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Alloy Online, Inc. has omitted from this Exhibit 10.8 portions of the Agreement
for which Alloy Online, Inc. has requested confidential treatment from the
Securities and Exchange Commission. The portions of the Agreement for which
confidential treatment has been requested have been filed separately with the
Securities and Exchange Commission. Such omitted portions have been marked with
an asterisk.
EXHIBIT 10.8
MAILING LIST PURCHASE AGREEMENT
This Mailing List Purchase Agreement (the "Agreement") is made as of
February 22, 1999 by and between Alloy Designs, Inc., a Delaware corporation
("Alloy"), and Just Nikki, Inc. a Delaware corporation (the "Seller").
WHEREAS, the Seller has developed a mailing list of names and addresses
of potential customers in connection with its Just Nikki catalogs (the "Mailing
List"); and
WHEREAS, the Seller has decided to discontinue its Just Nikki catalog
business; and
WHEREAS, the Seller is willing to sell a single copy of the Mailing
List and Alloy is willing to buy a single copy the Mailing List on a
non-exclusive basis.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. PURCHASE AND SALE OF MAILING LIST. Subject to the terms and
conditions of this Agreement, the Seller hereby agrees to sell to Alloy, and
Alloy hereby agrees to purchase from the Seller, the Mailing List, free and
clear of all liens, claims or encumbrances.
2. PURCHASE PRICE. In full consideration for the purchase and sale of
the Mailing List contemplated by this Agreement, Alloy shall pay the Seller the
sum of [ ]* ($[ ]*) (the "Purchase Price"). The Purchase Price will be
payable by Alloy to the Seller upon delivery of the Mailing List to Alloy by the
Seller in computer or machine readable form reasonably acceptable to Alloy.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller represents
and warrants to Alloy as follows:
(a) ORGANIZATION AND QUALIFICATION. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) CORPORATE POWER AND AUTHORITY. The Seller has the corporate power
and authority to execute, deliver and perform this Agreement and the other
documents and instruments contemplated hereby. The execution, delivery and
performance of this Agreement and the documents contemplated hereby and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized and approved by the Seller. This Agreement and the other documents
and instruments to be executed and delivered by the Seller have been duly
executed and delivered by, and constitute the legal, valid and binding
obligations of, the Seller enforceable against the Seller in accordance with
their terms.
(c) VALIDITY, ETC. Neither the execution and delivery of this Agreement
and the other documents and instruments contemplated hereby, the consummation of
the transactions contemplated hereby or thereby, nor the performance of this
Agreement and such other
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agreements in compliance with the terms and conditions hereof and thereof will
(i) violate, conflict with or result in any breach of any certificate of
incorporation, bylaw, judgment, decree, order, statute or regulation applicable
to the Seller, (ii) require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority,
(iii) result in a breach of or default under any law, rule or regulation or any
judgment, decree, order, governmental permit, license or order, or any of the
provisions of any material agreement or other instrument to which the Seller is
a party, (iv) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Seller, or (v) result in the creation of any lien,
claim or encumbrance upon the Mailing List.
(d) LITIGATION. There is no action, suit, claim, arbitration,
proceeding or investigation pending or, to the Seller's knowledge, threatened
against or affecting the Seller, at law or in equity, or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, relating to the Mailing
List.
(e) MAILING LIST. The Seller owns the Mailing List free of all liens,
claims and encumbrances and has the full power and right to sell the Mailing
List to Alloy as set forth in this Agreement. The Mailing List contains a total
of [ ]* names and addresses more or less, of which approximately [ ]* names
and addresses are of persons who made at least one purchase from the Just Nikki
catalog between February 1, 1998 and January 10, 1999 and approximately [ ]*
names and addresses of persons who requested a copy of the Just Nikki catalog
between such dates.
4. REPRESENTATIONS AND WARRANTIES OF ALLOY. Alloy represents and
warrants to the Seller as follows:
(a) ORGANIZATION. Alloy is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware.
(b) POWER AND AUTHORITY. Alloy has the corporate power and authority to
execute, deliver and perform this Agreement and the other documents and
instruments contemplated hereby. The execution, delivery and performance of this
Agreement and the documents contemplated hereby and the consummation of the
transactions contemplated hereby and thereby have been duly authorized and
approved by Alloy. This Agreement and the other documents and instruments to be
executed and delivered by Alloy have been duly executed and delivered by, and
constitute the legal, valid and binding obligation of Alloy enforceable against
Alloy in accordance with their terms.
(c) VALIDITY, ETC. Neither the execution and delivery of this Agreement
and the other documents and instruments contemplated hereby, the consummation of
the transactions contemplated hereby or thereby, nor the performance of this
Agreement and such other agreements in compliance with the terms and conditions
hereof and thereof will (i) conflict with or result in any breach of any
certificate of incorporation, bylaw, judgment, decree, order, statute or
regulation applicable to Alloy, (ii) require any consent, approval,
authorization or permit of, or
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filing with or notification to, any governmental or regulatory authority, (iii)
result in a breach of or default under any law, rule or regulation or any
judgment, decree, order, governmental permit, license or order, or any of the
terms, conditions or provisions of any material agreement or other instrument to
which Alloy is a party, or (iv) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Alloy.
(d) NON-EXCLUSIVE. Alloy recognizes and agrees that it is purchasing a
single copy of the Mailing List on a non-exclusive basis and, accordingly, that
the Seller may sell the Mailing List to one or more additional buyers other than
Alloy.
(e) USAGE. Alloy agrees to use the Mailing List for internal purposes
only and agrees not to re-sell the Mailing List in the form in which it is
delivered by the Seller to any third party. Buyer further agrees not to use the
Mailing List for any illegal or immoral purpose.
5. FURTHER ASSURANCES. Each of Alloy and the Seller agrees to execute
and deliver such additional instruments and documents as the other party may
reasonably request to confirm and carry out the intent and purposes of this
Agreement.
6. INDEMNITY. Each party agrees to indemnify, defend, and hold the
other party, its officers, directors, employees and shareholders and their
respective successors and assigns from, against and with respect to any claim,
liability, obligation, loss, damage, assessment, judgment, cost and expense
(including, without limitation, reasonable attorneys' and accountants' fees and
other costs and expenses reasonably incurred by them) of any kind or character,
arising out of or relating to any inaccuracy or breach of the representations,
warranties and covenants of that party contained in this Agreement.
7. NOTICES. All notices and other communications required or permitted
to be given hereunder shall be in writing, shall be addressed to the receiving
party's address set forth below or to such other address as a party may
designate by notice hereunder, and shall be either (i) delivered by hand, (ii)
made by telex, telecopy or facsimile transmission, (iii) sent by overnight
courier, or (iv) sent by registered or certified mail, return receipt requested,
postage prepaid:
If to Alloy to: Alloy Designs, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: 212/244-4311
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Seller to: Just Nikki, Inc.
________________________
________________________
Facsimile: ____________
Attention: Officer of Just Nikki
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All notices and other communications hereunder shall be deemed to have
been given either (i) if by hand, at the time of the delivery thereof to the
receiving party at the address of such party set forth above, (ii) if made by
telex, telecopier or facsimile transmission, at the time that receipt thereof
has been acknowledged by electronic confirmation or otherwise, (iii) if sent by
overnight courier, on the next business day following the day such notice is
delivered to the courier service, or (iv) if sent by registered or certified
mail, on the fifth (5th) business day following the day such mailing is made.
8. MISCELLANEOUS.
(a) This Agreement (i) is to be construed and enforced in accordance
with the law of the State of New York without regard to the conflict of laws
principles thereof, (ii) is binding upon and shall inure to the benefit of the
parties hereto and (iii) may be canceled, modified or amended only by a written
instrument executed by both parties hereto.
(b) The terms and provisions of this Agreement may be waived, or
consent for the departure therefrom granted, only by a written document executed
by the party entitled to the benefits of such terms or provisions. No such
waiver or consent shall be deemed to be or shall constitute a waiver or consent
with respect to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the specific
instance and for the purpose for which it was given, and shall not constitute a
continuing waiver or consent.
(c) Any legal action or proceeding with respect to this Agreement shall
be brought in the courts of the State of New York or of the United States of
America located in the State of New York. Each of the parties hereto irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by certified mail,
postage prepaid, to the party at its address set forth in Section 7 hereof.
(d) The headings and captions of the various subdivisions of this
Agreement are for convenience of reference only and shall in no way modify, or
affect the meaning or construction of any of the terms or provisions hereof.
(e) Each of the parties hereto shall pay its own fees and expenses
(including the fees of any attorneys engaged by such party) in connection with
this Agreement and the transactions contemplated hereby whether or not the
transactions contemplated hereby are consummated.
(f) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior oral
or written agreements and understandings relating to the subject matter hereof.
(g) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute a single
agreement,
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their respective duly authorized representatives as of
the date first set forth above.
ALLOY DESIGNS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: C.E.O.
JUST NIKKI, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: C.F.O.
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