 000-0000
(000) 000-0000 (fax)
Attn: Xxxxxx Xxxxxxxx, President
and,
BRIA COMMUNICATIONS CORPORATION
and,
CYBER FOOTBALL, INC.
0000-00 Xxxxxxx Xxx.,
Xxxxxxxx, X.X. 00000
000-000-0000
000-000-0000 (fax)
Attn: Xxxxxxx Xxxxxxxxx, President
2. Confidentiality of Proprietary Information:
A. Confidential Information. For the purpose of this Agreement,
"confidential information" shall include any trade secret, inside
information or proprietary information, including technical data or
know-how, plans of operation, diagrams, drawings, photographs, pictures
or any patent rights, copyrights, trademarks, service marks, or
licensing rights to any and all designs, design changes, improvements,
or modifications to any of the products or services of any of the
parties. Confidential information also includes other information that
the parties know is confidential or that a reasonable person in the
position of the parties would have reason to believe is confidential.
Confidential Information shall further include such information as
designated by the parties herein, including Client's Information and
CyberMalls' Information.
B. The Client Information. In connection with the performance of its
obligations under the Agreement, CyberMalls or its associates may be
provided copies, or access to originals, of financial information,
business plans, customer and supplier lists, records concerning
technical processes, computer hardware and software, research and
development data, product lists, product designs and drawings, new
product ideas, and other information concerning Client and its
business, much of which is confidential and proprietary (the "Client
Information").
C. The CyberMalls Information. In connection with the performance of
its obligations under this Agreement, Client or its associates may be
provided copies, or access to originals, of financial information,
business plans, customer and supplier lists, records concerning
technical processes, computer hardware or software, and other
information concerning CyberMalls and its business, much of which is
confidential and proprietary (the "CyberMalls Information").
D. The parties agree not to use or disclose any confidential
information for any purpose except to carry out the purposes of this
Agreement. The parties further agree to limit internal disclosure of
confidential information on a need to know basis to those key executive
officers, legal and accounting advisors, and any necessary parties
involved in the development of CFI's virtual mall. The parties warrant
that all such individuals have been or will be advised of and agree to
adhere to the confidentiality provisions of this Agreement. The parties
also agree to hold confidential information in the strictest confidence
and to take all reasonable measures to protect the confidentiality of
and avoid unauthorized disclosure of any confidential information.
E. The confidentiality obligations imposed by this Agreement shall not
apply to material and information if:
1. Such material or information is in the public domain at the
time of disclosure, through no wrongful act of the receiving
party; or
2. Such material or information is generally known to the
receiving party at the time of disclosure without obligation
concerning its confidentiality; or
3. Such material or information is furnished to a third party by
the original possessor thereof under no obligation of
confidentiality.
F. Unless otherwise approved in writing by an officer of CyberMalls,
any data, products, technology or information on any other person,
entity, organization, or thing obtained by Client or CFI through
WebSafari(TM) Distributed Database, or its other services, is to remain
the sole property of CyberMalls and shall be used only in conjunction
with and/or within the scope of this Agreement explicitly with respect
to the business relationship between the parties.
G. The parties understand and agree that the breach or threatened
breach of the agreement not to disclose confidential information may
cause irreparable injury to the violated party. Accordingly, in
addition to any other relief to which the parties may be entitled, the
parties agree that the violated party shall be entitled, without proof
of damages, or posting of a bond, to pursue a remedy at law or in
equity for any damages resulting therefrom, including injunctive
relief.
H. All restrictions on the use or disclosure of proprietary information
contained herein shall remain in effect during the term of this
Agreement and shall continue for a period of five (5) years after the
expiration or termination of this Agreement.
3. Arbitration. All disputes that cannot be settled between the parties
together under this Agreement, shall be settled by arbitration in accordance
with the rules of the American Arbitration Association then controlling.
A. Disputes Shall Not Affect Agreement: Disputes, differences or
controversies between the parties during the term of this Agreement
shall not interrupt performance of this Agreement. In the event of any
such dispute, difference or controversy, CyberMalls and WebSafari(TM)
shall continue to perform on behalf of Client and/or CFI, and
settlements and payments shall be made in the same manner as prior to
such dispute, difference or controversy, until the matter in dispute
has been finally determined between the parties.
4. Termination of Agreement:
A. Breach: Termination of this Agreement prior to conclusion of the two
(2) year development or viability period shall be considered breach of
this Agreement. The non-breaching party shall have the right to recover
all relevant damages associated with breach in a competent court of
law, according to the provisions of this Agreement.
B. Failure to Remit Expenses: The continued lack of payment by Client
and/or CFI for a period of 60 continuous days shall be considered a
breach of this Agreement.
C. Costs Due Upon Breach: Notwithstanding the breach of this Agreement
by either party, CyberMalls shall be entitled to receipt of all fees,
hard costs, compensation and expenses incurred for actual work
performed at its normal consulting rates, and shall retain or continue
to be entitled to any stock either issued or authorized to be issued to
CyberMalls or its designees.
6. Modification of Agreement:
A. Written Modifications: Written communications from CyberMalls to
Client modifying terms of this Agreement are valid and enforceable when
signed by all parties, their successors and/or assigns to this
Agreement.
7. Controlling Laws of Agreement:
A. Best Efforts Basis: CyberMalls agrees that it will at all times
faithfully, to the best of its experience, ability and talents, perform
all the duties that may be required of and from CyberMalls pursuant to
the terms of this Agreement. CyberMalls does not guarantee that its
efforts will have any impact on Client's business or that any
subsequent financial improvement will result from CyberMalls' efforts.
Client understands and acknowledges that the success or failure of
CyberMalls' efforts will be predicated on Client's assets and operating
results.
B. Binding Law: This Agreement shall be subject to all valid applicable
laws, rules and regulations of the State of Utah and of the United
States. In the event that this Agreement, any of its provisions, or its
outlined operations are found to be inconsistent with or contrary to
any such laws, rules or regulations, the latter shall control.
Furthermore, if commercially practicable, this Agreement shall be
considered modified accordingly and shall continue in full force and
effect as so modified.
1. In the event of litigation or other dispute
resolution, disputes, differences, or controversies
shall be heard in a court of competent jurisdiction
within the State of Utah, in Salt Lake County, Utah.
C. Entire Agreement: This Agreement shall constitute the entire
Agreement between the parties herein unless modified by a written
amendment signed by all of the parties or their successors in interest,
or unless superseded by any supplemental Purchase Agreement entered
into by the parties. There are no other agreements, undertakings,
restrictions, representations or warranties among the parties other
than those described and provided for in this Agreement and expressly
signed by each party herein.
D. Waiver: Client and CFI agree that CyberMalls' failure to enforce any
provision or provisions of this Agreement shall not in any way be
construed as a waiver of that provision or provisions, nor shall such
failure prevent CyberMalls from thereafter enforcing each and every
provision of this Agreement.
8. Non-Circumvention:
A. Non-Circumvention: Client agrees that it will not enter into any
transaction involving a business opportunity introduced to Client or
CFI by CyberMalls without compensating CyberMalls as required
hereunder. Such transaction will be construed as breach of this
Agreement. Client and CFI further agree that any unauthorized use of
any proprietary information whether accidental or otherwise shall be
construed as intentional and shall be considered a breach of this
Agreement.
9. Due Diligence: The parties herein agree to mutually cooperate with each
other concerning any reasonable requests with respect to pursuing proper and
necessary due diligence.
10. Client's Representations: Client represents, warrants and covenants to
CyberMalls that each of the following are true and complete as of the date of
this Agreement:
A. Client is a corporation organized, validly existing, and in good
standing under the laws of the state of New Jersey, with full corporate
power and authority and all necessary governmental authorization to
own, lease and operate property and carry on its business as it is now
being conducted.
B. Client is qualified to do business in and is in good standing in
every jurisdiction in which the nature of its business or the property
owned or leased by it makes such qualifications necessary.
11. Consents and Authorizations: Any consent, approval, order or
authorization of, or registration, declaration, compliance with or filing with
any governmental or regulatory authority required in connection with the
execution and delivery of this Agreement to permit the consummation by Client,
CFI and CyberMalls of the transactions described in this Agreement shall be
accomplished in a timely manner and in accordance with all federal and state
laws where applicable.
12. No Litigation Pending: There are no judicial or administrative actions,
suits, proceedings or investigations pending or, to the knowledge of Client,
threatened which may result in any liability on the part of Client other than
what has already been disclosed to CyberMalls.
13. CyberMalls' Disclosure: CyberMalls makes no warranties or
representations with respect to the value or potential value or earnings
potential, of the CFI virtual mall.
14. Limitation of Assignment: Neither Client nor CFI will transfer, sell,
hypothecate, assign or distribute any of the assets currently in its possession,
including the CFI common stock, except upon the express, written and signed
agreement by all of the parties to this Agreement, and will continue operations
in substantially the same manner as it is presently functioning, until this
Agreement has been consummated.
15. Attorney Fees: In the event that any court proceeding or dispute resolution
procedure is brought under or in connection with this Agreement, the prevailing
party in such proceeding shall be entitled to recover from the other party all
costs, expenses and reasonable attorneys' fees incidental to such legal action.
The term "prevailing party" as defined in this Agreement shall mean the party in
whose favor a final judgment or award on the merits is entered. The prevailing
party may apply to the court or the person(s) or board in charge of the
proceeding, for an award of costs, expenses and reasonable attorneys' fees.
16. Future Taxes:
A. CyberMalls, Inc. is not responsible for taxes on Virtual Property:
The parties also acknowledge that in the future, virtual malls may be
subjected to a variety of tax obligations from one or more regulatory
or governmental agencies. It is understood that should virtual malls,
as defined and described in this Agreement, be assessed or obliged to
pay additional taxes beyond what are assessed at the date of this
Agreement, virtual mall owner shall assume responsibility for such
taxes associated with construction, development, operation and/or
revenues derived therefrom. Client and CFI acknowledge that CyberMalls
shall not be liable to pay any future tax assessments associated with
virtual mall.
17. Facsimile Counterparts: If a party signs this Agreement and transmits
an electronic facsimile of the signature page to the other party, the party who
receives the transmission may rely upon the electronic facsimile as a signed
original of this Agreement. Further, this Agreement may be executed in
counterparts.
AGREED TO this 31st day of August, 1996 by the parties herein.
CyberMalls, Inc. BRIA Communications Corporation
and,
Cyber Football, Inc.
/s/Xxxxxx Xxxxxxxx /s/Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxx, President Xxxxxxx Xxxxxxxxx, President
