ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of October 9, 2009
among Beyond Commerce, Inc, a Nevada corporation with offices at 0000 Xxxxx
Xxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 (the “Company”), along with its
wholly-owned subsidiary, LocalAdLink, Inc., a Nevada corporation, with offices
at 0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000 (the “Sub”)
( collectively, the "Seller") and OmniReliant Holdings, Inc., a Nevada
corporation with offices at 00000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
("Purchaser) (each, a “Party” and, collectively, the “Parties”).
RECITALS
A. Seller
is engaged in the business of certain internet related services and
software.
B. Purchaser
desires to acquire certain assets from Seller.
C. Seller
desires to sell the same to Purchaser.
NOW, THEREFORE, in
consideration of the mutual representations, warranties, covenants and
agreements herein set forth, the parties hereto hereby agree as
follows:
1. Sale of
Asset. Subject to the terms and conditions of this Agreement,
at the closing under this Agreement (the "Closing"), Seller shall sell, convey,
assign, transfer and deliver to Purchaser, and Purchaser shall purchase, acquire
and accept from Seller all right, title, and interest in and to Seller’s assets,
patents and properties used in, useful to and/or relating to the Software (as
defined below), which shall include (but not be limited to) the following (the
"Asset"):
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1.1
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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 has 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").
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1.2
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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.
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It is
expressly understood that Purchaser shall not assume, pay or be liable for any
liability or obligation of Seller of any kind or nature at any time existing or
asserted, whether, known, unknown, fixed, contingent or otherwise, not
specifically assumed herein by Purchaser.
2. Purchase
Consideration. In consideration of the purchase and sale of
the Asset, Purchaser shall (i) surrender and forgive certain debt evidenced by
original discount secured convertible debentures held in the name of the
Purchaser and issued by the Company (the “Surrendered Debentures”) in the
aggregate amount of Four Million Dollars ($4,000,000) and (ii) return for
cancellation associated warrants (the “Surrendered Warrants”). The
principal amount of the Surrendered Debentures will be reduced by
$4,000,000, as set forth in more detail on Schedule 2.1.
Additionally, on the Closing Date, the Purchaser agrees to amend the maturity
date of the Surrendered Debentures and the remaining original issue discount
secured convertible debentures (which collectively will have a principal balance
of $1,623,323) by an additional twelve (12) months from the date
hereof at a ten percent (10%) interest rate (the “Purchase
Consideration”).
3. Reserved.
4. Closing.
4.1 Place and
Time. The Closing shall take place at the offices of Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP, 00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000, on the date as set forth above or at such
other time or place as Purchaser and Seller may mutually agree as may be
evidenced by their effecting the Closing (the "Closing Date").
4.2 Deliveries by
Seller. At the Closing Seller shall deliver the following to
the Purchaser:
(a) The
Asset
(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
Purchaser title to or other interest in, and the right to full custody and
control of, the Asset, free and clear of all liens, charges, encumbrances and
security interests whatsoever.
(c.)
Source code and domain related Asset to be placed in escrow with the following
vendor prior to closing: xxxx://xxx.xxxxxxxxxxxx.xxx/xxx/xxxxxx/
(d) All
other documents, certificates, instruments or writings reasonably required by
Purchaser to be delivered by Seller at or prior to the Closing pursuant to this
Agreement.
4.3 Deliveries by
Purchaser. At the Closing, Purchaser shall deliver the
following to the Seller:
(a) the
Purchase Consideration in the form of a Surrendered Debentures and the
Surrendered Warrants.
4.4 Proceedings. All
proceedings which shall be taken and all documents which shall be executed and
delivered by the parties on the Closing Date shall be deemed to have been taken
and executed simultaneously, and no proceeding shall be deemed taken nor any
documents executed or delivered until all have been taken, executed and
delivered.
4.5 Conditions to Purchaser's
Obligations. The obligations of Purchaser to effect the
Closing shall be subject to the satisfaction at or prior to the Closing of the
following conditions, any one or more of which may be waived by
Purchaser:
(a) The
Seller will obtain executed waivers from any and all creditors that hold a
security interest in the Asset, waiving such security interest and approving the
filing of a UCC-3 Financing Statement amending their security interest to remove
the Asset therefrom;
(b) The
Seller will have filed or caused to be filed UCC-3 Financing Statement(s)
deleting the Asset from any and all UCC-1 Financing Statements previously filed
which may have included the Asset as part of a security interest to third party
secured creditors.
(c)
The Company (i) has entered into a Stock Purchase Agreement with Zurvita
Holdings, Inc. pursuant to which Zurvita Holdings, Inc. agrees to purchase
8,000,000 shares of the Seller's common stock, in installments, at a price of
$0.10 per share (for a total of $800,000), and (ii) has purchased a minimum of
3,000,000 of such shares concurrently with the Closing.
(d) There
shall not be in effect any injunction, order or decree of a court of competent
jurisdiction that prohibits or delays consummation of any or all of the
transactions contemplated in this Agreement nor shall any proceeding seeking any
of the foregoing have been commenced.
(e)
The
representations and warranties of Company and the Sub, respectively, as set
forth in this Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though made at such
time.
(f)
Seller
shall have performed and complied in all material respects with the agreements
contained in this Agreement required to be performed and complied with by it
prior to or at the Closing.
(g)
Purchaser
shall have received a certificate to the effect set forth in clauses (a), (b),
(c), (d), (e) and (f) above signed by the Secretary of the Company and the Sub,
respectively, except that Section (c) herein shall only apply to the
Company.
4.6 Conditions to Seller's
Obligations. The obligations of Seller to effect the Closing
shall be subject to the satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by Seller:
(a)
There
shall not be in effect any injunction, order or decree of a court of competent
jurisdiction that prohibits or delays the consummation of any or all of the
transactions contemplated herein nor shall any proceeding seeking any of the
foregoing have been commenced.
(b)
The
representations and warranties of Purchaser, set forth in this Agreement shall
be true and correct in all material respects as of the date of this Agreement
and as of the Closing Date as though made at such time.
(c)Purchaser
shall have performed and complied in all material respects with the agreements
contained in this Agreement required to be performed and complied with by it
prior to or at the Closing.
(d) Seller
shall have received a certificate to the effect set forth in clauses (a), (b)
and (c) above signed by the Secretary of Purchaser.
5. Representations and
Warranties of Seller. The Company and the Sub, jointly and
severally hereby represent and warrant to the Purchaser that as
follows:
5.1 Organization and Good
Standing. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Seller has
full power and authority to own its properties and to carry on its business as
it is now being conducted. Seller is duly qualified to transact business and is
in good standing in each jurisdiction wherein the nature of the business done or
the property owned, leased or operated by it requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business, operations, properties, prospects, liabilities, results of
operations, Asset or condition (financial or otherwise) of
Seller. True, correct and complete copies of Seller’s certificate of
incorporation and bylaws and all amendments thereto have been delivered to
Purchaser. The minutes and records of the Seller that have been made available
to Purchaser and are true, correct and complete in all material
respects.
5.2
Corporate Authority, No
Conflicts.
(a) Seller
has the right, power, authority and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement.
(b) Neither
the execution, delivery or performance of this Agreement by Seller nor the
consummation by Seller of the transactions contemplated hereby will, directly or
indirectly (with or without notice or lapse of time or both):
(i) contravene,
conflict with or result in a violation or breach of (A) any provision of the
organizational documents of Seller, (B) any resolution adopted by the Board of
Directors, or any committee thereof, or the owner of Seller, (C) any legal
requirement or any governmental order to which Seller or any of the properties
or assets owned or used by Seller may be subject, or (D) any authorization,
license or permit of any governmental authority, including any private
investigatory license or other similar license, which is held by Seller or that
otherwise relates to the business of, or any of the assets owned or used by
Seller;
(ii) result
in a violation or breach of or constitute a default, give rise to a right of
termination, cancellation or acceleration, create any entitlement to any payment
or benefit or require the consent or approval of or any notice to or filing with
any third party under any contract to which Seller is a party or to which
it or its properties or assets may be bound, or require the consent
or approval of or any notice to or filing with any governmental authority to
which the Seller or its properties or assets may be subject; or
(iii) result
in the imposition or creation of any encumbrance upon or with respect to any of
the properties or assets owned or used by Seller.
5.3 Compliance with Law;
Governmental Authorizations. To the best of Seller’s
knowledge, Seller is in compliance with all federal, state and local laws,
authorizations, licenses and permits of any governmental authority and all
governmental orders affecting the business, operations, properties or Asset of
Seller, including federal, state and local: (i) Occupational Safety and Health
Laws; (ii) private investigatory and other similar laws; (iii) the Fair Credit
Reporting Act and similar state and local laws; and (iv) laws regarding or
relating to trespass or violation of privacy rights. Seller has not
been charged with violating, nor to the knowledge of Seller, threatened with a
charge of violating, nor, to the knowledge of Seller, is Seller under
investigation with respect to a possible violation of any provision of any
federal, state or local law relating to any of its respective businesses,
operation, properties or Asset.
5.4 Effect of
Agreement. This Agreement has been duly executed and delivered
by Seller and constitutes, and such other agreements and instruments to be
executed by Seller pursuant hereto, when so duly executed and delivered, will
constitute, legal, valid and binding obligations of Seller, enforceable in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws relating to or affecting the rights of creditors generally
and by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
5.5 Title to
Asset. After giving effect to the transactions contemplated by
this Agreement, Purchaser will have good and valid title to the Asset, free and
clear of all, liens, encumbrances, restrictions, security interests, mortgages,
and claims (including any related to duty or customs).
5.6 Broker's
Fees. Seller has not employed any broker or finder or incurred
any liability for any broker's or finder's fees or commissions in connection
with this Agreement or the transactions contemplated herein.
5.7 Noncontravention.
Neither the execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree, ruling, charge,
or other restriction of any government, governmental agency, or court to which
the Purchaser is subject or any provision of its charter or bylaws or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which the Purchaser is a party or by which
it is bound or to which any of its asset is subject. The Purchaser does not need
to give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this
Agreement.
5.8 Intellectual
Property.
(a) The
Seller owns or has the right to use pursuant to license, sublicense, agreement
or permission all intellectual property necessary or desirable for the operation
of the Asset as presently conducted and as presently proposed to be conducted
(the “Intellectual Property”). Each item of the Intellectual Property
owned or used by the Seller as it relates to the Asset immediately prior to the
Closing hereunder will be owned by the Purchaser on identical terms and
conditions immediately subsequent to the Closing hereunder. The
Seller has taken all necessary and desirable action to maintain and protect each
item of Intellectual Property that it owns or uses.
(b) To
the knowledge of the Seller, Seller has not interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of third parties, and none of the directors and officers (and employees
with responsibility for Intellectual Property matters) of the Seller has ever
received any charge, complaint, claim, demand, or notice alleging any such
interference, infringement, misappropriation or violation (including any claim
that the Seller must license or refrain from using any Intellectual Property
rights of any third party). To the knowledge of any of the directors
and officers (and employees with responsibility for Intellectual Property
matters) of the Seller, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any Intellectual Property
rights of the Seller.
(c) Schedule 5.8
identifies each patent or registration which has been issued to the Seller with
respect to the Intellectual Property, identifies each pending patent application
or application for registration which any of the Seller has made with respect to
the Intellectual Property, and identifies each license, agreement, or other
permission which the Seller has granted to any third party with respect to the
Intellectual Property (together with any exceptions). The Seller has delivered
to the Purchaser correct and complete copies of all such patents, registrations,
applications, licenses, agreements, and permissions (as amended to date) and has
made available to the Purchaser correct and complete copies of all other written
documentation evidencing ownership and prosecution (if applicable) of each such
item. Schedule
5.8 also identifies each trade name or unregistered trademark used by the
Seller in connection with any of its businesses. With respect to each item of
Intellectual Property required to be identified in Schedule
5.8:
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(i)
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the
Seller possesses all right, title, and interest in and to the item, free
and clear of any Security Interest, license, or other
restriction;
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(ii)
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the
item is not subject to any outstanding injunction, judgment, order,
decree, ruling, or charge;
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(iii)
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no
action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand is pending or, to the knowledge of the directors and
officers (and employees with responsibility for Intellectual Property
matters) of the Seller is threatened which challenges the legality,
validity, enforceability, use, or ownership of the item;
and
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(iv)
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the
Seller has never agreed to indemnify any person or entity for or against
any interference, infringement, misappropriation, or other conflict with
respect to the item.
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Schedule
5.8 identifies each item of Intellectual Property that any third
party owns and that the Seller uses pursuant to license, sublicense,
agreement, or permission. The Seller has delivered to the Purchaser
correct and complete copies of all such licenses, sublicenses, agreements,
and permissions (as amended to date). With respect to each item of
Intellectual Property required to be identified in Schedule
5.8;
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(i)
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the
license, sublicense, agreement, or permission covering the item is legal,
valid, binding, enforceable, and in full force and
effect;
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(ii)
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the
license, sublicense, agreement, or permission will continue to be legal,
valid, binding, enforceable, and in full force and effect on identical
terms following the consummation of the transactions contemplated
hereby;
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(iii)
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no
party to the license, sublicense, agreement, or permission is in breach or
default, and no event has occurred which with notice or lapse of time
would constitute a breach or default or permit termination, modification,
or acceleration thereunder;
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(iv)
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no
party to the license, sublicense, agreement, or permission has repudiated
any provision thereof;
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(v)
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with
respect to each sublicense, the representations and warranties set forth
in subsections (A) through (D) above are true and correct with respect to
the underlying license;
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(vi)
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the
underlying item of Intellectual Property is not subject to any outstanding
injunction, judgment, order, decree, ruling, or
charge;
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(vii)
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no
action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand is pending or, to the knowledge of the the directors and
officers (and employees with responsibility for Intellectual Property
matters) of the Seller is threatened which challenges the legality,
validity, or enforceability of the underlying item of Intellectual
Property; and
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(viii)
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the
Seller has not granted any sublicense or similar right with respect to the
license, sublicense, agreement, or
permission.
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5.9 Assets. The
Asset being sold hereunder does not represent 100% of the property and assets of
the Seller and as such, approval of the shareholders of the Seller representing
at least a majority of the voting power is not required.
5.10 Disclosure. No
representation or warranty by Seller in this Agreement, nor in any certificate,
schedule or exhibit delivered or to be delivered pursuant to this Agreement
contains or will contain any untrue statement of material fact, or omits or will
omit to state a material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading.
5.11 Liabilities. Obligations
of any pre-existing liabilities of the Seller prior to the sale of Asset remain
the obligation of the Seller.
5.12 No Material Adverse
Change. Since the date of the Seller’s latest SEC filings,
there has not been a material adverse change in the business, except as set
forth on Schedule
5.12.
5.13 Reserved.
5.14 Condition and Sufficiency of
Asset. The Asset is in good operating condition and repair, and is
adequate for the uses to which it is being put, and the Asset is not in need of
maintenance or repairs except for ordinary, routine maintenance and repairs that
are not material in nature or cost. The Asset is sufficient for the continued
conduct of its business after the Closing in substantially the same manner as
conducted prior to the Closing.
5.15 Legal
Proceedings. There is no pending claim, action, investigation,
arbitration, litigation, suit or other proceeding (“Proceeding”):
(a) that has been commenced
by or against the Seller or that otherwise relates to or may affect the business
of, or any of the properties or assets owned, held or used by, the Seller;
or
(b) that challenges, or
that may have the effect of preventing, delaying, making illegal, or otherwise
interfering with, any of the transactions contemplated hereby.
To the knowledge of the Seller, (A) no
such Proceeding has been threatened, and (B) no event has occurred or
circumstance exists that may give rise to or serve as a basis for the
commencement of any such Proceeding.
6. Reserved.
7. Representations and Warranties of
Purchaser. Purchaser hereby represents and warrants to Seller
as follows:
7.1 Organization and Good
Standing. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Nevada. Purchaser has full corporate power and authority to own
its properties and to carry on its business as it is now being
conducted. Purchaser is duly qualified to transact business and is in
good standing in each jurisdiction wherein the nature of the business done or
the property owned, leased or operated by it requires such qualification, except
where the failure to be so qualified would not have a material adverse effect on
the business, operations, properties, prospects, liabilities, results of
operations, assets or condition (financial or otherwise) of
Purchaser.
7.2 Corporate Authority, No
Conflicts.
(a) Purchaser
has the right, power, authority and capacity to execute and deliver this
Agreement and to perform its obligations under this Agreement.
(b) Neither
the execution, delivery or performance of this Agreement by Purchaser nor the
consummation by Purchaser of the transactions contemplated hereby will, directly
or indirectly (with or without notice or lapse of time or both):
(i) contravene,
conflict with or result in a violation or breach of (A) any provision of the
organizational documents of Purchaser, (B) any resolution adopted by the Board
of Directors, or any committee thereof, or the owner of Purchaser, (C) any legal
requirement or any governmental order to which Purchaser or any of the
properties or assets owned or used by Purchaser may be subject, or (D) any
authorization, license or permit of any governmental authority, including any
private investigatory license or other similar license, which is held by
Purchaser or that otherwise relates to the business of, or any of the assets
owned or used by Purchaser;
(ii) result
in a violation or breach of or constitute a default, give rise to a right of
termination, cancellation or acceleration, create any entitlement to any payment
or benefit or require the consent or approval of or any notice to or filing with
any third party under any contract to which Purchaser is a party or to which
it or its properties or assets may be bound, or require the consent
or approval of or any notice to or filing with any governmental authority to
which the Purchaser or its properties or assets may be subject;
or
(iii) result
in the imposition or creation of any encumbrance upon or with respect to any of
the properties or assets owned or used by Purchaser.
7.3 No Undisclosed
Liabilities. Purchaser has no material liabilities or
obligations of any nature (whether absolute, accrued, contingent, or otherwise)
except for liabilities or obligations reflected or reserved against in the its
financial statements filed with the Securities and Exchange Commission and
current liabilities incurred in the ordinary course of business since the date
of the therefrom, which current liabilities are consistent with the
representations and warranties contained in this Agreement and will not,
individually or in the aggregate, have a material adverse effect on the
business, operations, properties, prospects, liabilities, results of operations,
assets or condition (financial or otherwise) of Purchaser.
7.4 Taxes. Purchaser
has properly and timely filed all federal, state and local Tax returns and has
paid all Taxes, assessments and penalties due and payable. All such Tax returns
were complete and correct in all respects as filed, and no claims have been
assessed with respect to such returns. The provisions made for Taxes on the
balance sheet of the Purchaser included in the financial statements of the
Purchaser which have been filed with the Securities and Exchange Commission are
sufficient in all respects for the payment of all Taxes whether disputed or not
that are due or are hereafter found to have been due with respect to the conduct
of the business of the Purchaser up to and through the date of such financial
statements. There are no present, pending, or threatened audit, investigations,
assessments or disputes as to Taxes of any nature payable by the Purchaser, nor
any Tax liens whether existing or inchoate on any of the assets of the
Purchaser, except for current year Taxes not presently due and payable. The
federal income Tax returns of the Purchaser have never been audited. No IRS or
foreign, state, county or local Tax audit is currently in progress. The
Purchaser has not waived the expiration of the statute of limitations with
respect to any Taxes. There are no outstanding requests by the Purchaser for any
extension of time within which to file any Tax return or to pay Taxes shown to
be due on any Tax return. Other than with respect to the Purchaser, the
Purchaser is not liable for Taxes of any other person or entity or is currently
under any contractual obligation to indemnify any person or entity with respect
to Taxes or is a party to any Tax sharing agreement or any other agreement
providing for payments by the Purchaser with respect to Taxes.
For purposes of this Agreement, the
term “Tax” shall mean any United States federal, national, state, provincial,
local or other jurisdictional income, gross receipts, property, sales, use,
license, excise, franchise, employment, payroll, estimated, alternative or
add-on minimum, ad valorem, transfer or excise tax, or any other tax, custom,
duty, governmental fee or other like assessment or charge imposed by any
governmental authority, together with any interest or penalty imposed
thereon.
7.5 Effect of
Agreement. This Agreement has been duly executed and delivered
by Purchaser and constitutes, and each other agreement, document or instrument
to be executed by Purchaser pursuant hereto, when so duly executed and
delivered, will constitute, legal, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with their terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting the
rights of creditors generally and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at
law).
7.6 Knowledge. Purchaser's
determination with respect to entering into this Agreement was based solely on
the knowledge of its officers and directors and the representations and
warranties made by Seller herein. Purchaser has not relied on any
representations or warranties of any Seller or any agent of any Seller, whether
implied or otherwise, other than those expressly made by Seller in this
Agreement, in making its determination to enter into and consummate this
Agreement.
7.7 Broker's
Fees. Purchaser has not employed any broker or finder or
incurred any liability for any broker's or finder's fees or commissions in
connection with this Agreement or the transactions contemplated
herein.
8. Pre-Closing
Covenants.
8.1 Transition. This
Agreement is subject to a full and timely transition of the LAL operations,
technology platform and associated LAL representatives to the Purchaser and its
licensees. “Transition” is defined, for purposes herein, as the
ability for the Purchaser, to be fully functional to operate and sell LAL
products independently from BYOC resources. The Seller hereby agrees
to train the employees of the Purchaser (or Purchaser's licensee, Zurvita
Holdings, Inc.) and provide support services to transition the LAL operations,
technology platform and associated LAL representatives to the Purchaser and its
licensees. The Seller will train the employees of the Purchaser and
Purchaser’s licensee, Zurvita Holdings, Inc. (“Zurvita”), to manage the Software
platform, along with all relevant functions which allow the Purchaser and/or
Zurvita to sell ads and manage the entire Software platform and processes
independently while working out of the Seller’s main offices. If the
Transition requirements are not satisfied or the Company breaches its
obligations under Section 4.6(e) of the Stock Purchase Agreement dated October
9, 2009 between the Company and Zurvita, this Agreement will be deemed null and
void.
8.2 Reserved.
8.3 Compliance with
Conditions. The parties hereto shall use their best efforts to
cause the Closing to be consummated and to cause the execution and delivery of
the documents referred to in Section 4 hereof and to bring about the
satisfaction of the conditions to the obligations of the parties hereto set
forth herein.
8.4 Update of
Exhibits. From and after the date hereof and up to the Closing
Date, the parties hereto shall update the exhibits to this Agreement to the
extent necessary to make such exhibits true and accurate as of the Closing Date
and shall deliver copies of such updated exhibits to Purchaser or Seller, as the
case may be, immediately upon their preparation.
8.5 Consents. From
and after the date hereof, the parties hereto shall use their best efforts to
obtain all of the certificates, authorizations, consents or approvals required
as set forth herein. Evidence of such certificates, authorizations,
consents or approvals shall be delivered to Purchaser or Seller, as the case may
be, on or prior to the Closing.
8.6 Business
Practices. From and after the date hereof, Seller shall
continue to run the business of Seller in a manner consistent with past business
practices including the satisfaction of all of its then current obligations to
ensure a smooth and timely transition as noted in 8.1 above.
9. Indemnifications
by Seller and Purchaser.
9.1 Indemnification by
Seller. Seller shall indemnify and hold harmless Purchaser and
shall reimburse Purchaser, for any loss, liability, claim, damage, expense
(including, without limitation, costs of investigation and defense and
reasonable attorney's fees) or diminution of value (collectively, "Damages")
arising from or in connection with:
(a) any
inaccuracy in any of the representations and warranties of Seller in this
Agreement or in any certificate delivered by Seller pursuant to this Agreement,
or any actions, omissions or state of facts inconsistent with any such
representation or warranty (for purposes of this clause (a), each schedule and
exhibit to this Agreement shall be deemed a representation and
warranty);
(b) any
failure by Seller to perform or comply with any agreement made by it under this
Agreement;
(c) any
operations or business conducted, commitment made, service rendered or condition
existing or any action taken or omitted by or on behalf of Seller, except for
any claims for which Purchaser is required to indemnify Seller pursuant to this
Agreement;
(d) any
claim by any person for brokerage or finder's fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made by
any such person with Seller (or any person acting on its behalf) in connection
with any of the transactions contemplated herein; and
(e) Seller's
failure to comply with the "Bulk Sales Laws" under the Uniform Commercial
Code;
provided, however, that (i)
Seller shall have no obligation to indemnify Purchaser for Damages until the
aggregate Damages exceed $20,000 and, in such event, for the full amount of such
Damages, (ii) Seller' aggregate liability for Damages shall in no event exceed
the Purchase Consideration, and (iii) Seller shall have no obligation to
indemnify Purchaser for any claims made by Purchaser after eighteen (24) months
after the Closing Date.
9.2 Indemnification by
Purchaser. Purchaser shall indemnify and hold harmless Seller,
and shall reimburse Seller, for any Damages arising from or in connection
with:
(a) any
inaccuracy in any of the representations and warranties of Purchaser in this
Agreement or in any certificate delivered by Purchaser pursuant to this
Agreement, or any actions, omissions or state of facts inconsistent with any
such representation or warranty (for purposes of this clause (a), each schedule
and exhibit to this Agreement shall be deemed a representation and
warranty);
(b) any
failure by Purchaser to perform or comply with any agreement made by it under
this Agreement;
(c) any
claim by any person for brokerage or finder's fees or commissions or similar
payments based upon any agreement or understanding alleged to have been made by
such person with Purchaser (or any person acting on its behalf, regardless of
whether such person purported to act on behalf of Seller) in connection with any
of the transactions contemplated in this Agreement; and
(d) obligations
with respect to any product liability associated with the Asset for the period
after the Closing Date; provided, however, that (i)
Purchaser shall have no obligation to indemnify Seller for Damages until the
aggregate Damages exceed $20,000, each and, in such event, for the full amount
of such Damages, (ii) Purchaser's aggregate liability for Damages shall in no
event exceed the Purchase consideration, and (iii) Purchaser shall have no
obligation to indemnify Seller for any claims made by the Seller under this
Agreement after eighteen (18) months after the Closing Date.
9.3 Reserved.
9.4 Procedure for
Indemnification. Promptly after receipt by an indemnified
party under Section 9.1or 9.2 hereof of notice of the commencement of any action
or assertion of any claim, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party under such Section, give
notice to the indemnifying party of the commencement or assertion thereof, but
the failure so to notify the indemnifying party shall not relieve it of any
liability that it may have to any indemnified party except to the extent the
indemnifying party demonstrates that the defense of such action is materially
prejudiced thereby. If any such action shall be brought against an
indemnified party and it shall give notice to the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, to assume the defense thereof
with counsel satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such Section for any fees of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation. If an
indemnifying party assumes the defense of such an action:
(a) no
compromise or settlement thereof may be effected by the indemnifying party
without the indemnified party's consent which shall not be unreasonably withheld
unless (i) there is no finding or admission of any violation of law or any
violation of the rights of any person and no effect on any other claims that may
be made against the indemnified party and (ii) the sole relief provided is
monetary damages that are paid in full by the indemnifying party;
and
(b) the
indemnifying party shall have no liability with respect to any compromise or
settlement thereof effected without its consent. If notice is given
to an indemnifying party of the commencement of any action and it does not,
within ten (10) business days after the indemnified party's notice is given,
give notice to the indemnified party of its election to assume the defense
thereof, the indemnifying party shall be bound by any determination made in such
action or any compromise or settlement thereof effected by the indemnified
party. Notwithstanding the foregoing, if an indemnified party
determines in good faith that there is a reasonable probability that an action
may materially and adversely affect it or its affiliates other than as a result
of monetary damages, such indemnified party may, by notice to the indemnifying
party, assume the exclusive right to defend, compromise or settle such action at
its cost or expense, but the indemnifying party shall not be bound by any
determination of an action so defended or any compromise or settlement thereof
effected without its consent (which shall not be unreasonably
withheld).
10. Miscellaneous.
10.1 License. The
Parties hereto hereby agree in good faith to engage in the future negotiations
of a license agreement whereby the Licensor may license the Asset to Licensee
pursuant to mutually agreed upon terms and
conditions. Notwithstanding the foregoing, the failure of the Parties
to enter into such license agreement shall not be considered a breach of either
Party’s respective obligations under this Agreement.
10.2 Bulk Sales
Laws: The Parties hereto hereby agree to waive compliance with
"Bulk Sales Laws" under the Uniform Commercial Code and the related notice
provisions thereof.
10.3 Survival. All
representations, warranties and agreements contained in this Agreement or in any
certificate delivered pursuant to this Agreement shall survive eighteen (24)
months after Closing.
10.4 Waivers and
Amendments.
(a) This
Agreement may be amended, modified or supplemented only by a written instrument
executed by the parties hereto. The provisions of this Agreement may
be waived only by an instrument in writing executed by the party granting the
waiver. No action taken pursuant to this Agreement, including without
limitation, any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action of compliance with any
representation, warranty, covenant or agreement contained herein. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a further or continuing waiver of such breach or
as a waiver of any other or subsequent breach.
(b) No
failure on the part of any party to exercise, and no delay in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies provided by law.
10.5 Fees and
Expenses. The Seller shall be responsible for all fees and
expenses incurred in connection with this transaction.
10.6 Notices. All
notices, requests, demands and other communications that are required or may be
given under this Agreement shall be in writing and shall be deemed to have been
duly given or made: if by hand, immediately upon delivery; if by
telex, telecopier, telegram or similar electronic device, immediately upon
sending, provided it is sent on a business day, but if not, then immediately
upon the beginning of the first business day after being sent; if by Federal
Express, Express Mail or any other overnight delivery service, on the first
business day after dispatch; if by registered or certified mail, return receipt
requested, upon receipt by the addressee. All notices, requests and
demands are to be given or made to the parties at the following addresses (or to
such other address as either party may designate by notice in accordance with
the provisions of this paragraph):
|
If to Company:
|
Beyond
Commerce, Inc.
|
|
0000
Xxxxx Xxxxx, Xxxxx 0000
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Telephone:000.000.0000
|
|
|
Facsimile:702.463.7007
|
|
|
If to
Sub:
|
LocalAdLink,
Inc.
|
|
0000
Xxxxx Xxxxx, Xxxxx 0000
|
|
|
Xxxxxxxxx,
XX 00000
|
|
|
Telephone:000.000.0000
|
|
|
Facsimile:702.463.7007
|
|
|
If to Purchaser:
|
|
|
00000
Xxxxxxxx Xxxxxx
|
|
|
Xxxxxxxxxx,
XX 00000
|
|
|
Telephone:
000.000.0000
|
|
|
Facsimile:
727.230.1032
|
10.7 Entire
Agreement. This Agreement and the schedules and exhibits
hereto set forth the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersede any prior
negotiations, agreements, letters of intent, understandings or arrangements
between the parties hereto with respect to the subject matter
hereof.
10.8 Binding Effect, Benefits,
Construction. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective
successors. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto, or their
respective successors, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
10.9 Non-Assignability. This
Agreement and any rights pursuant hereto shall not be assignable by any party
hereto without the prior written consent of the other party.
10.10 Counsel. Each
Party acknowledges that it has been advised by competent and independent legal
counsel of their own choosing in connection with the execution of this
Agreement, that it understands their rights and obligations hereunder, and that
it is entering into this Agreement of its own free will. Each Party
agrees to bear its own costs and attorneys’ fees which have been or may be
incurred in connection with the negotiation and consummation of this Agreement
or any action to enforce the provisions of this Agreement
10.11 Applicable
Law, Venue, Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
New York without regard to the choice of law principles thereof. Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the State of New York, County of New York for the purpose of any suit,
action, proceeding or judgment relating to or arising out of this Agreement and
the transactions contemplated hereby. Service of process in
connection with any such suit, action or proceeding may be served on each party
hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each
party hereto irrevocably waives any objection to the laying of venue of any such
suit, action or proceeding brought in such courts and irrevocably waives any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH
RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
. 10.11 Section and Other
Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
10.12 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Purchaser
and Seller have caused this Agreement to be signed by their duly authorized
respective officers all as of the date first written above.
|
COMPANY:
|
BEYOND
COMMERCE, INC.
|
|
|
A
Nevada Corporation
|
||
|
By:
|
||
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
SUB:
|
LOCALADLINK,
INC.
|
|
|
A
Nevada Corporation
|
||
|
By:
|
||
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Chief Financial Officer
|
||
|
PURCHASER:
|
||
|
A
Nevada Corporation
|
||
|
By:
|
||
|
Name:
Xxxx Xxxxxxxx
|
||
|
Title: Chief
Executive
Officer
|
||
Schedule 2.1 The Purchase
Consideration
SURRENDERED
DEBENTURES
|
|
1.
|
Debenture
dated June 29, 2009- Face value of
$583,330
|
|
|
2.
|
Debenture
dated July 2, 2009- Face value of
$583,330
|
|
|
3.
|
Debenture
dated July 10, 2009- Face value of
$583,330
|
|
|
4.
|
Debenture
dated July 21, 2009- Face value of
$1,750,010
|
|
|
5.
|
Debenture
dated July 30, 2009- Face value $641,663- reduce to Face Value of
$141,663
|
SURRENDERED
WARRANTS
|
|
1.
|
Warrant
issued June 29, 2009 to purchase 2,499,986 shares of common
stock
|
|
|
2.
|
Warrant
issued July 2, 2009 to purchase 2,499,986 shares of common
stock
|
|
|
3.
|
Warrant
issued July 10, 2009 to purchase 2,499,986 shares of common
stock
|
|
|
4.
|
Warrant
issued July 21, 2009 to purchase 7,500,042 shares of common
stock
|
|
|
5.
|
Warrant
issued July 30, 2009 to purchase 2,750,000 shares of common
stock
|
|
|
6.
|
Warrant
issued August 11, 2009 to purchase 1,250,000 shares of common stock
reduced to right to purchase 678,963 shares of common
stock
|
Schedule 5.8 Intellectual
Property
ByDesign
iCentris
CRM
RackSpace
Search
Boost
RightNow
Technologies
XxxXxxxx.xxx
LocalAdLink
Schedule 5.12 Material
Adverse Changes
Seller
has not been able to pay commissions to its reps, but the Asset still is
functional in its entirety.
