EXHIBIT 10.1
BUSINESS ASSETS TRANSFER AGREEMENT
Business Assets Transfer Agreement
This Agreement is entered into as of April 28th, 2004 by and between Xxxx
Xxxxx, a Sole Proprietorship located at 0000 X. Xxxxxxx Xx., Xxxxxxxxx, XX 00000
("Seller"), and Global Envirotech, Inc., a Colorado Corporation, located at
Wheatridge, Colorado ("Buyer").
Recitals
1. The Seller is in the business of manufacturing and marketing the
Turbomaster Fuel Saving device (the "Product"), from offices presently located
at 0000 X. Xxxxxxx Xx., Xxxxxxxxx, XX 00000) (collectively referred to as the
"Business").
2. The sole owner of Seller is Xxxx Xxxxx of Xxxxxxxxx Xxxxxxxx 00000.
3. The Seller desires to transfer to the Buyer the Business, its Products
and certain of the properties and assets owned by the Seller and related to such
Business, and the Buyer desires to acquire the Business, Products, properties,
and assets, given the terms and conditions described in this Agreement, as of
the close of the business day of May 1st, 2004. ("Closing Date").
4. The Buyer and the Seller desire to describe in this Agreement the terms
and conditions of the sale and purchase of the Business, its properties and
assets.
Agreement
1. PURCHASE OF ASSETS AND ASSUMPTION OF LIABILITIES
1.1 ASSETS
1.1.1 Subject to the terms, conditions, representations and warranties made in
this Agreement, on the Closing Date, the Seller will validly sell, assign,
transfer, grant, bargain, deliver and convey to the Buyer, and the Buyer will
validly purchase from the Seller the entire right, title and interest in and to
the Business, as a going concern, and all assets (except as otherwise
specifically provided in this Agreement) used by the Seller in or arising out of
such Business, including, without limiting the generality of the foregoing, all
of the following assets (the "Assets"): One Million (1,000,000) shares of stock
and assumption of all liabilities.
1.1.2 Product, Inventory and supplies listed in Exhibit A.
1.1.3 Trade Accounts Receivable listed in Exhibit B (except those described in
Section 1.2).
1.1.4 Office furniture, office equipment, manufacturing equipment, computer
equipment and other machinery and equipment listed in Exhibit C.
1.1.5 All of the right, title and interest in and to all fixtures and leasehold
improvements of the Seller.
1.1.6 Prepaid expenses, deferred charges, claims for refunds, and deposits.
1.1.7 Telephone numbers, service marks, the trade name and all other trade names
and trademarks (including the goodwill represented by that), trade secrets,
Business records and files, lists of Customers and Vendors, promotional
materials, copyrighted materials and all other intangible items, including the
goodwill of Business as a going concern.
1.1.8 All rights under the contracts, leases, licenses, insurance policies,
fidelity and contract bonds, and other Agreements relating to the Business, as
listed in Exhibit D (accurate and complete copies of which have previously been
delivered to the Buyer).
1.1.9 All documents, files, Agreements, instruments, records, notices,
certificates, affidavits, statements, and all other papers and information of
any kind relating to the Business or the Assets, including but not limited to
such items stored in computer memories, on microfiche, electronically or by any
other means, used, made or compiled by or on behalf of the Seller or made
available to the Seller (all of which shall be delivered by the Seller to the
main premises of the Business (if not already present there) on or before the
Closing Date).
1.1.10 All other property and assets of every kind and description whether
personal, real, mixed, tangible or intangible, wherever located and whether or
not reflected on its balance sheet.
1.2 ASSETS EXCLUDED
1.2.1 The following assets are not being sold by the Seller or purchased by the
Buyer and are specifically excluded from the meaning of the term "Assets":
1.2.2 Cash and cash equivalent items, including Lender accounts, money market
accounts, certificates of deposit and Lender deposits, on hand at the close of
business on the Closing Date.
1.2.3 Accounts receivable to the extent arising from any trade-out transactions
other than those listed on Exhibit E; and
1.3 LIABILITIES
1.3.1 Subject to the terms and conditions of this Agreement, the Buyer will, as
of the Closing Date, assume from the Seller and agrees to discharge only those
liabilities and obligations that both accrue and arise after the Closing Date
with respect to: (1) the paid sales orders / Agreements for Products as listed
on Exhibit A to be delivered by the Seller to the Buyer at the Closing, and (2)
the sales Agreements for sales of the Products as listed on Exhibit A to be
delivered by the Seller to the Buyer at the Closing, and all commission
obligations to the sales personnel of the Seller arising from the sales
Agreements to the extent attributable to Products sold after the Closing, and
(3) accrued vacation rights as listed in Exhibit F to be delivered at Closing,
and (4) the Agreements listed on Exhibit D, a true and correct copy of each
Agreement has been provided to the Buyer by the Seller (for the purposes of this
Agreement). An obligation under such Agreements is considered to have arisen and
accrued after the Closing Date if performance or sale closed on May 1st, 2004.
2. INFRINGEMENT
2.1 Each party will notify the other of any infringements of rights in the
Products, Trade Names, Trademarks that come to either party's attention.
2.2 In the event of any infringement of any rights granted to the Buyer in this
Agreement, the Buyer will have the first option to bring any action for such
infringement on behalf of itself and the Seller, and the Seller will cooperate
fully with the Buyer in such action; and in such event the Buyer will bear the
expenses of the action, may recover its expenses, and receive the proceeds from
any sums recovered in the action.
2.3 If the Buyer declines in writing to bring any such action, the Seller may
proceed and will pay for all expenses of the action, and may recover its
expenses from any sums recovered in the action.
3. NON-DISCLOSURE AGREEMENT
3.1 While performing this Agreement, the Buyer and the Seller may disclose to
each other information concerning their respective inventions, confidential
know-how and trade secrets as may be necessary to further the purposes of this
Agreement. All such inventions, confidential know-how and trade secrets
disclosed shall remain the sole property of the party disclosing them, and the
receiving party shall have no interest in or rights with respect to them except
as expressly defined in this Agreement. Among other things, the Sellers customer
lists and marketing strategy and any confidential information disclosed to the
Buyer according to the inspection of items listed in Section 1 are regarded as
confidential information by the Seller and, if disclosed or revealed to the
Buyer, shall be subject to this Non-Disclosure Agreement.
3.2 The Buyer and the Seller each agree to maintain all such confidential
information in confidence to the same extent that it protects its own similar
proprietary information, that in no event will be less than the safeguards a
reasonably prudent business would exercise in similar circumstances, and further
agree to take all reasonable precautions to prevent any unauthorized disclosure
of such information. The restriction on disclosure shall survive termination of
this Agreement for a period of 2 years but does not apply to any information
that (1) becomes generally known or publicly available through no act or failure
to act on the part of the receiving party; (2) is furnished to others by the
disclosing party without restriction on disclosure; or (3) is rightfully and
lawfully furnished to the receiving party by a third party without restriction
on disclosure.
4. DEFAULT; TERMINATION
4.1 In the event of a Material Breach by the Buyer of a material provision of
this Agreement, not cured within sixty (60) days after written notice of the
breach is delivered to the Buyer by the Seller, then the Seller may, effective
sixty (60) days after such notice to the Buyer, terminate this Agreement by
delivering written notice of termination to the Buyer. The rights granted to the
Buyer under this Agreement will revert to the Seller as provided in Section 4.3.
A good faith dispute regarding the determination or calculation of payments due
the Seller under this Agreement will not be considered a breach of this
Agreement provided that the Buyer deposits the disputed amount in an interest
bearing escrow account with a commercial bank and offers to arbitrate the
dispute in accordance with the Rules of the American Arbitration Association in
[x] (County, State). In addition to or in lieu of its rights to terminate this
Agreement upon a Material Breach by the Buyer, the Seller has the right to
pursue any remedies the Seller may have at law or in equity.
4.2 In the event of a Material Breach by the Seller of a material provision of
this Agreement, which breach is not cured within sixty (60) days after written
notice of such breach is delivered to the Seller by the Buyer, then the Buyer
may, effective sixty (60) days after such notice to the Seller, terminate this
Agreement. In addition to or in lieu of its rights to terminate this Agreement
upon a Material Breach by the Seller, the Buyer will have the right to pursue
any remedies at law or equity, and the Buyer may pay into an interest bearing
escrow account with a commercial bank any payments due the Seller as security
for payment of any damages, arising from any Material Breach by the Seller of
any provision of this Agreement. Upon resolution of the claim, the amounts in
escrow, including accrued interest, will be distributed to the Seller after
deduction of the amounts, if any, required to be paid to the Buyer. In any
event, the Buyer may terminate this Agreement immediately if the Seller breaches
obligations defined in Sections 1, 2, 3 or 4, and any amounts, payments or fees
resulting from the Sellers breach, whether directly or indirectly, shall be
deemed the property of the Buyer who maintains the rights to all legal and
equitable remedies.
5. ATTORNEY FEES
5.1 In the event of any litigation or other legal proceeding between the parties
arising from this Agreement, the prevailing party shall be entitled to recover,
in addition to any other relief awarded or granted, its reasonable costs and
expenses (including attorney fees) incurred in the proceeding.
6. GENERAL
6.1 All notices, demands or consents required or permitted under this Agreement
shall be in writing and shall be delivered personally or sent by certified or
registered mail to the respective parties at the addresses defined on the first
page of this Agreement, or at such other address as shall be given by either
party to the other in writing.
6.2 No waiver, amendment or modification of any provisions of this Agreement
shall be effective unless in writing and signed by the party against whom such
waiver, amendment or modification is sought to be enforced. No failure or delay
by either party in exercising any right, power or remedy under this Agreement,
except as specifically provided in this Agreement, shall operate as a waiver of
any such right, power or remedy.
6.3 This Agreement shall be binding upon and defer to the benefit of the
successors and permitted assigns of the Buyer or the Seller. Except as described
below, the Buyer or the Seller may not assign any of its rights or delegate any
of its obligations under this Agreement to any third party without the express
written permission of the other. The Seller understands that the Buyer may
assign this Agreement to a partnership or successor corporation and approves
such transfer in advance.
6.4 The validity, construction and performance of this Agreement shall be
governed by the internal laws of the State of Colorado, without regard to
provisions regarding conflicts of law.
6.5 the Buyer and the Seller understand and acknowledge that violation of their
respective covenants and Agreements may cause the other irreparable harm and
damage, that may not be recovered at law, and each agrees that the others
remedies for breach may be in equity by way of injunctive relief, as well as for
damages and any other relief available to the non-breaching party, whether in
law or in equity.
6.6 Captions and section headings used in this Agreement are for convenience
only and are not a part of this Agreement and shall not be used in construing
it.
6.7 If any provisions of this Agreement are held by a court of competent
jurisdiction to be invalid under any applicable statute or rule of law, they are
to that extent to be deemed omitted and the remaining provisions of this
Agreement shall remain in full force and effect.
6.8 This Agreement, including the attached Exhibits, constitutes the entire
Agreement between the Buyer and the Seller concerning this transaction, and
replaces all previous communications, representations, understandings, and
Agreements, whether verbal or written between the Buyer and the Seller or any
official or representative of either of them.
6.9 Any dispute relating to the interpretation or performance of this Agreement
shall be resolved at the request of either party through binding arbitration.
Arbitration shall be conducted in Arapahoe County, Colrado in accordance with
the then-existing rules of the American Arbitration Association. Judgment upon
any award by the arbitrators may be entered by any State or Federal Court having
jurisdiction. The Buyer and the Seller intend that this Agreement to arbitrate
and be irrevocable.
7.0 THE SELLER WILL PROVIDE.
In witness whereof, the Buyer and the Seller have executed this Agreement as of
the day and year first written above.
Buyer Seller
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By By
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Name Name
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Title Title
Exhibit A
Product, Inventory and Supplies
Exhibit B
Accounts Receivable
Exhibit C
Certain Assets of the Business
Description: Office furniture, office and manufacturers equipment, computer
equipment, other machines and equipment
Serial number / Fixed Asset Account number
Exhibit D
Current Agreements
Sales Orders / Agreements
Contracts, Leases, Licenses, Insurance Policies, Fidelity and Contract
Bonds, and other Agreements
Exhibit E
Accounts Receivable Trade-Out Transactions
Exhibit F
Accrued Vacation Time
