Exhibit
10.1
ASSET PURCHASE AGREEMENT
BETWEEN
US BIODEFENSE, INC.
AND
FTS GROUP,
INC.
Dated as of March 19, 2008 and Closed April 4, 2008
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement, dated as of March 19, 2008, (this
"Agreement"), by and between US BIODEFENSE, INC, a Utah
corporation ("Buyer"), and FTS GROUP, INC., a Nevada
Corporation ("Seller").
WHEREAS, Seller is engaged in the business of operating an
acquisition and development company focused on acquiring,
developing and investing in businesses and viable business ventures
to create, capture and maximize the value of its assets for its
company and stockholders, including its wholly-owned subsidiary,
Elysium Internet, Inc. (the "Business"); and
WHEREAS, upon the terms and subject to the conditions set
forth herein, Buyer desires to purchase and assume from Seller, and
Seller desires to sell, transfer, assign, convey and deliver to
Buyer, the assets of Elysium Internet, Inc.,(the “Acquired
Assets”) together with certain obligations and liabilities of
Seller relating to Acquired Assets (“Assumed
Liabilities”); and
WHEREAS, The Board of Directors of each of Buyer and Seller,
respectively, believe the acquisition is in the best interests of
such company and its respective stockholders and, in furtherance
thereof, have approved this Agreement and the transactions
contemplated thereby.
NOW, THEREFORE, in consideration of the covenants,
representations, warranties and mutual agreements hereinafter set
forth, the parties hereto agree as follows:
ARTICLE
1
PURCHASE
AND SALE
1.1 Purchase and Sale of Assets. Subject to the terms and
conditions set forth in this Agreement, Seller hereby agrees to
sell, convey, transfer and assign to Buyer, and Buyer hereby agrees
to purchase from Seller at the Closing all of Seller's right, title
and interest in and to the assets which are comprised of 100% of
the common stock of Elysium Internet, Inc. and the control of
Elysium’s domain names and web sites and all funds received
by Elysium, free and clear of any and all liens (such assets
referred to collectively as the "Acquired Assets").
1.2 Delivery of Acquired Assets. On the "Closing Date" as
defined below, Seller shall make available to Buyer all of the
Acquired Assets at Buyer’s facilities in Oldsmar, Florida,
and anywhere else the Acquired Assets are located. Buyer will
assume full operating control of the Acquired Assets including all
funds received beginning on the Closing Date for any and all
activities related to Elysium Internet. The acquired domain names
and web sites to be acquired are to be provided to the Buyer on the
Closing Date.
1.3 Closing Deliveries by Seller and Buyer . Without limiting the
foregoing, on the Closing Date, Seller shall deliver to
Buyer, duly executed by Seller, the Acquired Assets as set forth in
Section 1.2 above and a Bill of Sale and General Assignment
substantially in the form attached hereto as Exhibit A (the "Bill
of Sale").
1.4 Liabilities . Buyer shall
be responsible for the Assumed Liabilities related to the Acquired
Assets and operation of Elysium Internet, Inc.
1.5 Closing . The closing
of the transactions contemplated by this Agreement (the "Closing")
shall take place concurrently with the execution of this Agreement
at the offices of the Buyer, located at 300 State St., Suite 226,
Oldsmar, Florida, 34677 (the "Closing Date").
1.6 Payment
to Seller. The aggregate purchase price to be paid by Buyer
to Seller for the Acquired Assets (the "Purchase Price") shall be
two million dollars ($2,000,000) in stock and a note payable as
follows:
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$1,500,000
Non-Internet Bearing Note. Payable in twelve equal payments
beginning 30 days after the Buyer closes a financing of at lease
$250,000. The note is convertible into shares of the Buyer’s
common stock in an event of default.
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250
shares of the Buyer’s preferred convertible stock to be named
“Series B Convertible Preferred Stock” upon acceptance
by the Utah Secretary of State. The preferred shares will convert
into 60% of the issued and outstanding shares of the Buyer’s
common stock as of the date of the Seller’s first conversion
notice.
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ARTICLE
2
REPRESENTATIONS AND
WARRANTIES OF SELLER
Except
as disclosed as an inducement to Buyer to enter into this
Agreement, Seller hereby represents and warrants to Buyer, as
follows:
2.1 Organization of Seller. Seller is a Nevada Corporation.
Seller has all requisite power and authority to own and use the
properties owned and used by it and to carry on his business as
currently conducted. Seller is duly qualified or licensed to do
business and in good standing in each jurisdiction in which the
failure to be so qualified or licensed would have a Material
Adverse Effect.
2.2 Authority. Seller has all requisite power and authority
to enter into this Agreement and the Bill of Sale, to perform its
obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Bill of Sale and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on the
part of Seller, and no further action is required on the part of
Seller to authorize this Agreement and the Bill of Sale and the
transactions contemplated hereby and thereby. This Agreement and
the Bill of Sale constitute valid and binding obligations of
Seller, enforceable in accordance with their respective terms,
except as such enforceability may be limited by principles of
public policy and subject to the laws of general application
relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or
other equitable remedies.
2.3 No Conflict. The execution and delivery by Seller of
this Agreement and the Bill of Sale, and the consummation of the
transactions contemplated hereby and thereby, do not and will not
conflict with or result in any violation of, or default under, or
give rise to a right of termination, cancellation, modification or
acceleration of any obligation or loss of any benefit (any such
event, a "Conflict") under (i) any provision of Seller's Articles
of Incorporation or Seller's Bylaws, each as currently in effect,
(ii) any material mortgage, indenture, lease, contract, covenant or
other agreement, instrument or commitment, permit, concession,
franchise or license or any transferred contract (each a "Material
Contract" and collectively the "Material Contracts") to which
Seller or any of its properties or assets is subject, or (iii) any
judgment or any order or decree issued by a governmental entity, or
to Seller's knowledge, any other order or decree, statute, law,
ordinance, rule or regulation applicable to Seller or any of its
properties or assets (tangible and intangible).
2.4 Consents. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with any
governmental entity, or a party to any Material Contract with
Seller (so as not to trigger any Conflict) is required by or with
respect to Seller in connection with the execution and delivery of
this Agreement or the Bill of Sale or the consummation of the
transactions contemplated hereby or thereby.
2.5 Title to Properties. Seller has good and marketable
title to the Acquired Assets, free and clear of any
liens.
2.6 Litigation . There is no
action, suit, claim, proceeding, arbitration, hearing, demand or
cause of action or investigation of any nature pending or
threatened against Seller relating to the Acquired Assets, nor is
there any reasonable basis therefor. There is no investigation or
other proceeding pending or threatened relating to the Acquired
Assets by or before any governmental entity, nor is there any
reasonable basis therefor. There are no judgments and no orders or
decrees issued by any governmental entity, and to Seller's
knowledge, there are no other orders or decrees, citations, fines
or penalties heretofore assessed against Seller affecting the
Acquired Assets under any foreign, federal, state or local law.
2.7 Compliance With Law. Seller has complied and is in
compliance with all applicable federal, state and local laws,
statutes, licensing requirements, rules and regulations, and
judicial or administrative decisions applicable to the Acquired
Assets or the Assumed Liabilities. There is no order issued,
investigation or proceeding pending or, to Seller's knowledge,
threatened, or notice served with respect to any violation of any
law, ordinance, order, writ, decree, rule or regulation issued by
any governmental entity applicable to the Acquired Assets or the
Assumed Liabilities.
2.8
Employee Matters.
(a)
Seller is not a party to, and there does not otherwise exist,
any agreements with any labor organization or collective
bargaining or similar agreement with respect to its employees.
Seller is not a party to any outstanding contract, commission
agreement, settlement agreement, or compensation agreement
with any employee. To the knowledge of Seller, there are no
complaints, grievances, arbitrations, employment-related
proceedings or administrative proceedings, either pending or
threatened orally or in writing, involving any employee;
during the past five years, the business has not suffered or
sustained any labor dispute resulting in any work stoppage and
no such work stoppage is, to the knowledge of Seller,
threatened.
(b)
There is no litigation brought by any of Seller’s
employees currently pending against Seller in any municipal,
state or federal court or agency.
ARTICLE
3
REPRESENTATIONS AND
WARRANTIES OF BUYER
As
an inducement to Seller to enter into this Agreement, Buyer
hereby represents and warrants to Seller:
3.1 Organization of Buyer. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of
Utah. Buyer has all requisite corporate power and authority to own
and use the properties owned, if any, and used by it and to carry
on its business as currently conducted and as currently
contemplated to be conducted. Buyer is duly qualified or licensed
to do business and in good standing in each jurisdiction in which
the failure to be so qualified or licensed would have a Material
Adverse Effect.
3.2 Authority. Buyer has all requisite corporate power and
authority to enter into this Agreement and the Bill of Sale, to
perform its obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution and
delivery of this Agreement and the Bill of Sale and the
consummation of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on the
part of Buyer, and no further action is required on the part of
Buyer to authorize this Agreement or the Bill of Sale and the
transactions contemplated hereby or thereby. This Agreement and the
Bill of Sale have been duly executed and delivered by Buyer and
constitute the valid and binding obligations of Buyer, enforceable
in accordance with their respective terms, except as such
enforceability may be limited by principles of public policy and
subject to the laws of general application relating to bankruptcy,
insolvency and the relief of debtors and rules of law governing
specific performance, injunctive relief or other equitable
remedies.
3.3 No Conflict. The
execution and delivery of this Agreement and the Bill of Sale to
which Buyer is a party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not conflict with,
or result in any violation of, or default under, or give rise to a
Conflict under (i) any provision of Buyer's Articles of
Incorporation or Buyer's Bylaws, each as currently in effect, (ii)
any Material Contract to which Buyer or any of its properties or
assets are subject, or (iii) any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to Buyer or its
properties or assets.
3.4 Consents. No consent, waiver, approval, order or
authorization of, or registration, declaration or filing with, any
governmental entity, or any third party, including a party to any
Material Contract with Buyer (so as not to trigger any Conflict),
is required by or with respect to Buyer in connection with the
execution and delivery of this Agreement
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