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 xxx.xxx.xxx.
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 equitable principles. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation by Purchaser of the transactions
contemplated hereby will (i) violate Purchaser's articles of incorporation or
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bylaws, (ii) violate any provisions of law or any order of any court or any
governmental unit to which Purchaser is subject, or by which its assets may be
bound, or (iii) conflict with, result in a breach of, or constitute a default
under any indenture, mortgage, lease, agreement, or other instrument to which
Purchaser is a party or by which its assets or properties may be bound.
SECTION 4.3. LITIGATION. There is no suit, action, proceeding, claim or
investigation pending, or, to Purchaser's knowledge, threatened, against
Purchaser which would prevent Purchaser from consummating the transactions
contemplated by this Agreement.
SECTION 4.4. BROKERS AND FINDERS. Purchaser has not incurred any obligation
or liability to any party for brokerage fees, agent's commissions, or finder's
fees in connection with the transactions contemplated hereby.
SECTION 5. INDEMNIFICATION
For the purposes of this Section 5, the terms "LOSS" and "LOSSES" shall
mean any and all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs, and expenses, including without limitation,
interest, penalties, and reasonable attorneys' and other professional fees and
expenses. All statements contained in any certificate, Exhibit or Schedule
delivered by or on behalf of Purchaser or Seller pursuant to this Agreement
shall be deemed representations and warranties hereunder by Purchaser or Seller,
as the case may be. Any inspection, preparation, or compilation of information
or Schedules, or audit of the inventories, properties, financial condition, or
other matters relating to Seller conducted by or on behalf of Purchaser pursuant
to this Agreement shall in no way limit, affect, or impair the ability of
Purchaser to rely upon the representations, warranties, covenants, and
agreements of Seller set forth herein.
SECTION 5.1 AGREEMENT OF SELLER TO INDEMNIFY PURCHASER.
(a) Subject to the terms and conditions of this Section 5, Seller hereby
agrees to indemnify, defend, and hold harmless Purchaser from, against, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Purchaser by reason of, resulting from, or based upon: (i) the
inaccuracy or untruth of any representation or warranty of Seller contained in
or made pursuant to this Agreement or in any certificate, Schedule, or Exhibit
furnished by Seller, in connection with the execution and delivery of this
Agreement and the closing of the transactions contemplated hereby, (ii) the
breach by Seller of any covenant or agreement made in or pursuant to this
Agreement or any agreement executed by Seller, and delivered to Purchaser in
connection with the Closing of the transactions contemplated hereby; and (iii)
any Excluded Liability including without limitation the failure to comply with
the bulk sales law and any Excluded Liability that attaches to the Assets.
(b) Seller's obligation to indemnify Purchaser for Losses is subject to the
condition that Seller shall have received notice of the Losses for which
indemnity is sought on or before December 31, 2009.
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(c) Purchaser's remedies against Seller for any Losses hereunder shall be
cumulative, and the exercise by Purchaser of its right to indemnification
hereunder shall not affect the right of Purchaser to exercise any other remedy
at law or in equity, to recover damages, or to obtain equitable or other relief,
PROVIDED, that Seller shall not be liable for damages in excess of the actual
damages suffered by Purchaser as a result of the act, circumstance, or condition
for which indemnification is sought. Purchaser or Purchasers' assignees may, in
its sole discretion, withhold or cancel any shares not delivered pursuant to
this Agreement as an offset against prospective damages from any claim for
Excluded Liabilities.
SECTION 5.2 AGREEMENT OF PURCHASER TO INDEMNIFY SELLER.
(a) Subject to the terms and conditions of this Section 5, Purchaser hereby
agrees to indemnify, defend, and hold harmless Seller from, against, for, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Seller by reason of, resulting from or based upon: (i) the
inaccuracy or untruth of any representation or warranty of Purchaser, contained
in or made pursuant to this Agreement or in any certificate, Schedule, or
Exhibit furnished by Purchaser, in connection with the execution and delivery of
this Agreement or the closing of the transactions contemplated hereby, or (ii)
the breach by Purchaser of any covenant or agreement made in or pursuant to this
Agreement or any agreement executed by Purchaser, and delivered to Seller in
connection with the Closing of the transactions contemplated hereby.
(b) Purchaser's obligation to indemnify Seller for Losses is subject to the
condition that Purchaser shall have received notice of the Losses for which
indemnity is sought on or before December 31, 2009.
(c) Seller's remedies against Purchaser for any Losses hereunder shall be
cumulative, and the exercise by Seller of its right to indemnification hereunder
shall not affect the right of Seller to exercise any other remedy at law or in
equity, to recover damages, or to obtain equitable or other relief, PROVIDED,
that Purchaser shall not be liable for damages in excess of the actual damages
suffered by Seller as a result of the act, circumstance, or condition for which
indemnification is sought.
SECTION 6. POST CLOSING MATTERS
SECTION 6.1 FURTHER ASSURANCES. From and after the date hereof, Seller
agrees, without further consideration, to execute and deliver promptly to
Purchaser, such further consents, waivers, assignments, endorsements, and other
documents and instruments, and to take all such further actions, as Purchaser
may from time to time reasonably request, with respect to the assignment,
transfer, and delivery to Purchaser of the Purchased Assets, and the fulfillment
of any condition precedent to the obligations of Purchaser that was waived by
Purchaser in order to close the transactions contemplated herein, and the
consummation in full of the transactions provided for herein.
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SECTION 6.2 DEFINITIONS. As used herein, the following capitalized terms
are used with the meanings thereafter ascribed:
"AFFILIATE" means any person or entity directly or indirectly Controlling,
Controlled by, or under common Control with Seller.
"AREA" means the United States, Canada, and Mexico.
"COMPETING ENTERPRISE" means any person or entity that is substantially
engaged in the Business.
"CONTROL" means the power to direct the management and affairs of a person.
"TRADE SECRETS" means information of the Business which derives economic
value, actual or potential, from not being generally known and not being readily
ascertainable by proper means to other persons who can obtain economic value
from its disclosure or use and which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy or confidentiality,
but shall not include Excluded Information. Trade Secrets may include both
technical or non-technical data, including without limitation, (a) any process,
machine, pattern, compilation, program, method, technique, formula, chemical
formula, composition of matter, or device which (1) is not generally known or
which the Seller, with respect to the Business has a reasonable basis to believe
may not be generally known, (2) is being used or studied by the Business and is
not described in a printed patent or in any literature already published and
distributed externally by Seller with respect to the Business, and (3) is not
readily ascertainable from inspection of a product of the Business; (b) any
engineering, technical, or product specifications including those of features
used in any current product of the Business or which may be so used, or the use
of which is contemplated in a future product of the Business; (c) any
application, operating system, communication system, or other computer software
(whether in source or object code) and all flow charts, algorithms, coding
sheets, routines, subroutines, compilers, assemblers, design concepts, test
data, documentation, or manuals related thereto, whether or not copyrighted,
patented, or patentable, related to or used in the Business; or (d) information
concerning the customers, suppliers, products, pricing strategies of the
Business, personnel assignments and policies of the Business, or matters
concerning the financial affairs and management of the Business; provided
however, that Trade Secrets shall not include any Excluded Information. As used
herein, "EXCLUDED INFORMATION" means information (i) which has been voluntarily
disclosed to the public by the Business, (ii) independently developed and
disclosed by parties other than the Business, or (iii) that otherwise enters the
public domain through lawful means or without misappropriation by Seller.
SECTION 6.3 TRADE SECRETS. Seller for itself and each Affiliate
acknowledges and agrees that all Trade Secrets related expressly to the
Business, and all physical embodiments thereof, are a part of the Purchased
Assets are confidential to and shall be and remain the sole and exclusive
property of Purchaser. Seller for itself and each Affiliate agrees that all
Trade Secrets related to the Business will be held in trust and strictest
confidence, that each Affiliate shall protect such Trade Secrets from
disclosure, and that each Affiliate will make no use of such Trade Secrets
without prior written consent of Purchaser. The obligations of confidentiality
contained in this Section shall apply from the date of this Agreement and with
respect to all Trade Secrets at all times thereafter, until such Trade Secret is
no longer a trade secret under applicable law.
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SECTION 6.4 REMEDIES. Seller for itself and any Affiliate covenants and
agrees that Purchaser by virtue of the consummation of the transactions
contemplated by this Agreement will be engaged in the Business in and throughout
the Area, and that great loss and irreparable damage would be suffered by
Purchaser if Seller should breach or violate any of the terms or provisions of
the covenants and agreements set forth in this Section. Seller for itself and
any Affiliate, further acknowledges and agrees that each such covenant and
agreement is reasonably necessary to protect and preserve unto Purchaser the
benefit of its bargain in the acquisition of the Business, including, without
limitation, the good will thereof. Therefore, in addition to all the remedies
provided in this Agreement, or available at law or in equity, Seller for itself
and any Affiliate jointly and severally agrees Purchaser shall be entitled to a
temporary restraining order and a permanent injunction to prevent a breach or
contemplated breach of any of the covenants or agreements of Seller contained in
this Section 6. The existence of any claim, demand, action, or cause of action
of Seller against Purchaser shall not constitute a defense to the enforcement by
Purchaser of any of the covenants or agreements herein whether predicated upon
this Agreement or otherwise, and shall not constitute a defense to the
enforcement by Purchaser of any of its rights hereunder.
SECTION 6.5 BLUE PENCILING. In the event that any one or more of the
provisions, or parts of any provisions, contained in this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in any respect by a
court of competent jurisdiction, the same shall not invalidate or otherwise
affect any other provision hereof, and the parties hereto agree that such
provisions shall be reformed to set forth the maximum limitations permitted
under applicable law. Specifically, but without limiting the foregoing in any
way, each of the covenants of the parties to this Agreement contained herein
shall be deemed and shall be construed as a separate and independent covenant
and should any part or provision of any of such covenants be held or declared
invalid by any court of competent jurisdiction, such invalidity shall in no way
render invalid or unenforceable any other part or provision thereof or any other
covenant of the parties not held or declared invalid.
SECTION 7. GENERAL PROVISIONS
SECTION 7.1 BULK SALES LAW WAIVER. Purchaser and Seller each agree to waive
compliance by the other with the provisions of the bulk sales law or comparable
law of any jurisdiction to extent that the same may be applicable to the
transactions contemplated by this Agreement. Seller agrees to indemnify and hold
Purchaser harmless from and against any loss, damage, liability, cost, expense
or claim arising out of any failure to take any required actions under the bulk
sales or comparable law of any state.
SECTION 7.2 EXPENSES. Except as set forth in Section 2 hereof, all expenses
incurred by the parties hereto in connection with or related to the
authorization, preparation, and execution of this Agreement and the Closing of
the transaction contemplated hereby, including without limiting the generality
of the foregoing, all fees and expenses of agents, representatives, counsel, and
accountants employed by any such party, shall be borne solely and entirely by
the party which has incurred the same.
SECTION 7.3 BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and their respective successors or assigns, as permitted herein.
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SECTION 7.4 HEADINGS. The Section, subsection, and other headings in this
Agreement are inserted solely as a matter of convenience and for reference, and
are not a part of this Agreement.
SECTION 7.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one counterpart has been signed by each party and
delivered to the other party hereto.
SECTION 7.6 GOVERNING LAW. This Agreement shall be construed under the laws
of the State of Florida, without giving effect to applicable principles of
conflicts of law.
SECTION 7.7 ADDITIONAL ACTIONS. Each party covenants that at any time, and
from time to time, it will execute such additional instruments and take such
actions as may be reasonably requested by the other parties to confirm or
perfect or otherwise to carry out the intent and purposes of this Agreement.
SECTION 7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior
agreements, representations, warranties, or communications, whether oral or
written, among the parties hereto relating to the transactions contemplated
hereby or the subject matter herein. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally, but only by an
agreement in writing signed by the party against whom or which the enforcement
of such change, waiver, discharge or termination is sought.
SECTION 7.9 PREPARATION OF AGREEMENT. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
SECTION 7.10 ASSIGNMENT This Agreement shall not be assigned by operation
of law or otherwise; except that Purchaser may assign this Agreement and shall
notify Seller, in writing, of such assignment..
SECTION 7.11 THIRD PARTIES Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties hereto and their respective
administrators, executors, legal representatives, heirs, successors and
assignees. Nothing in this Agreement is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation or action
over or against any party to this Agreement.
SECTION 7.12 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission with independent confirmation of receipt
followed by confirmation of notice by registered or certified mail or overnight
courier service; (iii) on the date delivered by an overnight courier service; or
(iv) on the fifth business day after it is mailed by registered or certified
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mail, return receipt requested with postage and other fees prepaid, to the
address set forth herein of such other addresses provided by each party to the
other parties in accordance with the terms or provisions hereof.
SECTION 7.13 PARTIAL INVALIDITY. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
SECTION 7.14 SURVIVAL. The covenants, representations, warranties, and
agreements contained herein shall survive the Closing of the transactions
contemplated herein, for the length of time that Purchaser or Seller, as the
case may be, may assert an indemnification claim for a breach or violation of
such covenant, representation, warranty, or agreement pursuant to Section 5.
hereof.
SECTION 7.15 ARBITRATION. Any controversy, dispute, or claim arising out of
or relating to this Agreement or a claimed default hereunder, other than
requests for injunctive relief or damages for a breach of a Restrictive Covenant
including without limitation Sections 6.2, 6.3, 6.4, and 6.5 hereof, shall be
resolved by arbitration in accordance with the rules of the American Arbitration
Association (the "AAA"), by which each party will be bound.
SECTION 7.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement and such execution shall be
conclusively evidenced by a facsimile transmitted copy or electronic mail
transmitted copy of the execution page hereof.
(SIGNATURES NEXT PAGE)
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IN WITNESS WHEREOF, each party hereto has executed this Agreement, or caused
this Agreement to be executed on its behalf by its duly authorized officers, all
as of the Closing Date.
Purchaser: Domark International, Inc. Seller: TotalMed Systems, Inc.
By: By:
------------------------------ ------------------------------
Its CEO Its President & CEO
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SCHEDULE 1.1(C)
LIST of ASSETS
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SCHEDULE 1.2
LIST OF LIABILITIES
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SCHEDULE 3.5
LITIGATION
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