Exhibit 10.1
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE AGREEMENT,
effective as of August 12, 2005, 2005 (this
“Agreement”), by and between Segmentz, Inc., a Delaware
corporation (“Seller”), Bullet Freight Systems &
Logistics, Inc, a Florida corporation (“Buyer”), Pedro
Betancourt and Maggie Betancourt (collectively the
“Betancourts,” and together with Seller and Buyer the
“Parties”).
WHEREAS, the Parties 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, only 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 $33,000.00, with interest at the rate of
6% per annum, payable in 60 equal monthly payments of principal and
interest, which monthly payments of principal and interest commence
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 160,000 shares of
Segmentz, Inc. common stock (the “Shares”).
2.2. Closing . The Closing
(the “Closing”) shall take place at 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.
2
(c) Title to Properties . The
sale of the Purchased Assets is as is. Within 90 days of the
Closing, Seller shall have removed any and all liens and
encumbrances on the Purchased Assets. To the extent a lien or
encumbrance on a vehicle that is a Purchased Asset prevents the
transfer of title to said vehicle to Buyer at Closing, Seller and
Buyer agree that they will enter into a lease agreement with
respect to said vehicle pursuant to which Buyer will lease said
vehicle from Seller, free of charge, until title is able to be
transferred.
(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
Florida 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.
3
(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
ARTICLE IV
COVENANTS AND OTHER
AGREEMENTS
4.1. Line of Credit .
Concurrently with the Closing of the transactions set forth herein,
Seller will provide Buyer with a two year $200,000 line of credit
pursuant to the terms of the Line of Credit Agreement attached
hereto as Exhibit B (the “Line of Credit”). Any
outstanding balances at the two year maturity date shall be payable
pursuant to a promissory note issued at the maturity date, with
interest to accrue at the rate of 6% per annum, payable in 60 equal
monthly payments of principal and interest, which monthly payments
of principal and interest shall commence 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 the Betancourts pursuant to the terms of their employment
agreements with Seller.
4.4. 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.
4.5. Release of Earn-Out
Obligations . Buyer and the Betancourts hereby release Seller
from any and all earn-out obligations of Seller under the certain
Stock Purchase Agreement between Seller and the Betancourts, dated
September 30, 2003. The foregoi
