Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of this 21st day of
August, 2011, by and between Domark International, Inc. a Nevada Corporation,
OTC BB DOMK or assign ("PURCHASER"), and USPT,LLC., a California Limited
Liability Company ("SELLER").
BACKGROUND
Seller is engaged in the business of marketing and conducting putting
competitions and the US Putting Tour Championship and owns certain assets and
intellectual property in connection with the business, (the "BUSINESS"). Seller
wishes to sell, and Purchaser wishes to purchase all of the assets used in the
Business upon and subject to the terms and conditions set forth in this
Agreement.
AGREEMENT
Now, therefore, for and in consideration of the mutual representations,
warranties, covenants, and agreements contained herein and for other good and
valuable consideration, the receipt and legal sufficiency of which is hereby
acknowledged, the parties hereto agree:
SECTION 1. PURCHASE AND SALE OF ASSETS
SECTION 1.1 PURCHASE OF ASSETS. On and subject to the terms and conditions
of this Agreement, Purchaser hereby purchases and Seller hereby sells, assigns,
grants, transfers, and conveys to Purchaser all of the right, title, and
interest of Seller in and to all of the assets of Seller used exclusively in the
Business (collectively, the "PURCHASED ASSETS") free and clear of any and all
liens, claims, charges, security interests, and encumbrances as the same exist
on the Closing Date, as follows:
a. All intellectual property, trade name, trade secrets, trademarks,
personnel contracts, web site domain and content, strategic
partnerships, sponsors, receivables, publications, operating model,
manuals, licenses, and all other confidential information relating to
the Business; and
b. All current, past and future entrants and sponsors.
c. All assets of the Seller are identified in SCHEDULE 1.1(C)
d. All software programs and copyrighted products, systems and processes
used in the Business.
SECTION 1.2 EXCLUDED LIABILITIES. Purchaser or if applicable, Purchaser's
assign, shall take title to the assets listed in Schedule 1.1(c) free and clear
of all liabilities of the Seller. All liabilities of Seller are hereinafter
referred to as "EXCLUDED LIABILITIES."
SECTION 1.3 ASSIGNMENT. Purchaser may assign the assets acquired under this
agreement to a new formed wholly owned subsidiary of the Purchaser and shall
notify Seller of any assignment of the assets in writing upon such assignment.
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SECTION 2. PURCHASE PRICE AND CLOSING
SECTION 2.1 PURCHASE PRICE. The Purchase price for the Purchased Assets is
fifty thousand shares (50,000) of restricted common stock of Purchaser (the
"Shares"). Shares will be issued in the name of the Seller or as the Seller may
so direct at closing. In addition to the shares to be issued at closing,
Purchaser will agree to issue additional shares to Seller, pursuant to the
following schedule, wholly conditioned upon the business assets being purchased
generating a profit in the following three years after purchase; 25,000 shares
for 2012, 25,000 shares for 2013, and 25,000 shares for 2014.
SECTION 2.2 TIME AND PLACE OF CLOSING. The closing of the purchase and sale
of the Purchased Assets (the "CLOSING") will be upon delivery of all signed
documentation as required under this Agreement, the completion of due diligence
by Purchaser, and the delivery all documentation necessary to perfect the
delivery of the transfer of assets as determined in the sole discretion of the
Purchaser. The effective time of the closing and the transfer of the Purchased
Assets to Purchaser is 12:00 noon on the Closing Date. In the event an audit is
required under the Rules and Regulations of the SEC, the closing will take place
after the completion and delivery of an audit, if applicable, in a manner
acceptable to Purchaser, which audit can be completed by a member in good
standing of the PCAOB, the Public Company Accounting Oversight Board.
SECTION 2.3 TRANSFER AND CLOSING EXPENSES. Seller shall pay all sales and
transfer taxes levied on the transfer of the Purchased Assets, if any. Ad
valorem taxes, if any, relating to the Purchased Assets shall be prorated as of
the Closing Date.
SECTION 2.4 ALLOCATION OF PURCHASE PRICE. The consideration paid for the
Purchased Assets shall be allocated among the Purchased Assets in accordance
with the provisions contained in Treasury Regulation Section 1.1060-1T(d). The
parties agree to be bound by such allocation and to report the transaction
contemplated herein for federal income tax purposes in accordance with such
allocation. In furtherance of the foregoing, the parties hereto agree to execute
and deliver Internal Revenue Service Form 8594 reflecting such allocation.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF SELLER For the purpose of
inducing the Purchaser to purchase the Purchased Assets, Seller represents and
warrants to Purchaser as follows:
SECTION 3.1 ORGANIZATION AND QUALIFICATION. Seller is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
California and has all corporate power and authority to conduct the Business,
and to own, lease, or operate the Purchased Assets in the places where the
Business is conducted and the Purchased Assets are owned, leased, or operated.
SECTION 3.2 AUTHORITY. Seller has full power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement by Seller has been duly
and validly authorized and approved by all necessary action on the part of
Seller. This Agreement is the legal, valid, and binding obligation of Seller
enforceable against Seller in accordance with its terms, except as
enforceability may be limited by applicable equitable principles or by
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bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, and to the exercise of judicial discretion in
accordance with general equitable principles. Neither the execution and delivery
of the Agreement by Seller nor the consummation by Seller of the transactions
contemplated hereby will (i) violate Seller's Certificate of Incorporation or
Bylaws, (ii) violate any provisions of law or any order of any court or any
governmental unit to which Seller is subject, or by which any of the Purchased
Assets are bound, or conflict with, result in a breach of, or constitute a
default under any indenture, mortgage, lease, agreement, or other instrument to
which Seller is a party or by which it or any of the Purchased Assets are bound,
or (iii) result in the creation of any lien, charge, or encumbrance upon any of
the Purchased Assets.
SECTION 3.3 PERSONAL PROPERTY. Seller has good and marketable title to all
of its Assets free and clear of all liens, claims, charges, security interests,
and other encumbrances of any kind or of any nature. The Purchased Assets
include all rights, properties, interest in properties, and assets necessary to
permit Purchaser to carry on the Business as the same has heretofore been
previously conducted by Seller.
SECTION 3.4 COMPLIANCE WITH LAWS. Seller, to the best of its knowledge, is
not subject to any judgment, order, writ, injunction, or decree that adversely
affects, or might in the future reasonably be expected to adversely affect any
of the Purchased Assets or the Business. Seller is, to the best of its
knowledge, in substantial compliance with all laws applicable to the Business
and the Purchased Assets, including without limitation, all laws related to
zoning, occupational safety, labor, wages, working hours, working conditions,
environmental protection, and fair business practices. Seller, to the best of
its knowledge, has all permits, licenses, approvals, consents, and
authorizations which are required for the operation of Seller's business under
federal, state, or local laws, rules, and regulations.
SECTION 3.5 LITIGATION. There are no formal or informal complaints,
investigations, claims, charges, arbitration, grievances, actions, suits, or
proceedings pending, or to the knowledge of Seller threatened against any of the
Purchased Assets at law or in equity or admiralty, or before or by any federal,
state, municipal, or other governmental department, commission, board, bureau,
agency, or instrumentality, domestic or foreign which would affect the purchased
assets materially, except that certain action by and between Veridigm, Inc. and
Seller, which as of the closing shall have been resolved to Purchaser's
satisfaction. Seller is not subject to any order, writ, injunction, or decree of
any federal, state, municipal court, or other governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
affecting the Purchased Assets.
SECTION 3.6 BROKERS AND FINDERS. Seller has not incurred any obligation or
liability to any party for any brokerage fees, agent's commissions, or finder's
fees in connection with the transactions contemplated hereby.
SECTION 3.7 GOVERNMENTAL APPROVAL AND CONSENTS. Seller has obtained all
governmental approvals, authorizations, permits, and licenses required to permit
the operation of the Business as presently conducted.
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SECTION 3.48 INVESTMENT INTENT.
i. Restricted Shares. Seller understand that (A) the Shares Sellers are
receiving from Purchaser under this Agreement have not been registered
under the Securities Act of 1933, as amended ("the Act") or the
securities laws of any state, based upon an exemption from such
registration requirements pursuant to Section 4(2) of the Act; (B) the
Shares are and will be "restricted securities", as said term is
defined in Rule 144 of the Rules and Regulations promulgated under the
Act; and (C) the Shares may not be sold or otherwise transferred or
distributed unless exemptions from such registration provisions are
available with respect to said resale or transfer or the shares have
been registered under the Act.
ii. Transferability. Seller will not sell or otherwise transfer any of the
Shares, any interest therein unless and until (A) the Shares shall
have first been registered under the Act and/or all applicable state
securities laws; or (B) Seller shall have first delivered to Purchaser
a written opinion of counsel, which counsel and opinion (in form and
substance) shall be reasonably satisfactory to Purchaser, to the
extent that the proposed sale or transfer is exempt from the
registration provisions of the Act and all applicable state securities
laws.
iii. Investment Intent. Seller is acquiring the Shares for Investment
purposes only, without a view for resale or distribution thereof.
iv. Legend. Seller understands that the certificates representing the
Shares will bear the following or similar legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT
BE SOLD, TRANSFERRED, FURTHER PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT FOR
SUCH SECURITIES UNDER SAID ACT OR (II) AN OPINION OF COMPANY COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser hereby
represents and warrants to Seller as follows:
SECTION 4.1 ORGANIZATION AND QUALIFICATION. Purchaser is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Nevada and has all necessary power and authority to conduct its business, to
own, lease, or operate its properties in the places where such business is
conducted and such properties are owned, leased, or operated. Purchaser is
listed on the FINRA OTC Bulletin Board under the symbol DOMK. DOMK filings can
be found at www.sec.gov.
SECTION 4.2 AUTHORITY. Purchaser has full power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby. The
execution, delivery, and performance of this Agreement by Purchaser has been
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duly and validly authorized and approved by all necessary action on the part of
Purchaser, and this Agreement is the legal, valid, and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms, except as
enforceability may be limited by applicable equitable principles or by
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally, and by the exercise of judicial discretion in
accordance with equitable principles. Neither the execution and delivery of this
Agreement by Purchaser nor the consummation by Purchaser of the transactions
contemplated hereby will (i) violate Purchaser's articles of incorporation or
bylaws, (ii) violate any provisions of law or any order of any court or any
governmental unit to which Purchaser is subject, or by which its assets may be
bound, or (iii) conflict with, result in a breach of, or constitute a default
under any indenture, mortgage, lease, agreement, or other instrument to which
Purchaser is a party or by which its assets or properties may be bound.
SECTION 4.3. LITIGATION. There is no suit, action, proceeding, claim or
investigation pending, or, to Purchaser's knowledge, threatened, against
Purchaser which would prevent Purchaser from consummating the transactions
contemplated by this Agreement.
SECTION 4.4. BROKERS AND FINDERS. Purchaser has not incurred any obligation
or liability to any party for brokerage fees, agent's commissions, or finder's
fees in connection with the transactions contemplated hereby.
SECTION 5. INDEMNIFICATION
For the purposes of this Section 5, the terms "LOSS" and "LOSSES" shall
mean any and all demands, claims, actions or causes of action, assessments,
losses, damages, liabilities, costs, and expenses, including without limitation,
interest, penalties, and reasonable attorneys' and other professional fees and
expenses. All statements contained in any certificate, Exhibit or Schedule
delivered by or on behalf of Purchaser or Seller pursuant to this Agreement
shall be deemed representations and warranties hereunder by Purchaser or Seller,
as the case may be. Any inspection, preparation, or compilation of information
or Schedules, or audit of the inventories, properties, financial condition, or
other matters relating to Seller conducted by or on behalf of Purchaser pursuant
to this Agreement shall in no way limit, affect, or impair the ability of
Purchaser to rely upon the representations, warranties, covenants, and
agreements of Seller set forth herein.
SECTION 5.1 AGREEMENT OF SELLER TO INDEMNIFY PURCHASER.
(a) Subject to the terms and conditions of this Section 5, Seller hereby
agrees to indemnify, defend, and hold harmless Purchaser from, against, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Purchaser by reason of, resulting from, or based upon: (i) the
inaccuracy or untruth of any representation or warranty of Seller contained in
or made pursuant to this Agreement or in any certificate, Schedule, or Exhibit
furnished by Seller, in connection with the execution and delivery of this
Agreement and the closing of the transactions contemplated hereby, (ii) the
breach by Seller of any covenant or agreement made in or pursuant to this
Agreement or any agreement executed by Seller, and delivered to Purchaser in
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connection with the Closing of the transactions contemplated hereby; and (iii)
any Excluded Liability including without limitation the failure to comply with
the bulk sales law and any Excluded Liability that attaches to the Assets.
(b) Seller's obligation to indemnify Purchaser for Losses is subject to the
condition that Seller shall have received notice of the Losses for which
indemnity is sought on or before December 31, 2012.
(c) Purchaser's remedies against Seller for any Losses hereunder shall be
cumulative, and the exercise by Purchaser of its right to indemnification
hereunder shall not affect the right of Purchaser to exercise any other remedy
at law or in equity, to recover damages, or to obtain equitable or other relief,
PROVIDED, that Seller shall not be liable for damages in excess of the actual
damages suffered by Purchaser as a result of the act, circumstance, or condition
for which indemnification is sought. Purchaser or Purchasers' assignees may, in
its sole discretion, withhold or cancel any shares not delivered pursuant to
this Agreement as an offset against prospective damages from any claim for
Excluded Liabilities.
SECTION 5.2 AGREEMENT OF PURCHASER TO INDEMNIFY SELLER.
(a) Subject to the terms and conditions of this Section 5, Purchaser hereby
agrees to indemnify, defend, and hold harmless Seller from, against, for, and in
respect of any and all Losses asserted against, relating to, imposed upon, or
incurred by Seller by reason of, resulting from or based upon: (i) the
inaccuracy or untruth of any representation or warranty of Purchaser, contained
in or made pursuant to this Agreement or in any certificate, Schedule, or
Exhibit furnished by Purchaser, in connection with the execution and delivery of
this Agreement or the closing of the transactions contemplated hereby, or (ii)
the breach by Purchaser of any covenant or agreement made in or pursuant to this
Agreement or any agreement executed by Purchaser, and delivered to Seller in
connection with the Closing of the transactions contemplated hereby.
(b) Purchaser's obligation to indemnify Seller for Losses is subject to the
condition that Purchaser shall have received notice of the Losses for which
indemnity is sought on or before December 31, 2012.
(c) Seller's remedies against Purchaser for any Losses hereunder shall be
cumulative, and the exercise by Seller of its right to indemnification hereunder
shall not affect the right of Seller to exercise any other remedy at law or in
equity, to recover damages, or to obtain equitable or other relief, PROVIDED,
that Purchaser shall not be liable for damages in excess of the actual damages
suffered by Seller as a result of the act, circumstance, or condition for which
indemnification is sought.
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SECTION 6. POST CLOSING MATTERS
SECTION 6.1 FURTHER ASSURANCES. From and after the date hereof, Seller
agrees, without further consideration, to execute and deliver promptly to
Purchaser, such further consents, waivers, assignments, endorsements, and other
documents and instruments, and to take all such further actions, as Purchaser
may from time to time reasonably request, with respect to the assignment,
transfer, and delivery to Purchaser of the Purchased Assets, and the fulfillment
of any condition precedent to the obligations of Purchaser that was waived by
Purchaser in order to close the transactions contemplated herein, and the
consummation in full of the transactions provided for herein.
SECTION 6.2 DEFINITIONS. As used herein, the following capitalized terms
are used with the meanings thereafter ascribed:
"AFFILIATE" means any person or entity directly or indirectly Controlling,
Controlled by, or under common Control with Seller.
"AREA" means the United States, Canada, and Mexico.
"COMPETING ENTERPRISE" means any person or entity that is substantially engaged
in the Business.
"CONTROL" means the power to direct the management and affairs of a person.
"TRADE SECRETS" means information of the Business which derives economic value,
actual or potential, from not being generally known and not being readily
ascertainable by proper means to other persons who can obtain economic value
from its disclosure or use and which is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy or confidentiality,
but shall not include Excluded Information. Trade Secrets may include both
technical or non-technical data, including without limitation, (a) any process,
machine, pattern, compilation, program, method, technique, formula, chemical
formula, composition of matter, or device which (1) is not generally known or
which the Seller, with respect to the Business has a reasonable basis to believe
may not be generally known, (2) is being used or studied by the Business and is
not described in a printed patent or in any literature already published and
distributed externally by Seller with respect to the Business, and (3) is not
readily ascertainable from inspection of a product of the Business; (b) any
engineering, technical, or product specifications including those of features
used in any current product of the Business or which may be so used, or the use
of which is contemplated in a future product of the Business; (c) any
application, operating system, communication system, or other computer software
(whether in source or object code) and all flow charts, algorithms, coding
sheets, routines, subroutines, compilers, assemblers, design concepts, test
data, documentation, or manuals related thereto, whether or not copyrighted,
patented, or patentable, related to or used in the Business; or (d) information
concerning the customers, suppliers, products, pricing strategies of the
Business, personnel assignments and policies of the Business, or matters
concerning the financial affairs and management of the Business; provided
however, that Trade Secrets shall not include any Excluded Information. As used
herein, "EXCLUDED INFORMATION" means information (i) which has been voluntarily
disclosed to the public by the Business, (ii) independently developed and
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disclosed by parties other than the Business, or (iii) that otherwise enters the
public domain through lawful means or without misappropriation by Seller.
SECTION 6.3 TRADE SECRETS. Seller for itself and each Affiliate
acknowledges and agrees that all Trade Secrets related expressly to the
Business, and all physical embodiments thereof, are a part of the Purchased
Assets are confidential to and shall be and remain the sole and exclusive
property of Purchaser. Seller for itself and each Affiliate agrees that all
Trade Secrets related to the Business will be held in trust and strictest
confidence, that each Affiliate shall protect such Trade Secrets from
disclosure, and that each Affiliate will make no use of such Trade Secrets
without prior written consent of Purchaser. The obligations of confidentiality
contained in this Section shall apply from the date of this Agreement and with
respect to all Trade Secrets at all times thereafter, until such Trade Secret is
no longer a trade secret under applicable law.
SECTION 6.4 REMEDIES. Seller for itself and any Affiliate covenants and
agrees that Purchaser by virtue of the consummation of the transactions
contemplated by this Agreement will be engaged in the Business in and throughout
the world, and that great loss and irreparable damage would be suffered by
Purchaser if Seller should breach or violate any of the terms or provisions of
the covenants and agreements set forth in this Section. Seller for itself and
any Affiliate, further acknowledges and agrees that each such covenant and
agreement is reasonably necessary to protect and preserve unto Purchaser the
benefit of its bargain in the acquisition of the Business, including, without
limitation, the good will thereof. Therefore, in addition to all the remedies
provided in this Agreement, or available at law or in equity, Seller for itself
and any Affiliate jointly and severally agrees Purchaser shall be entitled to a
temporary restraining order and a permanent injunction to prevent a breach or
contemplated breach of any of the covenants or agreements of Seller contained in
this Section 6. The existence of any claim, demand, action, or cause of action
of Seller against Purchaser shall not constitute a defense to the enforcement by
Purchaser of any of the covenants or agreements herein whether predicated upon
this Agreement or otherwise, and shall not constitute a defense to the
enforcement by Purchaser of any of its rights hereunder.
SECTION 6.5 BLUE PENCILING. In the event that any one or more of the
provisions, or parts of any provisions, contained in this Agreement shall for
any reason be held to be invalid, illegal, or unenforceable in any respect by a
court of competent jurisdiction, the same shall not invalidate or otherwise
affect any other provision hereof, and the parties hereto agree that such
provisions shall be reformed to set forth the maximum limitations permitted
under applicable law. Specifically, but without limiting the foregoing in any
way, each of the covenants of the parties to this Agreement contained herein
shall be deemed and shall be construed as a separate and independent covenant
and should any part or provision of any of such covenants be held or declared
invalid by any court of competent jurisdiction, such invalidity shall in no way
render invalid or unenforceable any other part or provision thereof or any other
covenant of the parties not held or declared invalid.
SECTION 6.6 PUT PROVISION. In the event that Purchaser ceases
operation at any time within five years after closing, or ceases operation of
the Business within five years of closing, Seller may Put any and all shares of
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Purchaser received pursuant to this agreement to Purchaser and receive the
assets purchased by Purchased hereunder in return.
SECTION 7. GENERAL PROVISIONS
SECTION 7.1 BULK SALES LAW WAIVER. Purchaser and Seller each agree to waive
compliance by the other with the provisions of the bulk sales law or comparable
law of any jurisdiction to extent that the same may be applicable to the
transactions contemplated by this Agreement. Seller agrees to indemnify and hold
Purchaser harmless from and against any loss, damage, liability, cost, expense
or claim arising out of any failure to take any required actions under the bulk
sales or comparable law of any state.
SECTION 7.2 EXPENSES. Except as set forth in Section 2 hereof, all expenses
incurred by the parties hereto in connection with or related to the
authorization, preparation, and execution of this Agreement and the Closing of
the transaction contemplated hereby, including without limiting the generality
of the foregoing, all fees and expenses of agents, representatives, counsel, and
accountants employed by any such party, shall be borne solely and entirely by
the party which has incurred the same.
SECTION 7.3 BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and their respective successors or assigns, as permitted herein.
SECTION 7.4 HEADINGS. The Section, subsection, and other headings in this
Agreement are inserted solely as a matter of convenience and for reference, and
are not a part of this Agreement.
SECTION 7.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one counterpart has been signed by each party and
delivered to the other party hereto and such execution shall be conclusively
evidenced by a facsimile transmitted copy or electronic mail transmitted copy of
the execution page hereof.
SECTION 7.6 GOVERNING LAW. This Agreement shall be construed under the laws
of the State of Florida, without giving effect to applicable principles of
conflicts of law.
SECTION 7.7 ADDITIONAL ACTIONS. Each party covenants that at any time, and
from time to time, it will execute such additional instruments and take such
actions as may be reasonably requested by the other parties to confirm or
perfect or otherwise to carry out the intent and purposes of this Agreement.
SECTION 7.8 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes and cancels any prior
agreements, representations, warranties, or communications, whether oral or
written, among the parties hereto relating to the transactions contemplated
hereby or the subject matter herein. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally, but only by an
agreement in writing signed by the party against whom or which the enforcement
of such change, waiver, discharge or termination is sought.
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SECTION 7.9 PREPARATION OF AGREEMENT. This Agreement shall not be construed
more strongly against any party regardless of who is responsible for its
preparation. The parties acknowledge each contributed and is equally responsible
for its preparation.
SECTION 7.10 ASSIGNMENT This Agreement shall not be assigned by operation
of law or otherwise except as provided for herein.
SECTION 7.11 THIRD PARTIES Nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties hereto and their respective
administrators, executors, legal representatives, heirs, successors and
assignees. Nothing in this Agreement is intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation or action
over or against any party to this Agreement.
SECTION 7.12 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (i) on the date they are
delivered if delivered in person; (ii) on the date initially received if
delivered by facsimile transmission with independent confirmation of receipt
followed by confirmation of notice by registered or certified mail or overnight
courier service; (iii) on the date delivered by an overnight courier service; or
(iv) on the fifth business day after it is mailed by registered or certified
mail, return receipt requested with postage and other fees prepaid, to the
address set forth herein of such other addresses provided by each party to the
other parties in accordance with the terms or provisions hereof.
SECTION 7.13 PARTIAL INVALIDITY. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality, or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause completion of the transactions
contemplated hereby to be unreasonable.
SECTION 7.14 SURVIVAL. The covenants, representations, warranties, and
agreements contained herein shall survive the Closing of the transactions
contemplated herein, for the length of time that Purchaser or Seller, as the
case may be, may assert an indemnification claim for a breach or violation of
such covenant, representation, warranty, or agreement pursuant to Section 5.
hereof.
SECTION 7.15 ARBITRATION. Any controversy, dispute, or claim arising out of
or relating to this Agreement or a claimed default hereunder, other than
requests for injunctive relief or damages for a breach of a Restrictive Covenant
including without limitation Sections 6.2, 6.3, 6.4, and 6.5 hereof, shall be
resolved by arbitration in accordance with the rules of the American Arbitration
Association (the "AAA"), by which each party will be bound.
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IN WITNESS WHEREOF, each party hereto has executed this Agreement, or caused
this Agreement to be executed on its behalf by its duly authorized officers, all
as of the Closing Date.
PURCHASER: DOMARK INTERNATIONAL, INC. SELLER: USPT, LLC
By: /s/ R. Thomas Kidd By: /s/ Jim Hartley
--------------------------------- ---------------------------------
Its CEO Its Managing Member
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SCHEDULE 1.1(c)
List of Assets
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