EXCLUSIVE DOMAIN NAME LICENSE AGREEMENT
This Exclusive Domain Name License Agreement ("Agreement") is made and
entered into by and between Onramp Access, Inc., a Texas corporation
("Licensor"), and Telco Billing, Inc., a Nevada corporation ("Licensee"), an
wholly owned subsidiary of XX.Xxx, Inc.
RECITALS
WHEREAS, Licensor owns the Internet domain name xx.xxx and all property
rights associated therewith no matter how denominated (the "Domain Name"); and
WHEREAS, Licensee desires to obtain an exclusive right to use the Domain
Name in connection with its business pursuits.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, it is hereby mutually agreed as
follows:
AGREEMENT
ARTICLE 1
LICENSE GRANT
1.1 Grant. Subject to the terms and conditions set forth herein,
-----
Licensor hereby grants to Licensee, throughout the Licensed Term as defined
below, the exclusive right and license to use, copy, publicly display, edit,
revise, perform, distribute, or otherwise make available on or through Internet
Sites the Domain Name in connection with the Licensee's business, including but
not limited to any advertising and merchandising of products or services.
1.2 Exclusivity. Throughout the Licensed Term the Licensee's rights
-----------
shall be exclusive and the Licensor shall not use the Domain Name in any way,
manner or form (other than performing, as the Registrant, management of the
Domain Name Registration account with the Registrar), nor shall the Licensor
grant or undertake to grant any other license relating to the Domain Name to
another licensee.
1.3 Licensee's Right to Sublicense. Licensee may enter into
---------------------------------
sublicenses with sub-licensees with respect to the use of the Domain Name only
with the prior written approval of the Licensor which approval shall not be
unreasonably withheld. The Right to Sublicense shall become unconditional and
absolute once Licensee has fully complied with the terms of this Agreement.
1.4 Compliance With Domain Name Registration Agreement. Licensee
-------------------------------------------------------
hereby agrees to comply with and adhere to the provisions of the Domain Name
Registration Agreement. During the Licensed Term, Licensor shall remain as the
Registrant of the Domain Name and shall pay all necessary fees to continue the
registration, and manage the Domain Name Registration account with the
Registrar. Licensor shall manage the Domain Name Server
(DNS) addresses associated with the Domain Name to point to DNS addresses as
requested by Licensee. Licensee shall become the Registrant and the owner of the
Domain Name if this Agreement is converted into a purchase and sale agreement
pursuant to Article 2.2 herein, but Licensor shall remain as the Registrant and
the owner of the Domain Name if this Agreement is not converted into a purchase
and sale agreement pursuant to Article 2.2 herein.
ARTICLE 2
TERM OF THE LICENSE
2.1 Licensed Term. The License under this Agreement shall remain in
--------------
effect for a period of three (3) years from the effective date of this
Agreement, unless it is terminated earlier in accordance with the provisions and
terms contained herein.
Article 2.1
Appointment of Escrow Agent
2.1.1 Appointment. The parties shall appoint Arizona Escrow & Financial
Corporation as the Escrow Agent for the purposes of transfer of the
License Fee as set forth in Article 4, and the transfer of the right,
title and interest to the domain name as set forth in Article 2.2. The
Escrow Agent shall provide the following services:
i. Receive in its escrow capacity the License Fee consisting of
$250,000.00 and 100,000 shares of stock of YPNT from Telco and an
Irrevocable And Durable Limited Power of Attorney from Onramp;
ii. The Irrevocable And Durable Limited Power of Attorney by Onramp
shall grant the Escrow Agent the power to execute and complete
the transfer of ownership of the Domain Name to Licensee by
completing a Registrant Name Change Agreement through which
Licensee will become the Registrant of the Domain Name and
thereby become the owner of the Domain Name, and/or such further
documents, Agreement, Bills of Sale, Assignment and/or other
documents as may be necessary to effectuate the transfer of the
right, title and interest to the Domain Name from Licensor to
Licensee. The Irrevocable And Durable Limited Power of Attorney
is appended hereto as Exhibit "A" and is by this reference made a
part of this Agreement for all purposes.
iii. Upon execution of this Agreement by all parties hereto and the
receipt of a Limited Power of Attorney from Onramp, transfer the
License Fee consisting of $250,000.00 and 100,000 shares of YPNT
stock to Onramp.
iv. Escrow Agent shall exercise its powers pursuant to the
Irrevocable And Durable Limited Power of Attorney and shall
complete the transfer ownership of the Domain Name to Licensee by
completing a Registrant Name Change Agreement through which
Licensee will become the
2
Registrant of the Domain Name and thereby become the owner of the
Domain Name under any of the following conditions:
a. At any time after all restrictions on the stock have been
removed, but prior to the termination of this Agreement
pursuant to Article 2 herein, either party has provided
Escrow Agent with a quotation from the New York Stock
Exchange (NYSE), American Stock Exchange (AMEX), National
Association of Security Dealers Automated Quotes (NASDAQ),
or Over-the-Counter Bulletin Board (OTCBB) stock market(s)
that the YPNT stock (stock symbol "YPNT"), has maintained an
open and close price above Three Dollars ($3.00) per share
(split-adjusted) for three (3) consecutive trading days; or
b. Escrow Agent has received notice from either party that this
Agreement has reached its full three (3) year term under
Article 2 herein, and Licensee makes payment contemplated in
Paragraph 2.2.2, Option 1 to Escrow Agent; or
c. Escrow Agent has received notification that Licensor has
sold all of the 100,000 shares of YPNT as contemplated
pursuant to paragraph 2.2.2 Option 2; or
d. Escrow Agent has received notice that Licensee has exercised
its option pursuant to 2.2.3 of the Agreement, and Licensee
makes payment pursuant to 2.2.3 to Escrow Agent.
v. Except for the Licensee Fee payment of $250,000.00 and 100,000
shares of YPNT stock which Escrow Agent shall transfer to
Licensor as indicated in 2.1.1(iii) above, Escrow Agent shall not
distribute any funds paid on the account of Licensor contemplated
in 2.1.1.(iv) above without also transferring the YPNT shares to
Telco.
vi. Otherwise act in accordance to the Escrow Instructions a copy of
which is appended hereto as Exhibit "B" and is by this reference
made a part of this Agreement for all purposes.
2.1.2 Payment of Escrow Fees. Telco shall be responsible for the payment of
any and all escrow fees incurred in connection with the escrow
contemplated pursuant to Article 2.1.
ARTICLE 2.2
AUTOMATIC VESTING OF TITLE TO
DOMAIN NAME
2.2.1 Conversion (Share Price Minimum). If at any time during the term
--------------------------------
of this Agreement, after all restrictions on the sale or transfer of the
Licensee's parent's common stock
3
issued pursuant to Article 4 herein have been removed, the Licensee's parent's
common stock (Licensee's parent's common stock is the common stock of XX.Xxx,
Inc (stock symbol "YPNT"), the parent company of Telco Billing, Inc.) maintains
an open and close price above Three Dollars ($3.00) per share (split-adjusted)
for three (3) consecutive trading days on the New York Stock Exchange (NYSE),
American Stock Exchange (AMEX), National Association of Security Dealers
Automated Quotes (NASDAQ), or Over-the-Counter Bulletin Board (OTCBB) stock
market, this License Agreement shall expire and all right, title and interest in
the Domain Name shall automatically vest in Licensee.
2.2.2. Conversion (Share Resale - Licensor's Options).
-----------------------------------------------------
Option 1: If this Agreement reaches its full three (3) year term under
Article 2 herein, Licensor may at its option convert this License Agreement into
a purchase and sale agreement through which Licensee will become the owner of
the Domain Name. Licensor may at any time between June 1, 2006 and September 1,
2006 give notice to Licensee and Escrow Agent of its intent to exercise its
right to resell (put) the Licensee's parent's common stock, issued pursuant to
Article 4 herein, to Licensee at the price of Three Dollars ($3.00) per share
(split-adjusted). Notice by Licensor must be given to Licensee and Escrow Agent
pursuant to the Notice provisions of Article 9 herein. Upon such notice,
Licensee shall within thirty (30) days of such notice pay the Escrow Agent on
account of Licensor Three Hundred Thousand Dollars ($300,000.00) in certified
funds in exchange for the stock. Upon payment by Licensee, this License
Agreement shall expire and all right, title and interest in the Domain Name
shall automatically vest in Licensee. In this share resale event, Licensor may
at its option resell to Licensee all, none, or any portion of the Licensee's
parent's common stock, at the price of Three Dollars ($3.00) per share
(split-adjusted), such that the total purchase price may not exceed the total of
Three Hundred Thousand Dollars ($300,000.00), but in any event Licensor must
still complete the transfer of ownership of the Domain Name to Licensee.
Option 2: At any time during the term of this Agreement, after all
restrictions on the sale or transfer of the Licensee's parent's common stock
issued pursuant to Article 4 herein have been removed, Licensor shall have the
right to sell all or any portion of the 100,000 shares of Licensee's Parent's
common stock even if such shares trade at less than $3.00 per share. In such
event, Licensee shall not be responsible for the difference between the selling
price and $3.00 for any shares so sold. In the event the selling price is
greater than $3.00 per share, the Licensee shall be given credit for such
greater price per share but only to reduce Licensee's liability pursuant to
Paragraph 2.2.1 above. In the event Licensor sells all or any portion of the
100,000 shares pursuant to this Option 2, only the remaining shares shall be
subject to the terms of paragraph 2.2.1 and 2.2.3, and any credit for shares
sold at a price greater than $3.00 per share shall be applied toward the
remaining shares.
2.2.3 Conversion (Share Resale - Licensee's Option). At any time
--------------------------------------------------
during the term of this Agreement, Licensee may convert this License Agreement
into a purchase and sale agreement through which Licensee will become the owner
of the Domain Name by giving notice to Licensor and Escrow Agent of its intent
to exercise its right to buy back the Licensee's parent's common stock, issued
pursuant to Article 4 herein, from Licensor. Notice by Licensee and Escrow
Agent must be given to Licensor pursuant to the Notice provisions of Article 9
4
herein. In the event of such a conversion of this Agreement, the purchase price
for Licensor's parent's common stock shall be payable to Escrow Agent on account
of Licensor and shall be the higher of:
i. Three Dollars ($3.00) per share (split-adjusted); or
ii. The average closing price of the stock for the three trading
days prior to the date on which Licensee gives it Notice
pursuant to the Notice provisions of Article 9 herein.
In this share resale event, Licensor may at its option re-sell to Licensee all,
none, or any portion of the stock, at the agreed purchase price
(split-adjusted), but in any event Escrow Agent shall be authorized to complete
the transfer of ownership of the Domain Name to Licensee. This provision is
intended to accommodate situations such as if Licensor had during the Licensed
Term sold some or all of the stock, and is unable to repurchase sufficient
shares to exchange in the resale. Upon such notice, Licensee shall within
thirty (30) days pay Escrow Agent on the account of Licensor the purchase price
in certified funds in exchange for the stock. Upon payment by Licensee, this
License Agreement shall expire and all right, title and interest in the Domain
Name shall automatically vest in Licensee.
ARTICLE 3
LICENSEE'S EFFORTS
3.1 Licensee's Discretion. Licensee shall have sole, absolute, and
----------------------
unfettered discretion to commercialize the Domain Name and use it in its
business as it sees fit. Licensee agrees and understands that it shall bear
sole responsibility for all costs and expenses associated with using the Domain
Name in its business.
3.2 No Partnership of Agency. Licensor and Licensee mutually agree
---------------------------
that they are independent contractors, and neither party represents, nor in the
future shall they represent, that they are a joint venturer, franchiser,
franchisee, partner, broker, employee, servant, agent, or representative of the
other party for any purpose. Neither party shall have the authority to make any
representation or incur any obligations on behalf of the other party and neither
party shall be responsible for the acts or omissions of the other party.
3.3 Domain Name Ownership of Licensee's Content. All content that
------------------------------------------------
Licensee develops or acquires, and displays, exhibits, broadcasts, shows, or
makes available or otherwise uses in connection with the license granted under
this Agreement, shall be the property of the Licensee, and the Licensor shall
not have any right, title, or interest in such content.
3.4 Liability for Licensee's Content. The Licensee shall be solely
-----------------------------------
responsible for the engineering, production, maintenance, and monitoring of all
content which is made available to the public, and the Licensee shall be liable
for any errors, omissions, and/or inaccuracies of the content.
5
ARTICLE 4
LICENSE FEE
4.1 License Fee. Licensee shall pay Licensor Two Hundred and Fifty
------------
Thousand Dollars ($250,000.00) in certified funds and issue Licensor One Hundred
Thousand (100,000) shares of Licensee's parent's common stock (YPNT) for the
license grant. This stock shall be restricted only to the extent required under
law, such as SEC Rule 144. This License Fee shall be paid by the Licensee to
the Licensor upon execution of this Agreement.
ARTICLE 5
DOMAIN NAME OWNERSHIP AND PROTECTION OF THE DOMAIN NAME
5.1 Ownership of Domain Name. Licensee and Licensor agree that the
---------------------------
Licensor is the rightful owner of the Domain Name and the Licensee agrees that
it shall not claim any title to or right to use the Domain Name except as is
provided for under this Agreement.
5.2 Protection of the Domain Name. In the event that Licensee learns
-------------------------------
of any infringement or unauthorized imitation of the Domain Name or of any use
by any unauthorized person or entity, Licensee shall promptly notify Licensor.
Licensee shall cooperate with Licensor in all respects relative to the
protection of the domain name, including the rights to the Domain Name of
Licensee pursuant to this Agreement, including, without limitation, by being a
plaintiff in an action or causing its officers to execute pleadings as well as
any other necessary documents. Licensor shall be required to take any action
that it deems reasonable under the circumstances for the protection of the
Domain Name and the rights to the Domain Name of Licensee pursuant to this
Agreement. If an action is deemed unreasonable by Licensor, Licensee may then
take such action at its own expense. In such event Licensor shall, at
Licensee's expense, render all reasonable assistance to Licensee in connection
therewith.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties of Licensor. Licensor represents
---------------------------------------------
and warrants to Licensee the following:
(a) Licensor is a Texas corporation duly organized, validly existing
and in good standing under the laws of the State of Texas.
(b) Licensor represents and warrants that the execution of this
Agreement by it has been duly authorized.
(c) Licensor is the Registrant of the Domain Name, and it is not
aware of any material facts not disclosed herein, indicating that the use
of the Domain Name might infringe upon any Intellectual Property or other
rights vested in a third party.
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(d) Licensor has used the Domain Name and xxxx in Commerce since on
or about December 06, 1994 and has not transferred, waived, given or
otherwise disposed of any rights associated with the Domain Name except as
provided herein to Licensee.
6.2 Representations and Warranties of Licensee. Licensee represents
---------------------------------------------
and warrants to Licensor the following:
(a) Licensee is a Nevada corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada.
(b) Licensee represents and warrants that the execution of this
Agreement by it has been duly authorized.
6.3 Licensor and Licensee are aware of United States Service Xxxx
Registration No. 2,369,998 ("the '998 Registration"), which is for a design xxxx
that includes the letters "y" and "p" as a component of the xxxx. Upon review
of the '998 Registration, Licensor and Licensee have concluded and are confident
that use of the Domain Name is not an infringement of the '998 Registration.
6.4 Survival. All representations and warranties made hereunder shall
--------
survive the termination of this Agreement. Both Licensor and Licensee agree to
indemnify, defend, and hold the other party harmless from any claims or demands
made which adversely relate to the representations or warranties given under
this Agreement.
ARTICLE 7
TERMINATION
7.1 Expiration/Termination. In the event of expiration or termination
----------------------
of this Agreement other than by compliance of the terms hereof, by either party,
then the license granted to the Licensee by the Licensor under this Agreement
shall immediately revert to the Licensor, provided however, that any other
Intellectual Property owned by Licensee hereunder shall remain the property of
the Licensee. Upon expiration or termination of this Agreement, the Licensee
shall cease all use of the Domain Name, unless this License Agreement is
converted into a purchase and sale agreement pursuant to Article 2.2 herein
through which Licensee may become the owner of the Domain Name.
7.2 Termination for Breach. Either party may terminate this Agreement
-----------------------
by sending written notice to the other party if such party breaches any
provision or fails to perform any of its obligations under this Agreement and
does not remedy such failure within thirty (30) days after written notice has
been received by such party. A termination of the Agreement for breach shall
subject the breaching party to damages for breach of Agreement.
7.3 Termination for Other Grounds. This Agreement shall terminate
---------------------------------
automatically upon the occurrence of any of the following events: (a) Licensee
shall become insolvent; or (b) Licensee shall apply for, or consent to, or
acquiesce in, the appointment of a trustee, receiver, sequestrator, or other
custodian for, any of its assets, or make a general assignment for the
7
benefit of creditors; or (c) in the absence of such application, consent or
acquiescence, a trustee, receiver, sequestrator or other custodian shall be
appointed for Licensee for a substantial part of its assets for the benefit of
creditors, and not discharged within thirty (30) days; or (d) any bankruptcy
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law shall be commenced in respect of Licensee, and, if
not commenced by Licensee, shall be consented to or acquiesced in by Licensee,
or shall result in the entry of an order for relief (or its substantial
equivalent) or shall remain for thirty (30) days undismissed; or (e) the filing
of a petition by or against Licensee under the United States Bankruptcy Code, as
amended, or under the insolvency laws of any state, or Licensee or a third party
commences a proceeding or files a petition of similar import under another
applicable bankruptcy or insolvency law in which Licensee is the subject of such
action; or (f) Licensee defaults on a common law or statutory lien.
7.3.1. Notwithstanding the foregoing, in the event that pursuant to the
U.S. Bankruptcy Code or any amendment or successor thereto (the "Code") a
trustee in bankruptcy of Licensee or an Affiliate, as debtor, is permitted to
assign this Agreement to a third party, which assignment satisfies the
requirements of the Code, the trustee or Licensee or such Affiliate, as the case
may be, shall notify Licensor of same in writing. Said notice shall set forth
the name and address of the proposed assignee, the proposed consideration for
the assignment and all other relevant details thereof. The giving of such notice
shall be deemed to constitute an offer to Licensor to have this Agreement
assigned to it or to this designee for such consideration, or its equivalent in
money, and upon such terms as are specified in the notice. The aforesaid offer
may be accepted only by written notice given to the trustee or Licensee or such
Affiliate, as the case may be, by Licensor within sixty (60) days after
Licensor's receipt of the notice from such party. If Licensor fails to give its
notice to such party within said sixty (60) days, such party may complete the
assignment referred to in its notice, but only if such assignment is to the
entity named in said notice and for the consideration and upon the terms
specified therein. Nothing contained herein shall be deemed to preclude or
impair any rights which Licensor may have as a creditor in any bankruptcy
proceeding.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification. Licensor, at its expense, shall defend and
---------------
indemnify and save and hold Licensee harmless from and against any and all
liabilities, claims, causes of actions, suits, damages, and expenses, including
reasonable attorneys' fees and expenses, for which Licensee becomes or may
become liable, or may incur or be compelled to pay by reason of claims of
infringement of any patent, copyright or trademark of which Licensor has notice
or reason to know prior to the date of this agreement but which are not
disclosed in this agreement, related to the Domain Name or performance of this
Agreement. Licensee, at its expense, shall defend and indemnify and save and
hold Licensor harmless from and against any and all liabilities, claims, causes
of actions, suits, damages, and expenses, including reasonable attorneys' fees
and expenses, for which Licensor becomes liable, or may incur or be compelled to
pay by reason of any actions, whether of omission or commission, that may be
committed or suffered by Licensee or any of its directors, officers, agents, or
affiliates in connection with
8
Licensee's performance of this Agreement. The provisions of this Article 8 shall
survive the termination of this Agreement
ARTICLE 9
NOTICE
9.1 Notice. All demands and notice given hereunder shall be sent by
------
certified mail, return receipt requested, or by hand delivery, with a receipt
therefore, at the addresses set forth below or to such other addresses as each
party may designate by certified mail, return receipt requested, or by hand
delivery, with a receipt therefore. Notice shall be deemed delivered three (3)
days after its placement in the mail or the day upon which it is delivered, if
hand delivered. All notice shall be given to all parties and persons whose names
and addresses appear below:
Licensor:
Xxxx Xxxxxxxxx, President
Onramp Access, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
And to:
Xxxxxxx X. Xxxxxxxxx, Esq.
XXXXXXXXX & XXXXXXX, P.C.
Ptarmigan Place, Suite 900
3773 Xxxxxx Xxxxx X. Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Licensee:
Telco Billing, Inc.
President
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000
And to:
Xxxxx Xxxxxxxx, Esq.
XXXXX XXXXXXXX, P.C.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Escrow Agent:
Xxx Xxxxxx, President
ARIZONA ESCROW & FINANCIAL CORPORATION
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
9
ARTICLE 10
MISCELLANEOUS
10.1 Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of Texas. Both parties agree that
Texas courts shall have exclusive jurisdiction over any disputes related to this
Agreement and that the sole venue for any such disputes shall be in Texas.
10.2 Specific Enforcement. Both parties acknowledge that any actions
---------------------
in breach or violation of this Agreement could materially and irreparably harm
the Domain Name, Licensor, or Licensee and that the parties could not and would
not be adequately compensated by monetary damages. In the event of a breach or
reasonably likely breach of this Agreement, by reason of the inadequacy of
monetary damages as a remedy to such breach, the injured party shall have the
right to obtain temporary or permanent injunctive or mandatory relief in a court
of competent jurisdiction, it being the intention of the parties that this
Agreement be specifically enforced to the maximum extent permitted by law.
10.3 Entire Agreement. This Agreement and the attached Escrow
-----------------
Instructions contain all of the agreements of the parties with respect to any
matter covered or mentioned in this Agreement, and no prior agreements or
understandings pertaining to any such matter shall be effective for any purpose.
10.4 Successors and Assigns. This Agreement shall be binding upon and
-----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns.
10.5 Severability. Any provision of this Agreement which shall prove
------------
to be invalid or void shall in no way affect, impair or invalidate any remaining
provisions and all remaining provisions shall remain in full force and effect.
10.6 Prevailing Party. In the event any action, proceeding or
-----------------
litigation, judicial or non-judicial, arises out of the subject matter of this
Agreement, the prevailing party shall be entitled to payment of all costs,
expenses, and attorneys' fees.
10.7 Amendment and Waiver. This Agreement may not be modified or
----------------------
amended, and the observance of any term of this Agreement may not be waived,
except with the prior written consent of all parties.
10.8 Counterparts. Two (2) or more duplicate copies of this Agreement
------------
may be signed by the parties, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
10.9 Dismissal of Complaint. On April 29, 2003, Licensee filed in the
Maricopa County Superior Court a Verified Complaint ("Complaint") captioned
Xx.Xxx, Inc v. Onramp Access, Inc., cause no. CV 2003-008232, asserting a right
to the Domain Name. Upon execution of this Agreement, the Complaint shall be
dismissed with prejudice in the form of Notice Of Voluntary Dismissal With
Prejudice appended hereto.
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IN WITNESS WHEREOF, the parties caused this Agreement to become effective
as of the date last executed below by their duly authorized corporate officers.
ONRAMP ACCESS, INC. TELCO BILLING, INC.
By:___/s/ Xxxx Kissinger_________ By: /s/ Xxxxxx Xxxxx
-----------------------------------
Xxxx Xxxxxxxxx, President Xxxxxx Xxxxx, President
Date: __7-9-2003_______________ Date: ___July 8th 2003____________
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
On this _9_ day of __July_____, 2003, before me, the undersigned Notary
Public, in the state of Texas, County of Xxxxxx, personally appeared Xxxx
Xxxxxxxxx, as president of ONRAMP ACCESS, INC. known to me or satisfactorily
proved to me to be the person whose name is subscribed to the foregoing
instrument, acknowledged to me that he executed the same for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
__/s/ Zelda Xxx Xxxxx
---------------------
Notary Public
My Commission Expires:
___4/18/2007
---------------------
11
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On this _8th day of __July___, 2003, before me, the undersigned Notary
Public, in the state of Arizona, County of Maricopa, personally appeared Xxxxxx
Xxxxx, as president of TELCO BILLING, Inc. known to me or satisfactorily proved
to me to be the person whose name is subscribed to the foregoing instrument,
acknowledged to me that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
__/s/ Xxxxxxxx X Xxxxxx
-----------------------
Notary Public
My Commission Expires:
__9/22/2003
--------------------
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GUARANTY
FOR VALUABLE CONSIDERATION, and as inducement to Onramp Access, Inc.
("Onramp") to enter into the Exclusive Domain Name License Agreement
("Agreement") set forth above, XX.Xxx, Inc. ("XX.Xxx") hereby unconditionally
guarantees to Onramp the prompt performance of all obligations of Telco Billing,
Inc. ("Telco") under the Agreement, including the payment of Onramp's reasonable
costs of collection and attorneys fees if negotiation, arbitration, or
litigation is necessary to enforce Telco's obligations. Onramp shall not be
required to proceed against Telco or enforce any other remedy before proceeding
directly against XX.Xxx, Inc. should enforcement of the Agreement become
necessary.
XX.XXX, INC.
By: __/s/ Xxxxxx Tullo___________
Xxxxxx Xxxxx, President
Date: __ July 8th 2003______________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
On this _8th day of __July__, 2003, before me, the undersigned Notary
Public, in the state of Arizona, County of Maricopa, personally appeared Xxxxxx
Xxxxx, as president of XX.XXX, Inc. known to me or satisfactorily proved to me
to be the person whose name is subscribed to the foregoing instrument,
acknowledged to me that he executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and seal.
/s/Xxxxxxxx X Xxxxxx
-----------------------
Notary Public
My Commission Expires:
9/22/2003
--------------------
13
Xxxxx Xxxxxxxx, 6464
The Law Firm of
XXXXX XXXXXXXX
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
000-000-0000
WWW/XXXXXXXX.XXX
Attorney for Plaintiff
IN THE MARICOPA COUNTY SUPERIOR COURT
IN AND FOR THE STATE OF ARIZONA
XX.XXX, INC., a Nevada Corporation, ) NO. CV2003-008232
)
Plaintiff,) NOTICE OF VOLUNTARY DISMISSAL
) WITH PREJUDICE
v. )
) (Rule 41(a))
ONRAMP ACCESS, INC., a Texas )
Corporation; XXXX AND XXXX DOES AND )
XYZ ENTITIES I-X )
Defendants. )
---------------------------------------
Pursuant to Arizona Rules of Civil Procedure, Rule 41(a), Plaintiff
herewith gives notice of voluntary dismissal of the above captioned cause, with
prejudice.
DATED this ____th day of July, 2003.
THE LAW FIRM OF
XXXXX XXXXXXXX, P.C.
---------------------------------------
Xxxxx Xxxxxxxx
Attorneys for Plaintiff
The original of the foregoing
filed this ___ day of July, 2003 with:
Clerk of the Superior Court
000 Xxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
_____________________________
-1-
ESCROW AGREEMENT REGARDING DOMAIN NAME
"XXX.XX.XXX"
This ESCROW AGREEMENT, dated July 8, 2003 ("Escrow Agreement") is entered into
by and among Telco Billing, Inc. ("Telco") and Onramp Access, Inc. ("Onramp"),
and Arizona Escrow And Financial Corporation, ("Arizona Escrow") as escrow
agent, and is assigned Escrow Number 23-1266.
RECITALS
1. On July 8, 2003, Onramp and Telco entered into Exclusive Domain Name
License Agreement ("Agreement") for the exclusive use of the domain name
xxx.xx.xxx ("domain name") by Telco; pursuant to the terms of the Agreement,
upon the occurrence of contingencies contained in Article 2 thereof, the right,
title and interest to the domain name shall automatically vest in Telco.
2. The Agreement further provides that Telco shall pay the sum of
$250,000.00 in cash and 100,000 shares of stock of XX.XXX, INC. in escrow for
the purpose of payment under the Agreement ("Escrow Funds").
3. The Agreement further provides that Onramp shall execute in favor of
Arizona Escrow a Irrevocable and Durable Limited Power of Attorney ("POA"),
granting Arizona Escrow the right and power to execute and complete the transfer
of ownership of the Domain Name to Telco by completing a Registrant Name Change
Agreement through which Telco will become the Registrant of the Domain Name and
thereby become the owner of the Domain Name, and/or such further documents,
agreement, bills of sale, assignment and/or other documents as may be necessary
to effectuate the transfer of the right, title and interest to the Domain Name
from Onramp to Telco.
4. The Agreement further provides that upon proper notice that the
conditions set forth in paragraphs 2.2.1 or 2.2.2 or 2.2.3 of the Agreement
have been satisfied, Arizona Escrow shall execute and complete the transfer of
ownership of the Domain Name to Telco by completing a Registrant Name Change
Agreement through which Telco will become the Registrant of the Domain Name and
thereby become the owner of the Domain Name, and/or such further documents,
Agreement, Bills of Sale, Assignment and/or other documents as may be necessary
to effectuate the transfer of the right, title and interest to the Domain Name
from Onramp to Telco.
5. This Escrow Agreement shall govern the terms upon which Arizona Escrow
shall receive and distribute all consideration being exchanged under the
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises set forth herein and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows:
1. Acceptance of Appointment; Deposit of Escrow Funds; Deposit of Irrevocable
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Limited Power of Attorney.
-----------------------------
Arizona Escrow hereby agrees to act as Escrow Agent under this Escrow
Agreement subject to the conditions set forth herein. Telco agrees to deposit
the Escrow Funds with Arizona Escrow on the date hereof. Onramp agrees to
execute the POA for the purposes set forth herein.
2. Distribution of Escrow Funds.
-----------------------------
Arizona Escrow shall distribute the Escrow Funds to Onramp upon the
occurrence of the events described in paragraph 4.1(ii) below.
3. Execution Of Transfer Documents.
--------------------------------
At the time specified in paragraph 4 below, Arizona Escrow shall, pursuant
to the terms of the POA, a copy of which is appended hereto as Exhibit "B" and
is by this reference made a part hereof for all purposes, execute and complete
the transfer of ownership of the Domain Name to Telco by completing a Registrant
Name Change Agreement through which Telco will become the Registrant of the
Domain Name and thereby become the owner of the Domain Name, and/or such further
documents, Agreement, Bills of Sale, Assignment and/or other documents as may be
necessary to effectuate the transfer of the right, title and interest to the
Domain Name from Onramp to Telco. Arizona Escrow shall be provided the forms
necessary for the transfer of ownership of the Domain Name by Telco, and shall
be entitled to rely on such forms in completing its escrow duties hereunder.
4. Duties of Escrow Agent
----------------------
4.1 The Escrow Agent shall provide the following services:
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i. Receive in its escrow capacity the License Fee consisting of
$250,000.00 and 100,000 shares of stock of YPNT from Telco and an
Irrevocable And Durable Limited Power of Attorney ("POA") from Onramp
pursuant to the Exclusive Domain Name License Agreement a copy of
which is appended hereto as Exhibit "A" and by this reference made a
part hereof.
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ii. Upon execution of the Exclusive Domain Name License Agreement by all
parties thereto and the receipt of the Irrevocable And Durable Limited
Power of Attorney from Onramp, transfer the License Fee consisting of
$250,000.00 and 100,000 shares of YPNT stock to Onramp.
iii. Under the powers provided in the POA execute and complete the transfer
ownership of the Domain Name to Licensee by completing a Registrant
Name Change Agreement through which Licensee will become the
Registrant of the Domain Name and thereby become the owner of the
Domain Name under any of the following conditions:
a. At any time after all restrictions on the stock have been
removed, but prior to the termination of this Agreement pursuant
to Article 2 of the Exclusive Domain Name License Agreement,
either party has provided Escrow Agent with a quotation from the
New York Stock Exchange (NYSE), American Stock Exchange (AMEX),
National Association of Security Dealers Automated Quotes
(NASDAQ), or Over-the-Counter Bulletin Board (OTCBB) stock
market(s) that the YPNT stock (stock symbol "YPNT"), has
maintained an open and close price above Three Dollars ($3.00)
per share (split-adjusted) for three (3) consecutive trading
days; or
b. Escrow Agent has received notice from either party that the
Agreement has reached its full three (3) year term under Article
2 of the Agreement, that Licensor has exercised its option and
Licensee makes payment pursuant to Paragraph 2.2.2, Option 1 of
the Agreement to Escrow Agent; or
c. Escrow Agent has received notification that Licensor has sold all
of the 100,000 shares of YPNT as contemplated pursuant to
paragraph 2.2.2, Option 2 of the Exclusive Domain Name License
Agreement; or
d. Escrow Agent has received notice that Licensee has exercised its
option pursuant to 2.2.3 of the Exclusive Domain Name License
Agreement, and Licensee makes payment pursuant to 2.2.3 of the
Agreement to Escrow Agent.
iv. Receive in its escrow capacity the payments described in paragraph
(iii)(b) or (d) above, and the YPNT stock to be purchased and/or sold
by Licensor under the circumstances described in Article 2.2 of the
Agreement.
v. Distribute the funds and stock received under paragraph (iv) above to
Telco and/or Onramp as appropriate in accordance with the terms of
Articles 2, 2.1 and 2.2 of the Agreement.
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4.2 Upon completion of the conditions set forth in Paragraph 4.1(iii) above,
Arizona Escrow shall further exercise the powers granted to it by the POA by
causing the Domain Name to be forwarded to xxx.xx.xxx or as otherwise directed
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by Telco. Telco shall provide all forms needed to accomplish the task
contemplated hereunder.
4.3 Upon completion of the conditions set forth in Paragraph 4.1(iii) above,
Arizona Escrow shall further exercise the powers granted to it by the POA by
causing the Domain Name to be placed in a Locked Status by Registrar. Telco
shall provide all forms needed to accomplish the task contemplated hereunder.
5. Dispute by Onramp or Telco.
---------------------------
5.1 In the event any Notice referenced in paragraph 4.1 above is given
by either party to Arizona Escrow, Arizona Escrow shall immediately notify the
other party that the notice has been received. The other party may then dispute
such Notice by giving Arizona Escrow written notice of its objection (an
"Objection Notice") within 5 days of receipt by Arizona Escrow of the Notice
-----------------
stating:
(a) that the objecting party disputes or objects to Notice;
(b) the reasons for such objections or dispute, set forth in reasonable
detail;
(c) that the objecting party has delivered a copy of its Objection Notice
to the other party and the date on which such copy was delivered; and
(d) the portion of the Notice, if any, for which there is no dispute or
objection.
Whenever there shall be delivered to Arizona Escrow an Objection Notice,
Arizona Escrow shall thereupon notify the non-objecting party of its receipt.
5.2 In the event that Telco and Onramp are unable to resolve the dispute
within 30 days of the date on the Objection Notice, Telco and Onramp shall
jointly initiate a declaratory judgment litigation to resolve the dispute. It
is specifically agreed that in the event litigation is commenced, the objecting
party's reasons for the objection shall be limited to the reasons stated in the
Objection Notice, and no parol evidence shall be permitted to add to, embellish,
clarify, explain or vary the reasons as stated in the Objection Notice. If such
litigation is commenced, the prevailing party shall be entitled to an award of
actual attorneys fees and all costs associated with the litigation. In the event
litigation is commenced, Arizona Escrow shall interplead the POA and any
remaining Escrow Funds with the Court in which the action is pending.
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6. Investment of Escrow Funds.
--------------------------------
The Escrow Funds, other than YPNT stock, shall be credited by Arizona
Escrow and recorded in an escrow account. Arizona Escrow shall be permitted,
and is hereby authorized to deposit, transfer, hold and invest all funds, other
than YPNT stock, received under this Escrow Agreement including principal and
interest in any authorized FDIC insured account or instrument as specified by
the Arizona State Banking Department during the period of this escrow. Any
interest received by Arizona Escrow with respect to the Escrow Funds, including
reinvested interest shall become part of the Escrow Funds, and shall be
disbursed to Telco as directed in writing by Telco. The parties agree that, for
tax reporting purposes, all interest or other taxable income earned on the
Escrow Funds in any tax year shall be taxable to Telco.
The parties hereto shall within thirty (30) days after the date hereof,
provide Arizona Escrow with certified tax identification numbers by furnishing
appropriate IRS forms W-9 or W-8 and other forms and documents that Arizona
Escrow may reasonably request. The parties hereto understand that if such tax
reporting documentation is not so certified to Arizona Escrow, Arizona Escrow
may be required by the Internal Revenue Code of 1986, as amended, to withhold a
portion of any interest or other income earned on the Escrow Fund pursuant to
this Escrow Agreement.
Telco agrees to indemnify and hold Arizona Escrow harmless from and against
any taxes, additions for late payment, interest, penalties and other expenses
that may be assessed against Arizona Escrow on or with respect to any payment or
other activities under this Escrow Agreement unless any such tax, addition for
late payment, interest, penalties and other expenses shall arise out of or be
caused by the actions of, or failure to act, by Arizona Escrow.
7. Notices.
-------------
All notices, requests, demands, and other communications under this Escrow
Agreement shall be in writing and shall be deemed to have been duly given (a) on
the date of service if served personally on the party to whom notice is to be
given, (b) on the day of transmission if sent by facsimile/email transmission to
the facsimile number/email address given below, and telephonic confirmation of
receipt is obtained promptly after completion of transmission, (c) on the day
after delivery to Federal Express or similar overnight courier or the Express
Mail service maintained by the United States Postal Service, or (d) on the fifth
day after mailing, if mailed to the party to whom notice is to be given, by
first class mail, registered or certified, postage prepaid, and properly
addressed, return receipt requested, to the party as follows:
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If to Onramp:
Xxxx Xxxxxxxxx, President
Onramp Access, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
And to:
Xxxxxxx X. Xxxxxxxxx, Esq.
XXXXXXXXX & XXXXXXX, P.C.
Ptarmigan Place, Suite 900
3773 Xxxxxx Xxxxx X. Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to Telco:
Xxxxxx Xxxxx, President
Telco Billing, Inc.
0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx, Xxxxxxx 00000
And to:
Xxxxx Xxxxxxxx, Esq.
XXXXX XXXXXXXX, P.C.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
If to Arizona Escrow:
Xxx Xxxxxx, President
ARIZONA ESCROW & FINANCIAL CORPORATION
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
or to such other address as a party shall designate by written notice to all
other parties to the Escrow Agreement.
8. Arizona Escrow's Liability.
--------------------------------
Arizona Escrow undertakes to perform such duties and only such duties as
are specifically set forth in this Escrow Agreement, and no implied covenants or
obligations shall be read into this Escrow Agreement against Arizona Escrow. In
the absence of gross negligence or willful misconduct on its part, Arizona
Escrow may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to Arizona Escrow. Arizona Escrow may
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act upon any instrument, certificate, opinion or other writing believed by it
without gross negligence to be genuine, and shall not be liable in connection
with the performance by it of its duties pursuant to the provisions of the
Escrow Agreement, except for its own gross negligence or willful misconduct.
Arizona Escrow may consult with counsel of its own choice and shall have full
and complete authorization and protection for any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the opinion of such
counsel. Arizona Escrow may execute powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys.
9. Termination of Escrow.
---------------------------
Upon the conclusion of Arizona Escrow's duties hereunder, any remaining
Escrow Funds held by the Arizona Escrow pursuant to the terms of this Escrow
Agreement shall be paid by Arizona Escrow to Telco or its successors or assigns.
10. Fees and Expenses.
-----------------------
Arizona Escrow is entitled to compensation in accordance with "Exhibit C"
attached hereto and incorporated herein by reference and shall be payable by
Telco. The fee agreed upon for the services rendered hereunder is intended as
full compensation for the Arizona Escrow's services as contemplated by this
Escrow Agreement; provided, however, that in the event that the conditions for
-----------------
the disbursement of funds under this Escrow Agreement are not fulfilled, or the
Arizona Escrow renders any material service not contemplated in this Escrow
Agreement or there is any assignment of interest in the subject matter of this
Escrow Agreement, or any material modification hereof, or if any material
controversy arises hereunder, or the Arizona Escrow is made a party to any
litigation pertaining to this Escrow Agreement, or the subject matter hereof,
then the Arizona Escrow shall be reasonably compensated by Telco for such
extraordinary services and reimbursed for all costs and expenses, including
reasonable attorney's fees, occasioned by any delay, controversy, litigation or
event.
11. Indemnification of Arizona Escrow.
---------------------------------------
Telco and Onramp both jointly and severally hereby indemnify and hold
harmless the Arizona Escrow from and against, any and all loss, liability, cost,
damage and expense, including, without limitation, reasonable counsel fees,
which the Arizona Escrow may suffer or incur by reason of any action, claim or
proceeding brought against the Arizona Escrow arising out of or relating in any
way to this Escrow Agreement or any transaction to which this Escrow Agreement
relates unless such action, claim or proceeding is the result of the willful
misconduct of the Arizona Escrow.
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12. Resignation.
----------------
Arizona Escrow may resign upon 30-days advance written notice to the
parties hereto. If a successor escrow agent is not appointed within the 30-day
period following such notice, Arizona Escrow may petition any court of competent
jurisdiction to name a successor Escrow Agent or interplead the Escrow Funds
with such court, whereupon Arizona Escrow's duties hereunder shall terminate.
13. Successors and Assigns.
---------------------------
Except as otherwise provide for in this Escrow Agreement, no party hereto
shall assign this Escrow Agreement or any rights or obligations hereunder
without the prior written consent of the other parties hereto and any such
attempted assignment without such prior written consent shall be void and of no
force and effect. This Escrow Agreement shall inure to the benefit of and shall
be binding upon the successors and permitted assigns of the parties hereto.
14. Governing Law; Jurisdiction.
--------------------------------
This Escrow Agreement shall be construed, performed, and enforced in
accordance with, and governed by, the internal laws of the State of Arizona,
without giving effect to the principles of conflict of laws thereof.
15. Amendments; Waivers.
------------------------
This Escrow Agreement may be amended or modified, and any of the terms,
covenants, representations, warranties, or conditions hereof may be waived, only
by a written instrument executed by the parties hereto, or in the case of a
waiver, by the party waiving compliance. Any waiver by any party of any
conditions, or of the breach of any provision, term, covenant, representation,
or warranty contained in this Escrow Agreement, in any one or more instances,
shall not be deemed to be nor construed as further or continuing waiver of any
such conditions, or of the breach of any other provision, term, covenant,
representation, or warranty of this Escrow Agreement.
16. Counterparts.
-----------------
This Escrow Agreement may be executed in two or more counterparts, all of
which taken together shall constitute one instrument.
17. Entire Agreement.
---------------------
This Escrow Agreement contains the entire understanding among the parties
hereto with respect to the escrow contemplated hereby and supersedes and
replaces all prior and contemporaneous agreements and understandings, oral or
written, with regard to such escrow.
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18. Section Headings.
---------------------
The section headings in this Escrow Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Escrow
Agreement.
19. Severability.
-----------------
In the event that any part of this Escrow Agreement is declared by any
court or other judicial or administrative body to be null, void, or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Escrow Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to
be signed the day and year first above written.
TELCO BILLING, INC.
By /s/Xxxxxx Xxxxx
-----------------------------
Its President
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ONRAMP ACCESS, INC.
By /s/ Xxxx Xxxxxxxxx
-----------------------------
Its President
----------------------------
ARIZONA ESCROW & FINANCIAL CORPORATION
AS ESCROW AGENT
By /s/ Xxx Xxxxxx
-----------------------------
Its President
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