Exhibit 10.1
ASSET PURCHASE
AGREEMENT
THIS AGREEMENT (the
“ Agreement ”) is made and entered into as of
this 31st day of October 2005 (the “ Closing
Date ”), by and between Greens Worldwide Incorporated, an
Arizona corporation (“ Purchaser ”)GRWW Nasdaq
Bulletin Board, and Breakthru Media, Inc. (“ Seller
”), BTM.
Background
Seller is engaged in
the business of marketing, designing and producing interactive CD
Rom products for sports and corporate clients 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, strategic partnerships, sponsors,
publications, operating model, manuals, and all other confidential
information relating to the Business; and
b.
All current, past and
future clients.
Section
1.2
Excluded
Liabilities.
PURCHASER SHALL NOT
ASSUME OR BE OR BECOME LIABLE FOR ANY LIABILITY OR OBLIGATION OF
SELLER, WHETHER KNOWN, UNKNOWN, ABSOLUTE, CONTINGENT, OR OTHERWISE.
All
liabilities of Seller are hereinafter referred to as “
Excluded Liabilities .”
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Section 2. PURCHASE PRICE AND
CLOSING
Section
2.1
Purchase
Price.
The Purchase price for
the Purchased Assets shall be One Hundred Thousand shares of GRWW
restricted common stock. In addition, Purchaser agrees to pay
Seller an amount equivalent to 8% of the Gross Revenue of CD Rom
products, for a period of 5 years from the date of closing, ending
on December 31, 2010. Said payments to seller shall be made on a
quarterly basis beginning with the quarter ending March 31, 2006
and continuing quarterly until December 31, 2010.
Section
2.2
Time and Place of
Closing.
The closing of the
purchase and sale of the Purchased Assets (the “
Closing ”) will be held at Hertford, NC, on October
28, 2005. The effective time of the closing and the transfer
of the Purchased Assets to Purchaser is 12:00 a.m. on the
Closing Date.
Section
2.3
Transfer
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
2.5 Condition Subsequent .
Purchaser and Seller
agree that the Purchaser will be forming a new corporation as a
wholly owned subsidiary and that the assets being acquired by
purchaser shall be contributed to the new corporation to begin its
operations. Seller warrants to Purchaser that the business
operations of the Seller have ceased prior to the closing of this
transaction.
Purchaser and Seller
agree that seller shall have the right to inspect and audit
Purchaser books and records relating to this business upon
reasonable notice through and including the date ending 12-31-2010
with respect to verification of Gross Revenue and percentages due
Seller under this agreement.
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 Georgia 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.
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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 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 CD Rom
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.
Except as provided
herein, 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. 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.
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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.
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 Arizona 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 OTC Bulletin Board under the symbol GRWW.
GRWW is a fully
reporting entity to the Securities and Exchange Commission. GRWW
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
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 transaction
