Exhibit 10.1
AGREEMENT
AGREEMENT, dated as of October 20, 2008 (the "Agreement"), by and among.,
Mecanismo Corp , a Nevada Corporation (the "Purchaser"), and Domark
International, Inc., a Nevada corporation and R. Xxxxxx Xxxx, hereinafter
collectively the ("Selling Parties".)
BACKGROUND
The Selling Parties are the beneficial owners of an aggregate of One
Hundred Thousand Shares of preferred convertible stock of SportsQuest, Inc. (the
"Company") ("Sellers Shares"), convertible into common shares of Company at the
rate of 500 shares of common stock for each preferred share and 9,973,397 shares
of common stock of Company. The Selling Parties own, in the aggregate,
approximately 94% of the issued and outstanding capital stock of the Company,
fully diluted, as of the date hereof.
At the Closing, as set forth in this Agreement:
(a) The Selling Parties shall sell and the Purchaser shall acquire from the
Selling Parties, the Selling Parties Preferred Shares of Company in exchange for
the irrevocable Assignment of that certain Judgment arising from***CASE BC
359831 LOS ANGELES SUPERIOR COURT Veridigm Inc (f/k/a E-Notes Systems Inc (DE)
("the Plaintiff"), against TotalMed Systems, Inc., (The "Defendant") ****and a
Promissory Note in the amount of $100,000 to Domark International, Inc.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and covenants herein contained, the adequacy and sufficiency of which are deemed
appropriate by the Parties, the Company, the Selling Parties and the Purchaser
hereby agree as follows:
1. PURCHASE OF THE SELLER'S SHARES.
(a) At the Closing, the Selling Parties shall sell, transfer, convey and
deliver to the Purchaser the Sellers Shares at the Purchase Price set forth in
Section 1 (b), below.
(b) The Purchase Price for the Seller Shares being purchased by the
Purchaser herein shall be $208,368.49 which is the current unpaid balance
including interest and attorney fees of the TotalMed Judgment (the "TotalMed
Judgment"), to be transferred to Domark International, Inc, and a Promissory
Note for the sum of One Hundred Thousand Dollars due in one installment one year
from the closing of this transaction. Said Promissory Note form is attached as
Schedule 1(b).
2. PAYMENT OF LEGAL AND OTHER FEES.
Each of the parties hereto will pay their own legal and other fees
associated with the execution of this transaction.
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3. THE CLOSING.
(a) General. The closing of the transactions contemplated in Sections 1
through 4 of this Agreement, all of which transactions shall all occur
contemporaneously (the "Closing"), shall take place at the offices of the
Company, or at such other place and at such other time as the Parties hereto
shall mutually agree, or, with the mutual agreement of all of the parties, by
exchange of documents among the Parties, following the satisfaction or waiver of
all conditions to the obligations of the Parties to consummate the transactions
contemplated herein (other than conditions with respect to actions the Parties
will take at the Closing itself), but not later than October 21, 2008, or such
other date as the Purchaser and the Seller may mutually determine (the "Closing
Date").
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES.
The Selling Parties individually represent and warrant to the Purchaser
that the statements contained in this Section 4 are correct and complete as of
the date of this Agreement and will be correct and complete as of the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this Section 4).
(a) The Selling Parties have the power and authority to execute, deliver
and perform such Selling Parties obligations under this Agreement and to sell,
assign, transfer and deliver to the Purchaser their respective Sellers Shares,
as contemplated hereby. No permit, consent, approval or authorization of, or
declaration or registration with any governmental or regulatory authority or
consent of any third party is required in connection with the execution and
delivery by the Selling Parties to this Agreement and the consummation of the
transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by the Selling Parties will violate or result in a
breach of any term or provision of any agreement to which the Selling Parties
are bound or is a party, or be in conflict with or constitute a default under,
or cause the acceleration of the maturity of any of the Seller obligations under
any existing agreement or violate any order, writ, injunction, decree, statute,
rule or regulation applicable to the Selling Parties or any of the Selling
Parties properties or assets.
(c) This Agreement has been duly and validly executed by the Selling
Parties, and constitutes the valid and binding obligation of Selling Parties,
enforceable against Selling Parties in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally or by limitations, on the availability of equitable
remedies.
(d) The Selling Party Shares are owned beneficially and of record by such
Selling Party in the amounts specified and are validly issued and outstanding,
or will be issued and outstanding, fully paid for and non-assessable with no
personal liability attaching to the ownership thereof, free and clear of all
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liens, charges, security interests, encumbrances, claims of others, options,
warrants, purchase rights, contracts, commitments, equities or other claims or
demands of any kind (collectively, "Liens"), and upon delivery of the Seller
Shares and the conversion Shares to the Purchaser, the Purchaser will acquire
good, valid and marketable title thereto free and clear of all Liens. None of
the Selling Parties is a party to any option, warrant, purchase right, or other
contract or commitment that could require that Selling Parties to sell,
transfer, or otherwise dispose of any of the preferred or common stock of the
Company, other than pursuant to this Agreement. Selling Parties are not a party
to any voting trust, proxy, or other agreement or understanding with respect to
the voting of any preferred or common stock of the Company.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
(a) The Purchaser is a corporation in good standing duly incorporated in
the State of Nevada. The Purchaser is duly authorized to conduct business and is
in good standing under the laws of each jurisdiction where such qualification is
required. The Purchaser has full corporate power and authority and all licenses,
permits, and authorizations necessary to carry on its business. At the Closing,
the Purchaser shall have no subsidiaries and shall have no control of other
subsidiaries, directly or indirectly, or have a direct or indirect equity
participation in other entities.
(b) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby or compliance with the
terms and conditions hereof by the Purchaser will violate or result in a breach
of any term or provision of any agreement to which the Purchaser is bound or is
a party, or the Purchaser's Certificate of Incorporation or By-Laws, or be in
conflict with or constitute a default under, or cause the acceleration of the
maturity of any obligation of the Purchaser under any existing agreement or
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to the Purchaser or any of its properties or assets.
(c) This Agreement has been duly and validly executed by the Purchaser and
constitutes the valid and binding obligation of the Purchaser, enforceable
against it in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other laws affecting creditors' rights generally or
by limitations, on the availability of equitable remedies.
(d) The Purchaser's authorized capital stock, as of the date of this
Agreement and as of the Closing, consists of 10,000 shares of Common Stock,
$1.00 par value per share, of which 10,000 shares are issued and outstanding.
The Purchaser has not reserved any shares of its Common Stock for issuance upon
the exercise of options, warrants or any other securities that are exercisable
or exchangeable for, or convertible into, Common Stock.
All of the issued and outstanding shares of the Purchaser's Common Stock are
validly issued, fully paid and non-assessable and have been issued in compliance
with applicable laws, including, without limitation, applicable federal and
state securities laws.
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There are no outstanding options, warrants or other rights of any kind to
acquire any additional shares of capital stock of the Purchaser or securities
exercisable or exchangeable for, or convertible into, capital stock of the
Purchaser, nor is the Purchaser committed to issue any such option, warrant,
right or security. Except as otherwise provided for in this Agreement, there are
no agreements relating to the voting, purchase or sale of capital stock (i)
between or among the Purchaser and any of its stockholders, (ii) between or
among any Selling Party and any third party, or among the Selling Parties and
any of the Purchaser's stockholders.
(e) The Purchaser`s Certificate of Incorporation or By-Laws do not have any
restrictions in place relative to its ability to implement any reverse or
forward split of its common stock.
(f) Purchaser will not have any Liabilities whatsoever at the closing date
except as disclosed to Selling Parties at closing.
(g) There is no legal, administrative, investigatory, regulatory or similar
action, suit, claim or proceeding that is pending or threatened against the
Purchaser.
(h) The 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. 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. 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.
(i) The Purchaser does not employ any employees and does not maintain any
employee benefit or stock option plans, except as may be disclosed to Selling
Parties at closing.
(j) There has not been any event or condition of any character which has
adversely affected, or may be expected to adversely affect, the Purchaser's
business or prospects, including, but not limited to any adverse change in the
condition, assets, liabilities or business of the Purchaser.
(k) The Purchaser has complied in all material respects with all applicable
laws (including rules, regulations, codes, plans, injunctions, judgments,
orders, decrees, rulings, and charges thereunder) of all governmental
authorities, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice has been filed or commenced against the
purchaser alleging any failure so to comply. The Purchaser, nor any officer,
director, employee, consultant or agent of the Purchaser has made, directly or
indirectly, any payment or promise to pay, or gift or promise to give or
authorized such a promise or gift, of any money or anything of value, directly
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or indirectly, to any governmental official, customer or supplier for the
purpose of influencing any official act or decision of such official, customer
or supplier or inducing him, her or it to use his, her or its influence to
affect any act or decision of a governmental authority or customer, under
circumstances which could subject the Purchaser or any officers, directors,
employees or consultants of the Purchaser to administrative or criminal
penalties or sanctions.
(l) The Purchaser has the authority to transfer the TotalMed Judgment
pursuant o the terms and conditions herein.
(m) The Purchaser is acquiring the Selling Parties Shares for its own
account for investment and not for the account of any other person and not with
a view to or for distribution, assignment or resale in connection with any
distribution within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser agrees not to sell or otherwise transfer the Seller
Shares unless they are registered under the Securities Act and any applicable
state securities laws, or an exemption or exemptions from such registration are
available and shall promptly file or cause to be filed any and all filings,
forms, documents and instruments necessary for the Purchaser to be in compliance
with all Federal and state Securities Acts, laws, rules and regulations. The
Purchaser has knowledge and experience in financial and business matters such
that it is capable of evaluating the merits and risks of acquiring the Selling
Parties Shares.
(n) No representation or warranty by the Purchaser 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.
6. REPRESENTATIONS AND WARRANTIES OF THE SELLING PARTIES.
(a) The Selling parties have full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
(b) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby, compliance by the selling
parties with any of the terms and conditions hereof will; violate, or conflict
with, or result in a breach of any provision of, or constitute a default under
or result in the termination of, or accelerate the performance required by, or
result in the creation of any Lien upon any of the properties or assets of the
selling parties under any of the terms, conditions or provisions of any material
note, bond, indenture, mortgage, deed or trust, license, lease, agreement or
other instrument or obligation to which he is a party or by which he or any of
his properties or assets may be bound or affected or violate any material order,
writ, injunction, decree, statute, rule or regulation nor breach or violate any
Laws, rules or regulations of the United States, and the rules and regulations
promulgated by the SEC, which may be applicable to selling parties or any of its
properties or assets, except for such violations which, in the aggregate, are
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immaterial and do not have any material adverse financial effect on selling
parties.
(c) This Agreement has been duly and validly executed by the selling
parties and constitutes a valid and binding obligation of the selling parties
enforceable in accordance with its terms, except as the enforceability hereof
may be limited by bankruptcy, insolvency or similar laws affecting the
enforceability of creditor's rights generally or by limitations, on the
availability of equitable remedies.
(d) No permit, consent, approval or authorization of, or declaration,
filing or registration with any governmental or regulatory authority or the
consent of any third party is required in connection with the execution and
delivery by the selling parties of this Agreement and the consummation of the
transactions contemplated hereby.
(e) There is no legal, administrative, investigatory, regulatory or similar
action, suit, claim or proceeding that is pending or, to the selling parties
knowledge, threatened against the selling parties.
(f) No representation or warranty by the selling parties 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.
7. DUE DILIGENCE.
The selling parties have been furnished with documents and instruments and
in addition has conducted its own intensive due diligence investigation relative
to the Purchaser and the representations, warranties and covenants of the
Purchaser. The Purchaser hereby acknowledges and agrees that it has received all
requisite documents and instruments necessary for the Purchaser to have
completed its due diligence all of which has been furnished to Purchaser to
Purchaser's complete satisfaction within the due diligence period. and all Due
Diligence has been complied with. Purchaser is acquiring the shares of the
Company from the Selling Parties, fully aware of the financial condition of the
Company and its investment interest in Greens Worldwide Incorporated.
8. PAYMENTS AT CLOSING; BROKERS; FINDERS.
There are no Brokers or Finders involved in this transaction and none of
the Parties shall be responsible for the payment of any Brokers or finders' fees
other than as specifically set forth herein. Other than the foregoing, none of
the Selling Parties nor the Company, nor any of their respective directors,
officers or agents on their behalf, have incurred any obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
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or financial advisory services or other similar payment in connection with this
Agreement. The Purchaser has not engaged any Brokers or Finders in connection
with this transaction.
9. PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing Date:
(a) Each of the Parties has used his or its best efforts to take all action
and to do all things necessary, proper, or advisable in order to consummate and
make effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Section 13
below).
(b) Form 8-K Filing; Notices and Consents.
(i) Concurrent with the execution of this Agreement, Domark
International, Inc. shall cause a Form 8-K to be filed with the U.S. Securities
and Exchange Commission with respect to its having entered into this material
definitive agreement and to disclose the material terms set forth in this
Agreement. Each of the Parties will (and the Selling Parties will cooperate with
Domark International, Inc. to) give any notices to, make any filings with, and
use its best efforts to obtain any authorizations, consents, and approvals of
governmental authorities necessary in order to consummate the transactions
contemplated hereby.
(ii) The Purchaser acknowledges that it may be required to file
documents, instruments, financial statements and other disclosure documents in
compliance with the Securities Act in order to effect the transaction
contemplated by this Agreement.
(c) Operation of Business. The Selling Parties will not cause or permit the
Company to (i) declare, set aside, or pay any dividend or make any distribution
with respect to its capital stock or redeem, purchase, or otherwise acquire any
of its capital stock except as otherwise expressly specified herein, (ii) issue,
sell, or otherwise dispose of any of its capital stock, or grant any options,
warrants, preemptive or other rights to purchase or obtain (including upon
conversion, exchange, or exercise) any of its capital stock.
(d) Exclusivity. None of the Selling Parties or the Company shall, directly
or indirectly, (i) solicit, initiate, or encourage the submission of any
proposal or offer from any person relating to the acquisition of any of the
Selling Parties Shares or any capital stock or other voting securities, or any
assets (including any acquisition structured as a merger, consolidation, or
share exchange) of the Company or (ii) participate in any discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person to do or seek any of the foregoing. None of the Selling Parties will vote
the shares of the Company's Preferred Stock held by them in favor of any such
acquisition structured as a merger, consolidation, or share exchange.
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10. DOCUMENTS TO BE DELIVERED AT THE CLOSING.
(a) As to the Selling Parties and the Company:
(i) The Selling Parties shall deliver to Purchaser, a share
certificate representing the Selling Parties Preferred Shares of Company, duly
endorsed with Medallion Guarantee affixed, in the amount of 100,000 shares of
preferred stock of Company.
(ii) The Selling Parties shall deliver to Purchaser, share
certificates representing 9,973,397 shares of common stock of Company, duly
endorsed with Medallion Guarantee affixed.
(ii) The Company shall deliver the corporate Minute Books, and related
corporate documents and instruments contained in the minute books to the
Purchaser.
(b) As to the Purchaser:
(i) The Purchaser shall deliver a fully executed Promissory Note to
Domark International, Inc. or assigns in the amount of One Hundred Thousand
Dollars ($100,000) due in one year.
(ii) The Purchaser shall deliver to the Selling parties, a true and
correct Resolution of the Board of Directors of the Purchaser authorizing this
Agreement and the transactions contemplated thereby.
(iii) The Purchaser shall deliver a fully executed Assignment of
Judgment by Veridigm against Totalmed Systems, in acceptable form to Domark
International, Inc.
11. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Conditions of Obligation of the Purchaser
The obligation of the Purchaser to consummate the transactions to be
performed by the Purchaser in connection with the Closing is subject to
satisfaction of the following conditions:
(i) the representations and warranties set forth above shall be true
and correct in all material respects at and as of the Closing Date;
(ii) each of the Pre-Closing Covenants set forth above shall have been
satisfied;
(iii) the Selling Parties shall have performed and complied with all
of their covenants hereunder in all material respects through the Closing;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
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unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of the transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, (C) affect adversely the right of the Purchaser to own
the Selling Parties Shares and to control the Company, or (D) affect adversely
the right of the Company to own its assets and to operate its businesses (and no
such injunction, judgment, order, decree, ruling, or charge shall be in effect);
(viii) The Purchaser shall have received the resignations, effective
as of the Closing Date, of each officer and Director of the Company, currently
R. Xxxxxx Xxxx and Xxxxxxx Xxxxxxx and the appointment of the designee(s) of the
Purchaser. In addition, each officer and director shall waive any accrued
compensation if any due said officers and directors as of the closing date. Said
resignations shall be effective 10 days after the Purchaser files a Form 14f
with the Securities and Exchange Commission.
(ix) Except as otherwise set forth in this Agreement, there shall not
have been any occurrence, event, incident, action, failure to act, or
transaction which has had or is reasonably likely to cause a material adverse
effect on the business, assets, properties, financial condition, results of
operations or prospects of the Purchaser;
(x) The Purchaser has completed its business, accounting and legal Due
Diligence review of the Company, and the results thereof are completely
satisfactory to the Purchaser;
(xi) the Purchaser shall deliver to selling parties a Certificate of
Good Standing of the Purchaser issued by the Nevada Secretary of State dated no
earlier than sixty (60) days prior to the Closing.
(xii) all actions to be taken by the Selling Parties in connection
with consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Purchaser;
and
The Purchaser may waive any condition specified in this Section 13(a) at or
prior to the Closing in writing executed by the Purchaser.
(b) CONDITIONS TO OBLIGATION OF THE SELLING PARTIES.
The obligations of the Selling Parties to consummate the transactions to be
performed by them in connection with the Closing are subject to satisfaction of
the following conditions:
(i) the representations and warranties set forth above shall be true
and correct in all material respects at and as of the Closing Date;
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(ii) each of the Pre-Closing Covenants set forth above shall have been
satisfied;
(iii) the Purchaser shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iv) no action, suit, or proceeding shall be pending or threatened
before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction or before any arbitrator wherein an
unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement
or (B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(vi) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Selling
Parties.
(vii) The Purchaser shall have purchased from the Sellers (100,000)
shares of the Company's Preferred Stock and 9,973,397 shares of the Company's
common stock for which Purchaser shall have paid a promissory Note for $100,000
and an assignment to Domark International, Inc. of a Judgment owned by Veridigm
in the amount of $208,368.49 provided for herein.
(x) The Purchaser shall have procured all of the third party consents
required in order to effect the Closing, if applicable.
(xi) There shall not have been any occurrence, event, incident,
action, failure to act, or transaction that has had or is reasonably likely to
cause a material adverse effect on the business, assets, properties, financial
condition, results of operations or prospects of the Purchaser;
(xii) The Purchaser shall have delivered resolutions adopted by the
Board of Directors of the Purchaser authorizing this Agreement;
(xiii) The Purchaser shall deliver to the Selling Parties a
Certificate of Good Standing of the Purchaser issued by the Nevada Secretary of
State dated no earlier than sixty (60) days prior to the Closing.
(xiv) all actions to be taken by the Purchaser in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to the Company
and the Selling Parties.
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The Company and/or the Selling parties may waive, on behalf of each of the
Selling Parties any condition specified in this Section at or prior to the
Closing in writing executed by the Company and/or the Selling Parties, as the
case may be.
12. REMEDIES FOR BREACHES OF THIS AGREEMENT.
(a) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties of the Parties shall survive the Closing hereunder and continue
in full force and effect for a period of one (1) year thereafter.
(b) INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE PURCHASER.
(i) The Selling Parties shall indemnify the Purchaser from and against
any and all claims, liabilities, actions or matters which shall result in
monetary damages to the Company for any Federal, state or local taxes of the
Company with respect to any tax year or portion thereof ending prior to the
Closing Date; and any monetary damages to the Company for any actions by the
Selling Parties from the end of the Company's most recent fiscal year to the
Closing Date, provided that the Purchaser does not change the fiscal year of the
Company at any time, or cause any event to occur which would result in a change
of accounting practice or other circumstances so that the liability for any such
actions before or on the Closing Date or thereafter can not be readily
determined in which event Selling Parties shall not be liable for any damages
whatsoever.
(ii) The Selling Parties shall indemnify the Purchaser from and
against any claims, liabilities, actions or matters which result in monetary
damages to the Company for actions brought by the SEC against the Selling
Parties or any of them in violation of any laws, rules or regulation promulgated
by the SEC which occurred prior to the Closing Date.
(iii) If any third party shall commence an action relating to a
Company matter that occurred prior to the Closing, the Purchaser shall notify
the Seller Representative on behalf of each and all of the Selling Parties in
writing, without delay, setting forth the details of such claim and furnishing
the Seller Representative with a copy of any complaint or other moving papers
relating thereto, to enable the Selling Parties to defend and respond to such
claim or action. The Selling Parties shall indemnify and hold harmless the
Purchaser from and against any such claims, liabilities, actions or matters
which result in monetary damages against the Company, provided that such action
directly relates solely to matters that occurred prior to the Closing and were
not caused by the action or inaction of the Purchaser.
(c) INDEMNIFICATION PROVISIONS FOR BENEFIT OF EACH AND ALL OF THE SELLING
PARTIES.
(i) The Purchaser shall indemnify the Selling Parties from and against
any and all claims, liabilities, actions or matters which shall result in
monetary damages to any or all of Selling Parties and/or the Company (whether or
not accrued or otherwise disclosed) for any Federal, state or local taxes of the
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Purchaser with respect to any tax year or portion thereof ending subsequent to
the Closing Date; and any monetary damages to any or all of the Selling Parties,
and/or the Company for any actions by the Purchaser subsequent to the Closing
Date.
(ii) The Purchaser shall indemnify each and all of the Selling Parties
from and against any claims, liabilities, actions or matters which result in
monetary damages to any or all of them or to the Company for actions brought by
the SEC against the Purchaser or the Company in violation of any laws, rules or
regulation promulgated by the SEC that occur subsequent to the Closing Date or
otherwise relating to Purchaser's actions or inactions or failures of
disclosure.
(iii) If any third party shall commence an action relating to a
Company matter that occurs subsequent to the Closing, the Purchaser shall notify
the Seller Representative for and on behalf of the Selling Parties in writing,
without delay, setting forth the details of such claim and furnishing the Seller
Representative with a copy of any complaint or other moving papers relating
thereto, to enable the Sellers Representative to defend and respond to such
claim or action if necessary. The Purchaser shall indemnify and hold harmless
each and all of the Selling Parties from and against any such claims,
liabilities, actions or matters which result in monetary damages to any or all
of them, provided that such action relates to matters that occur subsequent to
the Closing.
13. POST-CLOSING COVENANTS.
The Parties agree as follows with respect to the period following the
Closing.
(a) General. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as any of the other Parties may
reasonably request, all at the sole cost and expense of the requesting party.
The Selling Parties acknowledge and agree that from and after the Closing the
Purchaser will be entitled to possession of all reasonably available documents,
books, records (including tax records), agreements, and financial data of any
sort relating to the Company.
(b) Litigation Support. In the event and for so long as any Party actively
is contesting or defending against any action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand in connection with (i) any
transaction contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction on or prior to the Closing Date
involving the Company, the other Party will cooperate with him or it and his or
its counsel in the contest or defense, make available their personnel, and
provide such testimony and access to their books and records as shall be
necessary in connection with the contest or defense, all at the sole cost and
expense of the contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification therefore under Section 14 herein).
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(c) The Purchaser covenants and agrees that as reasonably practicable, but
no later than sixty (60) days after the Closing Date, to cause the Company to
change its name to another unrelated name in the States of Delaware and Florida
and not to use the name SportsQuest, Inc. in any entity in any form nor at any
time hereafter, hereby acknowledging that the name SportsQuest is owned by
Domark.
(d) Operation of Business. Commencing on the date of this Agreement and up
to and including the Closing Date, the Purchaser and the Selling Parties shall
not cause or permit the Company to take any action, or enter into any
transaction except for ministerial matters necessary to maintain the Company in
good standing and to arrange for the filing of all necessary reports required
under the Securities Act and the Securities Exchange Act. Without limiting the
generality of the foregoing, the Purchaser and/or the Seller will not cause or
permit the Company to (i) declare, set aside, or pay any dividend or make any
distribution with respect to its capital stock or redeem, purchase, or otherwise
acquire any of its capital stock, (ii) issue, sell, or otherwise dispose of any
of its capital stock, or grant any options, warrants, preemptive or other rights
to purchase or obtain (including upon conversion, exchange, or exercise) any of
its capital stock, (iii) make any capital expenditures, loans, or incur any
other obligations or liabilities, (iv) enter into any agreements involving
expenditures individually, or in the aggregate, of more than $1,000 (v) enter
into any agreement or incur any other commitment (vi) otherwise engage in any
practice, take any action, or enter into any transaction that is inconsistent
with the transactions contemplated hereby, or (vii) assist any person, or agree
to assist any person, in taking the actions described in (i) through (vi) of
this Provision.
14. TERMINATION.
Termination of Agreement. The Parties may terminate this Agreement as
provided below:
(a) The Purchaser, the Company and the Selling Parties may terminate this
Agreement by mutual written agreement of all of the parties at any time prior to
the Closing;
(b) The Purchaser may terminate this Agreement by giving written notice to
the Sellers Representative at any time prior to the Closing if (A) in the event
the Selling Parties have breached any material representation, warranty, or
covenant contained in this Agreement in any material respect and the Purchaser
has notified the Sellers Representative of the breach, and the breach has
continued without cure for a period of five (5) days after the notice of breach;
(C) if the Closing shall not have occurred by reason of the failure of any
condition precedent under Section 13 (a), hereof (unless the failure results
primarily from the Purchaser themselves breaching any representation, warranty,
or covenant contained in this Agreement).
(c) The Company and/or the Selling Parties may terminate this Agreement by
giving written notice to the Purchaser at any time prior to the Closing (A) in
the event the Purchaser has breached any material representation, warranty, or
covenant contained in this Agreement in any material respect, and the Company,
the Selling Parties as the case may be, have notified the Purchaser of the
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breach, and the breach has continued without cure for a period of five (5) days
after the notice of breach or (B) if the Closing shall not have occurred by
reason of the failure of any condition precedent under Section 13 (b), hereof
(unless the failure results primarily from the Company, the Selling Parties
themselves breaching any representation, warranty, or covenant contained in this
Agreement).
(d) Except as aforesaid and subject to the provisions of Section 13 above,
if this Agreement terminates pursuant to this Section 16, all rights and
obligations of the Parties hereunder shall terminate without any Liability of
any Party to any other Party, except for any Liability of a Party that is then
in breach.
15. MISCELLANEOUS.
(a) Facsimile Execution and Delivery. Facsimile execution and delivery of
this Agreement is legal, valid and binding execution and delivery for all
purposes.
(b) Confidentiality; Press Releases and Public Announcements. Except as and
to the extent required by law, no Party will disclose or use and will direct its
representatives not to disclose or use any information with respect to the
transaction that is the subject of this Agreement, without the consent of the
other Parties. No Party shall issue any press release or make any public
announcement relating to the subject matter of this Agreement without the prior
written approval of the Purchaser and the Seller Representative; provided,
however, that the Company may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the Seller
Representative and the Company will use their best efforts to advise the other
Parties prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties hereto and their
respective successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior understandings, agreements, or representations by or among the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may sell, assign or otherwise transfer or have a
third party secure a present or future interest in either this Agreement or any
of his or its rights, interests, or obligations hereunder without the prior
written approval of all of the Purchaser, the Company and the Selling Parties.
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(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument effective as of the date
first above-written.
(g) Headings. The Section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Selling Parties: R. Xxxxxx Xxxx
0000 Xxxx Xxxxxxxx #000
If to the Company Xxxxxx, Xxxxxxx 00000
If to the Purchaser: Mecanismo Corp (Nevada)
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxx XX 00000
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties written or electronic notice in the manner herein above set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Florida or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Florida.
(j) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by the Purchaser,
the Company, the Selling Parties or the Seller Representative, acting on their
15
behalf. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be valid
unless written, and shall not constitute a waiver of any prior or subsequent
default, misrepresentation, or breach of the same or any other warranty or
covenant hereunder, or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of the Parties and the Company will bear his or its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any Federal, state or local
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. The Parties intend that
each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
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(o) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state court sitting in Orange County, Florida or Federal
court sitting in Orlando, Florida in any action or proceeding arising out of or
relating to this Agreement and agrees that all claims in respect of the action
or proceeding may be heard and determined in any such court. Each of the Parties
waives any defense of inconvenient forum to the maintenance of any action or
proceeding so brought and waives any bond, surety, or other security that might
be required of any other Party with respect thereto. Any Party may make service
on any other Party by sending or delivering a copy of the process to the Party
to be served at the address and in the manner provided for the giving of notices
in Section 17 (h) above.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Agreement the date first above written.
Purchaser Selling Parties:
Mecanismo Corp Domark International, Inc.
By: By: /s/ R. Xxxxxx Xxxx
-------------------------------- --------------------------------
Name: Name: R. Xxxxxx Xxxx
Title: Title: Chief Executive Officer
/s/ R. Xxxxxx Xxxx
--------------------------------
R. Xxxxxx Xxxx
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SCHEDULE A
Number of Company
Selling Parties Address Shares Owned
--------------- ------- ------------
Domark International, Inc. 0000 Xxxx Xxxxxxxx #000 100,000 Preferred
Xxxxxx, Xxxxxxx 00000 Series A
R. Xxxxxx Xxxx, 0000 Xxxx Xxxxxxxx #000 9,973,397 common
representative Xxxxxx, Xxxxxxx 00000 shares as common
of selling parties
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SCHEDULE 1(b) Promissory Note
FOR VALUE RECEIVED, $100,000.00 (ONE HUNDRED THOUSAND US DOLLARS) the
undersigned, Mecanismo Corp ("PAYEE") Hereby promises to pay to the order of
Domark International, Inc (`DOMK") ("MAKER"), at Makers venue or at such other
place or places as Maker may from time to time designate in writing, the
principal sum of $100,000 . Together with interest on the principal balance upon
maturity outstanding as hereinafter set forth.
A. Interest Rate. From the date of this Promissory Note (the "NOTE") until the
occurrence of an event set forth in Section C below, the principal balance from
time to time unpaid shall bear interest, and Maker promises to pay such
interest, at a rate of 1% percent per annum upon maturity.
After the earliest of (i) the Maturity Date (as hereafter defined), whether by
acceleration or otherwise, (ii) the occurrence of any default in the payment of
any installment of interest on the date due and payable, or (iii) the occurrence
of any other Event of Default (as hereafter defined), hereunder, the total
unpaid indebtedness hereunder shall bear interest at a rate of one percent (1%)
plus the rate of interest otherwise chargeable hereunder (the "DEFAULT RATE").
Interest shall be computed on the basis of a 360 day year and charged for the
actual number of days elapsed. Interest accrued from the date of this Note shall
be due and payable on the Maturity Date (as hereafter defined).
B. Maturity Date; Payment. Unless the Principle and outstanding interest is
previously forgiven by vote of the Board of Directors of the Payee in the course
of the Payee's business, the Maker shall repay the principal amount of this
Note, and any interest accrued thereon then remaining unpaid, on the Maturity
Date (as hereafter defined). Notwithstanding the foregoing, the entire principal
balance of this Note then outstanding, plus any accrued and unpaid interest
thereon shall be due and payable on the earliest of (a) October 20th 2009 (365
days hence) or (b) such earlier date on which said amount shall become due and
payable on account of acceleration by Payee (the "MATURITY DATE"). Maker agrees
that, on the Maturity Date, Maker will pay to Payee the entire principal balance
of this Note then outstanding, together with all accrued and unpaid interest
hereunder.
C. Default; Remedies. Any one of the following occurrences shall constitute an
"EVENT OF DEFAULT" under this Note: (i) failure by the Maker to make any payment
of principal or interest when the same becomes due and payable, said failure
continuing for thirty (30) days or more; or (ii) if Maker shall fail to pay its
debts, make an assignment for the benefit of its creditors, or shall commit an
act of bankruptcy, or shall admit in writing its inability to pay its debts as
they become due, or shall seek a composition, readjustment, arrangement,
liquidation, dissolution or insolvency proceeding under any present or future
statute or law, or shall file a petition under any chapter of federal Bankruptcy
Code or any similar law, state or federal, now or hereafter existing, or shall
become "insolvent" as that term is generally defined under the Federal
Bankruptcy Code, or shall in any involuntary bankruptcy case commenced against
it file an answer admitting insolvency or inability to pay its debts as they
become due, or shall fail to obtain a dismissal of such case within sixty (60)
days after its commencement or convert the case from one chapter of the Federal
Bankruptcy Code to another chapter, or be the subject of an order for relief in
such bankruptcy case, or to be adjudged a bankruptcy or insolvent, or shall have
a custodian, trustee or receiver appointed for, or have any court take
jurisdiction of its property, or any part thereof, in any proceeding for the
purpose of reorganization, arrangement, dissolution or liquidation, and such
custodian, trustee, liquidator or receiver shall not be discharged, or such
jurisdiction shall not be relinquished, vacated or stayed within sixty (60) days
of the appointment.
Upon occurrence of an Event of Default hereunder, the entire outstanding
principal balance and any unpaid interest then accrued under this Note, shall at
the option of the Payee hereof and without demand or notice of any kind to the
undersigned or any other person (including, but not limited to, any guarantor
now or hereafter existing), immediately become and be due and payable in full.
In such event, Payee shall have and may exercise any and all rights and remedies
available at law or in equity.
D. Assignment. No assignment of this Note in whole or in part, or of any
interest hereunder, shall be effective or binding upon the Maker until such
transfer or assignment shall have been duly recorded on the books of the Maker
to be maintained for such purpose, and any transfer or assignment hereof shall
require surrender hereof to the Maker at its principal office accompanied by an
appropriate instrument of transfer or assignment in form satisfactory to the
Maker, provided that the Maker may not and cannot be compelled or required to
act or effectuate any such assignment or transfer except after compliance by the
Payee or holder hereof with securities laws or regulations deemed applicable by
the Maker. Neither may this Note or any interest hereunder be pledged or
hypothecated except upon compliance with the foregoing.
E. Waiver Amendment. Maker, for itself and for its successors, transferees and
assigns hereby irrevocably (i) waives diligence, presentment and demand for
payment, protest, notice, notice of protest and nonpayment, dishonor and notice
of dishonor and all other demands or notices of any and every kind whatsoever,
and (ii) agrees that this Note and any or all payments coming due hereunder may
be extended from time to time in the sole discretion of Payee hereof without in
any way affecting or diminishing Maker's liability hereunder.
No extension of the time for any payment due hereunder made by agreement with
any person now or hereafter liable for payment of this Note shall operate to
release, discharge, modify, change or affect the original liability under this
Note, either in whole or in part. No delay in the exercise of any right or
remedy hereunder by Payee shall be deemed to be a waiver of such right or
remedy, nor shall the exercise of any right or remedy hereunder by Payee be
deemed an election of remedies or a waiver of any other right or remedy. Without
limiting the generality of the foregoing, the failure of the Payee promptly
after the occurrence of any default hereunder to exercise its right to declare
the indebtedness remaining unmatured hereunder to be immediately due and payable
shall not constitute a waiver of such right while such default continues nor a
waiver of such right in connection with any future default.
G. Governing Law and Jurisdiction. This Note has been executed and shall be
governed by and construed in accordance with the internal laws of the State of
Florida.
IN WITNESS WHEREOF, Maker & Payee have caused this Note to be executed and
delivered as of the date and year first above written.
---------------------------------
PAYEE
Mecanismo Corp
By:
------------------------------
MAKER
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