Exhibit 10.9
Amended Asset Exchange Agreement
This Amended Asset Exchange Agreement (the "Agreement") is made and entered
into this 30th day of August, 2010, by and between Prime Mover Global, LLC,
a Delaware Limited Liability Company ("Seller") located at XX Xxx 0000,
Xxxxxxx, XX 00000 and Monster Offers, a Nevada corporation ("Buyer")
located at El Cangrejo, Calle Xxxxxxx X. Xxxxxxx, Xxxxxxxx Xxxxxx #0X,
Xxxxxx Xxxx, Xxxxxx.
RECITALS
A. Seller is the owner of a computer software program called the Social
Network Action Platform (SNAP) that creates social e-commerce websites.
The SNAP platform allows the Buyer to quickly deploy internally
branded social commerce initiatives and market similar private
labeled solutions to Fortune 1000 Companies and Non Profit Organizations.
B. Buyer desires to purchase and acquire from Seller a 100% ownership
interest in this software program, and Seller desires to transfer and convey
the same to Buyer, in accordance with the terms and conditions of this
Agreement.
C. As a condition of the sale, the Buyer and Seller agree that the developer
of this software program, specifically Xx. Xxxx Gain, be added to the Board
of Directors of Monster Offers.
D. As a condition of the sale, the Buyer and Seller agree that the developer
of this software program, specifically Xx. Xxxx Gain, be appointed as the
Chairman and CEO of Monster Offers.
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained herein, and on the terms and subject to the
conditions herein set forth, the parties hereby agree as follows:
ARTICLE I
Definitions
1.1 "Documentation" means all documentation, manuals, schemas and
specifications with respect to the Software.
1.2 "SNAP" means the Software (as that term is defined in the Asset Exchange
Agreement) excluding any third party software legally embedded therein.
1.3 "Intellectual Property" means all patents, patent rights, copyrights,
mask work rights, rights of publicity, trademark, trade dress and service
xxxx rights, goodwill, trade secret rights and other intellectual property
rights, as may now exist or hereafter come into existence, and all
applications therefor and registrations, renewals and extensions thereof,
under the laws of any state, country, territory or other jurisdiction.
1.4 "Object Code" means computer-executable binary code.
1.5 "Source Code" means the human-readable version of a software program
that can be compiled into Object Code, including all accompanying programming
notes, programming guides and commentary.
1.6 "Software" means Seller's Software, in both Source Code and Object Code
format.
1.7 "Derivative Works" shall have the meaning set forth in the United States
Copyright Act, 17 U.S.C. Section 101, et seq.
ARTICLE II
Purchase and Sale
2.1 Sale and Purchase of Assets. Subject to and upon the terms and
conditions contained herein, at the Closing, Seller shall sell, transfer,
assign, convey, and deliver to Buyer, free and clear of all liens, claims and
encumbrances, and Buyer shall purchase, accept and acquire from Seller a one
hundred (100%) percent ownership interest in the Software, its Intellectual
Property Rights and/or any of its future Derivative Works.
2.2 Purchase Price. The total purchase price for SNAP Software shall be
eight million (8,000,000) unregistered restricted common shares, par value
$0.001 in Monster Offers, payable by Buyer to Seller. Both parties agree
that these eight million (8,000,000) shares will remain restricted for a
period of one (1) year; whereby, these shares cannot be sold in the public
market. In addition to transferring 100% of the ownership rights to the
SNAP Software, the Seller agrees to pay the Buyer $8,000.00, the par value
cost basis for this restricted common stock. These securities will be issued
in reliance upon an exemption from registration under Section 4(2) of the
Securities Act as a transaction not involving a public offering.
2.3 Instruments of Transfer; Further Assurances.
(a) At the Closing, Seller shall deliver to Buyer:
(i) A one hundred (100%) percent ownership interest in the
SNAP Software, in form and substance satisfactory to Buyer;
(ii) Such other instrument or instruments of transfer as shall be
necessary or appropriate, as Buyer shall reasonably request, to vest
in Buyer good and marketable title to the SNAP Software including
but not limited to Documentation, Object Code and Source Code.
(b) At the Closing, Buyer shall deliver to Seller such instrument or
instruments as shall be necessary or appropriate, as Seller shall reasonably
request.
(c) At the Closing, Xxxx Gain the owner/developer of the SNAP Software
agrees to join the Board of Directors of Monster Offers.
(d) At the Closing, Xxxx Gain the owner/developer of the SNAP Software
agrees to become the Chairman and CEO of Monster Offers.
(e) At the Closing, Monster Offers agrees to provide ongoing support of Dr.
Healthshare, an existing licensee of the SNAP software, at current service
levels. Any future change to the level of support for Dr. Healthshare must
be agreed to in writing by both Dr. Healthshare and Monster Offers.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents and warrants that the following are true and correct as of
this date and will be true and correct through the Closing Date as if made on
that date:
3.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada,
with all the requisite power and authority to carry on the business in which
it is engaged, to own the properties it owns and to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
3.2 Authorization and Validity. The execution, delivery and performance by
Buyer of this Agreement and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby, have been duly
authorized by Buyer. This Agreement and each other agreement contemplated
hereby have been or will be prior to Closing duly executed and delivered by
Buyer and constitute or will constitute legal, valid and binding obligations
of Buyer, enforceable against Buyer in accordance with their respective
terms.
3.3 No Violation. Neither the execution and performance of this Agreement
or the other agreements contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a) conflict with, or
result in a breach of the terms, conditions and provisions of, or constitute
a default under, the Articles of Incorporation or Bylaws of Buyer or any
agreement, indenture or other instrument under which Buyer is bound, or (b)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over Buyer or the properties or assets of Buyer.
3.4 Consents. With the exception of the Board of the Directors of Monsters
Offers that approved this Asset Exchange Agreement, there are no further
authorizations, consents, approvals, permits or licenses of, or filing with,
any governmental or public body or authority, any lender or lessor or any
other person or entity is required to authorize, or is required in connection
with, the execution, delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Buyer.
ARTICLE IV
Representations and Warranties of Seller
Seller represents and warrants that the following are true and correct as of
this date and will be true and correct through the Closing Date as if made on
that date:
4.1 Organization and Good Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with all the requisite power and authority to carry on the business
in which it is engaged, to own the properties it owns and to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby.
4.2 Authorization and Validity. The execution, delivery and performance by
Seller of this Agreement and the other agreements contemplated hereby, and
the consummation of the transactions contemplated hereby, have been duly
authorized by Seller. This Agreement and each other agreement contemplated
hereby have been or will be prior to Closing duly executed and delivered by
Seller and constitute or will constitute legal, valid and binding obligations
of Seller, enforceable against Seller in accordance with their respective
terms.
4.3 Title. Seller has good and marketable title to the SNAP Software which
is included in this Agreement. Upon consummation of the transactions
contemplated hereby, Buyer shall receive good, valid and marketable title to
the SNAP Software free and clear of all liens, claims, and encumbrances.
Additionally, Monster Offers will own 100% of any future Derivative Works
associated with the SNAP Software and all associated Intellectual Property
Rights.
4.4 Commitments. Seller has not entered into, nor is the SNAP Software
bound by, whether or not in writing, any (i) partnership or joint venture
agreement; (ii) deed of trust or other security agreement; (iii) guaranty or
suretyship, indemnification or contribution agreement or performance bond;
(iv) employment, consulting or compensation agreement or arrangement,
including the election or retention in office of any director or officer; (v)
labor or collective bargaining agreement; (vi) debt instrument, loan
agreement or other obligation relating to indebtedness for borrowed money or
money lent to another; (vii) deed or other document evidencing an interest in
or contract to purchase or sell real property; (viii) agreement with dealers
or sales or commission agents, public relations or advertising agencies,
accountants or attorneys; (ix) lease of real or personal property, whether as
lessor, lessee, sub-lessor, or sub-lessee; (x) agreement relating to any
material matter or transition in which an interest is held by a person or
entity which is an affiliate of Seller; (xi) powers of attorney; or (xii)
contracts containing non-competition covenants.
4.5 Adverse Agreements. Seller is not a party to any agreement or
instrument or subject to any charter or other corporate restriction or any
judgment, order, writ, injunction, decree, rule or regulation which
materially and adversely affects or, so far as Seller can now foresee, may in
the future materially and adversely affect the business operations,
prospects, properties, assets or condition, financial or otherwise, of
Seller.
4.6 No Violation. Neither the execution and performance of this Agreement
or the other agreements contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a) conflict with, or
result in a breach of the terms, conditions and provisions of, or constitute
a default under, the Articles of Incorporation or Bylaws of Seller or any
agreement, indenture or other instrument under which Buyer is bound, or (b)
violate or conflict with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over Seller or the properties or assets of Seller.
4.7 Consents. The managing members of Primer Mover Global, LLC approved the
sale of the SNAP Software. There are no further authorizations, consents,
approvals, permits or licenses of, or filing with, any governmental or public
body or authority, any lender or lessor or any other person or entity is
required to authorize, or is required in connection with, the execution,
delivery and performance of this Agreement or the agreements contemplated
hereby on the part of Seller.
4.8 Compliance with Laws. There are no existing violations by Seller of any
applicable federal, state or local law or regulation, except to the extent
that any such violations would not have a material adverse effect on the
property or business of Seller.
4.9 Accuracy of Information Furnished. All information furnished to Buyer
by Seller is true, correct and complete in all material respects. Such
information states all material facts required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which such statements are made, true, correct and complete.
4.10 Proceedings. No action, proceeding or order by any court or
governmental body or agency shall have been threatened in writing, asserted,
instituted or entered to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement.
4.11 Professional Review and Voluntary Consent. Seller warrants that he has
had ample and reasonable time to have his attorney and accountant review this
Agreement, and he has concluded that this Agreement is fair and reasonable to
the Seller. Based on the evaluation of this Agreement, the Seller
acknowledges that he enters into this Agreement knowingly and voluntarily
without coercion or duress from any source. Further, the Seller acknowledges
that he has had a reasonable time in which to consider and evaluate the terms
of this Agreement before it was executed by the Parties.
ARTICLE V
Indemnification
5.1 Seller's Indemnity. Subject to the terms of this Section, the Seller
agrees to release, indemnify, defend and hold harmless the Buyer, its
officers, directors, agents, attorneys, accountants and affiliates from and
against any and all losses, claims, damages, obligations, tax liabilities,
penalties, judgments, awards, other liabilities, costs, expenses and
disbursements (and any and all actions, suits, proceedings and investigations
in respect thereof and any and all legal and other costs, expenses and
disbursements in giving testimony or furnishing documents in response to a
subpoena or otherwise), including, without limitation, the costs, expenses
and disbursements, as and when incurred of investigating, preparing or
defending any such action, suit, proceeding or investigation (whether or not
in connection with litigation in which the Parties are a party), directly or
indirectly, caused by, relating to, based upon, arising out of, or in
connection with this Agreement.
5.2 Limitations on Seller's Indemnification Obligations.
5.2.1 Buyer and its successors and permitted assigns shall not be entitled
to indemnification under this Section unless a claim has been asserted by
written notice delivered to Seller on or prior to the twenty four (24) month
anniversary of the Closing, specifying the details of such alleged breach.
5.2.2 Seller shall have no indemnification obligation under this Section
unless and until the aggregate amount recoverable against Seller exceeds
$25,000, in which event Seller shall be responsible for all amounts
recoverable in excess of said aggregate amount of $25,000.
5.3 Buyer's Indemnity. Subject to the terms of this Section, Buyer hereby
agrees to indemnify, defend and hold harmless Seller and its managers,
managing members, agents, attorneys, accountants and affiliates from and
against any and all losses, claims, obligations, demands, assessments,
penalties, liabilities, costs, damages, reasonable attorneys' fees and
expenses ("Damages") asserted against or incurred by Seller by reason of or
resulting from a breach by Buyer of any representation, warranty or covenant
contained herein, or in any agreement executed pursuant thereto.
5.4 Conditions of Indemnification. The respective obligations and
liabilities of Seller and Buyer (Indemnifying Party) to the other (Party to
be Indemnified) under Sections 5.1, 5.2 and 5.3 hereof, with respect to
claims resulting from the assertion of liability by third parties, shall be
subject to the following terms and conditions:
5.5 Remedies Not Exclusive. The remedies provided for in this Section shall
not be exclusive of any other rights or remedies available by one party
against the other, either at law or in equity.
ARTICLE VI
TRADE SECRETS AND NON-COMPETITION
6.1 Trade Secrets. Xx. Xxxx Gain during his term of employment as a
Director of the Company and for two years after the termination of his
employment, agrees not to disclose to any person, firm or corporation any
information concerning the business affairs, the trade secrets or the
customer lists or similar information of Monster Offers. Any technique,
method, process or technology used by Monster Offers shall be considered a
"trade secret" for the purposes of this Agreement.
6.2 Covenant Not to Solicit and Compete. For so long as Xx. Xxxx Gain is a
Director/Employee of Monster Offers and for two years thereafter (the "Non-
Compete Period"), the accounts and customers of Monster Offers will not be
solicited, directly or indirectly, by Mr. Gain, or by any individual or
company with whom the Seller is affiliated as partner, director, founder,
officer, employee, consultant, contractor or other business relationship by
which Mr. Gain would benefit as a result of any such solicitation. In
addition Mr. Gain shall not during the Non-Compete Period, directly or
indirectly, on his own behalf, or on behalf of any other party, engage in, or
assist in any way, financially or otherwise, any competitor or any party that
is engaged, or which proposes to engage, in the business of Monster Offers.
ARTICLE VII
Termination
7.1 Termination for Cause. This Agreement may be terminated prior to
Closing upon notice to the other party at any time by a party if any
representation or warranty of the other party contained in this Agreement or
in any certificate or other document executed and delivered by one party to
the other is or becomes untrue or breached in any material respect or if one
party fails to comply in any material respect with any covenant or agreement
contained herein, and any such misrepresentation, breach or noncompliance is
not cured, waived, or eliminated before Closing.
7.2 Termination Without Cause. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned at any time
without further obligation or liability on the part of any party in favor of
any other by mutual consent of Purchaser and Seller.
ARTICLE VIII
Miscellaneous Provisions
8.1 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified or supplemented only by a written agreement signed
by Buyer and Seller.
8.2 Waiver of Compliance; Consents.
8.2.1 Any failure of any party to comply with any obligation, covenant,
agreement or condition herein may be waived by the party entitled to the
performance of such obligation, covenant or agreement or who has the benefit
of such condition, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, or agreement or condition will not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure.
8.2.2 Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent will be given in a manner consistent with the
requirements for a waiver of compliance as set forth above.
8.3 Titles and Captions. All section titles or captions contained in this
Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
8.4 Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
8.5 Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
8.6 Attorneys' Fees. In the event an arbitration, suit or action is brought
by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial court, and/or
appellate court.
8.7 Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated
period of time begins to run shall be included, unless it is a Saturday,
Sunday or a legal holiday, in which event the period shall begin to run on
the next day that is not a Saturday, Sunday or legal holiday.
8.8 Pronouns and Plurals. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
8.9 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEVADA. THE PARTIES AGREE THAT ANY LITIGATION
RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT MUST BE BROUGHT BEFORE AND
DETERMINED BY A COURT OF COMPETENT JURISDICTION WITHIN THE STATE OF NEVADA.
8.10 Arbitration. If at any time during the term of this Agreement any
dispute, difference, or disagreement shall arise upon or in respect of this
Agreement, and the meaning and construction hereof, every such dispute,
difference, and disagreement shall be referred to a single arbitrator agreed
upon by the parties, or if no single arbitrator can be agreed upon, an
arbitrator or arbitrators shall be selected in accordance with the rules of
the American Arbitration Association and such dispute, difference or
disagreement shall be settled by arbitration in accordance with the then
prevailing commercial rules of the American Arbitration Association, and
judgment upon the award rendered by the arbiter may be entered in any court
having jurisdiction thereof.
8.11 Presumption. This Agreement or any Section thereof shall not be
construed against any party due to the fact that said Agreement or any
section thereof was drafted by said party.
8.12 Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action
as may be necessary or appropriate to achieve the purposes of the Agreement.
8.13 Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be
for the benefit of any third party.
8.14 Savings Clause. If any provision of this Agreement, or the application
of such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons
or circumstances other than those as to which it is held invalid, shall not
be affected hereby.
8.15 Costs, Expenses and Legal Fees. Whether or not the transactions
contemplated hereby are consummated, each party hereto shall bear its own
costs and expenses (including attorneys' fees).
8.16 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effecting
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its
severance herefrom. Furthermore, in lieu of such illegal, invalid and
unenforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in nature in its terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
8.17 Counterparts and Facsimile Signatures. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. For
purposes of this Agreement, facsimile signatures shall be treated as
originals until such time that applicable pages bearing non-facsimile
signatures are obtained from the relevant party or parties.
8.18 Continuing Nature. All representations and warranties contained in
this Agreement shall survive the Closing for a period of two (2) years and,
if applicable, all covenants, which, according to their terms are to be
performed after the execution of this Agreement, shall survive the Closing
for a period of two (2) years.
IN WITNESS WHEREOF, the parties, intending to be legally bound by the terms
of this Agreement, have caused this Agreement to be executed by their duly
authorized representatives as of the 30th day of August, 2010.
Seller Buyer
Prime Mover Global, LLC Monster Offers
A Delaware Limited Liability Company A Nevada Corporation
By: /s/ Xxxx Gain By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------- -----------------------------------
Xxxx Gain Xxxxxxxx X. Xxxxxxxx
Its: Manager Its: President
