ASSET PURCHASE
AGREEMENT
AGREEMENT,
dated as of October 9, 2009 among Beyond Commerce, Inc, a Nevada
corporation with offices at 9029 South Pecos Road, Suite 2800,
Henderson, NV 89074 (the “Company”), along with its
wholly-owned subsidiary, LocalAdLink, Inc., a Nevada corporation,
with offices at 9029 South Pecos Road, Suite 2800,
Henderson, NV 89074 (the “Sub”) ( collectively, the
"Seller") and OmniReliant Holdings, Inc., a Nevada corporation with
offices at 14375 Myerlake Circle, Clearwater, FL 33760 ("Purchaser)
(each, a “Party” and, collectively, the
“Parties”).
RECITALS
A. Seller
is engaged in the business of certain internet related services and
software.
B. Purchaser
desires to acquire certain assets from Seller.
C. Seller
desires to sell the same to Purchaser.
NOW,
THEREFORE, in
consideration of the mutual representations, warranties, covenants
and agreements herein set forth, the parties hereto hereby agree as
follows:
1. Sale of Asset.
Subject to the terms and
conditions of this Agreement, at the closing under this Agreement
(the "Closing"), Seller shall sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser shall purchase, acquire and
accept from Seller all right, title, and interest in and to
Seller’s assets, patents and properties used in, useful to
and/or relating to the Software (as defined below), which shall
include (but not be limited to) the following (the
"Asset"):
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1.1
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Software . The LocalAdLink Software
(“LAL”), including source codes, as updated, the LAL
name rights, and the LAL trademark, as well as any additional third
party codes that has been modified or integrated into the source
codes to enable the business process operations of LAL, including
but not limited to the domain URL assets (the
"Software").
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Records . All creative materials, advertising
and promotional materials, marketing materials, conference
materials, database materials, supplier lists, equipment repair,
maintenance or service records, and all other printed or written
materials whether written or electronically stored or otherwise
recorded, as they relate to the Software.
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It is expressly
understood that Purchaser shall not assume, pay or be liable for
any liability or obligation of Seller of any kind or nature at any
time existing or asserted, whether, known, unknown, fixed,
contingent or otherwise, not specifically assumed herein by
Purchaser.
2. Purchase Consideration.
In consideration of the
purchase and sale of the Asset, Purchaser shall (i) surrender and
forgive certain debt evidenced by original discount secured
convertible debentures held in the name of the Purchaser and issued
by the Company (the “Surrendered Debentures”) in the
aggregate amount of Four Million Dollars ($4,000,000) and (ii)
return for cancellation associated warrants (the “Surrendered
Warrants”). The principal amount of the
Surrendered Debentures will be reduced by $4,000,000, as set
forth in more detail on Schedule 2.1 . Additionally, on the
Closing Date, the Purchaser agrees to amend the maturity date of
the Surrendered Debentures and the remaining original issue
discount secured convertible debentures (which collectively will
have a principal balance of $1,623,323) by an additional
twelve (12) months from the date hereof at a ten percent (10%)
interest rate (the “ Purchase Consideration
”).
4.1
Place and Time . The Closing shall take place at
the offices of Sichenzia Ross Friedman Ference LLP, 61 Broadway,
32 nd Floor New York, New York 10006, on the date as
set forth above or at such other time or place as
Purchaser and Seller may mutually agree as may be evidenced by
their effecting the Closing (the "Closing Date").
4.2
Deliveries by Seller . At the Closing Seller
shall deliver the following to the Purchaser:
(b) Such
deeds, bills of sale, assignments and other instruments of
conveyance and transfer, and such powers of attorney, as shall be
effective to vest in Purchaser title to or other interest in, and
the right to full custody and control of, the Asset, free and clear
of all liens, charges, encumbrances and security interests
whatsoever.
(c.) Source
code and domain related Asset to be placed in escrow with the
following vendor prior to closing:
http://www.ironmountain.com/ipm/escrow/
(d) All
other documents, certificates, instruments or writings reasonably
required by Purchaser to be delivered by Seller at or prior to the
Closing pursuant to this Agreement.
4.3
Deliveries by Purchaser . At the Closing,
Purchaser shall deliver the following to the Seller:
(a) the
Purchase Consideration in the form of a Surrendered Debentures and
the Surrendered Warrants.
4.4
Proceedings . All proceedings which shall be
taken and all documents which shall be executed and delivered by
the parties on the Closing Date shall be deemed to have been taken
and executed simultaneously, and no proceeding shall be deemed
taken nor any documents executed or delivered until all have been
taken, executed and delivered.
4.5
Conditions to Purchaser's Obligations . The
obligations of Purchaser to effect the Closing shall be subject to
the satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by
Purchaser:
(a) The Seller will
obtain executed waivers from any and all creditors that hold a
security interest in the Asset, waiving such security interest and
approving the filing of a UCC-3 Financing Statement
amending their security interest to remove the
Asset therefrom;
(b) The Seller will have filed or caused to be
filed UCC-3 Financing Statement(s) deleting the Asset from any and
all UCC-1 Financing Statements previously filed which may have
included the Asset as part of a security interest to third party
secured creditors.
(c) The Company
(i) has entered into a Stock Purchase Agreement with Zurvita
Holdings, Inc. pursuant to which Zurvita Holdings, Inc. agrees to
purchase 8,000,000 shares of the Seller's common stock, in
installments, at a price of $0.10 per share (for a total of
$800,000), and (ii) has purchased a minimum of 3,000,000 of such
shares concurrently with the Closing.
(d) There shall not be in effect any injunction,
order or decree of a court of competent jurisdiction that prohibits
or delays consummation of any or all of the transactions
contemplated in this Agreement nor shall any proceeding seeking any
of the foregoing have been commenced.
(e) The representations and warranties of
Company and the Sub, respectively, as set forth in this Agreement
shall be true and correct in all material respects as of the date
of this Agreement and as of the Closing Date as though made at such
time.
(f) Seller shall have performed and complied in
all material respects with the agreements contained in this
Agreement required to be performed and complied with by it prior to
or at the Closing.
(g) Purchaser shall have received a certificate
to the effect set forth in clauses (a), (b), (c), (d), (e) and (f)
above signed by the Secretary of the Company and the Sub,
respectively, except that Section (c) herein shall only apply to
the Company.
4.6
Conditions to Seller's Obligations . The
obligations of Seller to effect the Closing shall be subject to the
satisfaction at or prior to the Closing of the following
conditions, any one or more of which may be waived by
Seller:
(a) There shall not be in effect any
injunction, order or decree of a court of competent jurisdiction
that prohibits or delays the consummation of any or all of the
transactions contemplated herein nor shall any proceeding seeking
any of the foregoing have been commenced.
(b) The representations and warranties of
Purchaser, set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of
the Closing Date as though made at such time.
(c) Purchaser shall have performed and complied
in all material respects with the agreements contained in this
Agreement required to be performed and complied with by it prior to
or at the Closing.
(d) Seller shall have
received a certificate to the effect set forth in clauses (a), (b)
and (c) above signed by the Secretary of Purchaser.
5. Representations and Warranties of
Seller. The
Company and the Sub, jointly and severally hereby represent and
warrant to the Purchaser that as follows:
5.1
Organization and Good Standing . Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada. Seller has full power and
authority to own its properties and to carry on its business as it
is now being conducted. Seller is duly qualified to transact
business and is in good standing in each jurisdiction wherein the
nature of the business done or the property owned, leased or
operated by it requires such qualification, except where the
failure to be so qualified would not have a material adverse effect
on the business, operations, properties, prospects, liabilities,
results of operations, Asset or condition (financial or otherwise)
of Seller. True, correct and complete copies of
Seller’s certificate of incorporation and bylaws and all
amendments thereto have been delivered to Purchaser. The minutes
and records of the Seller that have been made available to
Purchaser and are true, correct and complete in all material
respects.
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Corporate
Authority, No Conflicts .
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(a) Seller
has the right, power, authority and capacity to execute and deliver
this Agreement and to perform its obligations under this
Agreement.
(b) Neither
the execution, delivery or performance of this Agreement by Seller
nor the consummation by Seller of the transactions contemplated
hereby will, directly or indirectly (with or without notice or
lapse of time or both):
(i) contravene,
conflict with or result in a violation or breach of (A) any
provision of the organizational documents of Seller, (B) any
resolution adopted by the Board of Directors, or any committee
thereof, or the owner of Seller, (C) any legal requirement or any
governmental order to which Seller or any of the properties or
assets owned or used by Seller may be subject, or (D) any
authorization, license or permit of any governmental authority,
including any private investigatory license or other similar
license, which is held by Seller or that otherwise relates to the
business of, or any of the assets owned or used by
Seller;
(ii) result
in a violation or breach of or constitute a default, give rise to a
right of termination, cancellation or acceleration, create any
entitlement to any payment or benefit or require the consent or
approval of or any notice to or filing with any third party under
any contract to which Seller is a party or to which
it or its properties or assets may be bound, or require
the consent or approval of or any notice to or filing with any
governmental authority to which the Seller or its properties or
assets may be subject; or
(iii) result
in the imposition or creation of any encumbrance upon or with
respect to any of the properties or assets owned or used by
Seller.
5.3
Compliance with Law; Governmental Authorizations
. To the best of Seller’s knowledge, Seller is in
compliance with all federal, state and local laws, authorizations,
licenses and permits of any governmental authority and all
governmental orders affecting the business, operations, properties
or Asset of Seller, including federal, state and local: (i)
Occupational Safety and Health Laws; (ii) private investigatory and
other