DOMAIN NAME AND WEBSITE PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 9th day of June, 2000.
BETWEEN:
XXX XXXXXXX INSURANCE, a proprietorship having a principal place of
business at 0000 Xxxxx Xxxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxxxx, XX
00000 (the "Vendor")
AND:
E-FINANCIAL XXXXX.XXX, INC., a Delaware corporation having a principal
place of business at Suite 1005 - 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxx Xxxxxxxx X0X 0X0
(the "Purchaser")
WHEREAS:
A. The Vendor has adopted, used and registered with Network Solutions, Inc.
("NSI") the domain name xxxxxxxxxxxxxx.xxx (the "Domain Name");
B. The Vendor owns the website located at xxx.xxxxxxxxxxxxxx.xxx, as more
particularly described in Schedule "A" hereto (the "Website"), including,
without limitation, all related software, images, files and other content; and
C. The Vendor desires to sell, and the Purchaser desires to buy, all of the
Vendor's right, title and interest in and to the Domain Name and the Website
(collectively, the "Assets"); and
D. The parties wish to enter into this Agreement to define their respective
rights and obligations with respect to the purchase of the Assets by the
Purchaser from the Vendor.
NOW THEREFORE, in consideration of the Purchase Price (defined herein) and other
good and valuable consideration now paid by the Purchaser to the Vendor, the
receipt and sufficiency of which is hereby acknowledged by the Vendor, the
parties hereto agree as follows:
1. The Vendor hereby irrevocably agrees to grant, bargain, sell,
assign, transfer, and set over unto the Purchaser, or its assigns, all worldwide
right, title, and interest of the Vendor in the Assets as of June __9___, 2000
(the "Closing Date").
2. The Purchaser will, on the Closing Date, pay to the Vendor the sum
of $150,000 (the "Purchase Price"), payable by issuance of 50,000 common shares
in the capital of the Purchaser (the "Shares"), said Shares to be restricted
under Rule 144 as promulgated under the Securities Act of 1933, as amended (the
"Act").
3. On the Closing Date, the Vendor will forthwith deliver to the
Purchaser the source code versions of all software programs that operate and
comprise the Website.
4. Vendor acknowledges that:
(a) none of the Shares have been registered under the Act, or under any
state securities or "blue sky" laws of any state of the United States,
and, unless so registered, may not be offered or sold in the United
States or, directly or indirectly, to U.S. Persons, as that term is
defined in Regulation S under the Act ("Regulation S"), except in
accordance with the provisions of Regulation S, pursuant to an
effective registration statement under the Act, or pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act;
(b) it understands and agrees that the Purchaser will refuse to register
any transfer of the Shares not made in accordance with the provisions
of Regulation S, pursuant to an effective registration statement under
the Act or pursuant to an available exemption from, or in a
transaction not subject to, the registration requirements of the Act;
(c) it understands and agrees that a legend may be placed on the
certificates representing any of the Shares to the effect that the
Shares represented by such certificates are restricted from transfer
as otherwise detailed herein;
(d) that the Purchaser has not undertaken, and will have no obligation, to
register any of the Shares under the Act;
(e) the decision to execute this Agreement and acquire the Shares agreed
to be acquired hereunder has not been based upon any oral or written
representation as to fact or otherwise made by or on behalf of the
Purchaser and such decision is based entirely upon a review of the any
public information which has been filed by the Purchaser with the
Securities and Exchange Commission ("SEC") in compliance, or intended
compliance, with applicable securities legislation. If the Purchaser
has presented a business plan to the Vendor, the Vendor acknowledges
that the business plan may not be achieved or be achievable;
(f) it has been advised to consult its own legal, tax and other advisors
with respect to the merits and risks of an investment in the Shares
and with respect to applicable resale restrictions and it is solely
responsible (and the Purchaser is not in any way responsible) for
compliance with applicable resale restrictions;
(g) none of the Shares are listed on any stock exchange and no
representation has been made to the Vendor that any of the Shares will
become listed on any stock exchange, except that currently certain
market makers make market in the common shares of the Purchaser on the
Over-the-counter Bulletin Board;
(h) neither the SEC nor any other securities commission or similar
regulatory authority has reviewed or passed on the merits of the
Shares;
(i) it is acquiring the Shares as principal for its own account, for
investment purposes only, and not with a view to, or for, resale,
distribution or fractionalization thereof, in whole or in part, and no
other person has a direct or indirect beneficial interest in such
Shares;
(j) no documents in connection with the sale of the Shares hereunder have
been reviewed by the SEC or any state securities administrators;
(k) there is no government or other insurance covering any of the Shares;
(l) the issuance and sale of the Shares to the Vendor will not be
completed if it would be unlawful or if, in the discretion of the
Purchaser acting reasonably, it is not in the best interests of the
Purchaser; and
(m) in this Agreement, the term "U.S. Person" shall have the meaning
ascribed thereto in Regulation S.
5. Vendor warrants and represents that:
(a) it is a U.S. Person;
(b) this Agreement has been duly executed and delivered by the Vendor and
constitutes a valid and binding obligation of the Vendor enforceable
against it in accordance with its terms;
(c) it is acquiring the Shares for its own account for investment purposes
only and not for the account of any other person and not for
distribution, assignment or resale to others, and no other person has
a direct or indirect beneficial interest is such Shares, and the
Vendor has not subdivided his interest in the Shares with any other
person;
(d) the Vendor is aware that an investment in the Purchaser is speculative
and involves certain risks, including the possible loss of the
investment;
(e) the Vendor (i) has adequate net worth and means of providing for its
current financial needs and possible personal contingencies, (ii) has
no need for liquidity in this investment, and (iii) is able to bear
the economic risksof an investment in the Shares for an indefinite
period of time and can afford the complete loss of such investment;
(f) the Vendor has made an independent examination and investigation of an
investment in the Shares and the Purchaser and has depended on the
advice of its legal and financial advisors and agrees that the
Purchaser will not be responsible in anyway whatsoever for the
Vendor's decision to invest in the Shares and the Purchaser;
(g) it has the requisite knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of the investment in the Shares and the Purchaser and it is providing
evidence of such knowledge and experience in these matters through the
information requested in the Questionnaire;
(h) all information which the Vendor has provided to the Purchaser in the
Questionnaire is correct and complete as of the date the Questionnaire
is signed; and agrees that if any of such acknowledgements,
representations and agreements are no longer accurate or have been
breached, it shall promptly notify the Purchaser;
(i) no person has made to the Vendor any written or oral representations:
(i) that any person will resell or repurchase any of the Shares;
(ii) that any person will refund the acquisition of price of any of
the Shares; or
(iii) as to the future price or value of any of the Shares;
(j) the Vendor has the authority to transfer the Assets to the Purchaser
on the terms set out herein;
(k) the Assets are free and clear of all liens, charges, encumbrances,
claims, and demands of every nature and kind whatsoever;
(l) the Vendor's use of the Domain Name and its operation of the Website
has not violated the intellectual property or other rights of any
third party;
(m) the Vendor has not received any notice of a third party threatening or
invoking any trade-xxxx, copyright, patent, trade secret or other
intellectual property infringement proceedings or the ICANN Uniform
Domain Name Dispute Resolution Policy in relation to the Website or
the Domain name and is not xxxx of any circumstances that may give
rise to any such proceedings;
(n) the Vendor properly registered the Domain Name with NSI without
committing fraud or misrepresentation;
(o) the Vendor's account with NSI is up to date and paid in full as of the
Closing Date and the Vendor is not in breach of any agreement with NSI
relating to the Domain Name registration;
(p) the Vendor has not used the Domain Name for any illegal purpose;
(q) the Vendor is the exclusive owner or a licensed user of all the
software, content and other works operating on or contained in the
Website, including the Website's layout, and other visual elements
that constitute the "look and feel" of the Website;
(r) the Vendor is entitled to modify the Website without restriction and
has obtained for valuable consideration an enforceable waiver of moral
rights from the author or authors of all materials created for and/or
incorporated into the Website;
(s) there are no third party trade-marks that are used in an unauthorized
or infringing manner on the Website and the Website does not contain
any unauthorized links to third party websites;
(t) the Website does not contain any references to any third party
trade-marks or trade names in its metatag file, nor has the metatag
file for the Website been copied from the contents of the metatag file
of another website; and
(u) the hosting and maintenance agreements with respect to the Website are
assignable and in good standing.
6. The Vendor hereby covenants and agrees to and with the Purchaser that:
(a) the Purchaser is entitled to rely on the representations and
warranties and the statements and answers of the Vendor contained in
this Agreement and the Questionnaire, if and as applicable, and the
Vendor will hold harmless the Purchaser from any loss or damage it or
they may suffer as a result of the Vendor's failure to correctly
complete this Agreement or the Questionnaire;
(b) it will indemnify and hold harmless the Purchaser and, where
applicable, their respective directors, officers, employees, agents,
advisors and shareholders from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not
limited to, any and all fees, costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any claim,
lawsuit, administrative proceeding or investigation whether commenced
or threatened) arising out of or based upon any representation or
warranty of the Vendor contained herein or in any document furnished
by the Vendor to the Purchaser in connection herewith being untrue in
any material respect or any breach or failure by the Vendor to comply
with any covenant or agreement made by the Vendor to the Purchaser in
connection therewith;
(c) up to the Closing Date, the Vendor will:
(i) preserve, protect and maintain the Website in its ordinary course
of business and in compliance with all applicable laws;
(ii) not suffer or permit any encumbrance to attach to or affect the
Assets; and
(iii)not enter into any transaction which could cause any
representation or warranty of the Vendor contained herein to be
incorrect or constitute a breach of any covenant or agreement of
the Vendor contained herein;
(d) the Vendor will indemnify and save harmless the Purchaser from and
against all liens, charges, encumbrances, claims and demands (and the
Purchaser may, but will not be bound to, pay and satisfy same as the
Purchaser deems fit) and from and against all actions, suits,
proceedings, assessments, judgements, penalties, costs, and expenses
(including the full amount of any legal expenses invoiced to the
Purchaser) which arise or are made or claimed against or suffered or
incurred by the Purchaser in connection with the Assets and all monies
expended by the Purchaser in so paying or satisfying or defending
against same;
(e) if any use of the Assets by the Purchaser is held to constitute an
infringement of a third party's rights, and such use by the Purchaser
is enjoined, the Vendor will, at its expense, use its commercially
reasonable efforts to procure the right for the Purchaser to use the
Assets without infringing such third party's rights and will promptly
take or cause to be taken all other actions requested by the
Purchaser, including modifying or replacing the infringing items so
that they are non-infringing so that the Purchaser may continue to
carry on its business with a minimum of delay or inconvenience to the
Purchaser;
(f) the Vendor will cooperate with NSI and the Purchaser, and follow the
Purchaser's instructions, in order to effectuate the transfer of the
Domain Name registration in a timely manner. Specifically, Vendor
agrees to prepare, have notarized and transmit the necessary NSI
Registrant Name Change Agreement attached as Schedule "B" hereto and
correspond with NSI to authorize transfer of the Domain Name and
facilitate the filing and processing of all forms and other
formalities necessary to complete the transfer of the Domain Name
registration;
(g) the Vendor will cause the current Administrative and Technical
Contracts for the Domain Name registration to execute and deliver all
necessary documents to effect the change of such contacts to the
Administrative and Technical contacts designated by the Purchaser;
(h) the Vendor will from time to time and at all times hereafter upon the
reasonable request of the Purchaser, but at the expense of the
Purchaser, make, do, and execute, or cause or procure to be made,
done, and executed all such further acts, deeds, and assurances to
give effect to the transfer of the Assets to the Purchaser in the
manner herein provided in accordance with the intent and meaning of
this Agreement as may be reasonably required by the Purchaser;
(i) the Vendor will not register a domain name which is similar to or
confusing with the Domain Name, including, without limitation, with
any other generic or geographic top level domain name; and
(j) the Vendor will not operate a website which competes with the Website,
either as an investor, consultant, employee or in any other capacity.
7. The Vendor acknowledges that the representations and warranties
contained herein are made by it with the intention that such representations and
warranties may be relied upon by the Purchaser and their legal counsel in
determining the Vendor's eligibility to purchase the Shares under applicable
securities legislation, or (if applicable) the eligibility of others on whose
behalf it is contracting hereunder to purchase the Shares under applicable
securities legislation. The Vendor further agrees that by accepting delivery of
the certificates representing the Shares on the Closing Date, it will be
representing and warranting that the representations and warranties contained
herein are true and correct as at the Closing Date with the same force and
effect as if they had been made by the Vendor on the Closing Date and that they
will survive the purchase by the Vendor of Shares and will continue in full
force and effect notwithstanding any subsequent disposition by the Vendor of
such Shares.
8. This Agreement, including without limitation the representations,
warranties and covenants contained herein, shall survive and continue in full
force and effect and be binding upon the parties hereto notwithstanding the
completion of the acquisition of the Shares by the Vendor pursuant hereto.
9. This Agreement is not transferable or assignable.
10. The invalidity or unenforceability of any particular provision of
this Subscription Agreement shall not affect or limit the validity or
enforceability of the remaining provisions of this Subscription Agreement.
11. It is hereby expressly agreed between the parties hereto that all
grants, covenants, provisos, agreements, rights, powers, privileges, and
liabilities contained in this Agreement will be read and held as made by and
with, granted to and imposed upon, the respective parties hereto, and their
respective heirs, executors, and administrators.
12. Except as expressly provided in this Agreement and in the
agreements, instruments and other documents contemplated or provided for herein,
this Agreement contains the entire agreement between the parties with respect to
the sale of the Assets and acquisition of the Shares by the Vendor and there are
no other terms, conditions, representations or warranties, whether expressed,
implied, oral or written, by statute or common law, by the Purchaser or by
anyone else.
13. This Agreement is governed by the internal substantive laws of the
State of Delaware and the parties submit to the jurisdiction of the Courts in
the State of Delaware. If any provision of this Agreement is found to be
invalid by any court having competent jurisdiction, the invalidity of such
provision shall not affect the validity of the remaining provisions of this
Agreement, which shall remain in full force and effect. No waiver of any term
of this Agreement shall be deemed a further or continuing waiver of such term or
any other term. This Agreement constitutes the entire agreement between the
Vendor and Purchaser with respect to this transaction. Any changes to this
Agreement must be made in writing, signed by an authorized representative of
both parties.
14. This Agreement may be executed in any number of counterparts, each
of which, when so executed and delivered, shall constitute an original and all
of which together shall constitute one instrument.
15. The Purchaser shall be entitled to rely on delivery by facsimile
machine of an executed copy of this Subscription Agreement and acceptance by the
Purchaser of such facsimile copy shall be equally effective to create a valid
and binding agreement between the Vendor and the Purchaser in accordance with
the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
this _____ day of June, 2000.
XXX XXXXXXX INSURANCE
Per: /s/ Xxx Xxxxxxx
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Authorized Signatory
E-FINANCIAL XXXXX.XXX, INC.
Per: /s/ Xxxx Xxxxxx
-----------------
Authorized Signatory
SCHEDULE "A"
DESCRIPTION OF WEBSITE
URL: xxx.xxxxxxxxxxxxxx.xxx
IP Address:
Files: [list or attach diskette(s) with all software directory files]
Schedule "B"
Form of Network Solutions "Registrant Name Change Agreement, Version 3.0
Transfers"
Schedule "C"
ACCREDITED INVESTOR QUESTIONNAIRE
---------------------------------
All capitalized terms herein, unless otherwise defined, have the meanings
ascribed thereto in the Domain Name and Website Purchase Agreement.
This Questionnaire is for use by each potential shareholder who is a US person
(as that term is defined Regulation S of the United States Securities Act of
1933 (the "1933 Act")) and has indicated an interest in purchasing or otherwise
acquiring Shares of e-Financial Xxxxx.xxx, Inc. (the "Company"). The purpose of
this Questionnaire is to assure the Company that each potential shareholder will
meet the standards imposed by the 1933 Act and the appropriate exemptions of
applicable state securities laws. The Company will rely on the information
contained in this Questionnaire for the purposes of such determination. The
Shares will not be registered under the 1933 Act in reliance upon the exemption
from registration afforded by Section 3(b) and/or Section 4(2) and Regulation D
of the 1933 Act. This Questionnaire is not an offer of Shares or any other
securities of the Company in any state other than those specifically authorized
by the Company.
All information contained in this Questionnaire will be treated as confidential.
However, by signing and returning this Questionnaire, each potential shareholder
agrees that, if necessary, this Questionnaire may be presented to such parties
as the Company deems appropriate to establish the availability, under the 1933
Act or applicable state securities law, of exemption from registration in
connection with the sale of the Shares hereunder.
The Vendor covenants, represents and warrants to the Company that:
1. it is not aware of any advertisement of any of the Shares and is not
acquiring the Shares as a result of any form of general solicitation or general
advertising including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast over radio or
television, or any seminar or meeting whose attendees have been invited by
general solicitation or general advertising; and
2. it satisfies one or more of the categories of "Accredited Investors", as
defined by Regulation D promulgated under the 1933 Act, as indicated below:
(Please initial in the space provide those categories, if any, of an "Accredited
Investor" which the Subscriber satisfies)
___ Category 1 An organization described in Section 501(c)(3) of the United
States Internal Revenue Code, a corporation, a Massachusetts
or similar business trust or partnership, not formed for the
specific purpose of acquiring the Shares, with total assets
in excess of US $5,000,000;
___ Category 2 A natural person whose individual net worth, or joint net
worth with that person's spouse, on the date of purchase
exceeds US $1,000,000;
___ Category 3 A natural person who had an individual income in excess of
US $200,000 in each of the two most recent years or joint
income with that person's spouse in excess of US $300,000 in
each of those years and has a reasonable expectation of
reaching the same income level in the current year;
___ Category 4 A "bank" as defined under Section (3)(a)(2) of the 1933 Act
or savings and loan association or other institution as
defined in Section 3(a)(5)(A) of the 1933 Act acting in its
individual or fiduciary capacity; a broker dealer registered
pursuant to Section 15 of the Securities Exchange Act of
0000 (Xxxxxx Xxxxxx); an insurance company as defined in
Section 2(13) of the 1933 Act; an investment company
registered under the Investment Company Act of 1940 (United
States) or a business development company as defined in
Section 2(a)(48) of such Act; a Small Business Investment
Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment
Act of 0000 (Xxxxxx Xxxxxx); a plan with total assets in
excess of $5,000,000 established and maintained by a state,
a political subdivision thereof, or an agency or
instrumentality of a state or a political subdivision
thereof, for the benefit of its employees; an employee
benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 (United States) whose investment
decisions are made by a plan fiduciary, as defined in
Section 3(21) of such Act, which is either a bank, savings
and loan association, insurance company or registered
investment adviser, or if the employee benefit plan has
total assets in excess of $5,000,000, or, if a self-directed
plan, whose investment decisions are made solely by persons
that are accredited investors;
___ Category 5 A private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 0000 (Xxxxxx
Xxxxxx);
___ Category 6 A director or executive officer of the Company;
___ Category 7 A trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the Shares,
whose purchase is directed by a sophisticated person as
described in Rule 506(b)(2)(ii) under the 1933 Act;
___ Category 8 An entity in which all of the equity owners satisfy the
requirements of one or more of the foregoing categories;
Note that prospective shareholders claiming to satisfy one of the above
categories of Accredited Investor may be required to supply the Company with a
balance sheet, prior years' federal income tax returns or other appropriate
documentation to verify and substantiate the potential shareholder's status as
an Accredited Investor.
If the potential shareholder is an entity which initialled Category 8 in
reliance upon the Accredited Investor categories above, state the name, address,
total personal income from all sources for the previous calendar year, and the
net worth (exclusive of home, home furnishings and personal automobiles) for
each equity owner of the said entity:
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The Vendor hereby certifies that the information contained in this Questionnaire
is complete and accurate and the Vendor will notify the Company promptly of any
change in any such information.
IN WITNESS WHEREOF, the undersigned has executed this Questionnaire as of the
day of June, 2000.
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Signature
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Print or Type Name
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Social Security/Tax I.D. No.
