Exhibit 10.2
ASSET PURCHASE AGREEMENT
BUYER: GREENS WORLDWIDE INCORPORATED
SELLER: GREENS OF LAS VEGAS, INC.
EFFECTIVE DATE: July 31, 2002
Article I Sale of Assets.......................................................4
Section 1.1 SALE AND PURCHASE OF ASSETS................................4
Section 1.2 PURCHASE PRICE.............................................5
Section 1.3 LIMITED ASSUMPTION OF LIABILITIES..........................5
Section 1.4 CLOSING....................................................5
Section 1.5 ACTION TO BE TAKEN AT CLOSING..............................6
Section 1.6 SALES, USE, INCOME AND OTHER TAXES.........................6
Section 1.7 INTELLECTUAL PROPERTY......................................6
Article II Representations and Warranties of GOLV..............................8
Section 2.1 ORGANIZATION AND GOOD STANDING.............................8
Section 2.2 GOLV'S AUTHORITY AND NO BREACH.............................9
Section 2.3 FINANCIAL STATEMENTS.......................................9
Section 2.4 TITLE TO AND CONDITION OF ASSETS...........................9
Section 2.5 CONDUCT OF BUSINESS SINCE JANUARY 1, 2002
AND PENDING THE CLOSING..................................9
Section 2.6 REPRESENTATIONS ABOUT CONDUCT OF BUSINESS SINCE
JANUARY 1, 2002..........................................9
Section 2.7 COMPLIANCE WITH LAW.......................................10
Section 2.8 LITIGATION OR CLAIMS......................................10
Section 2.9 ACCOUNTS RECEIVABLE.......................................10
Section 2.10 LICENSES..................................................10
Section 2.11 LOANS AND OTHER TRANSACTIONS..............................10
Section 2.12 INSURANCE.................................................10
Section 2.13 CONTRACTS, OBLIGATIONS AND COMMITMENTS....................11
Section 2.14 LABOR AGREEMENTS..........................................11
Section 2.15 CERTAIN EMPLOYEES.........................................11
Section 2.16 CONSENTS..................................................11
Section 2.17 NO UNFUNDED PENSION LIABILITIES...........................11
Section 2.18 NO OBLIGATION BY GREENS TO REGISTER SHARES................11
Section 2.19 NO UNTRUE REPRESENTATION OR WARRANTY......................11
Article III Representations and Warranties of Greens ("Sedona Worldwide
Incorporated")....................................................11
Section 3.1 ORGANIZATION AND GOOD STANDING............................12
Section 3.2 GREENS'S AUTHORITY........................................12
Section 3.3 NON CONFLICT..............................................12
Section 3.4 NO ADVERSE PROCEEDING.....................................12
Section 3.5 NO UNTRUE REPRESENTATION OR WARRANTY......................12
Article IV Survival of Representations and Warranties.........................12
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 2
Article V Greens's Conditions Precedent to Closing............................13
Section 5.1 WARRANTIES TRUE AND CORRECT...............................13
Section 5.2 LICENSES, PERMITS, ETC....................................13
Article VI GOLV's Conditions Precedent to Closing.............................13
Section 6.1 WARRANTIES TRUE AND CORRECT...............................13
Article VII Additional Agreements of GOLV and Xxxxxx..........................14
Section 7.1 INSPECTION OF PROPERTY....................................14
Section 7.2 ACCESS TO DOCUMENTS.......................................14
Section 7.3 NONCOMPETITION............................................15
Section 7.4 CONDUCT OF BUSINESS OF THE TRANSFERRED ASSETS
PENDING THE CLOSING.....................................15
Section 7.5 BROKERS...................................................15
Section 7.6 UNDISCLOSED LIABILITIES...................................15
Article VIII Additional Agreements of Greens..................................16
Section 8.1 BROKERS...................................................16
Section 8.2 LICENSES, PERMITS, CONSENTS, ETC..........................16
Section 8.3 PAYMENT OF LIABILITIES....................................16
Section 8.4 JOINT AND SEVERAL LIABILITY...............................16
Section 8.5 ACCESS TO DOCUMENTS.......................................16
Article IX Indemnification by GOLV and Xxxxxx.................................16
Section 9.1 INDEMNIFICATION...........................................16
Article X Miscellaneous.......................................................16
Section 10.1 SUCCESSORS AND ASSIGNS....................................16
Section 10.2 GOVERNING LAW AND JURISDICTION............................17
Section 10.3 NOTICES...................................................17
Section 10.4 PAYMENT OF EXPENSES.......................................18
Section 10.5 ENTIRE AGREEMENT..........................................18
Section 10.6 COUNTERPARTS..............................................18
Section 10.7 HEADINGS..................................................18
Section 10.8 OTHER DOCUMENTS...........................................18
Section 10.9 WAIVER....................................................18
Section 10.10 EXHIBITS..................................................18
Section 10.11 LEGAL FEES................................................18
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 3
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (Agreement) is made and entered into with an
effective date of July 31, 2002 by and among Sedona Worldwide Incorporated (the
name of which will be changed to Greens Worldwide Incorporated), an Arizona
corporation ("Greens"), or its nominee (collectively referred to as "Greens")
and Greens of Las Vegas, Inc., a Nevada corporation ("GOLV").
RECITALS:
A. GOLV has developed concepts, knowledge and plans for natural grass golf
putting courses, inspired by famous golf holes around the world and desires to
develop such a course in Las Vegas, Nevada (the Project).
B. Greens desires to purchase all of the assets of GOLV including but not
limited to all plans, designs, concepts and any and all proprietary rights to be
utilized in the development of the Project. All of the foregoing assets which
are to be purchased by Greens under this Agreement are referred to below as the
"Transferred Assets".
C. After the Transferred Assets are transferred to Greens pursuant to the
terms and conditions of this Agreement, GOLV will be a shell entity with no
material assets or liabilities as recognized under generally accepted accounting
principles other than the shares of Greens stock received by GOLV under this
Agreement.
The Parties agree to the terms and conditions, representations and warranties
set forth in this Agreement, including in the Recitals above.
ARTICLE I
SALE OF ASSETS
SECTION 1.1 SALE AND PURCHASE OF ASSETS. On the basis of the
representations and warranties and subject to the terms and conditions set forth
in this Agreement, GOLV agrees to sell to Greens, and Greens agrees to purchase
from GOLV, for the consideration specified in Sections 1.2 and 1.3 of this
Agreement, on the Closing Date referred to in Section 1.4 of this Agreement, all
of the Transferred Assets. The Transferred Assets include without limitation the
following assets of GOLV owned by GOLV.
(a) All Intellectual Property, as defined in Section 1.7, that GOLV uses in
the operation of the Transferred Assets.
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(b) All tangible personal property owned or leased by GOLV and used in the
operation of the Transferred Assets, wherever located.
(c) All intangible personal property owned by GOLV and used in the
manufacture, operation of, or in connection with, the Transferred Assets,
wherever located, including without limitation:
(1) All of GOLV's licenses (but only to the extent such licenses are
transferable) and contract rights necessary to or intended for the operation of
the Transferred Assets.
(2) All of GOLV's rights but not obligations under the leases of real
and personal property, if any, used in the operation of the Transferred Assets.
(3) All of GOLV's trademarks, trade names and goodwill related to the
operation of the Transferred Assets.
(d) Original or true and correct copies of all books and records of the
Transferred Assets as may be necessary or desirable for the efficient conduct of
the business of the Transferred Assets in the ordinary course of business.
(e) A detailed list of all Transferred Assets is attached to this Agreement
as Exhibit A.
SECTION 1.2 PURCHASE PRICE.
The total purchase price to be paid by Greens to GOLV for the Transferred
Assets shall be eight million shares of Greens unregistered common stock
represented by Stock Certificate No. __. The purchase price shall be allocated
among the Transferred Assets described in this Agreement solely and exclusively
by Greens.
SECTION 1.3 LIMITED ASSUMPTION OF LIABILITIES. The Board of Directors of
GOLV represent and warrant that GOLV's outstanding liabilities do not exceed
$5,000. At the Closing, Greens shall assume and agree to pay or discharge all
liabilities of the Transferred Assets up to a maximum amount of $5,000. GOLV
shall indemnify and hold Greens harmless for any and all debts or liabilities of
the Transferred Assets exceeding $5,000.
SECTION 1.4 CLOSING. The Closing under this Agreement shall take place on
or before July 31, 2002, at the offices of Greens Worldwide Incorporated in
Phoenix, Arizona at 9 a.m., local time, to be effective at 11:59 p.m. on that
day, or such other time, date and place as Greens and GOLV may agree upon in
writing (such time on such date being referred to as the "Time of Closing" or
"Closing" and such date being referred to as the "Closing Date").
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SECTION 1.5 ACTION TO BE TAKEN AT CLOSING. Subject to the terms and
conditions set forth in this Agreement, it is agreed that at the Time of
Closing:
(a) GOLV will deliver to Greens such bills of sale, deeds, assignments and
other instruments of transfer as are reasonably requested by and satisfactory to
counsel for Greens, to transfer to Greens title to the Transferred Assets.
(b) Greens shall transfer the applicable number of shares to GOLV as
specified in Section 1.2.
(c) GOLV will deliver to Greens all consents of third parties necessary for
the assignment of leases or contract rights, if any, under this Agreement.
(d) The parties will deliver, as appropriate, such further certificates,
consents and other documents as may be required to carry out the terms of this
Agreement.
SECTION 1.6 SALES, USE, INCOME AND OTHER TAXES. Sales and use taxes,
transfer taxes, investment tax credit recapture, depreciation recapture, and all
other impositions of tax with respect to the transfers contemplated by this
Agreement shall be the responsibility of and shall be borne and paid by GOLV. In
addition, GOLV shall be solely responsible for and shall pay all federal, state
and local income taxes on the earnings of the Transferred Assets through the
Closing Date.
SECTION 1.7 INTELLECTUAL PROPERTY
(a) INTELLECTUAL PROPERTY ASSETS--The term "Intellectual Property Assets"
includes:
(1) The name "Greens of Las Vegas", all fictional business names,
trading names, registered and unregistered trademarks, service marks, and
applications (collectively, "Marks").
(2) All patents, patent applications, and inventions and discoveries
that may be patentable (collectively, "Patents").
(3) All copyrights in both published works and unpublished works
(collectively, "Copyrights").
(4) All rights in mask works (collectively, "Rights in Mask Works").
(5) All know-how, trade secrets, confidential information, customer
lists, software, technical information, data, process technology, plans,
drawings, and blue prints (collectively, "Trade Secrets") owned, used, prepared
by or for, or licensed by, GOLV (as licensee or licensor).
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(b) AGREEMENTS - GOLV has disclosed all contracts relating to the
Intellectual Property Assets to which GOLV is a party or by which GOLV is bound.
There are no outstanding and, to GOLV's knowledge, no threatened disputes or
disagreements, with respect to any such contracts.
(c) KNOW-HOW NECESSARY FOR THE BUSINESS
The Intellectual Property Assets are all those necessary for the
development and operation of GOLV's businesses and GOLV Products. GOLV is the
owner of all right, title, and interest in and to each of the Intellectual
Property Assets, free and clear of all liens, security interests, charges,
encumbrances, equities, and other adverse claims, and has the right to use all
of the Intellectual Property Assets without payment to any third party.
(d) TRADEMARKS
(1) GOLV is the owner of all right, title, and interest in and to each
of the Marks, free and clear of all liens, security interests, charges,
encumbrances, equities, and other adverse claims.
(2) All Marks, if any, that have been registered with the United
States Patent and Trademark Office are currently in compliance with all formal
legal requirements (including the timely post-registration filing of affidavits
of use and incontestability and renewal applications), are valid and
enforceable, and are not subject to any maintenance fees or taxes or actions
falling due within ninety days after the Closing Date.
(3) No Xxxx has been or is now involved in any opposition,
invalidation, or cancellation and no such action is threatened with the respect
to any of the Marks.
(4) To GOLV's knowledge, there is no potentially interfering trademark
or trademark application of any third party.
(5) No Xxxx is infringed or, to GOLV's knowledge, has been challenged
or threatened in any way. None of the Marks used by GOLV infringes or is alleged
to infringe any trade name, trademark, or service xxxx of any third party.
(6) All products and materials containing a Xxxx xxxx the proper
federal registration notice where permitted by law.
(e) COPYRIGHTS
(1) GOLV is the owner of all right, title, and interest in and to each
of the Copyrights, free and clear of all liens, security interests, charges,
encumbrances, equities, and other adverse claims.
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(2) All the Copyrights have been registered and are currently in
compliance with formal legal requirements, are valid and enforceable, and are
not subject to any maintenance fees or taxes or actions falling due within
ninety (90) days after the date of Closing.
(3) No Copyright is infringed or, to GOLV's Knowledge, has been
challenged or threatened in any way. None of the subject matter of any of the
Copyrights infringes or is alleged to infringe any copyright of any third party
or is a derivative work based on the work of a third party.
(4) All works encompassed by the Copyrights have been marked with the
proper copyright notice.
(f) TRADE SECRETS
(1) With respect to each Trade Secret, the documentation relating to
such Trade Secret is current, accurate, and sufficient in detail and content to
identify and explain it and to allow its full and proper use without reliance on
the knowledge or memory of any individual.
(2) GOLV has taken all reasonable precautions to protect the secrecy,
confidentiality, and value of their Trade Secrets.
(3) GOLV has good title and an absolute and exclusive right to use the
Trade Secrets. The Trade Secrets are not part of the public knowledge or
literature, and, to GOLV's knowledge, have not been used, divulged, or
appropriated either for the benefit of any person or to the detriment of Greens.
No Trade Secret is subject to any adverse claim or has been challenged or
threatened in any way.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF GOLV
GOLV represents and warrants, subject to Schedule exceptions, as follows:
SECTION 2.1 ORGANIZATION AND GOOD STANDING. GOLV is, and on the Closing
Date will be, a corporation duly organized, validly existing, and in good
standing under the laws of the jurisdiction of its incorporation, with full
power and authority to own and lease its respective properties and to carry on
its respective business as now being conducted. GOLV is, and on the Closing Date
will be, duly qualified and licensed to transact business as a foreign
corporation in all states or other jurisdictions where the nature of the
business transacted or properties owned by it makes such qualification or
licensing necessary.
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SECTION 2.2 GOLV'S AUTHORITY AND NO BREACH. GOLV has the full corporate
right, power and authority to execute, deliver and carry out the terms of this
Agreement and all documents and agreements necessary to give effect to the
provisions of this Agreement. This Agreement has been duly authorized, executed
and delivered by GOLV and the execution of this Agreement and the consummation
of the transactions contemplated will not, with or without the giving of notice
and/or the passage of time, (a) violate any provision of law, statute, rule or
regulation to which GOLV is subject; (b) violate any judgment, order, writ or
decree of any court applicable to GOLV; (c) result in the breach or termination
of any provision of, or create rights of acceleration, or constitute a default
under or result in the creation or imposition of any material lien, charge or
encumbrance upon any of the properties or assets of GOLV under the terms of any
indenture, mortgage, deed of trust, contract, corporate charter, bylaw, or other
instrument to which GOLV is a party or by which it is bound; or (d) conflict
with, or result in any violation of any provision of the Articles of
Incorporation, Bylaws or any other corporate document or agreement of GOLV. All
corporate action and other authorizations, including but not limited to approval
by the Board of Directors of GOLV, which are a prerequisite to the execution of
this Agreement and the consummation of the transactions contemplated by this
Agreement have been taken or obtained by GOLV. This Agreement is a valid and
binding agreement of GOLV, approved by the Board of Directors of GOLV,
enforceable in accordance with its terms, except insofar as enforcement of it
may be limited by bankruptcy, insolvency or other similar laws.
SECTION 2.3 FINANCIAL STATEMENTS. GOLV has delivered to Greens the all
financial statements prior to the Closing. All financial statements referred to
in this Section are true, complete and correct in all material respects and have
been prepared in accordance with generally accepted accounting principles
consistently applied. Such financial statements present fairly and accurately
the financial position of GOLV, the Transferred Assets, and the results of
GOLV's operations at the dates and for the periods indicated.
SECTION 2.4 TITLE TO AND CONDITION OF ASSETS. Each of the Transferred
Assets, real or personal, to be acquired under this Agreement is in good
operating condition and repair, subject to ordinary wear and tear, and such
assets collectively are sufficient to carry on the business of the Transferred
Assets as previously conducted. Each of the Transferred Assets are owned by GOLV
free and clear of any claim, mortgage, pledge, lien, encumbrance or liability of
any kind to any party.
SECTION 2.5 CONDUCT OF BUSINESS SINCE JANUARY 1, 2002 AND PENDING THE
CLOSING. Since January 1, 2002, GOLV has not transferred or sold any of the
Transferred Asset's property or business (except in the ordinary course of
business) to any third party, nor transferred any business assets or property
from the Transferred Assets to any other entity directly or indirectly
controlled by any of them.
SECTION 2.6 REPRESENTATIONS ABOUT CONDUCT OF BUSINESS SINCE JANUARY 1,
2002. Since January 1, 2002, none of the following events have occurred:
(a) No material adverse change in the properties, conditions (financial or
otherwise), assets, liabilities, business, operations or prospects of the
Transferred Assets, or operation of the business of the Transferred Assets by
GOLV other than in the ordinary course of business.
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(b) No damage, destruction or loss of any of the Transferred Assets
(whether or not covered by insurance) materially adversely affecting the
business, operations or prospects of the Transferred Assets or GOLV.
(c) No sale or transfer of any of the assets of GOLV or cancellation of any
debt or claim, with respect to the Transferred Assets, except in each case in
the ordinary course of business.
SECTION 2.7 COMPLIANCE WITH LAW. The business of GOLV with respect to the
Transferred Assets is in compliance in all material respects, with all
applicable federal, state, city, county or other laws, rules, regulations and
ordinances, and GOLV has complied with all applicable statutes and regulations
of all governmental authorities having jurisdiction over any of them.
SECTION 2.8 LITIGATION OR CLAIMS. There are no claims, actions, suits,
arbitrations, governmental investigations, inquiries, or proceedings pending or,
to the knowledge of GOLV, threatened against GOLV or the Transferred Assets, its
properties, business or assets, or the transactions contemplated by this
Agreement, before any court or governmental or administrative body or agency, or
any private arbitration tribunal, except matters for which the defense and any
liability are fully covered by insurance. A brief summary of all claims,
actions, suits, arbitrations, governmental investigations, inquiries and
proceedings is set forth in Exhibit B to this Agreement. GOLV does not know of
any basis for any claim, action, suit, arbitration, investigation, inquiry, or
proceeding pending before any court or governmental or administrative body or
agency or any private arbitration tribunal. There is no outstanding order, writ,
injunction or decree of any court or arbitrator, government or governmental
agency against or affecting the business of GOLV or the Transferred Assets.
SECTION 2.9 ACCOUNTS RECEIVABLE. Any accounts receivable arising out of the
sale of any Transferred Assets that may be sold between the date of this
Agreement and the Closing of the Transferred Assets, including those due to and
due from third parties, less reserves for doubtful accounts and contractual
allowances, as shown on the Closing Date Balance Sheet, will be collectible by
Greens in the ordinary course of business not later than six months after the
Closing Date.
SECTION 2.10 LICENSES. GOLV has all necessary material franchises,
licenses, contracts, consents and approvals required by law or governmental
regulations from all applicable federal, state and local authorities and any
other regulatory agencies for the proper conduct of the business of the
Transferred Assets, and GOLV is not in default in any respect under such
franchises, licenses, contracts, consents and approvals.
SECTION 2.11 LOANS AND OTHER TRANSACTIONS. GOLV has not made any loan to
any of its shareholders, directors, officers or employees, nor is any such
person a party to any material transaction or contract with GOLV, except in each
case as set forth in Schedule C.
SECTION 2.12 INSURANCE. GOLV has furnished to Greens on Schedule D which
sets forth a list and brief description of all policies of fire, extended
coverage, liability and all other kinds of insurance held by GOLV with respect
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to the Transferred Assets and all claims made on the foregoing policies since
January 1, 2001. Such policies are and, on the Closing Date will be, in full
force and effect, and GOLV is not delinquent with respect to any premium
payments on them.
SECTION 2.13 CONTRACTS, OBLIGATIONS AND COMMITMENTS. Exhibit E sets forth a
list and brief summary of all material contracts entered into by GOLV with
respect to the operation of the Transferred Assets. None of such contracts is,
or on the Closing Date will be, materially adverse to GOLV. There is not, and on
the Closing Date there will not be, under any such contract any existing
material default or any condition, event or act which with notice or lapse of
time or both, would constitute a material default.
SECTION 2.14 LABOR AGREEMENTS. There are no contractual agreements with any
labor union with respect to the business or operation of the Transferred Assets,
nor does GOLV have any knowledge of any union organizing activity within the
last three years.
SECTION 2.15 CERTAIN EMPLOYEES. GOLV has furnished to Greens Schedule F,
which sets forth a correct and complete list, with respect to the business of
the Transferred Assets, of all persons whose current aggregate annual
compensation from GOLV is expected to equal or exceed $10,000.00 in 2002, and
all increases received by any of such persons after January 1, 2002.
SECTION 2.16 CONSENTS. No consents, approvals or authorizations are
required in connection with the valid execution, delivery or performance of this
Agreement other than the Board of Directors of GOLV, which has met and
authorized the entering into of this Agreement.
SECTION 2.17 NO UNFUNDED PENSION LIABILITIES. GOLV has no Pension
liabilities of any kind or description.
SECTION 2.18 NO OBLIGATION BY GREENS TO REGISTER SHARES. GOLV shall be
solely responsible for all efforts and costs to register the shares received by
it in Greens, under this Agreement, and to comply in full with all applicable
corporate and securities laws.
SECTION 2.19 NO UNTRUE REPRESENTATION OR WARRANTY. No representation or
warranty by GOLV in this Agreement, nor any statement, schedule or certificate
furnished or to be furnished to Greens pursuant to it, or in connection with the
transactions contemplated, contains or will contain, at the time of Closing, any
untrue statement of a material fact, or omits or will omit to state a material
fact necessary to make the statements contained in it not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GREENS ("SEDONA WORLDWIDE INCORPORATED")
Greens represents and warrants as follows:
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SECTION 3.1 ORGANIZATION AND GOOD STANDING. Greens or its nominee or
assignee will be on the Closing Date, an entity duly organized, validly existing
and in good standing under the laws of the State of Arizona.
SECTION 3.2 GREENS'S AUTHORITY. Greens has the full corporate right, power
and authority to execute, deliver and carry out the terms of this Agreement and
all documents and agreements necessary to give effect to the provisions of this
Agreement. This Agreement has been duly authorized, executed and delivered by
Greens and the execution of this Agreement and the consummation of the
transactions contemplated will not result in any conflict, breach or violation
of or default under any charter, bylaw, statute, judgment, order, decree,
license, law, regulation, mortgage, agreement, deed of trust, indenture or other
instrument to which Greens is a party or by which it is bound. All corporate
action and other authorizations prerequisite to the execution of this Agreement
and the consummation of the transactions contemplated by this Agreement have
been taken or obtained by Greens. Except for required present or future filings
under state and federal securities laws, no authorization, consent or approval
of, or filing that has not been duly made with, any governmental body or
authority, and no authorization, consent or approval of any third party, is
necessary for the consummation by Greens of the transactions contemplated by
this Agreement. This Agreement is a valid and binding agreement of Greens
enforceable in accordance with its terms, except insofar as enforcement of it
may be limited by bankruptcy, insolvency or similar laws.
SECTION 3.3 NON CONFLICT. This Agreement does not (i) conflict with, or
result in any violation of any provision of, the Articles of Incorporation or
Bylaws of Greens, (ii) violate or conflict with, or result in a breach or
termination of or default under, any agreement, instrument, license, judgment,
order, decree, statute, law or regulation applicable to Greens, or (iii) result
in the creation or imposition of any lien on any asset of Greens.
SECTION 3.4 NO ADVERSE PROCEEDING. No material action, suit or proceeding
is pending, or, to the best of Green's knowledge, is threatened against Greens
at law or in equity, or before any national, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
SECTION 3.5 NO UNTRUE REPRESENTATION OR WARRANTY. No representation or
warranty by Greens in this Agreement, nor any statement or certificate furnished
or to be furnished to GOLV pursuant to it, or in connection with the
transactions contemplated, contains or will contain any untrue statement of a
material fact, or omits or will omit to state a material fact necessary to make
the statements contained in it not misleading.
ARTICLE IV
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SECTION 4.1 The representations, warranties, covenants, agreements and
indemnifications of Greens and GOLV contained in this Agreement shall survive
the Closing Date for a period of three years and shall be deemed to be material
and to have been relied upon by Greens and GOLV, notwithstanding any
investigation or inspection made by Greens or GOLV, or on their respective
behalf.
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ARTICLE V
GREENS'S CONDITIONS PRECEDENT TO CLOSING
Greens' agreement to purchase and pay for the Transferred Assets to be
purchased under this Agreement is subject to compliance with and the occurrence
of each of the following conditions except as any of them may be waived in
writing by Greens.
SECTION 5.1 WARRANTIES TRUE AND CORRECT. Each of the representations and
warranties of GOLV set forth in this Agreement and in the Exhibits delivered
pursuant to it shall be true and correct in all material respects at and as of
the Closing Date. The covenants, agreements and conditions required by this
Agreement to be performed and complied with by GOLV shall have been performed
and complied with in all material respects. GOLV shall execute and deliver to
Greens a certificate to such effect, in a form acceptable to legal counsel for
Greens, signed by the President or a Vice President of GOLV and dated the
Closing Date.
SECTION 5.2 LICENSES, PERMITS, ETC. Greens shall have been granted all
appropriate and necessary licenses, permits, approvals, clearances, provider
numbers, contracts, consents and certifications necessary for the operation of
the Transferred Assets as previously operated.
ARTICLE VI
GOLV'S CONDITIONS PRECEDENT TO CLOSING
GOLV's agreement to sell and deliver the Transferred Assets to be sold
under this Agreement is subject to compliance with and the occurrence of each of
the following conditions, except as any of them may be waived in writing by it:
SECTION 6.1 WARRANTIES TRUE AND CORRECT. Each of the representations and
warranties of Greens set forth in this Agreement shall be true and correct in
all material respects at and as of the Closing Date. The covenants, agreements
and conditions required by this Agreement to be performed and complied with by
Greens shall have been performed and complied with in all material respects. If
requested in writing by GOLV, Greens shall execute and deliver to GOLV a
certificate to such effect, in a form acceptable to legal counsel for GOLV,
signed by an authorized officer of Greens dated the Closing Date.
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ARTICLE VII
ADDITIONAL AGREEMENTS OF GOLV AND XXXXXX
SECTION 7.1 INSPECTION OF PROPERTY. Greens or its representatives shall
have reasonable rights of inspection of all Transferred Assets, to be purchased
by Greens under this Agreement.
SECTION 7.2 ACCESS TO DOCUMENTS. Greens or its representatives shall have
full and complete access to all material contracts and litigation documents
relating to the business of the Transferred Assets, as well as the books of
account and other records of GOLV and of the Transferred Assets. GOLV shall
furnish Greens with such copies of the foregoing materials as Greens may
reasonably request.
SECTION 7.3 NONCOMPETITION. GOLV and Xxxxx Xxxxxx (Xxxxxx), jointly and
severally, agree not to compete with the business to be carried on by Greens as
a result of the consummation of the transactions contemplated, to the maximum
extent permitted under law. GOLV agrees to the following terms and conditions
pertaining to noncompetition.
(a) For a period of five years after the Closing.
(1) GOLV and Xxxxxx will not, directly or indirectly, engage or invest
in, own, manage, operate, finance, control, or participate in the ownership,
management, operation, financing, or control of, be employed by, associated
with, or in any manner connected with, lend GOLV's name or any similar name or
trade name to, lend GOLV's credit to, or render services or advice to, any
business whose products or activities compete in whole or in part with the
products or activities of Greens, anywhere within Nevada, Arizona, California,
Colorado, New Mexico or Northern Mexico. GOLV agrees that this covenant is
reasonable with respect to its duration, geographical area, and scope.
(2) GOLV and Xxxxxx will not, directly or indirectly, either for
itself or any other person, (A) induce or attempt to induce any employee of
Greens to leave the employ of Greens, (B) in any way interfere with the
relationship between Greens and any employee of Greens, (C) employ, or otherwise
engage as an employee, independent contractor, or otherwise, any employee of
Greens employed by Greens as of the Closing Date, or (D) induce or attempt to
induce any customer, supplier, licensee, or business relation of Greens to cease
doing business with Greens, or in any way interfere with the relationship
between any customer, supplier, licensee, or business relation of Greens.
(3) GOLV and Xxxxxx will not, directly or indirectly, either for
itself or any other person, solicit the business of any person known to GOLV to
be a customer of GOLV as of the Closing Date, whether or not GOLV had personal
contact with such person, with respect to products or activities which compete
in whole or in part with the products or activities of Greens or with the
business arising out of the Transferred Assets.
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 14
(b) In the event of a breach by GOLV or Xxxxxx of any covenant set forth in
Subsection 7.3 (a) of this Agreement, the term of such covenant will be extended
for the period of the duration of such breach.
(c) GOLV and Xxxxxx will not, at any time during or after the five year
period, disparage Greens or any of its shareholders, directors, officers,
employees, or agents.
SECTION 7.4 CONDUCT OF BUSINESS OF THE TRANSFERRED ASSETS PENDING THE
CLOSING. From the date of this Agreement and to the Closing Date, GOLV agrees
that, unless Greens otherwise consents in writing, GOLV will, with respect to
the business of the Transferred Assets:
(a) Carry on the business of the Transferred Assets only in the ordinary
course and in substantially the same manner as each has previously.
(b) Maintain and preserve their business organizations intact, maintain
their goodwill and relationships with their present officers, shareholders,
employees, suppliers, customers, distributors and others having a business
relationship with any of them, and maintain all licenses and permits requisite
to the business and operation of the Transferred Assets.
(c) Not transfer or sell any of their assets or waive or relinquish any
valuable rights, nor transfer any assets from the Transferred Assets to any
other entity directly or indirectly controlled by any of them.
(d) Not commit for any capital expenditure.
(e) Not enter into or assume any material contract, including without
limitation any mortgage, pledge, conditional sale, security agreement, or create
or suffer to be created any lien, encumbrance or charge (except for taxes not
due or payable), of any kind upon any of their Transferred Assets, whether now
owned or subsequently acquired.
SECTION 7.5 BROKERS. GOLV and Xxxxxx, jointly and severally, agree to
indemnify Greens against and to hold Greens harmless from any claim made for a
broker's or finder's fee or other similar payment based upon any agreements,
arrangements or understandings made by GOLV and/or Xxxxxx.
SECTION 7.6 UNDISCLOSED LIABILITIES. GOLV and Xxxxxx, jointly and
severally, agree that Greens will not be obligated for liabilities of any kind
or nature, whether absolute, accrued, contingent or otherwise, whether or not
such matters are normally set forth or reflected in a financial statement,
except for the liabilities of GOLV referred to in Section 1.3, and that any
other such liabilities shall be promptly paid by GOLV if they arise.
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 15
ARTICLE VIII
ADDITIONAL AGREEMENTS OF GREENS
SECTION 8.1 BROKERS. Greens agrees to indemnify GOLV against and to hold
harmless from any claim made for a broker's or finder's fee or other similar
payment based upon any agreements, arrangements or understandings made by
Greens.
SECTION 8.2 LICENSES, PERMITS, CONSENTS, ETC. Greens agrees to cooperate
with GOLV and to use its best efforts to obtain any licenses, permits, approvals
and consents that may be required in order to consummate the transactions
contemplated.
SECTION 8.3 PAYMENT OF LIABILITIES. Greens agrees to pay when due the
liabilities assumed by it pursuant to Section 1.3.
SECTION 8.4 JOINT AND SEVERAL LIABILITY. Greens agrees that it and its
nominees shall be jointly and severally liable for the liabilities of GOLV
assumed pursuant to Section 1.3.
SECTION 8.5 ACCESS TO DOCUMENTS. GOLV or its representatives shall have
full and complete access, before and after the Closing Date, to all material
documents in the possession of Greens relating to the business of the
Transferred Assets prior to the Closing Date.
ARTICLE IX
INDEMNIFICATION BY GOLV AND XXXXXX
SECTION 9.1 INDEMNIFICATION. GOLV and Xxxxxx, jointly and severally,
indemnify and holds harmless Greens, its successors and assigns, for a period of
three years after the Closing Date, against and in respect of any damage, loss,
cost, expense or liability (including attorney's fees) resulting to Greens from
any false, misleading or inaccurate representation, breach of warranty or
nonfulfillment of any agreement or condition on the part of GOLV or Xxxxxx under
this Agreement or from any misrepresentation in or any omission from any
certificate, list, exhibit or other instrument furnished or to be furnished to
Greens under this Agreement.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties, whether so expressed or
not.
SECTION 10.2 GOVERNING LAW AND JURISDICTION. This Agreement has been
executed and will be consummated in the State of Arizona and is to be governed
by and interpreted under the laws of that State. Any action or proceeding
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 16
seeking to enforce any provision of, or based on any right arising out of, this
Agreement must be brought against any of the parties exclusively in the Maricopa
County, Arizona Superior Court and each of the parties consents to the exclusive
jurisdiction of such court (and of the appropriate appellate courts) in any such
action or proceeding and waives any objection to such. Process in any action or
proceeding referred to in the preceding sentence may be served on any party
anywhere in the world.
SECTION 10.3 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt),
provided that a copy is mailed by registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
Greens of Las Vegas, Inc.
0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxx 0
Xxx Xxxxx, XX 00000
Greens Worldwide Incorporated
Attention: Xxxxxx X. Xxxxxxx
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
with a copy to:
Xx Xxxxxxx, Esq.
Xxxxxxx Law Offices, P.C.
0000 X. Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
or such other address as any person may request by notice given as above.
Notices sent as provided in this Agreement shall be deemed filed on the date
mailed.
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 17
SECTION 10.4 PAYMENT OF EXPENSES. GOLV shall pay its own expenses,
including without limitation, the disbursements and fees of its attorneys,
accountants, advisors, agents and other representatives, incidental to the
preparation and carrying out of this Agreement, whether or not the transactions
contemplated are consummated.
SECTION 10.5 ENTIRE AGREEMENT. This Agreement (including the Exhibits), and
all other agreements and documents executed in connection with it constitutes
the entire agreement between the parties with respect to the subjects of this
Agreement and no amendment, alteration or modification of this Agreement shall
be valid unless in each instance such amendment, alteration or modification is
expressed in a written instrument duly executed by the party or parties agreeing
to such amendment, alteration or modification.
SECTION 10.6 COUNTERPARTS. This Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 10.7 HEADINGS. The headings contained in this Agreement have been
inserted for the convenience of reference only and shall in no way restrict or
modify any of the terms or provisions of this Agreement.
SECTION 10.8 OTHER DOCUMENTS. Each party to this Agreement will, upon an
appropriate request, execute and deliver to the appropriate party all such
further assignments, endorsements and other documents as may reasonably be
required in order to perfect the sale, transfer and delivery of the assets to be
purchased and sold under this Agreement.
SECTION 10.9 WAIVER. The failure of any party to insist, in any one or more
instances, on performance of any of the terms and conditions of this Agreement
shall not be construed as a waiver or relinquishment of any rights granted under
this Agreement, or of the future performance of any such term, covenant or
condition, but the obligations of the parties with respect to shall continue in
full force and effect.
SECTION 10.10 EXHIBITS. Any Exhibit not attached to this Agreement, or if
attached, not completed and initialed by GOLV and Greens, shall be subject to
the approval of Greens within ten (10) business days after its actual receipt.
SECTION 10.11 LEGAL FEES. If any party to this Agreement fails to comply
with the terms and conditions of this Agreement, then the other party is
entitled to recover the costs and expenses, including attorneys' fees and costs,
of any efforts or legal action taken to enforce the terms of this Agreement.
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 18
Greens Worldwide Incorporated,
an Arizona corporation
By: ______________________________
__________________(print name)
Its: _____________________________
_________________(print name)
Date: _______________
Greens of Las Vegas, Inc.,
a Nevada corporation
By: ______________________________
__________________(print name)
Its: _____________________________
_________________(print name)
Date: _______________
__________________________________
Xxxxx Xxxxxx, as to Article VII and Article IX.
Date: __________________
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 19
LIST OF EXHIBITS
1. List of Transferred Assets (Section 1.1)
2. List of Litigation or Potential Claims (Section 2.8)
3. Loan to and Contracts with Shareholders, Directors, Officers and Employees
(Section 2.11)
4. List of Insurance Policies and Claims since January 1, 2001 (Section 2.12)
5. List of All Material Contracts (Section 2.13)
6. List of Employees earning more than $10,000 (Section 2.15)
Greens Worldwide/Greens of Las Vegas Asset Purchase Agreement Page 20
