Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of
this 24th day of
July, 2008, by and between Domark International, Inc. a Nevada
Corporation,
NASDAQ OTC BB or assign ("PURCHASER"), and TotalMed Systems Inc., a
Florida
corporation ("SELLER").
BACKGROUND
Seller is engaged in the business of marketing, designing and
distributing
medical software products for physician and hospital clients and
owns certain
software and other assets and intellectual property in connection
with the
business, (the "BUSINESS"). Seller wishes to sell, and Purchaser
wishes to
purchase all of the assets used in the Business upon and subject to
the terms
and conditions set forth in this Agreement.
AGREEMENT
Now, therefore, for and in consideration of the mutual
representations,
warranties, covenants, and agreements contained herein and for
other good and
valuable consideration, the receipt and legal sufficiency of which
is hereby
acknowledged, the parties hereto agree:
SECTION 1. PURCHASE AND SALE OF ASSETS
SECTION 1.1 PURCHASE OF ASSETS. On and subject to the terms and
conditions
of this Agreement, Purchaser hereby purchases and Seller hereby
sells, assigns,
grants, transfers, and conveys to Purchaser all of the right,
title, and
interest of Seller in and to all of the assets of Seller used
exclusively in the
Business (collectively, the "PURCHASED ASSETS") free and clear of
any and all
liens, claims, charges, security interests, and encumbrances as the
same exist
on the Closing Date, as follows:
a.
All intellectual
property, trade name, trade secrets, trademarks,
personnel contracts, web site domain and content, strategic
partnerships, sponsors, publications, operating model, manuals,
licenses, and all other confidential information relating to
the
Business; and
b.
All current,
past and future clients.
c.
All assets of
the Seller identified in SCHEDULE 1.1(C)
d.
All software
programs and copyrighted products, systems and processes
used in the Business
SECTION 1.2 EXCLUDED LIABILITIES. Purchaser or if applicable,
Purchaser's
assign, shall take title to the assets listed in Schedule 1.1(c)
subject to the
liabilities and obligations as listed in Schedule 1.2. All other
liabilities of
Seller, other than those listed in SCHEDULE 1.2, are hereinafter
referred to as
"EXCLUDED LIABILITIES."
SECTION 1.3 ASSIGNMENT. Purchaser may, at its sole discretion,
assign the
rights to acquire assets under this agreement or the assets to an
affiliated
entity of Purchaser which entity shall be a fully reporting
publicly traded
entity on the OTCBB within 60 days of the Closing. Purchaser shall
notify Seller
of any assignment of the rights and obligations under this
agreement in writing
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upon such assignment. The consideration to be paid as set forth in
Section 2.1
shall be paid to Seller by the assignee at the discretion of the
Purchaser.
SECTION 2. PURCHASE PRICE AND CLOSING
SECTION 2.1 PURCHASE PRICE. The Purchase price for the Purchased
Assets is
Six Million Dollars ($6,000,000) of restricted common stock of
Purchaser or
assign's restricted common stock, of which the payment of $3
million of the
purchase price is conditioned on the delivery by Seller to the
Purchaser, the
sum of $500,000 cash as specified in schedule 1.1(c), schedule of
assets as the
amount to be deposited prior to closing. Should Seller fail to
deliver the
$500,000 cash to Purchaser on or before October 10,
2008,,Purchaser's obligation
hereunder will be limited to the issuance of shares of Purchaser or
assignee
representing $3 million as the total purchase price. All other
assets listed on
Schedule 1.1(c) are to be delivered to Purchaser at Closing. The
number of
shares to be issued to Seller shall be determined by dividing the
average
closing price for the 5 days prior to the closing date as adjusted
by any stock
splits, into the Purchase Price. Shares will be issued in the name
of the Seller
or as the Seller may so direct. In the event that two years of
audited financial
statements of Seller are required by the Rules of the Securities
and Exchange
Commission, Purchaser shall instruct the transfer agent of
Purchaser or
Purchaser's assignees to record the shares to be issued to Seller
or Seller's
assigns, but to hold back the delivery of the shares until the
audits and
complete reports acceptable to Purchaser under GAAP are delivered
to Purchaser
or Purchaser assigns. It is understood and agreed that the audits,
should they
be required, must be completed and filed with the Securities and
Exchange
Commission within 75 days of the closing of this transaction. In
the event the
audits are required but not delivered within the prescribed period,
Seller, may,
in its sole discretion, cancel the transaction, cancel the shares
to be
delivered to Seller and return the assets to Seller, less agreed
liquidated
damages incurred by Purchaser or Purchaser's assignees of $500,000.
Seller will
provide an executed stock power (with a medallion guarantee) to the
Purchaser.
The executed stock power shall be delivered to Seller with the
shares upon
satisfaction of the responsibilities of the Seller above.
SECTION 2.2 TIME AND PLACE OF CLOSING. The closing of the purchase
and sale
of the Purchased Assets (the "CLOSING") will be upon delivery of
all signed
documentation as required under this agreement and all
documentation necessary
to perfect the delivery of the assets as determined in the sole
discretion of
the Purchaser. The effective time of the closing and the transfer
of the
Purchased Assets to Purchaser is 12:00 noon. on the Closing Date.
Should Seller
fail to close this transaction on or before August 6, 2008, this
agreement will
become null and void and neither party will incur liability of any
kind to the
other.
SECTION 2.3 TRANSFER AND CLOSING EXPENSES. Seller shall pay all
sales and
transfer taxes levied on the transfer of the Purchased Assets, if
any. Ad
valorem taxes, if any, relating to the Purchased Assets shall be
prorated as of
the Closing Date. Seller, upon the execution of this agreement,
shall deliver to
Purchaser the sum of $45,000 representing the legal, accounting,
due diligence
and financing documentation fee in connection with the closing of
this
transaction. In the event the transaction fails to close due to an
action or
inaction on the part of the Seller to close, the costs paid by
Seller to
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Purchaser shall be non refundable. In the event Purchaser shall
fail to close
this transaction, then the costs will be refunded in full to
Seller.
SECTION 2.4 ALLOCATION OF PURCHASE PRICE. The consideration paid
for the
Purchased Assets shall be allocated among the Purchased Assets in
accordance
with the provisions contained in Treasury Regulation Section
1.1060-1T(d). The
parties agree to be bound by such allocation and to report the
transaction
contemplated herein for federal income tax purposes in accordance
with such
allocation. In furtherance of the foregoing, the parties hereto
agree to execute
and deliver Internal Revenue Service Form 8594 reflecting such
allocation.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER For the purpose
of
inducing the Purchaser to purchase the Purchased Assets, Seller
represents and
warrants to Purchaser as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Seller is a corporation
duly
organized, validly existing, and in good standing under the laws of
the State of
Florida and has all corporate power and authority to conduct the
Business, and
to own, lease, or operate the Purchased Assets in the places where
the Business
is conducted and the Purchased Assets are owned, leased, or
operated.
SECTION 3.2 AUTHORITY. Seller has full power and authority to enter
into
this Agreement and to consummate the transactions contemplated
hereby. The
execution, delivery, and performance of this Agreement by Seller
has been duly
and validly authorized and approved by all necessary action on the
part of
Seller. This Agreement is the legal, valid, and binding obligation
of Seller
enforceable against Seller in accordance with its terms, except
as
enforceability may be limited by applicable equitable principles or
by
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting
creditors' rights generally, and to the exercise of judicial
discretion in
accordance with general equitable principles. Neither the execution
and delivery
of the Agreement by Seller nor the consummation by Seller of the
transactions
contemplated hereby will (i) violate Seller's Certificate of
Incorporation or
Bylaws, (ii) violate any provisions of law or any order of any
court or any
governmental unit to which Seller is subject, or by which any of
the Purchased
Assets are bound, or conflict with, result in a breach of, or
constitute a
default under any indenture, mortgage, lease, agreement, or other
instrument to
which Seller is a party or by which it or any of the Purchased
Assets are bound,
or (iii) result in the creation of any lien, charge, or encumbrance
upon any of
the Purchased Assets.
SECTION 3.3 PERSONAL PROPERTY. Seller has good and marketable title
to all
of its Assets free and clear of all liens, claims, charges,
security interests,
and other encumbrances of any kind or of any nature, except as
disclosed in
Schedule 3.3. The Purchased Assets include all rights, properties,
interest in
properties, and assets necessary to permit Purchaser to carry on
the Business as
the same has heretofore been previously conducted by Seller.
SECTION 3.4 COMPLIANCE WITH LAWS. Seller, to the best of its
knowledge, is
not subject to any judgment, order, writ, injunction, or decree
that adversely
affects, or might in the future reasonably be expected to adversely
affect any
of the Purchased Assets or the Business. Seller is, to the best of
its
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knowledge, in substantial compliance with all laws applicable to
the Business
and the Purchased Assets, including without limitation, all laws
related to
zoning, occupational safety, labor, wages, working hours, working
conditions,
environmental protection, and fair business practices. Seller, to
the best of
its knowledge, has all permits, licenses, approvals, consents,
and
authorizations which are required for the operation of Seller's
business under
federal, state, or local laws, rules, and regulations.
SECTION 3.5 LITIGATION. Except as disclosed in SCHEDULE 3.5, there
are no
formal or informal complaints, investigations, claims, charges,
arbitration,
grievances, actions, suits, or proceedings pending, or to the
knowledge of
Seller threatened against any of the Purchased Assets at law or in
equity or
admiralty, or before or by any federal, state, municipal, or other
governmental
department, commission, board, bureau, agency, or instrumentality,
domestic or
foreign which would affect the purchased assets materially. Seller
is not
subject to any order, writ, injunction, or decree of any federal,
state,
municipal court, or other governmental department, commission,
board, bureau,
agency, or instrumentality, domestic or foreign, affecting the
Purchased Assets.
SECTION 3.6 BROKERS AND FINDERS. Seller has not incurred any
obligation or
liability to any party for any brokerage fees, agent's commissions,
or finder's
fees in connection with the transactions contemplated hereby.
SECTION 3.7 GOVERNMENTAL APPROVAL AND CONSENTS. Seller has obtained
all
governmental approvals, authorizations, permits, and licenses
required to permit
the operation of the Business as presently conducted.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser
hereby
represents and warrants to Seller as follows:
SECTION 4.1 ORGANIZATION AND QUALIFICATION. Purchaser is a
corporation duly
organized, validly existing, and in good standing under the laws of
the State of
Nevada and has all necessary power and authority to conduct its
business, to
own, lease, or operate its properties in the places where such
business is
conducted and such properties are owned, leased, or operated.
Purchaser is
listed on the NASDAQ OTC Bulletin Board under the symbol DOMK. Any
successor to
Purchaser by assignment, if applicable, will be a fully reporting
entity to the
Securities and Exchange Commission and traded on the OTCBB. DOMK
filings can be
found at www.sec.gov.
SECTION 4.2 AUTHORITY. Purchaser has full power and authority to
enter into
this Agreement and to consummate the transactions contemplated
hereby. The
execution, delivery, and performance of this Agreement by Purchaser
has been
duly and validly authorized and approved by all necessary action on
the part of
Purchaser, and this Agreement is the legal, valid, and binding
obligation of
Purchaser enforceable against Purchaser in accordance with its
terms, except as
enforceability may be limited by applicable equitable principles or
by
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting
creditors' rights generally, and by the exercise of judicial
discretion in
accordance with equi
