EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the Agreement) is made and entered into as
of October 14, 2003, by and among DIVERSIFIED MANAGEMENT, L.L.C., a Florida
limited liability company ("Seller"), and CENTRAL WIRELESS, a Florida
corporation ("Buyer").
RECITALS:
Seller wishes to sell, and Buyer wishes to purchase substantially all of
the assets of Seller, in exchange for a promissory note and the stock of Buyer,
on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual agreements, covenants and
premises set forth herein for certain other good and valuable consideration, the
receipt and adequacy, and sufficiency of which are hereby acknowledged and
stipulated by the parties hereto, intending to be legally bound, the parties
hereby agree as follows:
1. ASSET PURCHASE, PURCHASE PRICE, AND RELATED TRANSACTIONS.
1.1 Sale of Assets.
Subject to the terms and conditions hereof, Seller shall assign, transfer,
convey, and deliver to Buyer, at the Closing (as defined below), and Buyer
shall purchase and accept at the Closing, good and valid title to the
items as set forth on Schedule " - Assets (Subsidiaries) attached hereto
and made a part hereof (the Assets), free and clear of all liens and
encumbrances of any kind.
1.2 Purchase Price.
As consideration and payment for the sale of the Assets to Buyer, at the
Closing, Buyer shall execute and deliver to Seller the following:
Buyer will issue four hundred million (400,000,000) shares of
restricted Central Wireless, Inc. common stock to the seller, as
payment in full regarding this transaction.
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1.3 Liabilities.
(A) Buyer shall assume all liabilities and obligations of Seller (or any
predecessor owner of all or part of the Assets) which relate to the
Assets, arising for periods subsequent to the Closing date, and will
pay, discharge, perform or otherwise be liable for any such
liabilities, indebtedness or obligations which relate to the Assets,
whether known or unknown, absolute or contingent, recorded or
unrecorded and whether presently in existence or arising hereafter.
(B) Buyer shall not assume or be liable for any liabilities,
indebtedness or obligations of Seller which do not relate to the
Assets, or which relate to the Assets, but which arose prior to the
Closing Date, unless disclosed on Schedule ".
1.4 Closing and Effective Date.
The closing shall occur on or before October 22, 2003 (the "Closing"). The
date of Closing is referred to herein as the Closing Date. At the Closing:
(A) Seller shall execute and deliver to Buyer such bills of sale,
membership interest powers, original membership interest
certificates, endorsements, assignments and other documents as may
be necessary or appropriate to assign, convey, transfer and deliver
to Buyer good and valid title to the Assets free of any liens and/or
encumbrances.
(B) Seller shall deliver to Buyer a resolution of the Board of Directors
of Seller authorizing the transaction contemplated by this
Agreement, and consent of all of the Shareholders of Seller
authorizing the transaction contemplated by this Agreement.
(C) Buyer will deliver four hundred million (400,000,000) shares of
common stock of Central Wireless, Inc. as detailed in section 1.2
above.
(D) Buyer shall deliver to Seller a resolution of the Board of Directors
of Buyer authorizing the transaction contemplated by this Agreement.
(E) Seller shall deliver to Buyer documents signed by each manager,
officer and director of the each of the subsidiary Assets resigning
from such position(s) held by such person, with the effective date
being the Closing Date.
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(F) Buyer shall provide an original of the following corporate
documents:
(i) Certificate of Active Status from the Secretary of State of
the state of Buyers origin;
(ii) Certified Copy of Articles of Incorporation (and any
amendments thereto) of Buyer;
(iii) Certified copy of By-Laws (and any amendments thereto) of
Buyer.
(G) Seller shall provide an original of the following corporate
documents:
(i) Certificate of Active Status from the Secretary of State of
the state of Sellers origin;
(ii) Certified Copy of Articles of Organization (and any amendments
thereto) of Seller;
(iii) Certified copy of Operating Agreement (and any amendments
thereto) of Seller.
2. ADDITIONAL AGREEMENTS.
2.1 Confidential Treatment of Information.
From and after the date hereof, the parties hereto shall, and shall cause
their representatives to, hold in confidence this Agreement (including the
Schedules and Exhibits hereto), all matters relating hereto and all data
and information obtained with respect to the other parties or their
business, except such data or information as is published or is a matter
of public record, or as compelled by legal process.
2.2 Public Announcements.
The parties will consult with each other before issuing any press releases
or otherwise making any public statement with respect to this Agreement or
any of the transactions contemplated hereby and no party will issue any
such press release or make any such public statement without the prior
written consent of all other parties to this Agreement, except as may be
required by law, or by the rules and regulations of any governmental
authority or securities exchange.
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3. REPRESENTATIONS, COVENANTS AND WARRANTIES OF SELLER.
To further induce Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller each hereby jointly and severally
represent and warrant to and covenant with Buyer as follows:
3.1 Organization and Qualification.
Seller is a corporation duly organized and validly existing and in good
standing under the laws of Florida, and has the requisite power and
authority to own, lease and operate its properties and to carry on its
business as it is currently being conducted. Seller is duly qualified or
licensed and is in good standing, in each jurisdiction where the character
of the properties owned, leased or operated by it, or the nature of its
business makes such qualification or licensing necessary. Seller has
subsidiaries as disclosed on Schedule ".
3.2 Liabilities and Obligations.
Seller has no debt, obligation or liability, absolute, fixed, contingent
or otherwise, of any nature whatsoever, whether due or to become due,
including any unasserted claim, whether incurred directly or by any
predecessor thereto, and whether arising out of any act, omission,
transaction, circumstance, sale of goods or services, state of facts or
other condition that would have any effect on the Assets.
3.3 Authority Relative to This Agreement.
The execution and delivery of this Agreement by Seller and the
consummation by Seller of the transactions contemplated by this Agreement
have been duly authorized by all necessary action on the part of Seller to
authorize this Agreement or to consummate the transactions contemplated by
this Agreement. This Agreement has been duly and validly executed and
delivered by Seller and constitutes the legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application
affecting the enforcement of creditors rights generally.
3.4 Absence of Litigation.
There is no legal or administrative action or proceeding pending or, to
the knowledge of Seller after reasonable investigation, threatened against
Seller or any property or asset of Seller.
3.5 Assets.
(A) The Assets, as more completely described on Schedule " will be
transferred to Buyer at Closing.
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(B) No claim has been asserted, to the best knowledge and Seller
that the use of the Assets or the conduct of the business of
Seller does or may infringe upon such rights of any third
party.
(C) Except as disclosed on Schedule " Seller is the owner of the
entire, title and interest in and to the Assets, free and
clear of all liens and/or encumbrances, and has the right to
use, all of the Assets in the continued operations of Seller.
(D) The Assets have not been adjudged invalid or unenforceable in
whole or part by any governmental authority.
(E) To the knowledge of Seller, after reasonable investigation, no
person or entity is engaging in any activity that infringes
upon the Assets or upon the rights of Seller therein. The
consummation of the transactions contemplated by this
Agreement will not result in the termination or impairment of
any of the Assets.
3.6 Taxes.
Seller has (a) filed all Tax (as defined herein) returns required to be
filed by it prior to the date of this Agreement, (b) paid or accrued all
Taxes shown to be due on such returns and paid all applicable ad valorem
and value added Taxes as are due, and (c) paid or accrued all Taxes for
which a notice of assessment or collection has been received. Seller has
not received from any governmental authority any written notice of
proposed adjustment, deficiency or underpayment of any Taxes, which notice
has not been satisfied by payment or been withdrawn, and there are no
material claims that have been asserted or threatened relating to such
Taxes against Seller. Seller has withheld or collected and paid over to
the appropriate governmental authorities (or is properly holding for such
payment) all Taxes required by law to be withheld or collected, except for
amounts which would not, individually or in the aggregate, have an Seller
material adverse effect. For purposes of this Agreement, Tax or Taxes
means any and all taxes, fees, levies, duties, tariffs, imposts and other
charges of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto)
imposed by any government or taxing authority, including, without
limitation: taxes or other charges on or with respect to income,
franchises, windfall or other profits, gross receipts, property, sales,
use, capital stock, payroll, employment, social security, workers
compensation, unemployment compensation, or net worth; taxes or other
charges in the nature or excise, withholding, ad valorem, stamp, transfer,
value added or gains taxes, license, registration and documentation fees,
and custom duties, tariffs and similar charges.
3.7 Execution; No Inconsistent Agreements; Etc.
The execution and delivery of this Agreement by Seller does not, and the
consummation of the transactions contemplated hereby will not, constitute
a breach or violation of the
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charter, Articles of Organization, or Operating Agreement of Seller, or a
default under any of the terms, conditions or provisions of (or an act or
omission that would give rise to any right of termination, cancellation or
acceleration under) any material note, bond, mortgage, lease, indenture,
agreement or obligation to which Seller is a party, which could affect the
Assets or Sellers ability to consummate the transaction contemplated by
this Agreement.
3.8 Compliance With Law.
The business and activities of Seller have at all times been conducted in
accordance with its Articles of Organization, Charter, and Operating
Agreement and, to the best knowledge of Seller, any applicable law,
regulation, ordinance, order, license, permit, rule, injunction or other
restriction or ruling of any court or administrative or governmental
agency, ministry, or body.
3.9 Contingencies.
There are no actions, suits, claims or proceedings pending, or, to the
knowledge of Seller after reasonable investigation, threatened against, by
or affecting Seller and/or any portion of the Assets in any court or
before any arbitrator or governmental agency. To the knowledge of Seller
after reasonable investigation, there is no valid basis upon which any
such action, suit, claim, or proceeding may be commenced or asserted
against Seller or the Assets. There are no unsatisfied judgments against
Seller and no consent decrees or similar agreements to which Seller is
subject.
3.10 Full Disclosure.
No representation or warranty of Seller contained in this Agreement, and
none of the statements or information concerning Seller and/or the Assets
contained in this Agreement and the Exhibits and Schedules hereto,
contains or will contain any untrue statement of a material fact nor will
such representations, warranties, covenants or statements taken as a whole
omit a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
To induce Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Buyer represents and warrants to and covenants
with Seller as follows:
4.1 Organization.
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Florida. Buyer is entitled to own or lease its
properties and to carry on its
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business as and in the places where such business is now conducted, and
Buyer is duly licensed and qualified in all jurisdictions where the
character of the property owned by it or the nature of the business
transacted by it makes such license or qualification necessary, except
where such failure would not result in a material adverse effect on Buyer.
4.2 Authority Relative to This Agreement.
The execution and delivery of this Agreement by Buyer and the consummation
by Buyer of the transactions contemplated by this Agreement have been duly
authorized by all necessary action on the part of Buyer as is necessary to
authorize this Agreement or to consummate the transactions contemplated by
this Agreement. This Agreement has been duly and validly executed and
delivered by Buyer and constitutes the legal, valid and binding
obligations of Buyer, enforceable against Buyer in accordance with its
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws of general application
affecting the enforcement of creditors rights generally.
4.3 Execution; No Inconsistent Agreements; Etc.
(1) The execution and delivery of this Agreement and the
performance of the transactions contemplated hereby have been
or will be prior to the Closing Date duly and validly
authorized and approved by Buyer and this Agreement is a valid
and binding agreement of Buyer, enforceable against Buyer in
accordance with its terms, except as such enforcement may be
limited by bankruptcy or similar laws affecting the
enforcement of creditors' rights generally, and the
availability of equitable remedies.
(2) The execution and delivery of this Agreement by Buyer does
not, and the consummation of the transactions contemplated
hereby will not, constitute a breach or violation of the
Articles of Incorporation, charter or By-Laws of Buyer, or a
default under any of the terms, conditions or provisions of
(or an act or omission that would give rise to any right of
termination, cancellation or acceleration under) any material
note, bond, mortgage, lease, indenture, agreement or
obligation to which Buyer is a party, pursuant to which it
otherwise receives benefits, or by which any of its properties
may be bound.
4.4 Full Disclosure.
No representation or warranty of Buyer contained in this Agreement, and
none of the statements or information concerning Buyer contained in this
Agreement and the Schedules and Exhibits, contains or will contain any
untrue statement of a material fact
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nor will such representations, warranties, covenants or statements taken
as a whole omit a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
4.5 Contingencies.
There are no actions, suits, claims or proceedings pending or, to the
knowledge of Buyers management, threatened against, by or affecting Buyer
or any of its subsidiaries in any court or before any arbitrator or
governmental agency which could have a material adverse effect on Buyer or
its subsidiaries or which could materially and adversely affect the right
or ability of Buyer to consummate the transactions contemplated hereby. To
the knowledge of Buyer, there is no valid basis upon which any such
action, suit, claim or proceeding may be commenced or asserted against
Buyer or its subsidiaries. There are no unsatisfied judgments against
Buyer, and no consent decrees or similar agreements to which Buyer or its
subsidiaries is subject, and which could have a material adverse effect on
Buyer or its subsidiaries, or which could materially and adversely affect
the right or ability of Buyer to consummate the transactions contemplated
hereby.
5. MISCELLANEOUS.
5.1 Notices.
(1) All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing and shall
be deemed to have been duly given upon delivery if delivered
in person or if sent by Federal Express (or similar recognized
overnight courier service) to the parties at the following
addresses:
If to Seller:
DIVERSIFIED MANAGEMENT, L.L.C., a Florida limited liability
company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Manager
Telephone: 000.000.0000
Telefax: 231.251.9882
With a Copy to:
Xxxxxxxx Xxxxxx
0000 X. Xxxxxxx Xxxxx
Xxxxx X-0
Xxxxxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Telefax: 775.305.9661
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If to Buyer:
Central Wireless. Inc.
0000 Xxxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Telefax: 941.374.1476
(2) Notices may also be given in any other manner permitted by
law, effective upon actual receipt. Any party may change the
address to which notices, requests, demands or other
communications to such party shall be delivered or mailed by
giving notice thereof to the other parties hereto in the
manner provided herein.
5.2 Survival.
The representations, warranties, agreements and indemnifications of the
parties contained in this Agreement or in any writing delivered pursuant
to the provisions of this Agreement shall survive any investigation
heretofore or hereafter made by the parties and the consummation of the
transactions contemplated herein and shall continue in full force and
effect and survive after the Closing.
5.3 Counterparts; Interpretation.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which shall constitute one
instrument. This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof, and this
Agreement contains the sole and entire agreement among the parties with
respect to the matters covered hereby. All Schedules and Exhibits hereto
shall be deemed a part of this Agreement. This Agreement shall not be
altered or amended except by a written instrument signed by or on behalf
of all of the parties hereto. No ambiguity in any provision hereof shall
be construed against a party by reason of the fact it was drafted by such
party or its counsel.
5.4 Governing Law.
The validity and effect of this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Florida, without regard to principles of conflicts of laws thereof. Any
dispute, controversy or question of interpretation arising under, out of,
in connection with or in relation to this Agreement or any amendments
hereof, or any breach or default hereunder, shall be litigated in the
state or federal courts in Sarasota County, Florida, U.S.A. Each of the
parties hereby irrevocably
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submits to the jurisdiction of any state or federal court sitting in
Sarasota County, Florida. Each party hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of any such action in Sarasota County, Florida.
5.5 Waiver.
Any term or condition of this Agreement may be waived at any time by the
party which is entitled to the benefit thereof, but only if such waiver is
evidenced by a writing signed by such party. No failure on the part of a
party hereto to exercise, and no delay in exercising, any right, power or
remedy created hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by any such party
preclude any other future exercise thereof or the exercise of any other
right, power or remedy. No waiver by any party hereto to any breach of or
default in any term or condition of this Agreement shall constitute a
waiver of or assent to any succeeding breach of or default in the same or
any other term or condition hereof.
5.6 Partial Invalidity and Severability.
All rights and restrictions contained herein may be exercised and shall be
applicable and binding only to the extent that they do not violate any
applicable laws and are intended to be limited to the extent necessary to
render this Agreement legal, valid and enforceable. If any terms of this
Agreement not essential to the commercial purpose of this Agreement shall
be held to be illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the remaining terms
hereof shall constitute their agreement with respect to the subject matter
hereof and all such remaining terms shall remain in full force and effect.
To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid provision which
will implement the commercial purpose of the illegal, invalid or
unenforceable provision.
5.7 Acceptance by Fax.
This Agreement shall be accepted, effective and binding, for all purposes,
when the parties shall have signed and transmitted to each other, by
telefax or otherwise, copies of the signature pages hereto.
5.8 Attorneys Fees.
In the event of any litigation or other proceeding arising out of or in
connection with this Agreement, the prevailing party or parties shall be
entitled to recover its or their reasonable attorneys fees and court costs
from the other party or parties.
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5.9 NO JURY TRIAL.
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE PARTIES ACCEPTANCE OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement or caused this Asset Purchase Agreement to be duly executed by their
duly authorized officers as of the date first above written.
BUYER:
Witnesses: CENTRAL WIRELESS, INC.,
a Florida corporation
Print Name: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxx
----------------------- -------------------------------------
Print Name: Xxxxxx Xxxxxx
SELLER:
Witnesses: DIVERSIFIED MANAGEMENT, L.L.C.,
a Florida limited liability company
Print Name: /s/ Xxxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
----------------------- -------------------------------------
Xxxxx Xxxxxx, Manager
Print Name: Xxxxxxxx Xxxxxx
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SCHEDULE A
DESCRIPTION OF ASSETS AND SUBSIDIARIES
One-hundred percent (100%) of the membership interest of the following listed
limited liability companies formed in the State of Georgia:
1. LLC A
2. LLC B
3. LLC C
4. LLC D
5. LLC E
6. LLC F
7. LLC G
8. LLC H
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