EXHIBIT 10.4
CONTRACT OF SALE
THIS CONTRACT is made on April 26, 1999 by and between GoHealth.MD,
Inc., a Delaware Corporation (the "Purchaser") and Xxxxxx X. Xxxxx of Cherry
Hill, NJ (the "Seller").
RECITAL
WHEREAS, the Seller has legally registered "Xxxxxxxx.xxx" with Network
Solutions, Inc., the national registry for all domain names, and owns all right,
title and interest in the web site constructed by the Seller in connection with
such domain name;
WHEREAS, the Purchaser desires to purchase form the Seller, and the
Seller desires to sell to the Purchaser, the "Xxxxxxxx.xxx" web site and domain
name, as well as any and all rights, title and interest associated thereto which
the Seller holds.
THEREFORE, in consideration of the mutual promises and conditions
contained in this contract, the parties agree as follows:
PURCHASE AND SALE
1. The Purchaser shall purchase from the Seller, and the Seller shall
sell to the Purchaser, any and all of the Seller's right, interest and title in
the domain name "Xxxxxxxx.xxx" (the "Sale") for the purchase price of Twenty
Thousand Dollars ($20,000.00) payable at the closing of the Sale (the
203
"Closing") in the form of a cashier's check, money order or wire funds. In
addition, Seller will receive 1.0 unit of GoHealth.MD pursuant to a Private
Offering Memorandum and consisting of 2,000 shares of common stock and 2,000
warrants which are exercisable at a price of $2.50 per share.
2. At the closing of the Sale, the Seller shall deliver to the
Purchaser any and all documentation in the Seller's possession reflecting the
ownership and registration of the domain name "Xxxxxxxx.xxx" with Network
Solutions, Inc., as well as effectuate a domain name modification (as such term
is commonly understood) in favor of GoHealth.MD, Inc. The Seller shall
additionally deliver (or, to the extent delivery is impossible, make known) to
the Purchaser all other contracts, agreements and commitments pertaining to
Seller's ownership of said domain name "Xxxxxxxx.xxx."
PURCHASER'S CONTINUING OBLIGATIONS
3. The Purchaser hereby unconditionally agrees to continue to utilize
the services of World Wide Web Communications, Inc., a New Jersey corporation
currently wholly owned by the Seller ("WWWC"), as the host of the web site
"Xxxxxxxx.xxx" at WWWC's usual and customary rate for a period of three (3)
years commencing at the Closing Date.
4. The Purchaser hereby unconditionally agrees to continue to utilize
WWWC and its services for any and all changes, upgrades and maintenance of the
web site "Xxxxxxxx.xxx" at WWWC's usual and customary rates for a period of
three (3) years commencing at the Closing Date.
5. The Purchaser hereby unconditionally acknowledges and agrees that,
for a period of three (3) years commencing on the Closing Date, all web-hosting
fees for web sites hosted on WWWC's server, regardless of whether or not the web
sites are listed in "Xxxxxxxx.xxx," will be and will continue to be the sole and
exclusive property of WWWC.
204
6. All "Xxxxxxxx.xxx" revenues other than those described, or
reasonably arising from or related to those described, in this "Purchaser's
Continuing Obligations" section, shall be the property of the Purchaser.
COMPLIANCE WITH LAW AND OTHER INSTRUMENTS
7. The Seller hereby represents that, to its best knowledge after
reasonable due diligence, the Seller is not in violation of any term or
provision of any charter, by-law, contract, agreement, instrument, judgment,
decree, order, statute, rule or regulation, and that the Seller's execution,
delivery and performance of this contract will not result in any violation or in
the creation of any lien, encumbrance, or charge on any of the properties or
assets of Seller.
SELLER'S TITLE
8. The Seller warrants that it has good, absolute and marketable title
to this domain name and that it has been properly registered with Network
Solutions, Inc.
9. The Seller represents that it has no knowledge of any claim against
it under or in respect of, nor any reason to believe that it is or may be
infringing on or otherwise acting adversely to the rights of any person under or
in respect of, any patent, trademark, service xxxx, trade name, copyright,
license, or other similar intangible property; and Seller is not aware of any
obligation or liability to make any payments by way of royalties, fees, or the
like to any owner or licensee of, or other claimant under, any intangible
property with respect to its use or in connection with the conduct of Seller's
business or otherwise (other than any fees that may be owed from time to time to
Network Solutions, Inc.).
205
INDEMNIFICATION
10. The Seller shall indemnify the Purchaser, and the Purchaser shall
indemnify the Seller, on and after the Closing with respect to all claims,
actions, demands, losses, costs, expenses, liabilities (joint or several),
penalties and damages, including counsel fees incurred in investigating or
attempting to avoid or oppose the imposition of damages, resulting to the other
form (1) any inaccurate representation made by the Seller or the Purchaser, as
the case may be, in or under this contract, (2) breach of any of the warranties
or covenants made by the Seller or the Purchaser, as the case may be, in or
under this contact or (3) breach or default in the performance by the Seller or
the Purchaser, as the case may be, of any of the covenants to be performed by it
under this contract. The Seller shall indemnify the Purchaser for any debts,
liabilities, or obligations of the Seller specifically relating to
"Xxxxxxxx.xxx", other than those obligations expressly or reasonably assumed by
the Purchaser pursuant to this contract, and other than those that have been
communicated to the Purchaser by the Seller on or prior to the Closing Date.
206
AMENDMENT AND WAIVER
11. This contact may be amended or modified at any time and in all
respects, and any provision may be waived, by an instrument in writing executed
by both the Purchaser and the Seller, or by either of them in the case of a
waiver of a right or benefit under this contract of such waiving party.
NOTICES
12. Any notices or other communications required or permitted under
this contract shall be sufficiently given if delivered personally or sent by
registered or certified mail, postage prepaid, addressed to the Seller located
at 0000 Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 and to the Purchaser at
GoHealth.MD, Inc. located at 0000 Xxxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000
or at any other address furnished in writing by one party to the other, and
shall be deemed to have been given as of the date delivered or deposited in the
United States mail, as the case may be.
CHOICE OF LAW
13. It is the intention of the parties that the laws of the State of
New Jersey shall govern the validity of this contract, the construction of its
terms, and the interpretation of the rights and duties of the parties.
ARBITRATION
14. Any dispute arising under this contract or relating to the sale and
purchase described in this contract shall be resolved under the commercial
arbitration rules of the American Arbitration
207
Association.
HEADINGS
15. Headings contained in this contract are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
contract.
COUNTERPART EXECUTION
16. This contract may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
but one and the same instrument.
GENDER
17. All personal pronouns used in this contract shall include the other
genders whether used in the masculine or feminine or neuter gender, and the
singular shall include the plural whenever and as often as may be appropriate.
208
PARTIES IN INTEREST
18. All the terms and provisions of this contract shall be binding on
and inure to the benefit of, and be enforceable by, the Seller, the Purchaser
and their respective successors and assigns. The Purchaser hereby expressly and
unconditionally agrees that WWWC shall additionally have the right to enforce
any provision in this contract with respect to which it is a third party
beneficiary.
INTEGRATED CONTRACT
19. This contract constitutes the entire agreement between the parties,
and there are no agreements, understandings, restrictions, warranties, or
representations between the parties other than those set forth, provided for or
otherwise referenced in this contract.
ATTEST: GOHEALTH.MD. INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------ ---------------------
Xxxxxxx X. Xxxxxx, President
ATTEST:
/s/ Xxxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
------------------------------------ --------------------
Xxxxxx X. Xxxxx
209
