Exhibit 10.4
Capital Contribution and Sale Agreement
By and Between
Aden Enterprises, Inc. and
MercExchange, LLC
THIS SALE AGREEMENT, (hereinafter the "Agreement") is effective on 30th day of
October, 1999 by and between Aden Enterprises, Inc., a California corporation
("Aden" or the "Company"), having a principal place of business at 13314 I
Street, Omaha, Nebraska 68137 and MercExchange, LLC, ("MercExchange"), a limited
liability company under Delaware law, with a principal place of business at 114
N. Alfred Street, Alexandria, VA 22314.
RECITALS
WHEREAS, MercExchange seeks capital contribution and Aden desires to purchase a
percentage of the membership units of MercExchange subject to the terms and
conditions as set forth herein;
NOW, THEREFORE, in consideration of the promises and of the mutual covenants
contained herein, the parties hereby agree as follows:
ARTICLE I
AGREEMENT
Aden hereby purchases 10% (ten percent) ownership of MercExchange in
consideration of two notes in a total amount of $4 million ($4,000,000), said
notes payable by wire transfer wherein the first note in the amount of $1
million ($1,000,000) shall be due and paid within thirty (30) days of the
effective date of this Agreement, and the second note in the amount of $3
million ($3,000,000) shall be due and paid within one hundred twenty (120) days
of the effective date of this Agreement. MercExchange hereby also grants an
option to Aden to purchase an additional 5% of MercExchange for $3 million
($3,000,000) within two years of the effective date of this Agreement.
ARTICLE II
OTHER PROVISIONS
2.1 Termination for Cause. If Aden shall materially breach any of its
obligations pursuant to this Agreement and shall fail to adequately correct such
breach within two (2) months from the effective date of the first written notice
to Aden, MercExchange may terminate this Agreement pursuant to this Article by
written notice. The termination of the agreement shall immediately cause the
membership interest and option in MercExchange to revert to MercExchange with no
further step or action at law or equity required by MercExchange.
2.2 No Joint Venture. The relationship between the parties shall be limited to
the performance of their respective obligations as set forth in this Agreement.
Nothing in this Agreement shall be construed to create a partnership or joint
venture between the parties or to authorize either party to act as general agent
for the other party, or to permit either party to bind or otherwise bind the
other party. No party shall be liable for any of the actions, omissions, or
indebtedness of the other party.
2.3 Assignability. Except as otherwise provided herein, the rights granted by
each party to the other in this Agreement are personal to each party and may not
be assigned, sub-licensed or otherwise transferred by one party without the
prior written consent of the other party.
2.4 No Implied License. Nothing contained in this Agreement shall be construed
as granting by implication, estoppel or otherwise, any licenses, warranties
(implied in fact or law) or rights other than those expressly granted herein, or
creating any obligation other than those expressly granted herein.
2.5 No Indemnification. MercExchange does not indemnify, warrant or otherwise
guarantee or hold harmless Aden from enforcement and/or legal action brought by
any Third Party.
2.6 Notification. The parties shall notify each other in writing at the
following address which may be amended from time to time upon written
notification:
MercExchange:
Thomas G. Woolston
Managing Member
MercExchange, LLC
114 N. Alfred Street
Alexandria, VA 22314
Aden:
Michael S. Luther
Aden Enterprises, Inc.
13314 I Street
Omaha, NE 68137
2.7 Controlling Law. This Agreement shall be construed and enforced in
accordance with, and shall be governed by the laws of the Commonwealth of
Virginia without giving effect to the provision, policies, or principles thereof
relating to choice or conflict of laws.
2.8 Severability. Any provision of this Agreement that is illegal, invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such illegality, invalidity or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
2.9 Waiver. The failure of any party to enforce any of the provision of this
Agreement, or of any rights with respect thereto, shall not be considered a
waiver thereof or in any way affect the validity of this Agreement. The failure
by any party hereto to enforce any of said provisions, rights or elections shall
not prejudice said party from later enforcing or exercising the same or any
other provisions, rights, of elections which it may have under this Agreement.
2.10 Integration. This Agreement contains the entire and only understanding
between the parties with respect to the subject matter hereof, and supersedes
all prior agreement and understandings, whether oral or written, with respect
thereto. No modification or wavier of this Agreement or any of its provisions
shall be binding unless in writing and signed by a duly authorized
representative of each of the parties hereto.
2.11 Bankruptcy or liquidation. The membership interest and option granted
hereunder shall immediately revert to MercExchange if the Company seeks
protection under the Bankruptcy laws or is subject to liquidation under the laws
of the United States.
2.12 Non-refundable. Any payments made hereunder by Aden to MercExchange are
non-refundable.
2.13 Headings. Headings and section titles are for organization purposes only
and shall have no effect on the interpretation of this Agreement.
2.14 Remedy for Breach. If the Company materially breaches any condition of this
Agreement and does not cure said breach within 60 days of notice of material
breach, then all membership units and option in MercExchange shall immediately
revert to MercExchange, or its lawful successor in interest.
2.15 Counterparts. This Agreement shall be binding to all parties and may be
executed in part by facsimile.
This Agreement is entered into the date and year first above written.
Aden Enterprises, Inc.
By /s/ Michael S. Luther
Michael S. Luther
President& Chief Executive
Officer
MercExchange, LLC
By /s/ Thomas G. Woolston
Thomas G. Woolston
Managing Member