EXHIBIT 10.8
DOMAIN PURCHASE AGREEMENT
THIS DOMAIN PURCHASE AGREEMENT (hereinafter referred to as this "Agreement"), is
entered into as of the 3rd day of March 1997, by and between Axxess, Inc. a
corporation organized under the laws of the state of Nevada (hereinafter
referred to as "AXS"); and Xxxx X. Xxxxxxx, an individual residing at 0 Xxxxxxx
Xxxx Xxx, Xxxxx, Xxx Xxxx, 00000 (hereinafter referred to as "GWH").
Premises
This Agreement provides for the acquisition by AXS of the internet web
site and domain name "xxxxxxxxxxxx.xxx" (hereinafter "Web Site") from GWH in
exchange for the payment of four thousand ($4,000) dollars cash and one (1,000)
thousand restricted shares of common stock of Axxess, Inc.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to be derived by the parties hereunder, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS, AND WARRANTIES OF GWH
As an inducement to and to obtain the reliance of AXS, GWH represents
and warrants to AXS as follows:
Section 1.01 Title and Related Matters. GWH has good and marketable title to
all of its properties, inventory, interests in properties, and
assets, real and personal, associated with the Web Site, free and
clear of all liens, pledges, charges, or encumbrances except (a)
statutory liens or claims not yet delinquent; and (b) such
imperfections of title and easements as do not and will not
materially detract from or interfere with the present or proposed
use of the properties subject thereto or affected thereby or
otherwise materially impair present business operations on such
properties. GWH owns all procedures, techniques, business plans,
methods of management, or other information utilized in connection
with GWH's Web Site. To the best knowledge of GWH, its Web Site
does not infringe on the patent, copyrights, trade secret, or
other proprietary right of any third person.
Section 1.02 Litigation and Proceedings. There are no actions, suits, or
proceedings pending or, to the knowledge of GWH, threatened by or
against GWH, or affecting GWH or its Web Site, at law or in
equity, before any court or other governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of
any kind. GWH
does not have any knowledge of any default on its part with
respect to any judgement, order, writ, injunction, decree, award,
rule, or regulation of any court, arbitrator, or governmental
agency and instrumentality.
Section 1.03 Contracts.
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which GWH's Web
Site is a party or by which it or any of its properties are
bound, which are material to the operations of the Web Site
taken as a whole;
(b) GWH and/or the Web Site are not a party to or bound by, or
are not subject to, any contract, agreement, other commitment
or instrument; any charter or other corporate restriction; or
any judgement, order, writ, injunction, decree, or award
which materially and adversely affects, or in the future may
(as far as GWH can no foresee) materially and adversely
affect, the business, operations, properties, assets, or
condition of the Web Site; and
Section 1.04 Material Contract Defaults. GWH and the Web Site are not in
default in any material respect under the terms of any outstanding
contract, agreement, lease, or other commitment which is material
to the business, operations, properties, assets, or condition of
the Web Site, and there is no event of default or other event
which, with notice or lapse of time or both, would constitute a
default in any material respect under any such contract,
agreement, lease, or other commitment in respect of which AMI has
not taken adequate steps to prevent such a default from occurring.
Section 1.05 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions comtemplated by
this Agreement will not result in the breach of any term or
provision of, or constitute an event of default under, any
material indenture, mortgage, deed of trust, or other material
contract, agreement, or instrument to which GWH is a party or to
which any of its properties or operations are subject.
Section 1.06 Governmental Authorizations. GWH holds all licenses, franchises,
permits, and other governmental authorizations which are legally
required to enable GWH to operate the Web Site in all material
respects as conducted on the date hereof. No authorization,
approval, consent, or order of, or registration, declaration, or
filing with, any U.S. or foreign court or other governmental body
is required in connection with the execution and delivery by GWH
of this Agreement and the consummation by GWH of the transactions
contemplated hereby.
Section 1.07 Compliance With Laws and Regulations. GWH has complied with all
applicable U.S. and foreign statutes and regulations of any
federal, state,
provincial, or other governmental entity or agency thereof, except
to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets, or
condition of the Web Site or except to the extent that
noncompliance would not result in any material liability.
Section 1.08 Ownership of the Domain Name. GWH hereby represents and warrants
that it is the legal and beneficial owner of "xxxxxxxxxxxx.xxx"
the domain name, free and clear of any claims, charges, equities,
liens, security interests, and encumbrances whatsoever, and that
it has full right, power, and authority to transfer, assign,
convey, and deliver the domain name; and that delivery of such
domain name at the Closing will convey to AXS good and marketable
title to such shares, free and clear of any claims, charges,
equities, liens, security interest, and encumbrances whatsoever.
ARTICLE II
REPRESENTATIVES, COVENANTS, AND WARRANTIES OF AXS
As an inducement to, and to obtain the reliance of, GWH, AXS represents
and warrants as follows:
Section 2.01 Organization. AXS is a corporation duly organized, validly
existing, and in good standing under the laws of the state of
Nevada, and has the corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws,
regulations, ordinances, and orders of public authorities to own
all of its properties and assets and to carry on its business in
all material respects as it is now being conducted, and there is
no jurisdiction in which it is not qualified in which the
character and location of the assets owned by it or the nature of
the business transacted by its requires qualification. The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby will not,
violate any provision of AXS's certificate of incorporation or
Memorandum. AXS has taken all action required by law, its
certificate of incorporation, and bylaws, or otherwise to
authorize the execution and delivery of this Agreement. AXS has
full power, authority, and legal right and has taken all action
required by law, its certificate of incorporation, bylaws, or
otherwise to consummate the transactions herein contemplated.
Section 2.02 Approval of Agreement. The board of directors of AXS has
authorized and approved the execution and delivery of this
Agreement by AXS and consummation of the transactions contemplated
hereby.
ARTICLE III
PURCHASE OF WEB SITE AND DOMAIN NAME
Section 3.01 The Purchase
(a) On the terms and subject to the conditions set forth in this
Agreement, on the Closing Date (as defined in section 3.02),
GWH shall assign, transfer, and deliver to AXS, free and
clear of all liens, pledges, encumbrances, charges,
restrictions, or claims of any kind, nature, or description,
the domain name and Web Site and AXS agrees to acquire such by
issuing and delivering in exchange therefore; (i) one (1,000)
thousand restricted shares of common stock of AXS; and (ii)
cash in the amount of four thousand ($4,000) dollars;
(b) At the Closing, GWH shall, on the surrender of the domain name
and Web Site, be entitled to receive a certificate evidencing
shares of the AXS Common Stock as provided herein.
Section 3.02 Closing. The closing ("Closing") of the transactions contemplated
by this Agreement shall be on a date and at such time as the
parties may agree ("Closing Date"), no later than the ten day
period commencing with signing of this Agreement.
Section 3.03 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge, and deliver (or shall cause to
be executed, acknowledged, and delivered) any and all
certificates, opinions, financial statements, schedules,
agreements, resolutions, or other instruments required by this
Agreement to be so delivered at or prior to the Closing, together
with such other items as may be reasonably requested by the
parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby.
Section 3.04 Termination.
(a) This Agreement may be terminated by the board of directors of
AXS or GWH at any time prior to the Closing Date if:
(i) there shall be any actual or threatened action or
proceeding before any court or any governmental body
which shall seek to restrain, prohibit, or invalidate the
transactions contemplated by the Agreement and which, in
the judgement of such board of directors, made in good
faith and based on the advice of its legal counsel, makes
it inadvisable to proceed with the exchange contemplated
by this Agreement;
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval
is required to consummate such transactions or in the
judgment of such board of directors,
made in good faith and based on the advice of counsel, there
is substantial likelihood that any such approval will not be
obtained or will be obtained only on a condition or
conditions which would be unduly burdensome, making it
inadvisable to proceed with the exchange; or
In the event of termination pursuant to this paragraph (a) of section
3.04, no obligation, right, or liability shall arise hereunder, and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting, and execution and this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the
Closing by action of the board of directors of AXS or GWH
shall fail to comply in any material respect with any of their
covenants or agreements contained in this Agreement or if any
of the representations or warranties of GWH contained herein
shall be inaccurate in any material respect. If this Agreement
is terminated pursuant to this paragraph (b) of section 3.04,
this Agreement shall be of no further force or effect, and no
obligation, right, or liability shall arise hereunder.
ARTICLE IV
SPECIAL COVENANTS
Section 4.01 Access to Properties and Records. AXS and GWH will each afford to
the officers and authorized representatives of the other full
access to the properties, books, and records of AXS and GWH, as
the case may be, in order that each may have full opportunity to
make such reasonable investigation as it shall desire to make of
the affairs of the other, and each will furnish the other with
such additional financial and operating data and other information
as to the business and properties of AXS and GWH, as the case may
be, as the other shall time to time reasonably request.
Section 4.02 Availability of Rule 144. Each of the parties acknowledges that
the shares of AXS stock to be issued pursuant to this Agreement
will be "restricted securities," as that term is defined in rule
144 promulgated pursuant to the Securities Act. AXS is under no
obligation to register such shares under the Securities Act or to
register the ECO common stock pursuant to section 12(g) of the
Securities Exchange Act of 1934, as amended. Notwithstanding the
foregoing, however, AXS will use its best efforts to: (a) timely
prepare and disseminate the required information and financial
statements so as to make available to the shareholders of AXS the
provisions of rule 144 pursuant to subparagraph (c)(2) thereof;
and (b) within 5 days of any written request of any shareholder of
AXS, AXS will provide to such shareholder written confirmation of
compliance with such of the foregoing subparagraph as may then be
applicable. The shareholders of AXS holding
restricted securities of AXS as of the date of this Agreement, and
their respective heirs, administrators, personal representatives,
successors, and assigns, are intended third party beneficiaries of
the provisions set forth herein. The covenants set forth in this
section 4.02 shall survive the Closing and the consummation of the
transactions herein contemplated.
Section 4.03 Special Covenants and Representations Regarding the AXS Stock. The
consummation of this Agreement and the transactions herein
contemplated, including the issuance of the Common Stock to GWH as
contemplated hereby, constitutes the offer and sale of securities
under the Securities Act and applicable state Statutes. Such
transaction shall be consummated in reliance on exemptions from
the registration and prospectus delivery requirements of such
statutes which depend, inter alia, upon the circumstances under
which GWH acquire such securities. In connection with reliance
upon exemptions from the registration and prospectus delivery
requirements for such transactions, at the Closing, GWH shall
deliver to AXS a letter of representation in the form attached
hereto as Exhibit "A."
Section 4.04 Third Party Consents. AXS and GWH agree to cooperate with each
other in order to obtain third party consents to this Agreement
and the transactions herein contemplated.
Section 4.05 Actions Prior to Closing.
(a) From and after the date of this Agreement until the Closing
Date, respectively, will each:
(i) carry on its business in substantially the same manner
as it has heretofore;
(ii) perform in all material respects all of its obligations
under material contracts, leases, and instruments
relating to or affecting its assets, properties, and
business;
(iii) use its best efforts to maintain and preserve its
business organization intact, to retain its key
employees, and to maintain its relationship with its
material suppliers and customers; and
(iv) fully comply with and perform in all material respects
all obligations and duties imposed on it by all federal
and state laws and all rules, regulations, and orders
imposed by federal or state governmental authorities.
(b) From and after the date of this Agreement until the Closing
Date, neither AXS nor GWH will:
(i) enter into or amend any contract, agreement, or other
instrument of any types described in such party's
schedules, except that a party may enter into or amend any
contract, agreement, or other instrument in the ordinary
course of business involving the sale of goods or
services.
ARTICLE V
MISCELLANEOUS
Section 5.01 Brokers. AXS and GWH agree that they are not obligated to pay any
compensation to any finders or brokers for bringing the parties
together or who were instrumental in the negotiation, execution,
or consummation of this Agreement. Each party agrees to indemnify
the other against any claim by any third person for any
commission, brokerage, or finders' fee or other payment with
respect to this Agreement or the transaction contemplated hereby
based on any alleged agreement or understanding between such party
and such third person, whether express or implied, from the
actions of such party.
Section 5.02 Governing Law. This Agreement shall be governed by, enforced, and
construed under and in accordance with the laws of the United
States of America and, with respect to matters of state law, with
the laws of Florida. The federal and state courts of the state of
Florida shall have exclusive jurisdiction over any dispute or
controversy arising under or in connection with this Agreement.
Section 5.03 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered to
it or sent by registered mail or certified mail, postage prepaid,
or by prepaid telegram addressed as follows:
If to AXS, to: Axxess, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
If to GWH, to: Xx. Xxxx X. Xxxxxxx
0 Xxxxxxx Xxxx Xxx
Xxxxx, Xxx Xxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed, or
telegraphed.
Section 5.04 Attorneys' Fees. In the event that any party institutes any action
or suit to enforce
this Agreement or to secure relief from any default hereunder or
breach hereof, the breaching party or parties shall reimburse the
nonbreaching party or parties for all costs, including reasonable
attorneys' fees, incurred in connection therewith and in enforcing
or collecting any judgment rendered therein.
Section 5.05 Confidentiality. Each party hereto agrees with the other parties
that, unless and until the transactions contemplated by this
Agreement have been consummated, they and their representatives
will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any
representative, officer, director, or employee, or from any books
or records or from personal inspection, of such other party, and
shall not use such data or information or disclose the same to
others, except (i) to the extent such data or information is
published, is a matter of public knowledge, or is required by law
to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the
transactions contemplated by this Agreement.
Section 5.06 Third Party Beneficiaries. This contract is solely between AXS and
GWH and, except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor, or any other
person or entity shall be deemed to be a third party beneficiary
of this Agreement.
Section 5.07 Entire Agreement. This Agreement represents the entire agreement
between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of
the parties relating to the subject matter hereof. There are no
other courses of dealing, understanding, agreements,
representations, or warranties, written or oral, except as set
forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 5.08 Survival: Termination. The representations, warranties, and
covenants of the respective parties shall survive the Closing Date
and the consummation of the transactions herein contemplated.
Section 5.09 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
Section 5.10 Amendment or Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred
herein, at law, or in entity, and may be enforced concurrently
herewith, and no waiver by any party of the performance of any
obligation by the other shall be construed as a waiver of the same
or any other default then, theretofore, or thereafter occurring or
existing. At any time prior to the Closing Date, this Agreement
may be amended by a
writing signed by all parties hereto, with respect to any of the
terms contained herein, any term or condition of this Agreement
may be waived or the time for performance hereof may be extended
by a writing signed by the party or parties for whose benefit the
provision is intended.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Axxess, Inc.
ATTEST:
By /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
ATTEST:
By [SIGNATURE APPEARS HERE]
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