LIMITED ASSET PURCHASE AGREEMENT BETWEEN VEMICS, INC. AND CLEARLOBBY, INC.
Exhibit
10.1
BETWEEN
VEMICS, INC. AND CLEARLOBBY, INC.
AGREEMENT
made and entered into as of 11th day of September 2008, by and between
ClearLobby, Inc., a Delaware corporation, with its principal place of business
at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (''Seller'') and Vemics, Inc., a Nevada
corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, (''Buyer'').
W I T N E
S S E T H
Whereas
Seller desires to sell certain of its assets, including certain trademarks,
computer software and know-how related thereto, in accordance with the terms and
conditions of this Agreement; and
Whereas
Buyer desires to purchase such assets in accordance with the terms and
provisions hereof.
Now,
therefore, in consideration of the premises and of the mutual promises herein
contained, the parties agree as follows;
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1.
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Sale
and Purchase of Assets
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1.1 Transfer of
assets. Subject to the terms and provisions hereof, Buyer, in
reliance upon Seller's warranties and representations herein made, shall
purchase and acquire from Seller, and Seller shall sell, transfer and convey to
Buyer, with the exceptions set forth herein and in the schedules annexed hereto,
all of the assets, properties and rights of Seller, of every type and
description, whether tangible or intangible, including but not limited to the
following:
(a) All
designs, drawings, procedures (including design, manufacturing, test and
maintenance procedures), specifications, software (other than as described in
Subparagraph (b) hereof), printed circuit board art work, integrated circuit
masks, test equipment, tools, fixtures, documentation, training materials, and
information, in whatever form, related to, useful, utilizable or necessary in
the design, manufacture, test and/or maintenance of the website known
as the Clearlobby Website; the foregoing being more specifically defined and
described in the Schedule of Computer Technology, Schedule A, attached hereto
and made a part hereof (hereinafter collectively referred to as ''Computer
Technology'').
(b) All
software (including object and source code, in machine readable and listing
form), documentation (including internal documentation, documentation made
available to customers and training materials), flowcharts, source code notes,
software tools, compilers, test routines and information, in whatever form, and
all revisions, release levels and versions of the foregoing, used on or with the
Computer Technology, offered for sale or license by Seller, developed by or for
Seller, or in the possession of Seller; the foregoing being more specifically
defined and described in the Schedule of Software, Schedule B, attached hereto
and made a part hereof (hereinafter collectively referred to as
''Software'').
(c) All
patents, patent applications, copyrights, trade secrets, trademarks, trade
names, and other proprietary rights based, in whole or in part, or included in
or covering the Computer Technology, Software or any portion thereof; the
foregoing being more specifically defined and described in the Schedule of
Proprietary Rights, Schedule C, attached hereto and made a part hereof
(hereinafter collectively referred to as ''Proprietary Rights'').
(d) All
inventories of Computer Technology, Software, or any portions thereof; the
foregoing being more specifically defined and described in the Schedule of
Inventories, Schedule D, attached hereto and made a part hereof (hereinafter
collectively referred to as ''Inventories'').
(e) All
rights of Seller under sales agreements, franchises, license agreements, lease
agreements, maintenance agreements, procurement agreements, consultant
agreement, employee agreements, invention agreements and all other agreements of
whatever nature or kind relating to Computer Technology, Software or Proprietary
Rights specifically defined and described in the Schedule of Contract Rights,
Schedule E, attached hereto and made a part hereof (hereinafter collectively
referred to as ''Contract Rights'').
(f) All
rights of Seller in the domain name and url ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ being more
specifically defined and described in the Schedule of Inventories, Schedule D,
attached hereto and made a part hereof.
All
assets of Seller to be transferred to the Buyer pursuant hereto, including the
Computer Technology, Software, Proprietary Rights, Inventories and Contract
Rights, are sometimes hereinafter collectively referred to as ''Seller's
Assets.''
1.2 Excluded assets.The following
shall be excluded from Seller's Assets being sold and transferred to Buyer
hereunder:
(a)
Seller's cash on hand and bank deposits at the time of Closing.
(b) All
accounts receivable, refundable income taxes, prepaid interest, investments in
marketable securities, loans and exchanges; and loans
receivable.
(c) All
stock or securities, in whatever form, of Seller.
(d) All
liabilities or obligations of Seller, in existence at the time of Closing as
well as anytime after the closing, including, accounts payable, but excluding
the obligations expressly included in Contract Rights.
(e) All
leases for land and/or buildings.
1.3 Encumbrances. The
sale and transfer of Seller's Assets shall, at the time of Closing, be free and
clear of all obligations, security interests, liens, infringements and
encumbrances whatsoever..
1.4 Purchase price .Subject to
the provisions of Paragraph 1.5 and the Promissory Note attached hereto as
Schedule G, the purchase price for the sale and transfer of Seller's Assets to
Buyer is the sum of $250,000.00. The purchase price shall be payable
as follows:
(a) At
the time of Closing, by wire transfer to Seller's account at Citizen’s Bank
$10,000.00. Wire transfer and account information shall be provided
by the Seller to the Buyer at Closing.
(b) The
remaining $240,000.00 of the purchase price shall disbursed by Buyer to Seller
in accordance with the terms of the Promissory Note dated September 11, 2008 and
attached hereto as Schedule F.
(d) ▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall each be issued 10,000 shares of SEC 144
restricted stock in Buyers Company.
1.5 Closing. The
completion of the contemplated transactions is herein designated as the Closing,
which shall take place on the 9th
day of September, 2008, or such later date as may be mutually agreed upon by the
parties.
1.6
Intentionally
Omitted.
1.7 Access and information
..Seller shall give to Buyer, Buyer's accountants, technical personnel,
counsel and other representatives access, during normal business hours, from the
date hereof to Closing, to Computer Technology, Software, Inventories, books,
records, contracts and commitments of Seller (including Contract Rights) and
shall furnish Buyer, during such period, with information concerning Seller's
Assets as Buyer may reasonably request. Such information shall be
subject to the provisions of Paragraph 8.15.
1.8 Conduct of business .Seller
warrants and represents to and covenants and agrees with Buyer that, pending
completion of the Closing, unless otherwise agreed in writing by
Buyer:
(a)
Seller shall not sell, license, contract, commit or otherwise encumber Seller's
Assets, other than in the ordinary course of business.
(b)
Seller shall carry and continue in force and effect through the Closing, such
fire and extended coverage insurance on the Inventories as is in existence of
the date of this Agreement.
(c)
Seller shall not amend, modify or terminate any agreement to which it is a party
and which in any way relates to Seller's Assets, without the prior written
consent of Buyer.
(d) There
will be no increase in any compensation payable or to become payable by Seller
to any employee, agent or consultant.
2. Warranties and Representations of
Seller
Seller
warrants and represents to Buyer as follows:
2.1 Corporate
organization. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business in the Commonwealth of Massachusetts and has full
power and authority to carry on its current business and to own, use and sell
its assets, including Seller's Assets, and properties.
2.2 Corporate authority.The
execution and delivery of this Agreement to Buyer and the carrying out of the
provisions hereof have been duly authorized by the Board of Directors of Seller
and authorized by Seller's shareholders, and at Closing, Seller shall furnish
Buyer copies of the authorizing resolutions of Seller's Board of Directors and
its shareholders.
2.3 Labor issues. To
the best of Seller's knowledge and belief, no strike, picketing or similar
action is pending or threatened against Seller by its employees or any labor
union. To the best of its knowledge and belief, Seller is not engaged
in any unfair labor practices in connection with the operation of the business
of Seller relating to Seller's Assets. Seller will not be responsible
for any violations arising or determined subsequent to Closing that have been
caused by any act of Buyer or any failure to act by Buyer. Seller
represents and warrants that it has not had any solicitation by any labor
organization within the preceding three years.
2.4 Non-infringement. The
Computer Technology, Software, Proprietary Rights, and Inventories, in whole or
in part, do not infringe, to the best of Seller’s knowledge, any patents,
copyrights, trade secrets, trademarks or other proprietary rights of any third
parties and no rights or licenses are required from third parties to exercise
any rights with respect to Seller's Assets or any portion thereof.
2.5 Proprietary
rights. The Proprietary Rights are in full force and effect
and there are no liens, claims, proceedings or causes of actions that in any way
affect the validity or enforceability of such Proprietary
Rights. Except for licenses granted in the ordinary course of
business to purchasers/licensees of Seller's products, no rights or licenses,
express or implied, have been granted to any third parties under Proprietary
Rights or any portion thereof
2.6
Contracts, licenses, permits
and approvals.
(a)
Seller has no presently existing contracts or commitments extending beyond the
execution date hereof that in any way relate to Seller's Assets that are not
included in the Schedule of Contract Rights, Schedule E hereto.
(b)
Seller does not have any obligation under any collective bargaining agreement or
any other contract with a labor union. Except to the extent set forth
in the Schedule of Contract Rights, Schedule E hereto, Seller is not a party to
any executive or employee compensation plan or agreement or compensatory plan or
agreement with any independent contractors, or employees or agents of Seller,
including, without limitation, any pension, retirement, profit sharing, stock
purchase, stock option, bonus or savings plan. Seller agrees to pay
or allow as a credit to Buyer any vacation or sick pay accrued to Seller's
employees at Closing.
(c)
Seller agrees to inform Buyer of any changes in status of the Paragraph 2.6
representations.
2.7 Compliance. Neither
the execution and delivery of this Agreement, nor any instrument or agreement to
be delivered by Seller to Buyer at the Closing pursuant to this Agreement, nor
the compliance with the terms and provisions thereof by Seller, will result in
the breach of any applicable statute or regulation promulgated thereunder, or
any administrative or court order or decree, nor will such compliance conflict
with, or result in the breach of, any of the terms, conditions or provisions of
the Certificate of Incorporation or bylaws of Seller, as amended, or any
agreement or other instrument to which Seller is a party, or by which Seller is
or may be bound, or constitute an event of default or default thereunder, or
with the lapse of time or the giving of notice or both constitute an event of
default thereunder.
2.8 Fitness of
Assets. The Assets as of the date hereof consist, and at
Closing will consist of items of a quality and quantity usable or salable in the
ordinary course of business of Seller and are currently used by Seller in the
ordinary course of business.
2.9Litigation. There is no suit
or action, or legal, administrative, arbitration or other proceeding or
governmental investigation affecting Seller's Assets pending, or to the best
knowledge and belief of Seller, threatened against Seller that materially or
adversely affects the business of Seller relating to Seller's Assets or Seller's
Assets. Seller further warrants and represents that there is no
outstanding judgment, decree or order against Seller that affects Seller or
Seller's Assets in any way.
2.10
Effect of
Agreement. The terms and conditions of this Agreement and all
other instruments and agreements to be delivered by Seller to Buyer pursuant to
the terms and conditions of this Agreement are valid, binding and enforceable
against Seller in accordance with their terms, subject only to the applicable
bankruptcy, moratorium and other laws generally affecting the rights and
remedies of creditors.
2.11
Good
title. Seller has and shall transfer to Buyer at Closing good
and marketable title to Seller's Assets, free and clear of any and all security
interests, encumbrances or liens.
2.12
Representations and
warranties. No representation or warranty by Seller in this
Agreement or any documents provided hereunder contains or will contain any
untrue statement or omissions or will omit to state any material fact necessary
to make the statements contained herein or therein not
misleading. All representations and warranties made by Seller in this
Agreement and any documents provided hereunder shall be true and correct as of
the date of Closing with the same force and effect as if they had been made on
and as of such date.
2.13
Due
performance. Seller has in all material respects performed all
obligations required to be performed by it hereunder, and is not in default in
any material respect hereunder, or in violation in any material respect of its
Certificate of Incorporation or bylaws, as amended, or any agreement, lease,
mortgage, note, bond, indenture, license or other documents or undertaking, oral
or written, to which it is a party or by which it is bound, or by which it or
any of its properties or assets may be materially affected. Seller is not in
violation or default in any material respect of any order, regulation,
injunction or decree of any court, administrative agency or governmental
body. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby will not result in any of
the violations or defaults referred to in this paragraph.
2.14
Subsidiaries. Seller
does not have any subsidiaries nor does it have any interest in any business
enterprise not disclosed herein relating to or competing with Seller's Assets or
any portion thereof.
2.15
Computer
technology. Schedule A, Computer Technology, is a complete
listing of all items used and required by Seller to design, manufacture, test,
market and support the computer system known as the Clearlobby
website.
2.16
Software. Schedule
B, Software, is a complete schedule of all software marketed by Seller for use
on or with the Computer Technology, there are no known errors, malfunctions
and/or defects in the Software; there is no known unauthorized use of the
Software or any portion thereof by any third party; and there is no known users
of the software other than the parties hereto.
2.17
Rights of Seller in Computer
Technology and Software. Computer Technology and Software have
been created solely by and / or for Seller who is under a contractual obligation
to assign all right, title and interest therein to Buyer the terms and
conditions set forth in this agreement.
2.18
Date and Time Compliance of
Computer Technology and Software. Seller represents and
warrants that the computer technology and software does and shall operate in a
well-defined, correct and predictable manner when using any date or time, and
does and shall not cause material errors related to any date or
time. Seller shall not be responsible for any computer technology or
software malfunctions or errors that occur subsequent to the Closing if the
Buyer has made material changes to the technology purchased under this
Agreement. Notwithstanding any provisions of this Agreement to the
contrary, Section 2.19 shall survive the Closing for a period of twelve (12)
months.
2.19
Non-Competition. Seller
hereby agrees not to compete directly or indirectly with the business of Buyer
or any of its affiliates, within the United States of America for a period of
Two ("2") Years following the effective date of this Agreement. As
used herein "not to compete" shall mean that Seller shall not own, manage,
operate, advise, consult, invest in, be engaged in or otherwise assist a
business substantially similar to, or competitive with, the business of Buyer as
of the date of this Agreement. For purposes of this Section, Seller
shall include all officers, directors and employees of Seller’s
Corporation. In addition, for purposes of this Agreement, the
“Business” of Buyer shall be that which is conducted by the iMedicor division of
Buyer, specifically: (i) physician to physician file sharing; (ii) continuing
medical education; (iii) educational programs for the healthcare industry; and
(iv) online pharmaceutical industry to physician sales and marketing
interactions.
2.20
Non-Solicitation of Clients
and Customers. Seller hereby agrees that following the
execution of this Agreement that they shall not, as a company, consultant or
agent for any other entity or person, seek to solicit or carry out any work of
the same or similar nature, or offer, develop, license any similar product or
service to the Assets sold herein, for any client or customer of Buyer or any of
its affiliates. As used herein "similar product or service" shall
mean any product or service similar to that offered, licensed, contemplated or
developed in a similar Business (as defined herein) to Buyer.
2.21
Non-Solicitation of Buyer’s
Employees. Seller hereby agrees that they shall not as a
company, employer, consultant or agent for any other entity or person, solicit,
engage or employ any employee of the Buyer. Seller shall not induce
any Employee of Buyer or any of its affiliates to terminate his or her
employment with Buyer or any of its affiliates, or hire or assist in the hiring
of any such Employee by any other entity or person.
3. Warranties and Representations of
Buyer
Buyer
warrants and represents to Seller as follows:
3.1 Corporate
organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and is duly
qualified to do business in the State of New York and has full power and
authority to carry on its current business and to purchase, own, use and sell
its assets and properties.
3.2 Corporate
authority. The execution and delivery of this Agreement to
Seller and the carrying out of the provisions hereof have been duly authorized
by the Board of Directors of Buyer, and at Closing, Buyer shall furnish Seller a
copy of the authorizing resolutions of Buyer's Board of Directors.
3.3 Binding
nature. This Agreement shall be, when duly executed and
delivered, a legal and binding obligation of Buyer, enforceable in accordance
with its terms.
3.4 Representations and
warranties. No warranties or representations of Buyer in this
Agreement contains or will contain any untrue statement or omissions, or will
omit to state a material fact necessary to make the statements contained herein
not misleading. All representations and warranties made by Buyer in
this Agreement shall be true and correct as of Closing with the same force and
effect as if they had been made on and as of such date.
3.5 Compliance with securities
laws. To the best of Buyer's knowledge and belief, neither
Buyer nor any officer, director, affiliate, or controlling person of Buyer has
committed any violation, or been in any way in contravention, of any law, rule
or regulation governing transactions in securities, in connection with the
transactions herein.
3.6 Inspection and
value. Buyer has formed its own opinion as to the value of
Seller's Assets being purchased hereunder. Seller's warranties
include such express written warranties as are contained in this
Agreement.
3.7
Litigation. There
are no pending, or to the best knowledge and belief of Buyer, threatened actions
or proceedings before any court or administrative agency or other authority that
might or will materially or adversely affect Buyer's ability or right to perform
all of Buyer's obligations hereunder.
3.8 Compliance. Neither
the execution and delivery of this Agreement, nor any instrument or agreement to
be delivered by Buyer to Seller at the Closing pursuant to this Agreement, nor
the compliance with the terms and provisions thereof by Buyer, will result in
the breach of any applicable statute or regulation promulgated thereunder, or
any administrative or court order or decree, nor will such compliance conflict
with, or result in the breach of, any of the terms, conditions or provisions of
the Certificate of Incorporation or bylaws of Buyer, as amended, or any
agreement or other instrument to which Buyer is a party, or by which Buyer is or
may be bound, or constitute an event of default or default thereunder, or with
the lapse of time or the giving of notice or both constitute an event of default
thereunder.
3.9 Effect of
Agreement. The terms and conditions of this Agreement and all
other instruments and agreements to be delivered by Buyer to Seller pursuant to
the terms and conditions of this Agreement are valid, binding and enforceable
against Buyer in accordance with their terms.
3.10
Good Title. Buyer has
and shall transfer to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ at Closing good and
marketable title to 10,000 SEC 144 restricted shares each, free and clear of any
and all security interests, encumbrances, or liens.
3.11
Due
performance. Buyer has in all material respects performed all
obligations required to be performed by it hereunder, and is not in default in
any material respect hereunder, or in violation in any material respect of its
Certificate of Incorporation or bylaws, as amended, or any agreement, lease,
mortgage, note, bond, indenture, license or other documents or undertaking, oral
or written, to which it is a party or by which it is bound, or by which it or
any of its properties or assets may be materially affected. Buyer is not in
violation or default in any material respect of any order, regulation,
injunction or decree of any court, administrative agency or governmental
body. The execution and delivery of this Agreement, and the
consummation of the transactions contemplated hereby will not result in any of
the violations or defaults referred to in this paragraph.
3.12
Buyer agrees to inform Seller according to the Notice provisions provided for
herein of any and all investment, in excess of five million (5,000,000) dollars,
raised from the date of Closing until the satisfaction of the Promissory
Note.
4.
Liabilities
4.1 No assumption of
liabilities.
(a)
Seller acknowledges that Buyer is acquiring Seller's Assets hereunder without
any assumption of Seller's liabilities.
(b)
Seller will indemnify and hold Buyer harmless from and against any and all
claims for products, service, and professional liability against Seller arising
out of sales of products or services or grants of licenses rendered by Seller
prior to Closing.
5. Conditions
Precedent
5.1 Conditions precedent to Seller's
obligations. The obligations of Seller to complete the Closing
hereunder are, at Seller's option, subject to the following
conditions:
(a) All
representations and warranties by Buyer contained in this Agreement shall be
true in all material respects as of and at the Closing.
(b) Buyer
shall have performed and complied with all agreements, terms and conditions
required by this Agreement to be performed and complied with by Buyer on or
before the Closing.
(c)
Seller shall have received an opinion of counsel from Buyer, dated the Closing
date, in form and substance reasonably satisfactory to counsel for Seller,
stating that:
(i) Buyer
is a corporation duly organized and existing in good standing under the laws of
the State of Nevada and is duly qualified to do business in the State of New
York.
(ii)
Buyer has full power and authority to make, execute, deliver and perform this
Agreement, and all corporate and other proceedings required to be taken by
Buyer, its directors to authorize Buyer to enter into and carry out this
Agreement and the transactions contemplated hereby have been duly and properly
taken, and this Agreement constitutes a valid obligation binding upon Buyer in
accordance with its terms, and that Buyer has the corporate power to conduct the
type of business presently conducted by Seller relating to Seller's
Assets.
(iii) The
execution and delivery of this Agreement, and the consummation hereof, do not
conflict with, or result in breach of, or constitute a default under, the
Article of Incorporation or bylaws of Buyer, as amended, or any material
agreement or instrument of which such counsel has knowledge and to which Buyer
is a party or by which it is bound.
(d)
Seller shall not be in bankruptcy or similar proceedings.
5.2 Conditions precedent to Buyer's
obligations. The obligations of Buyer to complete the Closing
under this Agreement are, at Buyer's option, subject to fulfillment by Seller,
or otherwise, of each of the following conditions:
(a) All
representations and warranties of Seller contained in this Agreement shall be
true in all material respects as of and at the Closing with the same effect as
if said representations and warranties had been made on and as of Closing,
except and to the extent otherwise specifically provided by the terms and
conditions of this Agreement.
(b)
Seller shall have performed and complied with all agreements, terms and
conditions required by this Agreement to be performed and complied with by
Seller on or before the Closing.
(c) The
employees of Seller are listed on the Schedule of Employees, Schedule F,
attached hereto and made a part hereof.
(d) Buyer
shall have received an opinion of counsel from Seller, dated the Closing date,
in form and substance reasonably satisfactory to counsel for Buyer, stating
that:
(i)
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, has full corporate power to own, lease
and sell its assets, including Seller's Assets, and to conduct its then current
business and is duly qualified to do business and is in good standing in the
State of Delaware and every other jurisdiction where such qualification may be
necessary.
(ii)
Seller has the full power and authority to make, execute, deliver and perform
this Agreement. All corporate and other proceedings required to be
taken by Seller, its directors and shareholders to authorize Seller to enter
into and carry out this Agreement and the transactions contemplated hereby have
been duly and properly taken, and this Agreement constitutes a valid obligation
binding upon Seller in accordance with its terms.
(iii) At
the Closing, Buyer shall receive good and marketable title to all of Seller's
Assets, free and clear of any and all security interests, encumbrances, liens,
infringements, licenses in favor of others (except and to the extent expressly
provided herein) or other interests.
(iv)
Counsel does not know of any litigation, proceeding or governmental
investigation pending or threatened against or relating to Seller that would
adversely affect, in any way, the business of Seller's Assets or Seller's
Assets.
(v) The
execution and delivery of this Agreement and consummation hereof do not conflict
with, or result in the breach of, or constitute a default under the Certificate
of Incorporation or bylaws of Seller, or any material agreement or instrument of
which counsel has knowledge and to which Seller is a party or by which Seller is
bound.
(vi) The
business of Seller and Seller's Assets shall not have been materially and
adversely affected as a result of any transaction or labor dispute or
discussion.
(vii)
Seller does not have any subsidiary corporations or other undisclosed business
enterprises.
(viii)
All corporate and other proceedings and actions required by this Agreement or by
law or any rules or regulations promulgated thereunder, to be taken by or on the
part of Seller, its Board of Directors or its shareholders to authorize Seller
to execute, deliver and perform its duties and obligations arising under this
Agreement have been duly and validly taken.
(ix)
Seller has complied with all applicable statutes, the provisions of its
Certificate of Incorporation and bylaws, as amended, and all other laws and
regulations applicable to the transactions contemplated by this Agreement to be
performed by Seller.
(x)
Seller's Assets are free and clear of all perfected, filed and/or recorded
liens, charges, and encumbrances. The instruments of assignment,
transfer and conveyance of Seller's Assets to Buyer comply in all respect with
the terms of this Agreement and are sufficient to vest in Buyer all right, title
and interest in respect to all of Seller's Assets.
(xi)
Neither the execution and delivery of this Agreement, nor any instrument or
agreement delivered by Seller to Buyer at the Closing pursuant to this
Agreement, nor the compliance with the terms and provisions hereof by Seller
resulted in or will result in the breach of any applicable statute or regulation
promulgated thereunder, or any administrative or court order or decree, nor will
such compliance conflict with or result in the breach of any of the terms,
conditions, or provisions of the Certificate of Incorporation or bylaws, as
amended, of Seller, or any agreement or other instrument to which Seller is a
party, or by which Seller is or may be, bound, or constitute an event of default
or, with the lapse of time or the giving of notice, or both, constitute an event
of default thereunder.
(xii)
This Agreement and all of the instruments and agreements delivered by Seller to
Buyer on the date hereof are legal, valid, and binding obligations of Seller,
enforceable in accordance with their terms.
(xiii)
There is no suit, action or legal, administrative, arbitration or other
proceeding or governmental investigation, or any material change affecting any
of Seller's Assets pending or, to the Seller’s counsel's knowledge, after due
inquiry, threatened against Seller, which might materially or adversely affect
the financial condition of Seller or the conduct of Seller's business related in
any way to Seller's Assets.
(xiv) To
Seller’s knowledge, there is no suit, action or claim that the Computer
Technology, Software, Proprietary Rights or Inventories infringe any patents,
copyrights, trade secrets, trademarks or other proprietary rights of any third
parties, and that the Computer Technology, Software, Proprietary Rights,
Inventories or any portion thereof or the exercise of any rights related thereto
or to Seller's Assets do not infringe any patents, copyrights, trade secrets,
trademarks or other proprietary rights of third parties.
(d)
Seller shall have delivered to buyer such other instruments and documents as
Buyer shall reasonably request for the purpose of further perfecting the title
of Buyer in Seller's Assets.
(e)
Seller shall not be in bankruptcy or similar proceedings.
5.3 Waivers and
consents. Promptly following the execution of this Agreement,
Seller shall use its best efforts to obtain such written waivers and consents as
may be required, or reasonably requested by Buyer, in connection with the sale
and assignment of Seller's Assets by Seller to Buyer in accordance with the
terms of this Agreement.
6. Closing
Obligations
6.1 Seller's obligations at
Closing. At the Closing, Seller shall execute and deliver to
Buyer:
(a) A
▇▇▇▇ of sale, assignments, and such other instruments, and documents of
conveyance and transfer to Buyer all of Seller's Assets.
(b)
Appropriate original instruments of consent or waiver executed by third parties
with respect to all Contract Rights being transferred to Buyer hereunder in
order more fully to effect transfer of Seller's Assets hereunder, including,
without limitation, consents by all appropriate governmental agencies, if
any.
(c)
Possession of the originals of all Seller's Assets and all copies thereof; it
being understood and agreed that no Seller's Assets or any portion thereof shall
remain in the possession or control of Seller after the
Closing.
(d) True
and complete copies of resolutions duly accepted by Seller's board of Directors
and all shareholders entitled to vote hereon confirming this Agreement,
authorizing the carrying out of all transactions contemplated herein and the
execution and delivery by Seller of all instruments then or thereafter required
to do so; said resolutions to be duly certified by the Secretary of
Seller.
(e)
Opinion of Seller's counsel as hereinabove provided.
(f) Such
other instruments and documents as may be elsewhere herein
required.
(g) A
certificate signed by the President and by the Secretary of Seller, dated the
date of Closing, certifying that all of Seller's representations and warranties
set forth in this Agreement continue to be true on the Closing date as if
originally made on such date, except and to the extent otherwise expressly
provided or permitted in this Agreement.
(h) All
documents necessary to transfer the domain name ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ to
Buyer.
(i) All
documents necessary to document the transfer Seller’s Ownership rights in the
assets being transferred herein to Buyer.
6.2 Seller's further
assurances.From time to time, at Buyer's request and expense, whether at
or after the Closing and without further consideration, Seller
shall:
(a)
Execute and deliver to Buyer such instruments as may reasonably be required to
carry out the intent and purpose of this Agreement.
(b)
Deliver to Buyer such other data, papers and information as may be requested by
Buyer to assist Buyer in the use of Seller's Assets.
6.3 Buyer's obligations at
▇▇▇▇▇▇▇.▇▇ Closing, Buyer shall execute and deliver to
Seller:
(a) The
payments provided for herein.
(b) Stock
certificates in the names of ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ for 10,000 SEC
144 restricted common shares of Buyer.
(c) An
opinion of counsel for Buyer as hereinabove required.
(d) True
and complete copies of resolutions duly adopted by Buyer's Board of Directors
which provide all necessary corporate authorization for the execution and
carrying out of this Agreement and the provisions hereof.
(e) A
certificate signed by the President and by the Secretary of Buyer, dated the
date of Closing, certifying that all of representations and warranties set forth
in this Agreement continue to be true on the Closing date as if originally made
on such date and the fulfillment of the covenants and agreements as of the
Closing.
(f)
Appropriate instruments assuming obligations of Seller in the Contract Rights
and indemnifying Seller.
(g) Such
other instruments and documents as may be elsewhere herein
required.
(h) The
Buyers, by this Agreement, effectively transfer the shares referred to above
(6.3(b) to ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
7. Employees
7.1 Data on employees - Seller
shall comply with whatever reasonable requests Buyer may make for additional
information relating to its employees.
8. Miscellaneous
8.1 Brokerage. Each
party hereto represents and warrants to the other that no broker or finder is
entitled to any commission, or similar fee, in connection with the making and
carrying out of this Agreement.
8.2 Taxes. The Parties
hereto shall be solely responsible for their own tax liability. Each
Party to this Agreement shall be responsible for the payment of any taxes
attributable to and/or accessed against them, as a result of the transactions
contemplated hereunder. All fees, costs, charges, and expenses
payable to any federal, state, or municipal authority, including without
limitation all filing fees, documentary stamps and transfer, sales and other
taxes required to be paid, or imposed in connection with the terms of this
Agreement shall be paid by the Party incurring such costs.
8.3 Indemnification.Seller
covenants and agrees to defend, indemnify, and hold Buyer harmless against any
loss, damage, claim of third parties, actions, suits, demands, judgments, or
expense (including legal and other fees, costs and charges) incurred or
sustained by Buyer as a result of or attributable, in whole or in part, to any
misrepresentation or breach of any representation, warranty, covenant, or
agreement herein (including, without limitation, provisions on applicable bulk
transfer laws) given or made by Seller. Buyer covenants and agrees to defend,
indemnify, and hold Seller harmless against any loss, damage, claim of third
parties, actions, suits, demands, judgments, or expenses (including legal and
other fees, costs and charges) incurred or sustained by Seller as a result of or
attributable, in while or in part, to any misrepresentation or breach of any
representation, warranty, covenant, or agreement herein (including, without
limitation, provisions with respect to Buyer's representations of
compliance with securities laws, rules and regulations) given or made by
Buyer.
8.3.1
▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ shall jointly indemnify Buyer against any
claim of third parties asserting ownership of the technology transferred
hereunder, as defined in Schedule A attached hereto, for a period of twelve (12)
months from the execution of this Agreement. Nothwithstanding the
preceding sentence, such liability is limited to and shall not exceed the amount
of the Purchase Price then received by Seller under the Promissory Note attached
hereto. Such indemnification shall in no instance terminate the
obligations of Buyer under said Promissory Note.
8.4 Effectiveness. This
Agreement supersedes any and all agreements, if any, previously made between the
parties relating to the subject matter hereof, and there are no understandings
or agreements other than those included herein.
8.5 Notices and
communications.Any notice, payment, request, instruction, or other
document to be delivered hereunder shall be deemed sufficiently given if in
writing and delivered personally or mailed by certified mail, postage prepaid,
if to Buyer addressed to Buyer at the address first set forth above, and if
addressed to Seller, addressed to Seller at the address first set forth above
unless in each case Buyer or Seller shall have notified the other in writing of
a different address.
8.6 Non-waiver. No
delay or failure on the part of either party in exercising any right hereunder,
and no partial or single exercise thereof, will constitute a waiver of such
right or of any other right hereunder.
8.7 Headings. Headings
in this Agreement are for convenience only and are not to be used for
interpreting or construing any provision hereof.
8.8 Governing
law. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
8.9 Jurisdiction. Any
and all claims arising out of or relating to this Agreement shall be brought in
a court of competent jurisdiction within the State of New York, County of
Rockland.
8.9 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
8.10
Binding
nature. The provisions of this Agreement shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
8.11
Survival of representations
and warranties. Except as otherwise expressly provided in this
Agreement or the Schedules annexed, the representations and warranties of Buyer
and Seller extended hereunder shall survive the Closing for a period of twelve
(12) months. Each party against whom liability is asserted under the
provisions of this Agreement shall be given the opportunity to participate,
directly or through its authorized representative, at its cost and expense, in
the conduct of any negotiations relating to the settlements of any liability or
any other proceeding instituted by any third party against either Seller or
Buyer, as the case may be, giving rise to the alleged breach.
8.12
Expenses. Except
as otherwise expressly provided herein, each party shall pay all of its own
expenses incidental to the negotiation and preparation of the documentation and
financial statements relating to this Agreement and for entering into and
carrying out the terms and conditions of this Agreement and consummating the
transactions, irrespective of whether the transactions contemplated shall be
consummated.
8.13
Amendment; successors and
assigns. This Agreement may be amended only by an instrument
signed by the authorized representatives of the parties
hereto. Neither party may assign any of its rights, obligations, or
liabilities arising hereunder without the prior written consent of the other,
except as otherwise provided herein, and any such assignment or attempted
assignment shall be null and void.
8.14
Third party
beneficiaries. Except for their proper successors and assigns,
the parties hereto intend that no third party shall have any rights or claims by
reason of this Agreement.
In
witness whereof, the parties hereto have cause this Agreement to be duly
executed by their authorized representatives as of the date first above
written.
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Clearlobby,
Inc
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Vemics, Inc.
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(''Seller'')
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(''Buyer'')
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By:
______________________
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By:
▇▇▇▇ ▇▇▇▇▇
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|
Title:
______________________
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Title:
CEO
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Date:
______________________
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Date:
September 11, 2008
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▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
hereby agree jointly, to the provisions of section 8.3.1 of this
agreement.
/s/ ▇▇▇▇
▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
SCHEDULE
A.
COMPUTER
TECHNOLOGY
ClearLobby,
represented as ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, is an online service through which
pharmaceutical companies and physicians share information and
interact. ClearLobby is intended to supplant, to some degree, the
direct sales call by pharmaceutical sales representatives to
physicians. By placing those interactions online, through a highly
customizable web portal, ClearLobby is intended to make the detailing process
more efficient.
A hosted
service, ClearLobby provides pharmaceutical companies with an online vehicle to
present information to targeted physicians, who access the site with a login and
password.
ClearLobby
is intended to house industry’s presentations and educational content for
physicians – and be utilized in a manner that supplants unsolicited sales
representative calls to
physician
offices. A hosted portal with both physician user-specific and
industry client-specific
views,
ClearLobby will drive considerable efficiencies for both
constituents.
For
Physicians, ClearLobby will:
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·
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Aggregate
content from all pharmaceutical brands into a single, convenient
portal
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·
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Enable
them narrow what they see to only selected, relevant drugs and
products.
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·
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Allow
them to review that information at their convenience vs. in lieu of
revenue-producing activities.
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·
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Enable
them to selectively engage companies and sales reps as needed, through
interactive tools and feedback
mechanisms.
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·
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Facilitate
the formal control over sales rep access to their
practice.
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For
Pharmaceutical Companies, ClearLobby will:
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·
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Provide
a new vehicle for delivering promotional and educational messages to
targeted physicians who chose to limit sales rep
visits.
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·
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Facilitate
more meaningful and productive sales rep-physician
meetings.
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·
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Allow
corporate marketing to gain greater control over marketing and
sales
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messaging
(vs. field reps).
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·
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Deliver
considerable efficiencies by aggregating targeted physicians and reducing
costly, ineffective unsolicited sales
calls.
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·
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Provide
data on every interaction on the portal, to enable continuous feedback
on
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acceptance
and impact of content and messaging.
SCHEDULE
B.
SOFTWARE
The
current ClearLobby application is the second version of the software and is in
prototype stage. An engineer should be able to look at the
application (or perhaps just schema.rb) and understand the business domain
rapidly, for the code base is slim, with nothing unusual
occurring. Developed as a Rails application, gaining an understanding
the code and domain should not require an expertise in that framework and
language.
The
Domain
There are
3 types of Users: Physicians/MDs (UserMd), Pharma Admins
(UserPharma), and Pharma Reps (UserRep). MDs belong to a
Practice. Pharma Admins and Reps belong to Companies. Products
belong to Companies. Products have and belong to many
Specialties. Products have many
ContentPieces. ContentPieces are viewed (ContentView) and commented
on (ContentComment) by MDs.
Process
Flow
Hitting
the base url triggers the AuthController, a simple application wrapper to
provide generic password protection (note: this is not a true security
controller). When the correct password is entered, the user comes to
a default home page offering one-click login for each user
type. There is also the option to run through basic MD
registration. Each of the options has its own controller:
MDController, PharmaController, RepController, and
RegController. Because the decision was made to use 3 different User
types in the domain, it allowed for very easy, modular controller
architecture. No Roles or Role decisions are made anywhere and
layouts do not have to be determined dynamically. Once a user "logs
in,” a single controller associated with that user type is used. In
the current application, all behavior is located in a single place.
Persistence
In the
current application, much of the AJAX does not trigger
persistence. For example, when an MD rates content, the div is
changed to display a rating image based on their rating
selection. Sample and Meeting requests do not persist
either. Likewise, the current Pharma reporting module utilizes static
partials loaded dynamically. Finally, the Discuss tab in the MD view
has not yet been constructed (clicking on that route will deliver an
error). As a prototype, infrastructural elements such as system wide
exception handling, logging, authentication/authorization, file upload and
storage, have been established only to simulate behavior and change the user’s
page, but not to write to a database.
Future
Production
The
current application is a very small and clean web application. It
maps a useful user experience across multiple constituents and reflects the
broad business concept of ClearLobby. In addition, while the
production solution will inherently be more robust, all of the technologies
needed are already in use. The bulk of the application involves
handling video and document rendering, and solutions exist today, such as ffmpeg
(or similar) for video conversion and FlashPaper for document
conversion. Numerous Rails plugins, gems, or alternate technologies
altogether, are available to handle smaller bits of functionality (auth,
ratings, tags, modal boxes that hide flash content, background processing,
email, application monitoring, unblocking uploads, etc).
SCHEDULE
C.
PROPRIETARY
RIGHTS
▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the principals of ClearLobby, Inc., hereby assert
that ClearLobby owns the assets it is transferring to Buyer, pursuant to this
agreement.
An
assignment of assets from ▇▇▇▇▇ ▇▇▇▇▇▇ is attached hereto.
SCHEDULE
D.
INVENTORIES
The
application and the ClearLobby logo are contained on one disc of zipped files,
to be transferred by Seller to Buyer upon execution of this
agreement.
Seller
also will transfer ownership of the url ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ to Buyer up on
execution of this agreement.
SCHEDULE
E.
CONTRACT
RIGHTS
Seller
hereby warrants that no persons or entities can claim any contract rights with
respect to the Computer Technology or any of the assets being transferred from
Seller to Buyer hereunder.
In
concert with the execution of this Agreement, Seller will provide to Buyer the
executed Voting Agreement executed by Seller’s shareholders, which reflects the
approval of this Agreement of all of the holders of Seller’s
shares.
In
addition, in concert with the execution of this Agreement, Seller will provide
to Buyer the Statement of Ownership, which affirms that Seller has universal and
complete ownership and rights to the Computer Technology and all assets being
transferred under this Agreement; this Statement of Ownership was approved and
executed by the sole resource responsible for the architecture and development
of the Computer Technology.
SCHEDULE
F.
PROMISSORY
NOTE
$250,000.00 September
11, 2008
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1.
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Payment
Obligation. For value received, Vemics, Inc., a Nevada
corporation with a principle place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“PROMISOR”) hereby promises to pay to the order of
ClearLobby, Inc., a Delaware Corporation with a principle place of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (“PROMISEE”)
the principal amount of two hundred and fifty thousand dollars
($250,000.00) interest free.
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2.
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Source of
Obligation. This Note arises from PROMISOR’S
acknowledgement that PROMISOR owes
$250,000.00 to PROMISEE pursuant to the
terms of the Limited Asset Purchase Agreement executed by PROMISEE and PROMISOR on September
11, 2008.
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3.
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Payment
Terms. This Promissory Note is due and payable as
follows, to-wit: PROMISOR shall make a
payment of ten thousand ($10,000.00) dollars at the time of signing this
Promissory Note and the Limited Asset Purchase Agreement as well as the
delivery of the technology referenced in said Limited Asset Purchase
Agreement and twelve (12) equal monthly payments of twenty thousand
($20,000.00) until such time as this note has been fully satisfied.
The first such monthly payment shall be due and payable on the 1st
day of January 31, 2009, and a like installment shall be due and payable
on the same day of each succeeding month thereafter until the total
principal of $250,000.00 is paid in
full.
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The
payment terms delineated above are subject to change contingent on PROMISOR receiving investment,
funds, or capital, regardless of source as follows:
If PROMISOR receives investment,
funds, or capital in an amount of ten million ($10,000,000.00) dollars or more,
PROMISOR shall pay any
and all unsatisfied principal pursuant to this promissory note, in full, to
PROMISEE within thirty
(30) days of PROMISOR
receiving/beginning to receive the investment, funds, or capital.
If PROMISOR receives investment,
funds, or capital of five million dollars ($5,000,000.00) or more, but in an
amount less than ten million dollars ($10,000,000.00), PROMISOR shall make a
proportional payment based on the initial 5 Million Dollars received and
proportional payments for each $1,000,000.00 thereafter of investment, funds, or
capital received on a pro rata basis towards the satisfaction of any and all
unsatisfied principal.
For
example: If Vemics receives 5,000,000.00 in investment, funds, or capital,
Vemics shall make a payment of $120,000.00, equal to 50% of the $240,000.00
principle.
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4.
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Form of
Payment. Payment shall be deemed made when funds are
available to PROMISSEE from PROMISOR. All such payments shall
be made to ClearLobby, Inc., Any check, draft, Money Order, wire transfer,
or other instrument given in payment of all or any portion hereof may be
accepted by the PROMISEE and handled in
collection in the customary manner, but the same shall not constitute
payment hereunder or diminish any rights of the PROMISEE hereof except
to the extent that actual funds are unconditionally received by the PROMISEE and applied to
this indebtedness in the manner elsewhere herein provided. All
such payments shall be issued to ClearLobby, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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|
5.
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Prepayment. PROMISOR shall have the
right to prepay the amount owed hereunder in whole or in part at any time
without penalty or notice.
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6.
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Default. PROMISOR shall be in
default upon the occurrence of any of the following (referred to
individually as an “Event of
Default”):
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a.
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Failure
to make any payment within ten (10) days of the date of which such payment
becomes due;
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b.
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Admission
in writing by PROMISOR of its
inability to pay debts as they
mature;
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c.
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The
making of a general assignment for the benefit of creditors by PROMISOR;
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d.
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Adjudication
that PROMISOR is
bankrupt or insolvent;
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e.
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Filing
by PROMISOR of (i)
a voluntary petition in bankruptcy; or (ii) a petition or an answer
seeking reorganization or an arrangement with creditors, or to take
advantage of any insolvency, readjustment of loan, dissolution or
liquidation law or statute; or (iii) an answer admitting the
material allegations of a petition filed against PROMISOR in any
proceeding under any such law;
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f.
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The
entering of an order, judgment or decree, without the application,
approval or consent of PROMISOR by any court of
competent jurisdiction, appointing a receiver, trustee or liquidator for
PROMISOR, if such
order, judgment or decree shall continue unstayed and in effect for a
period of sixty (60) days.
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7.
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Acceleration of
Maturity: In the event of default, as defined above, time being of
the essence hereof, PROMISEE, upon giving
written notice to PROMISOR and PROMISOR’s failure to
cure said default within 30 days, may declare the entire principal sum at
the time of the default, due and
payable.
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8.
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Waiver.
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a.
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PROMISOR hereby waives
and releases all errors, defects and imperfections in any proceedings by
PROMISEE under the
terms of this Note and any claims related to PROMISEE’S Limited Asset
Purchase Agreement with PROMISOR and all benefit
that might accrue to PROMISOR by virtue of
any present or future laws exempting property, real or personal, or any
part of the proceeds arising from any sale of such property, from
attachment, levy, sale under execution, or providing for any stay of
execution, exemption from civil process or extension of time for
payment.
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b.
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PROMISOR hereby waives
presentment for payment, demand, notice of dishonor, protest and notice of
protest of this Note and all other notices in connection with delivery,
acceptance, performance, default or enforcement of the payment of this
Note. Liability hereunder shall be unconditional and shall not
be affected in any manner by any indulgence, extension of time, renewal,
waiver, or modification consented to by the PROMISEE. Notwithstanding
anything to the contrary herein, PROMISEE must give notice to PROMISOR
with time to cure any default as specified above in this
agreement.
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9.
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Governing
Law. This Promissory Note shall be interpreted and
applied in accordance with the law of the State of New
York. Any claim or cause of action arising under this Note
shall be subject to a Court having jurisdiction thereof, located in the
County of Rockland in The State of New York. The prevailing
party shall be entitled to reimbursement for costs and reasonable
attorney's fees.
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10.
|
Interest on Unpaid
Amounts: All sums remaining unpaid on the agreed or accelerated
date of maturity of the last installment shall thereafter bear interest at
the rate of ten
percent (10%) per year.
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11.
|
Costs &
Damages: In the event of default of this agreement or breach by
PROMISOR, PROMISOR hereby agrees
to pay reasonable attorneys fees and costs to PROMISEE related to
pursuing its rights hereunder.
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12.
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Severability.
If any provision of this Note or the application thereof shall, for any
reason and to any extent, be invalid or unenforceable, neither the
remainder of this Note nor the application of the provision to other
persons, entities or circumstances shall be affected thereby, but instead
shall be enforced to the maximum extent permitted by
law.
|
IN WITNESS WHEREOF, PROMISOR has executed this
Note as of the date first written above.
PROMISOR PROMISEE
Vemics,
Inc.:
ClearLobby, Inc.
By:
By:
___________________________
▇▇▇▇ ▇▇▇▇▇,
CEO ▇▇▇▇
▇▇▇▇▇▇, CEO