Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of
this 6th day of
November, 2008, by and between Domark International, Inc. a Nevada
Corporation,
NASDAQ OTC BB or assign ("PURCHASER"), and Emerging Growth
Advisors,LLC., a
Florida corporation ("SELLER").
BACKGROUND
Seller is engaged in the business of marketing, designing and
distributing
consulting services for small cap public companies and owns certain
hardware,
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, receivables,
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 are 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)
free and clear
of all liabilities of the Seller. All liabilities of Seller are
hereinafter
referred to as "EXCLUDED LIABILITIES."
SECTION 1.3 ASSIGNMENT. Purchaser may, assign the assets acquired
under
this agreement to a new formed wholly owned subsidiary of the
Purchaser and
shall notify Seller of any assignment of the assets in writing upon
such
assignment.
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SECTION 2. PURCHASE PRICE AND CLOSING
SECTION 2.1 PURCHASE PRICE. The Purchase price for the Purchased
Assets is
One Million shares (1,000,000) of restricted common stock of
Purchaser (the
"Shares"). 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. 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
by Seller
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 $250,000. 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, the completion by
the Purchaser
of a minimum capital raise of $250,000 to close simultaneously with
the closing
of this transaction, the execution of mutually agreeable employment
agreements
with certain parties of the Purchaser, the execution of a mutually
agreeable
lock up leak out agreement between Seller and Purchaser, 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.
Excluding the requirements under Section 2.1 herein as to
production of audits,
should Seller fail to close this transaction on or before November
25, 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.
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.
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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. 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
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.
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SECTION 3.5 LITIGATION. 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, except that certain action by and between
Veridigm, Inc. and
Seller, which as of the closing shall have been resolved to
Purchaser's
satisfaction. 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 3.48 INVESTMENT INTENT.
i.
Restricted
Shares. Seller understand that (A) the Shares Sellers are
receiving from Purchaser under this Agreement have not been
registered
under the Securities Act of 1933, as amended ("the Act") or the
securities laws of any state, based upon an exemption from such
registration requirements pursuant to Section 4(2) of the Act; (B)
the
Shares are and will be "restricted securities", as said term is
defined in Rule 144 of the Rules and Regulations promulgated under
the
Act; and (C) the Shares may not be sold or otherwise transferred
or
distributed unless exemptions from such registration provisions
are
available with respect to said resale or transfer or the shares
have
been registered under the Act.
ii.
Transferability.
Seller will not sell or otherwise transfer any of the
Shares, any interest therein unless and until (A) the Shares
shall
have first been registered under the Act and/or all applicable
state
securities laws; or (B) Seller shall have first delivered to
Purchaser
a written opinion of counsel, which counsel and opinion (in form
and
substance) shall be reasonably satisfactory to Purchaser, to
the
extent that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state
securities
laws.
iii.
Investment Intent. Seller is acquiring the Shares for
Investment
purposes only, without a view for resale or distribution
thereof.
iv.
Legend. Seller
understands that the certificates representing the
Shares will bear the following or similar legend:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT
BE SOLD, TRANSFERRED, FURTHER PLEDGED, HYPOTHECATED OR
OTHERWISE
DISPOSED OF IN ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
FOR
SUCH SECURITIES UNDER SAID ACT OR (II) AN OPINION OF COMPANY
COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
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. 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
execut
