AGREEMENT OF CONVEYANCE, TRANSFER AND ASSIGNMENT OF ASSETS AND ASSUMPTION OF OBLIGATIONS
AGREEMENT OF CONVEYANCE,
TRANSFER AND ASSIGNMENT OF ASSETS AND
ASSUMPTION OF
OBLIGATIONS
This
Agreement of Conveyance, Transfer and Assignment of Assets and Assumption of
Obligations (“Agreement”) is made
as of December 2, 2010, by and between OmniReliant Holdings, Inc., a Nevada
corporation. (“Omni” or “Assignor”), with an
address of 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, and Zurvita Holdings,
Inc., a Delaware corporation(“Assignee”).
WHEREAS, Omni owns 100% of
certain assets, as set forth on Schedule A attached
hereto (collectively, the “Assets”);
WHEREAS, Omni desires to
convey, transfer and assign to Assignee, and Assignee desires to acquire from
Omni, all of Omni’s interest in the Assets, free and clear of all liens, claims,
encumbrances and liabilities.
NOW THEREFORE, in
consideration of the mutual promises and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as
follows:
Section
1. Assignment and
Sale.
1.1. Assignment
of Assets. For good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged by Omni, Omni does hereby assign,
grant, bargain, sell, convey, transfer and deliver to Assignee, and its
successors and assigns, all of Omni’s right, title and interest in, to and under
the Assets.
1.2 Closing. The purchase and
sale of Omni’s interest in the Assets shall take place at a closing (the
“Closing”), to be held at such date, time and place at the law office of
Sichenzia Xxxx Xxxxxxxx & Xxxxxxx LLP as shall be determined by Assignee on
notice to Assignors. In consideration for the transfer and sale of
the Assets: (i) Assignee shall assume all payments, expenses, costs and
liabilities of any kind or nature, whether or not existing at the time of this
Agreement, as they relate to the Assets; (ii) the Assignor and Assignee agree to
terminate the license agreement, dated October 9, 2009, by and between the
Assignor and the Assignee (the “License Agreement”) (notwithstanding the
foregoing, the promissory note in the principal amount of Two Million Dollars
($2,000,000) issued by the Assignee to the Assignor (the “Note”), pursuant to
the License Agreement, shall remain outstanding, due and payable; and (iii) the
Assignee shall cause copies of the Assets, including copies of the URL,
Trademark and source codes (the “Asset Copies”), to be placed in an Iron
Mountain Account (for which Assignee shall pay and incur all current and future
costs), as part of the collateral for the Note, subject to the terms of a
security agreement simultaneously executed and dated as of the date hereof
between the Assignor and the Assignee, (collectively, the “Purchase
Consideration”).
1.3 Further
Assurances. Assignors shall from time to time after the date
hereof at the request of Assignee and without further consideration execute and
deliver to Assignee such additional instruments of transfer and assignment,
including without limitation any bills of sale, assignments of leases, deeds,
and other recordable instruments of assignment, transfer and conveyance, in
addition to this Agreement, as Assignee shall reasonably request to evidence
more fully the assignment by Omni to Assignee of its interest in the
Assets
1.4 Closing
Deliverables of Assignor. At the Closing, Assignor
shall deliver the following to the Assignee:
(a) The
Assets
(b) Such
deeds, bills of sale, assignments and other instruments of conveyance and
transfer, and such powers of attorney, as shall be effective to vest in Assignee
title to or other interest in, and the right to full custody and control of, the
Assets, free and clear of all liens, charges, encumbrances and security
interests whatsoever.
(c) Executed
waivers from secured creditors agreeing to release the Assets from its security
interest.
(d) Evidence
of filing of UCC-3 Financing Statement Amendments removing the Asset from any
and all UCC-1 Financing Statements that may include the Assets as
collateral.
All other
documents, certificates, instruments or writings reasonably required by Assignee
to be delivered by Assignor at or prior to the Closing pursuant to this
Agreement.
1.5 Closing
Deliverables of Assignee. On the date of
Closing, Assignee shall deliver the following to the Assignor:
(a) The
Purchase Consideration
Section
2. Assumption.
2.1 Assumed
Liabilities. As of the date hereof, Assignee hereby assumes
and agrees to pay, perform and discharge, fully and completely, all liabilities,
commitments, contracts, agreements, obligations or other claims against
Assignor, whether known or unknown, asserted or unasserted, accrued or
unaccrued, absolute or contingent, liquidated or unliquidated, due or to become
due, and whether contractual, statutory, or otherwise associated with the
Assets, whenever arising (the “Liabilities).
2.2 Further
Assurances. Assignee shall
from time to time after the date hereof at the request of Assignor and without
further consideration execute and deliver to Assignor such additional
instruments of assumption in addition to this Agreement as Assignor shall
reasonably request to evidence more fully the assumption by Assignee of the
Liabilities
Section
3. Representations
and Warranties of the Assignors. The Assignor
hereby makes the following representations and warranties to Assignee, which
shall survive the Closing:
|
(a)
|
The
Assets are owned by Assignor free and clear of any and all liens, claims,
encumbrances, preemptive rights, right or first refusal and adverse
interests of any kind.
|
|
(b)
|
Assignor
has the requisite power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby and otherwise to carry out
Assignor’s obligations hereunder.
|
|
(c)
|
Except
for Vicis Capital Mater Fund (which consent has been received), no
consent, approval or agreement of any individual or entity is required to
be obtained by Assignor in connection with the execution and performance
by Assignor of this Agreement or the execution and performance by Assignor
of any agreements, instruments or other obligations entered into in
connection with this Agreement.
|
|
(d)
|
Except
as set forth in the Assignor’s filing with the Securities and Exchange
Commission, there is no private or governmental action, suit, proceeding,
claim, arbitration or investigation pending before any agency, court or
tribunal, foreign or domestic, against Assignor or any of Assignor’s’
properties or any of its assets, at law or in
equity.
|
|
(e)
|
Except
as set forth in the Assignor’s filing with the Securities and Exchange
Commission, there is no judgment, decree or order against Assignor that
could prevent, enjoin, alter, or delay any of the transactions
contemplated by this Agreement.
|
|
(f)
|
Except
as set forth in the Assignor’s filing with the Securities and Exchange
Commission, there are no material claims, actions, suits, proceedings,
inquiries, labor disputes or investigations pending against the Assignor
or any of its assets, at law or in equity or by or before any governmental
entity or in arbitration or
mediation.
|
|
(g)
|
No
bankruptcy, receivership or debtor relief proceedings are pending or, to
Assignor’s knowledge, threatened against
Assignor.
|
|
(h)
|
Assignor
has complied with, is not in violation of, and has not received any
notices of violation with respect to, any federal, state, local or foreign
Law, judgment, decree, injunction or order, applicable to it, the conduct
of its business, or the ownership or operation of its
business. References in this Agreement to “Laws” shall refer to
any laws, rules or regulations of any federal, state or local government
or any governmental or quasi-governmental agency, bureau, commission,
instrumentality or judicial body (including, without limitation, any
federal or state securities law, regulation, rule or administrative
order).
|
|
(i)
|
Assignor
is aware of Assignee’s business affairs and financial condition and has
reached an informed and knowledgeable decision to assign the
Assets.
|
|
(j)
|
There
are no liabilities, commitments, contracts, agreements, obligations or
other claims against Assignor or the Assets, whether known or unknown,
asserted or unasserted, accrued or unaccrued, absolute or contingent,
liquidated or unliquidated, due or to become due, and whether contractual,
statutory, or otherwise associated with the
Assets.
|
|
(k)
|
All
representations, covenants and warranties of Assignor contained in this
Agreement shall be true and correct on and as of the Closing with the same
effect as though the same had been made on and as of such
date.
|
Assignor
agrees to defend, indemnify, and hold harmless Assignee, its officers,
directors, agents and assigns with respect to any claim constituting a breach of
the representations or warranties contained in this Agreement. With respect to
any such claims, either party shall give the other party prompt notice of the
claim. Assignee and Assignor agree to fully cooperate in the defense against
claims. The indemnifying party, Assignor, shall pay, upon
presentation, a legal retainer, if required, and all of Assignee’s legal fees
and costs, expenses, losses, and charges incurred in defending against such
suits, as incurred, month to month. Assignee shall not, without the
prior written consent of Assignor, the indemnifying party, agree to the
settlement, compromise or discharge of such claim, though written consent of
Assignor cannot be unreasonably withheld.
Section
4. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement of
the parties, superseding and terminating any and all prior or contemporaneous
oral and written agreements, understandings or letters of intent between or
among the parties with respect to the subject matter of this
Agreement. No part of this Agreement may be modified or amended, nor
may any right be waived, except by a written instrument which expressly refers
to this Agreement, states that it is a modification or amendment of this
Agreement and is signed by the parties to this Agreement, or, in the case of
waiver, by the party granting the waiver. No course of conduct or
dealing or trade usage or custom and no course of performance shall be relied on
or referred to by any party to contradict, explain or supplement any provision
of this Agreement, it being acknowledged by the parties to this Agreement that
this Agreement is intended to be, and is, the complete and exclusive statement
of the Agreement with respect to its subject matter. Any waiver shall
be limited to the express terms thereof and shall not be construed as a waiver
of any other provisions or the same provisions at any other time or under any
other circumstances.
(b) Severability. If
any section, term or provision of this Agreement shall to any extent be held or
determined to be invalid or unenforceable, the remaining sections, terms and
provisions shall nevertheless continue in full force and effect.
(c) Notices. All
notices provided for in this Agreement shall be in writing signed by the party
giving such notice, and delivered personally or sent by overnight courier, mail
or messenger against receipt thereof or sent by registered or certified mail,
return receipt requested, or by facsimile transmission or similar means of
communication if receipt is confirmed or if transmission of such notice is
confirmed by mail as provided in this Agreement. Notices shall be
deemed to have been received on the date of personal delivery or telecopy or
attempted delivery.
(d) Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida applicable to agreements
executed without regard to any principles of conflicts of law. By
execution and delivery of this Agreement, each of the parties hereby irrevocably
(i) consents and agrees that any legal or equitable action or proceeding arising
under or in connection with this Agreement shall be brought in the federal or
state courts located in the County of Hillsborough in the State of Florida, (ii)
submits to and accepts the jurisdiction of said courts, (iii) waives any defense
that such court is not a convenient forum, and (iv) consents to any service of
process made either (x) in the manner set forth in this Agreement (other than by
telecopier), or (y) any other method of service permitted by law.
(e) Waiver of Jury
Trial. Each of the parties hereto hereby expressly waives any
right to a trial by jury in the event of any suit, action or proceeding to
enforce this Agreement or any other action or proceeding which may arise out of
or in any way be connected with this Agreement or any of the other documents or
agreements executed in connection herewith.
(f) Parties to Pay Own
Expenses. Each of the parties to this Agreement shall be
responsible and liable for its own expenses incurred in connection with the
preparation of this Agreement, the consummation of the transactions contemplated
by this Agreement and related expenses.
(g) Successors. This
Agreement shall be binding upon the parties and their respective heirs,
executors, administrators, legal representatives, successors and assigns;
provided, however, that no party may assign this Agreement or any of its rights
under this Agreement without the prior written consent of the other
parties.
(h) Further
Assurances. Each party to this Agreement agrees, without cost
or expense to any other party, to deliver or cause to be delivered such other
documents and instruments as may be reasonably requested by any other parties to
this Agreement in order to carry out more fully the provisions of, and to
consummate the transaction contemplated by, this Agreement.
(i) Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
(j) No Strict
Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties with the advice of counsel to
express their mutual intent, and no rules of strict construction will be applied
against any party.
(k) Headings. The
headings in the Sections of this Agreement are inserted for convenience only and
shall not constitute a part of this Agreement.
(l) Legal
Representation. Each party hereto acknowledges that it has
been represented by independent legal counsel in the preparation of the
Agreement. Each party recognizes and acknowledges that counsel to
Assignee has represented certain shareholders of Assignee
and may, in the future, represent others in connection with various legal
matters and each party waives any conflicts of interest and other allegations
that it has not been represented by its own counsel.
[SIGNATURE
PAGE FOLLOWS]
[SIGNATURE
PAGE TO AGREEMENT OF CONVEYANCE]
IN WITNESS WHEREOF, this
Agreement has been duly executed and delivered by the parties hereto as of the
date first above written.
| ASSIGNOR: | |||
| OMNIRELIANT HOLDINGS, INC. | |||
|
|
By:
|
/s/ Xxxxxx XxXxxxx III | |
| Name: Xxxxxx XxXxxxx III | |||
| Title: Chief Executive Officer | |||
| ASSIGNEE: | |||
| ZURVITA HOLDINGS, INC. | |||
|
|
By:
|
/s/ Xxx Xxxxxx | |
| Name: Xxx Xxxxxx | |||
| Title: Chief Executive Officer | |||
SCHEDULE
A
ASSETS
Software. The LocalAdLink Software (“LAL”),
including source codes, as updated, the LAL name rights, and the LAL trademark,
as well as any additional third party codes that have been modified or integrated into the
source codes to enable the business process operations of LAL, including but not
limited to the domain URL assets (the "Software").
Records. All
creative materials, advertising and promotional materials, marketing materials,
conference materials, database materials, supplier lists, equipment repair,
maintenance or service records, and all other printed or written materials
whether written or electronically stored or otherwise recorded, as they relate
to the Software.
