EXHIBIT 10.16
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WEBSITE PURCHASE AGREEMENT
AGREEMENT (the "Agreement") is entered into as of this day of April, 2005
by and between Xxxxx Xxxxxx, an individual representing himself, with a business
address of________________ (the "Seller") and TouchStone Capital Group, Inc., a
Delaware corporation having its principal place of business at 0000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 (the "Buyer").
WHEREAS, Seller is the owner of certain domain names and websites; and
WHEREAS, Seller desires to sell all of its right, title and interest in and
to certain domain names, websites set forth on Exhibit A attached hereto and the
intellectual property content embodied therein (collectively, the "Websites"),
in accordance with the terms and conditions of this Agreement; and
WHEREAS, Buyer desires to purchase the Websites, in accordance with the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF WEBSITES
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1.1 Transfer of Websites. Subject to the terms and provisions hereof, Buyer
shall purchase and acquire from Seller, and Seller shall sell, transfer and
convey to Buyer, all title, interest and rights as well as obligations of Seller
in the Websites.
1.2 Encumbrances. The sale and transfer of the Websites, shall, at the time
of Closing (as hereinafter defined), be free and clear of all obligations,
security interests, liens, and encumbrances whatsoever.
1.3 Purchase Price. The purchase price shall be as follows:
(a) Upon the terms and subject to the conditions of this Agreement, Seller
agree to sell, convey, assign and transfer, and Buyer agrees to purchase, the
Websites, for One Hundred Five Thousand ($105,000.00) Dollars, to be paid or
payable by Buyer to Seller FOR the Website and the noncompetition covenant
provided FOR IN Section 6.1 (the "Purchase Price").
(b) The Purchase Price shall be paid by the Buyer in three (3) equal
installments of Thirty Five Thousand ($35,000.00) Dollars on: (i) the date of
the Closing, (ii) four (4) months from the date of the Closing, and (iii)
January 1, 2006. Furthermore, all monies and revenues generated by the Websites
prior to the Closing shall revert to Seller, and, to the extent any revenues or
payments generated prior to the Closing are collected or received by Buyer, then
Buyer shall, within ten (10) days if its receipt of same, forward all such
revenues
and payments to Seller. Subject to the terms and conditions of Section 5.2
below, all payments and financial obligations in this Agreement are
non-cancelable and nonrefundable. If Buyer fails to timely pay any amount due to
Seller hereunder, Buyer agrees to pay late charges of one and one-half percent
(1 %2%) per month, or the highest rate permitted by law.
1.4 Closing. The completion of the contemplated transactions (the
"Closing") shall take place upon the execution of this Agreement as of the date
first written above.
1.5 No Assumed Liabilities. Notwithstanding any other provision in this
Agreement, Buyer shall not assume, or be deemed to have assumed or guaranteed,
or otherwise be responsible for any liability, obligation or claims of any
nature incurred by Seller prior to the Closing, relating to or arising out of
Seller's ownership, use or exploitation of the Websites, whether matured or
unmatured, liquidated or unliquidated, fixed or contingent, known or unknown, or
whether arising out of acts or occurrences of Seller or any other third party
prior to the Closing (the "Excluded Liabilities").
1.6 Ongoing Liabilities. Notwithstanding anything herein to the contary
Buyer shall assume all ongoing liabilities associated with the Websites,
including without limitation: (i) all obligations to support, maintain, enhance
and keep current the Websites, and any content or data provided by or through
the Websites, (ii) separately contract for all Third Party Materials; (iii)
market, sell and develop channels for the Websites; and (iv) all other duties,
tasks and obligations normally associated with the operating and support of
intenet web sites (collectively the "Ongoing Liabilities"), In the event Buyer
requests Seller's assistance in any of the foregoing, then Seller shall assist
Buyer with general transition concerns (excluding any and all research &
development system coding work) to be communicated remotely via email or phone
for a period of Twelve (12) weeks following the date of this Agreement, at no
additional cost and expense. Nothing in this provision shall affect or restrict
the Seller's obligations to satisfy the Excluded Liabilities, and in no event
shall an Ongoing Liability be deemed an Excluded Liability.
ARTICLE II
REPRESENTATIONS AND WAR WARRANTIES OF SELLER
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Seller represents and warrants to Buyer as follows:
2.1 Corporate Existence and Authority. Seller has full power and authority
to execute and deliver this Agreement and the agreements contemplated hereby, to
perform its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby.
2,2 Authorization; Binding Effect. This Agreement has been duly and validly
executed and delivered by Seller and, upon the execution and delivery thereof by
the Buyer, will constitute the Legal, valid and binding obligations of Seller
enforceable against it in accordance with its terms.
2.3 Absence of Conflicts. Seller has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and
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delivery of this Agreement by Seller does not, and the performance of this
Agreement by Seller will not, conflict with or violate any law, rule,
regulation, order, judgment or decree applicable to the Seller or by which
Seller or any of ITS properties is bound or affected; or breach any agreement
relating to the Websites to which Seller is a party.
2.4 Non-Infringement. The Websites do not infringe any existing United
States patents, copyrights, trade secrets, trademarks or other proprietary
rights of any third parties. To the best of the knowledge and belief of the
Seller, the Websites do not infringe any foreign or international patents,
copyrights, trade secrets, trademarks or other proprietary rights of any third
parties.
2.5 Litigation. There are no pending, or to the best knowledge and belief
of Seller, threatened actions or proceedings before any court or administrative
agency or other authority which might or will materially or adversely affect
Seller's ability or right to perform all of Seller's obligations hereunder. As
of the Closing Date there is no suit or action, or legal, administrative,
arbitration or other proceeding or governmental investigation affecting the
Websites pending, or to the best of the knowledge and belief of Seller,
threatened against Seller which could adversely effect the Websites, or against
the Seller that would affect or threaten the validity of this transaction.
2.6 Good Title. Seller has and shall transfer to Buyer at Closing, good
and marketable title to the Websites. Seller represents that the Websites is
free and clear of any and all security interests, encumbrances or liens.
2.7 Rights of Seller in Websites. The Websites were created solely by
employees, or agents of Seller who are/were under an obligation to assign all
right, title and interest therein to Seller.
2.8 Liabilities. Seller represents that, as of the Closing Date, it is not
aware of any liabilities of any nature relating to the Websites.
2.9 Websites, The Seller has not received any written notice or claim
challenging the Seller's ownership or use of any of the Websites or asserting
that any other person has any material claim of ownership with respect thereto;
the Seller has not assigned, licensed, transferred or encumbered to or for the
benefit of any person or entity any of its rights in or to the Websites or any
component thereof; the Seller has treated the source code of the Websites, and
the data associated therewith, as confidential and proprietary business
information, and has taken all reasonable steps to protect the same as trade
secrets of the Seller.
2.10 No Guarantee of Marketing or Business Success. Seller makes no
representation, warranty or promise of any kind, express or implied, to the
Buyer as to the success of its marketing or business efforts relating to the
Websites or this Agreement, nor with respect to the amount of payments or
revenues that may accme through the Websites. Buyer shall have full freedom and
flexibility in the design and implementation of its marketing and advertising
programs, including, without limitation, the selection of market channels, the
timing and sequence of roll-out programs, the level of effort to be devoted, the
determination of pricing strategy, and the
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offering of products by or through the Websites. Notwithstanding anything to the
contrary contained herein, attached hereto as Exhibit 2.10 is a true and
accurate copy of the third party generated reports depicting the advertising
revenue for the previous two (2) full months prior to the Closing, which the
Seller hereby represents and warrants to the best of his knowledge is true,
accurate and complete, for such time period prior to the Closing.
2.11 Warranty Disclaimer. EXCEPT FOR THE FOREGOING EXPRESS WARRANTIES MADE
BY SELLER ABOVE, THE WEBSITES ARE, TO THE FULLEST EXTENT PERMISSIBLE BY LAW,
SOLD TO BUYER "AS-IS". SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES AND
REPRESENTATIONS RELATING TO THE WEBSITES AND THIS AGREEMENT, WHETHER EXPRESS OR
IMPLIED, INCLUDING THE IMPLIED WARRANTIES OR MERCHANTIBILITY AND FITNESS FOR A
PARTICULAR USE OR PURPOSE.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
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Buyer represents and warrants to Seller as follows:
3.1 Corporate Existence and Authority. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has full corporate power and authority to
execute and deliver this Agreement and the agreements contemplated hereby, to
perform its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby,
3.2 Authorization; Binding Effect. The execution and delivery by Buyer of
this Agreement and the agreements contemplated thereby, and the performance by
Buyer of its obligations hereunder and thereunder, have been duly and validly
authorized by all necessary corporate action on the part of Buyer, including all
requisite board of directors approval. This Agreement has been duly and validly
executed and delivered by Buyer and, upon the execution and delivery thereof by
Seller, will constitute the legal, valid and binding obligations of Buyer
enforceable against it in accordance with its terms.
3.3 Absence of Conflicts. Buyer has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by Buyer does
not, and the performance of this Agreement by Buyer will not, (i) conflict with
or violate the Certificate of Incorporation or By-laws of Buyer, (ii) conflict
with or violate any law, rule, regulation, order, judgment or decree applicable
to the Buyer or by which Buyer or any of its properties is bound or affected,
(iii) breach any agreement to which Buyer is a party.
3.4 Litigation. There are no pending, or to the best knowledge and belief
of Buyer, threatened actions or proceedings before any court or administrative
agency or other authority which might or will materially or adversely affect
Buyer's ability or right to perform all of Buyer's obligations hereunder.
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ARTICLE IV
CLOSING OBLIGATIONS
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4.1 Seller's Obligations at Closing. At the Closing, Seller shall execute
and deliver to Buyer a xxxx of sale, assignment, and such other instruments and
documents of conveyance and transfer to Buyer all of Seller's right, title and
interest in and to the Websites.
4.2 Seller's Further Assurances. From time-to-time, at Buyer's reasonable
request, whether at or after the Closing and without further consideration,
Seller shall execute and deliver to Buyer such instruments as may reasonably be
required to carry out the intent and purpose of this Agreement, and deliver to
Buyer such other data, papers and information as may be requested by Buyer to
assist Buyer in the use of the Websites. Except as otherwise provided in Section
1.6 above, in the event Buyer's requests become unduly time consuming or
burdensome on Seller, then Seller shall notify Buyer and Seller may continue to
assist Buyer pursuant to the terms and conditions of a separate consulting
agreement, at Seller's then current rates of charge.
4.3 Buyer's Obligations at Closing. At Closing, Buyer shall deliver to
Seller that portion of the Purchase Price due at Closing.
ARTICLE V
INDEMNIFICATION
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5.1 Indemnification. From and after the Closing Date, and subject to the
limitation of liability set forth IN Section 5.3 below, each party agrees to
defend, indemnify, and hold the other party and its officers, directors,
stockholders, parents, subsidiaries, and affiliates harmless from and against
all Indemnifiable Damages of the other party. For this purpose, "Indenmifiable
Damages" means the aggregate of all expenses, losses, costs, deficiencies,
liabilities, and damages (including attorney's fees and court costs) incurred or
suffered by the indemnified party, or any of its directors, officers,
stockholders, agents, employees, parents, subsidiaries, or affiliates, or
parents', subsidiaries' or affiliates' officers, directors, stockholders,
agents, or employees, as a direct result of or in connection with; (i) any
breach of a representation or warranty made in or pursuant to this Agreement,
(ii) any default in the performance of any of the covenants or agreements made
in this Agreement, (iii) any failure of Seller to pay, discharge, or perform ANY
OF the Excluded Liabilities, or any asserted liability resulting from any
dispute or claim against Buyer concerning any of the Excluded Liabilities, (iv)
any failure of Buyer to pay, or any asserted liability resulting from any
dispute or claim against Seller concerning any of the Ongoing Liabilities or (v)
resulting from or arising out of or relating to the operations or business of
the indemnifying party, or resulting from, arising out of, or relating to any
act or omission of the indemnifying party or its directors, officers, employees,
consultants, or agents.
5.2 Right of Release or Offset. Notwithstanding anything to the contrary
contained herein, in the event that Seller shall become obligated to pay any sum
hereunder to Buyer, Buyer may, upon ten (10) days prior written notice to
Seller, offset and deduct from the Purchase Price any such monies. If Seller
objects to any such offset and provide notice thereof to Buyer prior to the
expiration of such ten (10) day period (the "Dispute Period"), Buyer shall have
fifteen (15)
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days to respond in a written statement to the objection of Seller. If after such
fifteen (15) day period there remains a dispute as to any claims, Seller and
Buyer shall attempt IN good faith for ten (10) days to agree upon a resolution
with respect to each of such claims. If Seller and Buyer should so agree, a
memorandum setting forth such agreement shall be prepared and signed by both
parties setting forth the agreed upon settlement. If no such agreement can he
reached after good faith negotiation, either Buyer or Seller may, by written
notice to the other, demand arbitration and shall be solely and finally settled
by a single arbitrator in accordance with the Commercial Rules of the American
Arbitration Association (the "Rules"); provided, however, that in the event of
conflict between the Rules and the terms of this Agreement, the terns of this
Agreement shall govern. The place of arbitration shall be New York City, New
York; and the law applicable to the arbitration procedure shall be the Federal
Arbitration Act (9 USC ss. 2). To commence arbitration of any such dispute, the
party desiring arbitration shall notify the other party in writing in accordance
with the Rules. In the event that the parties fail to agree on the selection of
an arbitrator within 15 days after the delivery of such notice, the arbitrator
shall be selected by the American Arbitration Association upon the request of
either party.
The parties agree that the award of the arbitrator shall be (1) the sole
and exclusive remedy between them regarding any claims, counterclaims, or issues
presented to the arbitrator; (2) final and subject to no judicial review; and
(3) made and shall promptly be payable in U.S. dollars free of any tax,
deduction, or offset. The parties further agree that any costs, fees, or taxes
incident to enforcing the award shall, to the maximum extent permitted by law,
he charged against the party resisting such enforcement. The parties hereto
agree that judgment on the arbitration award may be entered and enforced in any
court having jurisdiction over the parties or their assets. Each party shall,
except as otherwise provided herein, be responsible for its own expenses,
including legal fees, incurred in the course of any arbitration proceedings. The
fees of the arbitrator shall be divided evenly between the parties.
5.3 LIMITATION OF LIABILITY, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR
UNFORESEEABLE. IN ALL EVENTS, THE CUMULATIVE LIABILITY OF THE SELLER OR THE
BUYER FOR ANY LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE
LIMITED TO THE PURCHASE PRICE, EXCEPT IN THE CASE OF A LOSS ARISING OUT OF FRAUD
OR DELIBERATE MISREPRESENTATION OF FACT BY THE PARTY FROM WHOM SUCH LOSSES ARE
SOUGHT TO BE RECOVERED.
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ARTICLE VI
COVENANTS
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6.1 Non-Competition.
At all times from the Closing until the fifth anniversary of the Closing,
without the prior written consent of Buyer, Seller shall not:
a) enter into or engage, directly or indirectly in the business of
designing, developing, marketing or distributing any Driver content based
website, offer Drivers or Shareware for download, or provide general support for
Drivers. For purposes of this Agreement, "Drivers" means any software device
drivers used to provide network and connectivity for software and hardware
applications (the "Specified Technology"); or
b) the design, manufacture, sale and distribution of BIOS related
diagnostic software, or the designing, developing, marketing or distributing any
website relating to the design, manufacture, sale and distribution of BIOS
related diagnostic software ("Bios Business")
b) PROMOTE OR ASSIST, FINANCIALLY OR OTHERWISE, ANY PERSON, FIRM,
ASSOCIATION, CORPORATION, OR OTHER ENTITY ENGAGED IN THE SPECIFIED TECHNOLOGY OR
BIOS Business.
The parties agree that due to the unique nature of the services and capabilities
of Seller, there can be no adequate remedy at law for any breach of the
obligations of Seller hereunder, that any such breach by Seller may allow the
other party hereto and/or third parties to unfairly compete with Buyer and its
affiliates resulting in irreparable harm to Buyer and therefore, that upon any
such breach by Seller or any threat thereof, Buyer and its affiliates shall he
entitled to appropriate equitable relief in addition to whatever remedies it
might have at law.
ARTICLE VII
MISCELLANEOUS
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7.1 Non-Waiver. No delay or failure on the part of either parry in
exercising any RIGHT hereunder, AND NO PARTIAL OR SINGLE exercise thereof, will
constitute a waiver of such right or of any other right hereunder.
7,2 Headings. Headings in this Agreement are for convenience only and are
not to be used for interpreting OR CONSTRUING ANY PROVISIONS hereof.
7.3 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the Commonwealth of Massachusetts to the jurisdiction of
whose courts the parties hereto submit.
7.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one in the same instrument.
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7.5 Binding Nature. The provisions of this Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
7.6 Survival of Representations and Warranties. Except as otherwise
expressly provided in this Agreement, the representations and warranties of
Buyer and Seller shall survive the Closing indefinitely.
7.7 Amendment; Successors and Assigns. This Agreement may be amended only
by an instrument signed by the authorized representatives of the parties hereto.
Neither party may assign any of its rights, obligations, or liabilities arising
hereunder without the prior written consent of the other, except as otherwise
provided herein, and any such assignment or attempted assignment shall be null
and void.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as an instrument under seal by their authorized representatives as
of the date first above written.
SELLER BUYER:
TOUCHSTONE CAPITAL GROUP, INC.
Xxxxx Xxxxxx, Individually
By:____________________________
Xxxxxx X. Xxxxxx, President
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Assumption of Liabilities, Buyer hereby undertakes, assumes and agrees to
perform pay and discharge when due all liabilities and obligations accruing
and required to be performed on or alter the date hereof for the operation of
the Transferred Assets..
Relationship with the Framework Agreement, This Xxxx of Sale is intended to
evidence the consummation of the transactions contemplated by the Framework
Agreement This Xxxx of Sale is made Without representation or warranty except
as provided in and by the Framework Agreement. This Xxxx of Sale is in all
respects subject to the provisions of the Framework Agreement and is not
intended 1n my way to supersede, limit or quality any provision or the Framework
agreement.
Further Assurances. Each party hereby agrees on demand to make, exceed;,
acknowledge and deliver any and all further documents and instruments, and to
do and cause to be done all such further acts, reasonably requested by the
other party to evidence and/or in any manner to perfect the transfer and
assignment to Buyer of the Transferred Assets contemplated hereby.
Successors, This Xxxx of Sale shall inure to the benefit of and is binding
upon the respective successors and assigns of Seller and Buyer.
Governing Law. This Xxxx of Sale shall be gmemed by the laws of the Commonwealth
of Massachusetts without giving effect to its conflict of laws principles.
Dispute Resolution. Any dispute as to matters relating to this Xxxx of Sale
shall be resolved in accordance with the arbitration procedures set forth in the
Framework Agreement.
IN WITNESS WHEREOF, the parties have caused this Xxxx of Sale to be executed
and delivered effective as of the date First written above,
BUYER; SELLER:
TOUCRSTONE CAPITAL GROUP, INC.
Xxxxx Xxxxxx, Individually By,
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Xxxxxx X. Xxxxxx, President
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EXHIBIT A
WEBSITES
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1. www,xxxxxxxxxxxxxx.xxx
2. xxx.xxxxxxxxx.xxx
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ASSIGNMENT AGREEMENT
AGREEMENT made this 8th day of September, 2005, by and between
xXxxxxxx.xxx, Inc., a New Hamsphire corporation with a principal business
address of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx ("eSUPPORT") and
Touchstone Capital Group, Inc., a Delaware corporation with a principal business
address of 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxxxxxx ("TSC").
WHEREAS, pursuant to a Website Purchase Agreement dated April 2005, by and
between TSC and Xxxxx Xxxxx (the "Purchase Agreement"), a copy of which is
attached hereto as Exhibit A, TSC purchased the Websites (as defined in the
Purchase Agreement);
WHEREAS, the Board of Directors of Touchstone Software Corporation ("TSSW")
have determined that the Websites fall within eSUPPORT's core business, and wish
to purchase the Websites and eSUPPORT's rights and obligations under the
Purchase Agreement; and
TSC wishes to sell, transfer and assign all of its right, title and
interest in and to the Website and the Purchase Agreement, in accordance with
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual promises
herein contained, the parties agree as follows:
1. Subject to the terms and conditions of this Agreement, TSC hereby
assigns all of its right, title and interest in and to the Website and the
Purchase Agreement to eSupport. The representations and warranties made by Xxxxx
Xxxxxx in the Purchase Agreement are incorporated herein by reference, and TSC
hereby ratifies and confirms such warranties, as if originally made by TSC, for
the benefit of eSupport.
2. In consideration of TSC's assignment of the Website and the Purchase
Agreement to eSupport, TSSW, on behalf of its wholly owned subsidiary, eSupport,
agrees as follows: (i) to pay to TSC Thirty Five Thousand ($35,000.00) Dollars
(which represents the first installment of the Purchase Price (as defined in the
Purchase Agreement) paid by TSC), and (ii) to assume all remaining obligations
of TSC under the Purchase Agreement, including, without limitation, satisfying
the remaining portion of the Purchase Price.
3. This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts to the jurisdiction of whose courts
the parties hereto submit.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as an instrument under seal by their authorized representatives as
of the date first written above.
eSupport, Inc.
By:__________________
Name:________________
Title:_______________
Acknowledged and Accepted:
Touchstone, Software Corporation
By:_____________________
Name:___________________
Title:__________________
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Reference is made to a Website Purchase Agreement dated April
_______________________________________, 2005, by and between Touchstone Capital
Group, Inc. and Xxxxx Xxxxxx (the "Purchase Agreement"). The undersigned hereby
consents to the transfer and assignment of all of Touchstone Capital Group,
Inc.'s right, title and interest in and to the Purchase Agreement and the
Websites (as defined in the Purchase Agreement), to xXxxxxxx.xxx, Inc.
xXxxxxxx.xxx. Inc. hereby agrees to assume and discharge all of Touchstone
Capital Group, Inc.'s obligations set forth in the Purchase Agreement.
Xxxxx Xxxxxx, Individually
xXxxxxxx.xxx, Inc.
By:_________________________
Name:_______________________
Title:______________________
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