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Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of
this 11th day of
December, 2008, by and between Domark International, Inc. a
Nevada Corporation,
NASDAQ OTC BB or assign ("PURCHASER"), and Crowley and Company,
Inc., a Florida
corporation, ("SELLER").
BACKGROUND
Seller is engaged in the business of marketing, designing and
distributing
various advertising services for clients 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
(100,000) One Hundred Thousand shares (100,000) 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. 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 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
December 19, 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.
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
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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.
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.
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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:
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:
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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
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, exce
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