Exhibit 4.1


 


ASSET PURCHASE AGREEMENT


 


THIS ASSET PURCHASE
AGREEMENT (the “Agreement”) is made and entered into the 16th day of September, 2015, by and between
Draker, Inc., a Delaware corporation (“Draker”) and Draker Laboratories, Inc., a Delaware
corporation (“Draker Labs” and, together with Draker, the “Seller”) and BlueD Acquisition
Corporation, a Delaware corporation (the “Buyer”).


 


W I T N E S S E T H:


 


WHEREAS, Seller
owns and operates a solar performance and asset management business (the “Business”) headquartered in Burlington,
Vermont with additional operations in Austin, Texas; and


 


WHEREAS, Seller
desires to sell and transfer to Buyer and Buyer desires to purchase and receive from Seller all of the assets that are utilized
by Seller in operation of the Business (except for the Excluded Assets described below) for the consideration and upon the terms
and conditions hereinafter set forth;


 


NOW, THEREFORE, FOR
AND IN CONSIDERATION of the foregoing premises and of the mutual agreements hereinafter set forth, the parties hereto agree
as follows:


 


ARTICLE I. Sale and Purchase
of the Business


 


1.1    Purchase of Assets.
Upon and subject to the terms and conditions set forth in this Agreement, Seller hereby agrees to sell, transfer, assign, convey
and deliver to Buyer on the Effective Date (as defined herein), and Buyer agrees to purchase and assume from Seller, good and valid
title to (or leasehold interest in) all assets other than the Excluded Assets of Seller of every kind and type, tangible or intangible,
real and personal, that are necessary or reasonably desirable to operate the Business (the “Conveyed Assets”),
free and clear of all liens and encumbrances (other than Permitted Liens (as defined below) and liens resulting from indebtedness
that will be satisfied or is waived in connection with the Closing), including, without limitation, the following:


 


(1)    All
tangible personal property, medical and other equipment, machinery, data processing hardware and software, furniture, furnishings,
appliances, vehicles and other tangible personal property of every description and kind and all replacement parts therefor used
in connection with the Business including, without limitation, the items listed on Schedule 1.1(1) attached hereto (collectively,
the “Equipment and Furnishings”);


 


(2)    All
intangible or intellectual property owned, leased, licensed or possessed by Seller or any other person and utilized in connection
with the Business, including without limitation, the names “Draker” and “Draker Laboratories” including,
without limitation, patents, trademarks, copyrights and copyrighted materials, software and know-how and licensed rights including,
without limitation, those set forth on Schedule 1.1(2) (the “Intellectual Property”);


 






    	



    	 



    




 


(3)    The
leases, customer contracts, purchase orders, vendor contracts, and other contracts and agreements specifically listed on Schedule
1.1(3) or that Buyer otherwise elects to assume post-Closing pursuant to Section 6.3, (collectively, the “Assumed
Contracts”);


 


(4)    All
inventory of goods and supplies used or maintained in connection with the Business, including, without limitation, as listed on
Schedule 1.1.(4), (collectively, the “Inventory”);


 


(5)    All
cash (and cash equivalents) related to the operation of the Business received by Seller after the Closing Date;


 


(6)    All
manuals, books and records used in operating the Business (to the extent transferrable pursuant to applicable law), including,
without limitation, personnel policies and files (for any employees hired by Buyer and subject to applicable law) and manuals,
accounting records, and computer software, as well as copies of any books and records that are not transferrable pursuant to applicable
law or otherwise are Excluded Assets;



 


(7)    To
the full extent transferable, all licenses, permits, registrations, certificates, consents, accreditations, approvals and franchises
necessary to operate and conduct the Business, together with assignments thereof, if required, and all waivers which Seller currently
has, if any, of any requirements pertaining to such licenses, permits, registrations, certificates, consents, accreditations,
approvals and franchises;


 


(8)    All goodwill, and, to the extent assignable by Seller, all warranties (express or implied) and
rights and claims related to the Assets or the operation of the Business;


 


(9)    All prepaid expenses of the
Business;


 


(10)  The accounts
and notes receivable of the Business including, without limitation, those listed on Schedule 1.1(10), (collectively, the
“Accounts Receivable”);


 


(11)  All
claims of Seller against any third party, whether in contract or equity, and whether matured or unmatured, fixed or contingent,
asserted or unasserted;


 


(12)  All of
Seller’s right, title and interest in any partnerships, joint ventures or similar arrangements, subject to Buyer’s
approval;


 


(13)  All phone
numbers, URL’s, passwords, login information and other communications and access rights of Seller related to or necessary
or useful for the use and operation of other Conveyed Assets;


 


(14)  The Seller’s
401(k) plan and similar plans, if any, in each case, as identified in Schedule 1.1(13) (each, a “Plan”); and


 






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(15)  All of
Seller’s right, title and interest in sales and marketing materials, operating manuals, handbooks, procedural documentation,
third party reports prepared for or provided to the Seller, materials provided to or from Seller from or by any other party in
connection with contemplating a strategic or financial transaction involving Seller, and any correspondence related to the Business
(including all hard copies thereof).


 


For purposes of this Agreement, “Permitted
Liens” shall mean any (i) statutory or common law liens to secure landlords, lessors or renters under leases or
rental agreements confined to the premises rented, (ii) statutory or common law liens in favor of carriers, warehousemen, mechanics
and materialmen to secure claims for labor, materials or supplies incurred in the ordinary course of the Company’s business
as to which there is no default or breach on the part of the Company, (iii) non-exclusive licenses to Company intellectual property
granted to customers in the ordinary course of business and (iv) liens and encumbrances of the Seller arising out of (A) that
certain Loan Agreement by and between the Seller and Vermont Economic Development Board (“VEDA”), dated as of October
7, 2010, (and the agreements, schedules and exhibits entered into in connection therewith, including, without limitation the Security
Agreement of even date), and (B) that certain Loan Agreement by and between the VEDA, dated as of December 14, 2010, (and the agreements,
schedules and exhibits entered into in connection therewith, including, without limitation the Security Agreement of even date).


 


1.2   Excluded Assets.
The following items which are related to the Business are not intended by the parties to be a part of the sale and purchase contemplated
hereunder (collectively, the “Excluded Assets”): (a) Seller’s corporate and fiscal records and other records
that Seller is required by law to retain in its possession; (b) all cash, checks, bank accounts, certificates of deposit and other
investments of Seller held by Seller as of the Closing Date; (c) all insurance policies and rights (including, without limitation,
rights to proceeds) thereunder and (d) such other assets listed on Schedule 1.2. The Excluded Assets shall not constitute
part of the Conveyed Assets.


 


1.3    Assumed Liabilities
of Seller. Buyer assumes only (i) liabilities of the Seller and the Business under the Assumed Contracts (A) to the extent
arising after the Closing Date, or (B) existing as of the Closing Date as a result of on-going, ordinary course obligations under
the Assumed Contract, but excluding any liability arising out of or relating to any breach of any such Assumed Contract that occurred
prior to the Closing; (ii) liabilities of the Seller and Business expressly set forth on Schedule 1.3 (the “Assumed
Liabilities”).


 


1.4    Excluded Liabilities.


 


(1)    Except for the Assumed Liabilities,
it is expressly agreed and understood by each of the parties to this Agreement that Buyer does not assume, and shall not be liable
for, any debt, liability or obligation of Seller or any other person, of any type or description whatsoever, whether related or
unrelated to the Assets, the Business or the transactions contemplated within this Agreement and that Seller or any other person
shall remain liable and responsible for the payment or performance, as the case may be, of all debts, liabilities, obligations,
contracts, leases, notes payable, accounts payable, commitments, agreements, suits, claims, indemnities, mortgages, taxes, contingent
liabilities and other obligations of Seller or any other person including, without limitation, any and all investment tax credit
recapture, depreciation recapture, all impositions of income tax and other taxes, including, without limitation, payroll related
taxes; all employee wages, salaries and benefits including, without limitation, COBRA and WARN obligations, sick pay and accrued
vacation, and other accrued employee benefits including rights of Seller’s retirees to participate in Seller’s medical
plans.


 






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(2)    Without limiting the foregoing:


 


(a)     Seller
retains all liability for, and shall pay or perform when due all liabilities, indebtedness and obligations listed on Schedule
2(a) within one (1) business day after the Closing Date;


 


(b)     Seller
retains all liability for all liabilities, indebtedness and obligations arising on, before and following the Effective Date related
to the Excluded Assets and its Business; and


 


(c)     Buyer assumes no liability for any contract, agreement or obligation of Seller
pursuant to this Agreement except for such contracts, agreements or obligations which are Conveyed Assets, and Buyer shall not
be liable in any way for any amounts owed by Seller as of the Effective Date which are not specifically defined Assumed Liabilities.


 


1.5   Third Party Consents;
Assumed Contracts. Seller and Buyer shall act in good faith and use their diligent, commercially reasonable efforts to obtain
all waivers, permits, consents and approvals and to effect all registrations, filings and notices with or to third parties that
are necessary to consummate the transactions contemplated by this Agreement on the Closing Date. Seller and Buyer will use commercially
reasonable efforts to assign each Assumed Contract and each Plan. Notwithstanding anything to the contrary in this Agreement. in
the event that assignment from Seller to Buyer is prohibited by the terms of such Assumed Contract or Plan or any counterparty
thereto, Seller shall use commercially reasonable efforts to assist Buyer in transferring or otherwise making available to Buyer,
as applicable, the benefit of such Assumed Contract or Plan, as applicable, without assigning such Assumed Contract or Plan, as
applicable, in breach thereof and shall use commercially reasonable efforts to assist Buyer in having such Assumed Contract or
Plan, as applicable, assigned after Closing, provided that Seller shall have no liability if such Assumed Contracts or Plan, as
applicable, is not able to be assigned because of the actions of any counterparties parties thereto.


  


ARTICLE II. Purchase Price


 


2.1   Purchase Price. The consideration
to be paid by Buyer to the Seller shall be the sum of $2,157,526.75 (the “Purchase Price”), which consideration
shall be payable in immediately available funds at the Closing.


 


2.2   Allocation of
Consideration. The Purchase Price shall be allocated among the Conveyed Assets in accordance with an allocation schedule to
be created by Buyer’s accountants following Closing.


 






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ARTICLE III. The Closing


 


3.1   Closing Date.
The documents governing the sale and purchase provided in this Agreement shall be executed concurrently with this Agreement at
such time and place as the parties may agree (the “Closing” or “Closing Date”). For all purposes
hereunder, the effective date of the sale and purchase provided in this Agreement shall be the close of business on the date hereof,
September 16, 2015 (the “Effective Date”).


 


3.2   Actions of Seller
at Closing. At the Closing, Seller shall deliver to Buyer a general Bill of Sale and Assumption of Liabilities, which will
convey all of the Conveyed Assets to Buyer free and clear from all claims, liens and encumbrances (other than Permitted Liens and
liens resulting from indebtedness that will be satisfied or is waived in connection with the Closing) and Buyer will assume the
Assumed Liabilities (“Bill of Sale”) in the form of attached as hereto as Exhibit A.


 


3.3   Actions of Buyer
at Closing. At the Closing, Buyer shall deliver to Seller the payment of the Purchase Price in immediately available funds
by wire transfer to an account designated by Seller (or to the Seller’s creditors as directed in writing by Seller).


 


ARTICLE IV. Representations
and Warranties of the Seller 


 


Seller represents and warrants
unto Buyer that, as of and including the Effective Date (unless a different date is set forth below), except as set forth on Schedule
4 (the “Disclosure Schedule”):


 


4.1   Organization;
Corporate Power, Absence of Conflicts with Other Agreements. Each of Draker and Draker Labs is a corporation duly organized,
validly existing and in good standing in the State of Delaware. Except for the Permitted Liens, Seller owns the Conveyed Assets
free and clear of all recorded liens, security interests and encumbrances, except for such debts, liens, and encumbrances as will
be discharged by Seller prior to or as of the Effective Date. Except for the Assumed Contracts, the execution and delivery by the
Seller of all agreements required to be executed and delivered by it pursuant to this Agreement and the consummation of the transactions
contemplated hereby do not or will not violate, result in the breach of, or conflict with any agreement to which the Seller is
a party or by which the Seller is or may be bound, the terms of any judgment, rule or order by which the Seller is bound, or the
Seller’s Articles of Incorporation or Bylaws. Except for Draker, no other person or entity owns or holds, has any interest
in, whether legal, equitable or beneficial, or has the right to purchase, any capital stock or other security of Draker Labs and
neither Draker nor Draker Labs owns any other capital stock, security, interest or other right, or any option or warrant convertible
into the same, of any corporation, partnership, joint venture or other business enterprise. Seller has the full 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 and to consummate the transactions contemplated on the part of Seller hereby.


 


4.2   No Warranty on
Conveyed Assets. All of the Conveyed Assets are sold by Seller and purchased by Buyer in their present condition on the Closing
Date, “AS IS, WHERE IS”, with NO WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, with Seller hereby disclaiming any and all of such warranties (both express and implied.)


 






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4.3   Due Authority.
The execution, delivery and consummation of this Agreement, and all other agreements and documents executed in connection herewith
by Seller, have been duly authorized by all necessary action on the part of Seller. No other action, consent or approval on the
part of Seller or any other person or entity is necessary to authorize Seller’s due and valid execution, delivery and consummation
of this Agreement and all other agreements and documents executed in connection hereto. This Agreement and all other agreements
and documents executed in connection herewith by Seller, upon due execution and delivery thereof, shall constitute the valid and
binding obligations of Seller, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.


 


4.4   No Omissions
or Misstatements. None of the information included in this Agreement and exhibits and schedules hereto, or other documents
furnished or to be furnished by Seller, or any of its representatives, contains any untrue statement of a material fact or is misleading
in any material respect or omits to state any material fact necessary in order to make any of the statements herein or therein
not misleading in light of the circumstances in which they were made. Copies of all documents referred to in any exhibit or schedule
hereto have been delivered or made available to Buyer and constitute true, correct and complete copies thereof and include all
amendments, exhibits, schedules, appendices, supplements or modifications thereto or waivers thereunder.


 


4.5   Liabilities Under
Plans. Schedule 4.5 sets forth any liabilities under the Plans that are accrued as of Closing.


 


ARTICLE V. Representations
and Warranties of the Buyer


 


Buyer represents and warrants
to Seller that, as of and including the Effective Date (unless a different date is set forth below):


 


5.1   Organization,
Corporate Power, Absence of Conflicts with Other Agreements. Buyer is a corporation duly organized, validly existing. The purchase
of the Conveyed Assets pursuant to this Agreement, and the execution, delivery and performance of any agreements required to be
executed, delivered and performed by the Buyer pursuant to this Agreement hereunder do not violate the Certificate of Incorporation
or bylaws of Buyer or any agreement to which the Buyer is a party, or any law, rule, order, or judgment by which Buyer is bound,
and are enforceable in accordance with their terms.


 


5.2   Due Authority. The execution,
delivery and consummation of this Agreement, and all other agreements and documents executed in connection herewith by Buyer, have
been duly authorized by all necessary action on the part of Buyer. No other action, consent or approval on the part of Buyer or
any other person or entity is necessary to authorize Buyer’s due and valid execution, delivery and consummation of this Agreement
and all other agreements and documents executed in connection hereto. This Agreement and all other agreements and documents executed
in connection herewith by Buyer, upon due execution and delivery thereof, shall constitute the valid and binding obligations of
Buyer, enforceable in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors’ rights generally and by general principles of equity.


 






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ARTICLE VI. Post-Closing
Covenants 


 


6.1  
Seller agrees to cooperate with Buyer in the preparation and filing of any federal, state or other governmental tax
returns due for periods ending on or before the Effective Date and in the preparation and filing of any other reports or
filings required to be filed by Buyer as a result of or with respect to the transactions contemplated hereby. Each such
return, report or filing shall be reviewed by the Seller, and its truth and accuracy confirmed, to the best of Seller’s
knowledge, in writing, such that the return may be timely filed by the Buyer.


 


6.2   The parties agree,
after the Closing, to do, execute, acknowledge, and deliver all such further acts, deeds, transfers, conveyances, powers of attorney,
and assurances as may be reasonably required to consummate the transactions contemplated hereby. Further, the Buyer agrees to provide
reasonable access to the records of the Business transferred to Buyer and any former Seller employees hired by Buyer, as may be
reasonably necessary to assist Seller with an orderly wind down of its operations after Closing.


 


6.3   The parties agree
that, after the Closing for a period of ninety (90) days, Buyer shall have the option (but not the obligation) to assume any of
the contracts and agreements of Seller not listed on Schedule 1.1(3) (even if listed on Schedule 1.2), including, without limitation,
any of the contracts and agreements listed on Schedule 6.3, by delivering to Seller, at any time during such ninety (90)
day period, written notices electing to assume any of such contracts and agreements. Any such notice shall serve as written evidence
of the assumption, without further action by the parties. Notwithstanding the foregoing, the parties further agree to cooperate
with each other and to take all action necessary to effectuate the intent to assign the Assumed Contracts to Buyer.


 


6.4   Seller shall, within
one (1) business day following Closing, make such filings and take such actions as necessary to change the corporate names of Draker
and Draker Labs to not use any name included or associated with the Conveyed Assets.


 


6.5   Power of Attorney.
Buyer is hereby irrevocably made, constituted and appointed the true and lawful attorney for Seller (without requiring it to act
as such) with full power of substitution to execute in the name of Seller any schedules, assignments, instruments, documents, and
statements that Buyer determines in its sole discretion and in good faith is reasonably necessary to effectuate the terms of this
Agreement. This power of attorney shall be irrevocable and coupled with an interest.


 


6.6   Seller shall, within
three (3) business days of receipt, pay over to Buyer any cash received by Seller following Closing.


 


ARTICLE VII. Miscellaneous


 


7.1   Subject to the terms
and conditions hereof, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, successors, and assigns.


 


7.2   Any notice, request,
instruction, or other document to be given hereunder to any party shall be in writing and delivered personally or sent by nationally
recognized overnight delivery service, facsimile transmission if the original thereof is delivered promptly by Certified United
States Mail, postage prepaid, return receipt requested, as follows:


 






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	 	If to Seller:	Everett
McGinley
			C/O Draker






			431 Pine Street, Suite 114






			Burlington VT 05401



 





			with a copy to:



 





			Robert V. Housley






			Kastner Huggins Reddien Gravelle LLP






			801 West 5th Street | Suite 105 | Austin, Texas 78703



 





 


	 	If to the Buyer:	BlueD
Acquisition Corporation
			c/o BlueNRGY Group, Limited






			110 E. Broward Blvd. 19th Floor






			Fort Lauderdale FL 33301






			Attn: William Morro



 


			with a copy to:



 


			Harwell Howard Hyne Gabbert & Manner, P.C.






			333 Commerce St., Suite 1500






			Nashville, TN 37201






			Attention: David Cox and Jon Stanley



 


Any party may change its
address for purposes of this paragraph by giving notice of such change of address to the other party in the manner herein provided
for giving notice. 


 


7.3   This Agreement may
be executed in a number of counterparts and all counterparts executed by Buyer and the Seller together shall constitute one and
the same Agreement. Each party shall be responsible for their own fees and expenses in connection with this Agreement and the transactions
contemplated hereby.


 


7.4   All Schedules hereto
are incorporated herein and all statements appearing therein shall be deemed to be representations. All covenants, warranties and
representations of the Seller shall survive the Closing indefinitely.


 


7.5   This Agreement
shall be governed by the laws of Delaware and the parties hereto consent to the jurisdiction and venue of the courts of Delaware
with respect to all claims or controversies arising out of or related to this Agreement.


 


7.6   Whenever possible,
each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if
any provision of this Agreement, or the application thereof to any person or under any circumstances, shall be invalid or unenforceable
to any extent under applicable law, and the extent of such invalidity or unenforceability does not cause substantial deviation
from the underlying intent of the parties as expressed in this Agreement, then such provision shall be deemed severed from this
Agreement with respect to such person or circumstances, without invalidating the remainder of this Agreement or the application
of such provision to other persons or circumstances, and a new provision shall be deemed to be substituted in lieu of the provision
so severed, which new provision shall, to the extent possible, accomplish the intent of the parties hereto as evidenced by the
provision so severed.


 






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7.7   No provisions of
this Agreement, express or implied, are intended or shall be construed to confer upon or give to any person other than the parties
hereto, any rights, remedies or other benefits under or by reason of this Agreement, and except as so provided, all provisions
hereof shall be personal solely between the parties to this Agreement.


 


7.8   Sellers will not
(and will not allow its affiliates) to make any public announcement about this Agreement and the transactions contemplated herein
without the prior consent of Buyer.


 


7.9   This Agreement (together
with the Confidentiality Agreement dated [•] and the schedules and exhibits hereto and thereto) supersede any other agreement,
whether written or oral, that may have been made or entered into by the parties hereto or thereto (or by any representative of
any thereof) relating to the matters contemplated hereby and thereby. The Transaction Agreements (together with the schedules and
exhibits hereto and thereto) constitute the entire agreement by and among the parties hereto and thereto and there are no agreements
or commitments with respect to the subject matter thereof except as expressly set forth herein or therein.


 


7.10 This Agreement
may only be amended by written agreement executed by each of the parties hereto.


 


[Signatures Appear on
Following Page]


 






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IN WITNESS WHEREOF, the parties have hereunto executed this Agreement on the day and year first above written.


 


 


 





	 	SELLER:
	 		 
	 	Draker, Inc.
	 	 	 
	 	By:	
	 	Name:	 
	 	Title: 	 



 








	 	Draker Laboratories, Inc.
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 



 








	 	BUYER:
	 	 	 
	 	BlueD Acquisition Corporation
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 



 


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