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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT (this "AGREEMENT") dated as of September 18,
2000 between GUTLOVE AND SHIRVINT, INC., a New York corporation ("PURCHASER"),
and CONTROLLED DISTRIBUTION SYSTEMS, INC., a New Jersey corporation ("SELLER").
RECITALS:
WHEREAS, Seller desires to sell and transfer, and Purchaser desires to
purchase and acquire, certain assets of Seller, to the extent specified in
Section 1.1;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter contained, the parties hereto do agree as follows:
ARTICLE I. PURCHASE AND SALE OF ASSETS AND ASSUMPTION OF LIABILITIES.
1.1. PURCHASE OF ASSETS. Upon the terms and subject to the conditions
of this Agreement, effective as of the open of business on October 2, 2000 (the
"CLOSING DATE"), Seller shall sell and transfer to Purchaser, and Purchaser
shall purchase and acquire from Seller all of the assets, rights and properties
of whatever nature owned or held by Seller relating to Seller's New York
cigarette vending route (the "BUSINESS") including one 1999 Chevrolet Astro
(Cargo)Van, serial number 1GCDM19W8XB135230 (the "VEHICLE") , all vending
machines, cigarette inventory, cash, equipment and contracts that are used in or
related to the Business (the "ASSETS"), free and clear of any lien, encumbrance,
claim, security interest or charge of any kind or nature (collectively,
"LIENS"), other than Liens relating to the GMAC Loan (as defined below). The
Assets shall include any non-remote controlled vending machines and related
spare parts held in storage by Seller. The consummation of the Acquisition on
the Closing Date is referred to herein as the "CLOSING".
1.2. ASSUMPTION OF LIABILITIES. Purchaser shall not assume any
liabilities of Seller or relating to the Assets, except Purchaser shall assume
loan number 042-0412-10652 from General Motors Acceptance Corporation to Seller,
with a current outstanding balance at August 31, 2000 of approximately $10,800,
secured by the Vehicle (the "GMAC LOAN").
ARTICLE II. PURCHASE PRICE; CLOSING.
2.1. PURCHASE PRICE. In consideration of the transfer and sale of the
Assets by Seller, Purchaser shall pay to Seller in cash an amount equal to the
dollar value of the cigarette and coin inventory as documented in APPENDIX A, to
be approved and executed by the parties on the Closing Date, and Seller shall
assume the GMAC Loan. Purchaser shall pay all of the purchase price to Seller by
wire transfer on October 2, 2000, except for $5,000 of the purchase price which
shall be paid by Purchaser to Seller by wire transfer within 60 days thereafter.
2.2. CLOSING. The Closing shall take place effective as of the open of
business on October 2, 2000.
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ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller represents and warrants to Purchaser as follows:
3.1. CORPORATE ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
3.2. AUTHORIZATION. Seller has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
Seller has taken all necessary action to authorize the execution and delivery of
this Agreement and the transactions contemplated hereby, and this Agreement is a
legal, valid and binding agreement of Seller enforceable in accordance with its
terms.
3.3. TAXES. Seller hereby represents and warrants that Seller has filed
all required material tax returns and has paid all material taxes shown thereon
as owing.
3.4. TITLE. At the Closing, Seller will transfer to Purchaser good and
valid title to the Assets free and clear of all Liens (other than any Liens
relating to the GMAC Loan).
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to Seller as follows:
4.1. CORPORATE ORGANIZATION. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
4.2. AUTHORIZATION. Purchaser has full corporate power and authority to
enter into this Agreement and to carry out the transactions contemplated hereby.
Purchaser has taken all necessary action to authorize the execution and delivery
of this Agreement and the transactions contemplated hereby, and this Agreement
is a legal, valid and binding agreement of Purchaser enforceable in accordance
with its terms.
4.3. PERMITS AND LICENSES. Purchaser has or will obtain prior to the
Closing all permits, licenses and other governmental approvals necessary to own
and operate the Business.
ARTICLE V. COVENANTS AND AGREEMENTS OF THE PARTIES.
5.1. INSTRUMENTS OF CONVEYANCE. At the Closing Seller shall execute and
deliver to Purchaser the General Assignment and Bill of Sale attached as
APPENDIX B (the "BILL OF SALE"), pursuant to which Seller will transfer the
Assets to Purchaser.
5.2. POST-CLOSING MATTERS. Following the Closing Seller shall execute
such other documents and instruments as Purchaser may reasonably request to vest
in Purchaser good and valid title, free and clear of all Liens (other than any
Liens relating to the GMAC Loan), to the Assets.
5.3. ASSUMPTION OF GMAC LOAN. Effective upon the Closing, Purchaser
hereby assumes, and agrees to indemnify and hold Purchaser harmless from and
against, all liabilities under the GMAC Loan with respect to all periods
commencing on or after the Closing Date.
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ARTICLE VI. GENERAL DISCLAIMERS OF WARRANTIES. By the execution of this
Agreement, the parties acknowledge, except as expressly set forth in this
Agreement, that Seller has made no representations or warranties as to the
quality or condition of the Business or the Assets, and that all warranties of
quality, fitness and merchantability and all other implied warranties of any
kind whatsoever are hereby excluded except as expressly set forth in this
Agreement, it being understood between the parties that the sale of the Business
and Assets is on an "AS IS" basis.
ARTICLE VII. SURVIVAL. The representations and warranties contained herein shall
not survive the Closing. The covenants and agreements contained in Sections 5.2,
5.3 and 8.5 shall survive the Closing.
ARTICLE VIII. MISCELLANEOUS.
8.1. NOTICE. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally (including by
courier) , sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally, or if sent by facsimile transmission, when transmitted
(together with proof of sending), or, if mailed, when received, as follows:
(i) if to Seller, to: (ii) if to Purchaser to:
Controlled Distribution Systems, Inc. Gutlove and Shirvint, Inc.
100 S.E. Second Street, 32nd Floor 39-26 23rd Street
Miami, Florida 33131 Long Island City, NY 11101
Attention: Richard J. Lampen Attention: Joseph Ruda
Telephone: (305) 579-8000 Telephone: (718) 729-4066
Facsimile: (305) 579-8009 Facsimile: (718) 729-3988
8.2. ENTIRE AGREEMENT; AMENDMENT. This Agreement (including Appendix A
and Exhibit A hereto) constitutes the entire agreement and understanding of the
parties with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, written or oral, of any and every nature with
respect thereto. The terms of this Agreement cannot be changed, modified or
released orally.
8.3. GOVERNING LAW. This Agreement shall be governed by the internal
laws of the state of New Jersey (without regard to principles of conflicts of
law).
8.4. BINDING EFFECT; NO ASSIGNMENT; NO THIRD PARTY BENEFICIARY. This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. This Agreement is not
assignable without the prior written consent of each of the parties hereto. This
Agreement does not create any rights, claims or benefits inuring to any person
that is not a party hereto or create or establish any third party beneficiary
hereto.
8.5. TAXES. Purchaser shall bear and pay all sales, transfer, stamp or
other similar taxes imposed in connection with the acquisition. Except as
provided in the preceding sentence, Seller will indemnify and hold Purchaser
harmless from and against any and all liability for Federal, state, local or
foreign taxes (including any interest, penalties or additions to tax that may
become payable in respect thereof, after taking into account any tax benefits to
Purchaser in respect of the incurrence or payment of any such tax liabilities)
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assessed against or payable by Seller with respect to any period ending on or
before the Closing Date or any period ending on or before the last day of
Seller's taxable year.
8.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties to this Agreement may execute this Agreement
by signing any such counterpart. In addition, this Agreement may be executed by
facsimile signatures, which signatures shall be deemed to be originals for
purposes hereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized representative to execute this Agreement as of the date first set
forth above.
GUTLOVE AND SHIRVINT, INC.
By: /s/ JOSEPH RUDA
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NAME: JOSEPH RUDA
TITLE: PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONTROLLED DISTRIBUTION SYSTEMS, INC.
By: /s/ RICHARD J. LAMPEN
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NAME: RICHARD J. LAMPEN
TITLE: PRESIDENT
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APPENDIX A
CASH AND INVENTORY ANALYSIS
Machines with change inventory: 0.00
Amount of change inventory: 0.00
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Total change inventory: 0.00
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Packs in inventory with State license: 1,800.00
Cost of State licensed cigarettes: X $3.626
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Total State licensed inventory: $6,526.80
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Packs in inventory with City license: 7,453.00
Cost of City licensed cigarettes: X $3.705
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Total City licensed inventory: $27,613.37
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TOTALS
Total change inventory: 0.00
Total State licensed inventory: $6,526.80
Total City licensed inventory: 27,613.37
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TOTAL CASH AND INVENTORY VALUE: $34,140.17
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Accepted and agreed to as of this 2nd day of October, 2000:
Gutlove and Shirvint, Inc.
By: /s/ JOSEPH RUDA
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Controlled Distributions Systems, Inc.
By: /s/ J. BRYANT KIRKLAND III
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