Exhibit 10.1
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT,
effective as of July 1, 2005 (this “Agreement”), by and
between Segmentz, Inc., a Delaware corporation
(“Seller”), TTSI Holdings, Inc., an Indiana corporation
(“Buyer”), and Paul Temple
(“Temple”).
WHEREAS, Seller and Buyer desire to
enter into this Agreement pursuant to which, upon the terms and
subject to the conditions contained in this Agreement, Seller will
sell to Buyer, and Buyer will purchase from Seller a unit of
Seller’s business (the “Unit”) including certain
assets and liabilities of the Unit;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, the parties
hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
1.1. Purchase and Sale . As
of the Closing Date (as defined in Section 2.2), Seller shall sell,
transfer, convey, assign and deliver to Buyer, as is, and Buyer
shall purchase from Seller, all of Seller’s right, title and
interest in and to the assets and personal property constituting
the Unit, as set forth on Schedule 1.1 (collectively the
“Purchased Assets”).
1.2. Assumption of
Liabilities . As of the Closing Date (as defined in Section
2.2), Buyer shall assume, and shall agree to absolutely and fully
pay, perform and discharge when due, the liabilities of the Unit as
set forth on Schedule 1.2 (collectively, the “Assumed
Liabilities”).
ARTICLE II
PURCHASE PRICE;
DELIVERIES
2.1. Purchase Price . The
aggregate consideration to be paid to Seller for the Purchased
Assets of the Unit (the “Purchase Price”) shall consist
of (i) the delivery by Buyer to Seller of a promissory note in the
form of the attached Exhibit A (the “Promissory Note”),
in the principal amount of $105,000], with interest at the rate of
6% per annum, payable in 60 equal monthly payments of principal and
interest commencing on the one year anniversary of the date of
issuance, (ii) the assumption by Buyer of the Assumed Liabilities
at Closing, and (iii) the delivery by Buyer to Seller of 265,000
shares of Segmentz, Inc. common stock (the
“Shares”).
2.2. Closing . The Closing
(the “Closing”) shall take place at Adorno & Yoss,
P.A., 350 East Las Olas Boulevard, Suite 1700, Fort Lauderdale, FL
33301 concurrently with the execution of this Agreement, unless
otherwise mutually agreed upon by the parties (the “Closing
Date”).
2.3. Deliveries by Seller .
At the Closing, Seller shall:
(a) Execute and deliver to Buyer a
bill of sale; and
(b) Deliver to Buyer such other
instruments, documents and certificates as may be reasonably
requested by Buyer and are customary for transactions of this
nature to effectuate the transactions contemplated
hereby.
2.4. Deliveries by Buyer . At
the Closing, Buyer shall:
(a) Deliver of the Promissory
Note;
(b) Execute and deliver to Seller an
instrument or instruments consistent with the terms hereof and
reasonably satisfactory in form and substance to Seller evidencing
Buyer’s assumption of the Assumed Liabilities;
(c) Deliver a certificate or
certificates evidencing the Shares duly endorsed for transfer in
blank; and
(d) Deliver to Seller other such
instruments, documents and certificates as may be reasonably
requested by Seller and are customary for transactions of this
nature to effectuate the transactions contemplated
hereby.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES
3.1. Seller represents and warrants
to Buyer as follows:
(a) Organization, Good Standing,
Power, Etc . Seller (a) is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware and (b) has all requisite corporate power and authority
(i) to own the Purchased Assets and carry on its business as
presently being conducted and (ii) to execute, deliver and perform
this Agreement and all other agreements, documents, and
certificates set forth herein (the “ Ancillary
Documents ”) which Seller is required to deliver pursuant
hereto, and to consummate the transactions contemplated hereby and
thereby.
(b) Authorization of
Agreement . Seller has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement
and the Ancillary Documents which Seller is required to deliver
pursuant hereto and the consummation of the transactions
contemplated hereby and thereby. This Agreement has been, and each
of the Ancillary Documents which Seller is required to deliver
pursuant hereto has been or will be, duly and validly authorized,
executed and delivered by Seller and this Agreement constitutes,
and each of the Ancillary Documents constitutes or will upon
execution and delivery constitute, the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with
its terms.
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(c) Title to Properties . The
sale of the Purchase Assets is as is. Seller gives no
representation with respect to any liens, encumbrances or
exceptions to title on the Purchased Assets.
(d) Fees . Seller is not
obligated to pay, and has not retained any broker or finder or any
other person or entity who is entitled to, any broker’s or
finder’s fee or any other commission or financial advisory
fee based on any agreement or undertaking made by Seller in
connection with the transactions contemplated hereby. Buyer shall
not, through the transfer of the Purchased Assets or otherwise,
have any obligations in respect of any such fees or
commissions.
(e) Accuracy of Information; Full
Disclosure . To the knowledge of Seller, none of the
representations and warranties of Seller in this Agreement nor in
any Ancillary Document to be furnished by Seller pursuant hereto
contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading
3.2. Buyer represents and warrants
to Seller as follows:
(a) Organization, Good Standing,
Power, Etc . Buyer (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Indiana and (b) has all requisite corporate power and authority (i)
to own the Purchased Assets and carry on its business as presently
being conducted and (ii) to execute, deliver and perform this
Agreement and the Ancillary Documents which Buyer is required to
deliver pursuant hereto, and to consummate the transactions
contemplated hereby and thereby.
(b) Authorization of
Agreement . Buyer has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement
and the Ancillary Documents which Buyer is required to deliver
pursuant hereto and the consummation of the transactions
contemplated hereby and thereby. This Agreement has been, and each
of the Ancillary Documents which Buyer is required to deliver
pursuant hereto has been or will be, duly and validly authorized,
executed and delivered by Buyer and this Agreement constitutes, and
each of the Ancillary Documents constitutes or will upon execution
and delivery constitute, the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with its
terms.
(c) Fees . Buyer is not
obligated to pay, and has not retained any broker or finder or any
other person or entity who is entitled to, any broker’s or
finder’s fee or any other commission or financial advisory
fee based on any agreement or undertaking made by Buyer in
connection with the transactions contemplated hereby. Seller shall
not, through the transfer of the Purchased Assets or otherwise,
have any obligations in respect of any such fees or
commissions.
(d) Accuracy of Information; Full
Disclosure . To the knowledge of Buyer, none of the
representations and warranties of Buyer in this Agreement nor in
any Ancillary Document to be furnished by Buyer pursuant hereto
contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading
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ARTICLE IV
COVENANTS AND OTHER
AGREEMENTS
4.1. Line of Credit .
Concurrently with the Closing of the transactions set forth herein,
Seller provide Purchase with a one year $250,000 line of credit
pursuant to the terms of the Line of Credit Agreement attached
hereto as Exhibit B (the “Line of Credit”) with
interest to accrue at the rate of 6% per annum. Any outstanding
balances at the one year maturity date shall be payable pursuant to
a promissory note issued at the maturity date, with a interest to
accrue at the rate of 6% per annum, payable in 60 equal monthly
payments of principal and interest commencing with the month
following the issuance date of said note (the “Line of Credit
Note”).
4.2. Option Vesting .
Concurrently with the Closing of the transactions set forth herein,
Seller shall vest all common stock purchase options issued by
Seller to Temple pursuant to the terms of Temple’s employment
agreement with Seller.
4.3. CMS Cargo . Seller shall
provide Buyer with a limited one year license to use Seller’s
CMS Cargo software (the “Software”) free of charge
commencing with the Closing Date, provided, however, that Buyer
acknowledges that Seller shall have no obligation to update the
Software or provide support with respect to the Software, and that
Seller shall not be liable in any manner for any damages or losses
in any way related to the Software or Buyer’s use
thereof.
4.4. Release of Earn-Out
Obligations . Buyer and Temple hereby release Seller from any
and all earn-out obligations of Seller under the certain Asset
Purchase Agreement between Seller, Temple, and Temple Trucking
Services, Inc., dated November 22, 2005. The foregoing release
shall be effective as of the Closing Date.
4.5. Further Assurances .
Each of the parties agrees at any time and from time to time after
the date hereof, at the request of the other party hereto, to
execute and deliver such other documents and instruments of
transfer or assignment or assumption and to do all such further
acts and things as shall reasonably be necessary or desirable to
effectuate the transactions contemplated hereby, including, but not
limited to, issues related to collections of accounts receivable,
transfer of expenses, transfer of titles, etc.
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ARTICLE V
INDEMNIFICATION
5.1. Losses and Limitation .
For purposes of this Agreement, the term “Loss” or
“Losses” shall mean each and all of the following
items: claims, losses, liabilities, obligations, payments, damages,
judgments, fines, penalties, amounts paid in settlement, and any
related reasonable costs and expenses (including, without
limitation, interest which may be imposed in connection therewith,
costs and expenses of investigation, actions, suits, proceedings,
demands, assessments and reasonable fees and disbursements of
counsel and other experts) incurred by the person or entity seeking
indemnification (the “Indemnitee”) (whether relating to
claims asserted by or against third parties or to claims asserted
against the party providing indemnification (the
“Indemnitor”)). In the event there is a determination
by any court of competent jurisdiction, appropriate regulatory body
or alternative dispute resolution entity so authorized to make such
determination, which shall make a finding apportioning liability,
each party shall accordingly be liable to the extent of such
finding of apportionment.
5.2. Indemnification by
Seller . From and after the Closing Date, Seller shall
indemnify and hold harmless Buyer, its affiliates, and their
respective officers, directors, employees, agents, consultants,
representatives and successors (collectively, the “Buyer
Indemnified Group”) from
