ASSET PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into effective as of
January 31, 2000 (the "Effective Date"), by and between XXXXXXXX.xxx, a
California corporation having its principal place of business at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000 ("ZAP"), and American Scooter and Cycle
Rentals, Inc., a California corporation having its principal place of business
at 0000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("ASCR"). ZAP and ASCR are
referred to collectively herein as the "parties."
RECITALS
A. ASCR wishes to sell and ZAP wishes to purchase certain assets of
ASCR's scooter and motorcycle rental business and assume certain
listed liabilities for the sum of One Hundred Thousand Dollars
($100,000). The parties would also like to have Xxxxx Xxxx,
currently an employee of ASCR, continue to manage and maintain the
motorized rental operation.
B. The purpose of this Agreement is to set forth the understanding of
the parties relative to the matters above. By this reference these
Recitals are incorporated into the Agreement that follows below.
AGREEMENT
NOW, THEREFORE, in consideration of these premises, the benefits to be
derived by the parties, and the terms, conditions, representations and covenants
set forth herein, the parties hereby agree as follows:
ARTICLE I
1.01 Purchase and Sale of the Assets. Subject to the terms and conditions
set forth in this Agreement, on the Closing Date (as hereinafter defined), ZAP
shall purchase and accept from ASCR, and ASCR shall sell, transfer, convey and
deliver to ZAP, all of the Motorized Equipment and all other tangible and
intangible assets of ASCR listed on the attached Exhibit A (collectively, the
"Assets"), including, but not limited to, the following:
(a) All of ASCR's rights of every kind and nature with respect to its
motorized rental business (the "Business") including, without limitation, all
goodwill and intellectual property assets of ASCR applicable to ASCR's Business;
(b) (Any remaining physical and fixed assets and equipment described in
Exhibit A attached hereto and incorporated herein by this reference.
1.02 Purchase Price of Assets. In consideration of ASCR's sale of the
Assets as provided herein, ZAP shall tender One Hundred Thousand Dollars
($100,000) (the "Purchase Price") in cash to be paid to ASCR at the Closing.
1.03 Assumption of Liabilities. It is expressly understood and agreed
that ZAP is not assuming and shall not be liable for any of the debts,
-1-
obligations or liabilities of ASCR whether now known or unknown, accrued,
absolute, contingent or otherwise, except for the liabilities and obligations
directly related to ASCR's business as specifically assumed in Schedule 1.03
attached hereto, and incorporated herein by reference; provided, in no event
shall the amount of liabilities assumed by ZAP exceed the aggregate amount of
two thousand dollars ($2,000).
1.04 Delivery of Assets. At the Closing, the following shall be delivered
by ASCR to ZAP:
(a) A xxxx of sale in a form mutually agreeable to ASCR and ZAP,
transferring to ZAP the Assets to be acquired by it under the terms of this
Agreement free and clear of any encumbrance of any kind upon any of the Assets;
(b) Evidence of payment of all debts which are secured by liens on the
Assets with evidence of release of all such liens to be provided within five (5)
days after Closing; and
(c) Such other deeds, instruments of assignment and other appropriate
documents as may be reasonably requested by ZAP in order to carry out the
intentions of this Agreement and the transfer of the Assets.
1.05 Closing. The closing under this Agreement shall take place in the
offices of ZAP in Sebastopol, California at 10:00 a.m. on March 29, 2000 (the
"Closing Date"); provided, that if ZAP and ASCR are not in a position on such
date to close due to the failure to meet the conditions precedent to close as
set forth in Article IV hereof, the Closing Date shall be extended to a date two
(2) business days after the date on which such conditions are satisfied or
otherwise waived in writing by both ZAP and ASCR, but in no event shall the
Closing Date be later than April 15, 2000.
1.06 Effective Date. Notwithstanding the Closing Date, the close of
business on January 31, 2000 (the "Effective Date") shall be deemed to be the
effective date for certain purposes set forth herein.
1.07 Taxes. ZAP shall pay all sales and use taxes, if any, arising out of
the transfer of the Assets, or otherwise as a consequence of the transactions
contemplated by this Agreement.
1.08 Cooperation in Transfer of Business. Both prior and subsequent to
the Closing Date, ZAP shall cooperate and assist ASCR in the transfer of the
ownership of the assets as contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ASCR
2.01 General. ASCR hereby represents and warrants the following:
-2-
2.02 Organization and Good Standing. ASCR is a corporation duly
organized, validly existing and in good standing under the applicable laws of
the State of California, and qualified to do business in the State of
California, with requisite corporate power and authority to enter into and
perform this Agreement.
2.03 Financial Statements. ASCR has previously furnished to ZAP ASCR's
Balance Sheet as of December 31, 1999, a copy of which is attached hereto as
Exhibit B. ASCR represents and warrants that such financial statements, which
are unaudited, have been prepared in accordance with the books and records of
ASCR and correctly presents ASCR`s financial condition, sales, operations and
net income (loss) as therein specified.
2.04 Authorization and Consents. The execution of this Agreement by ASCR
and the consummation by ASCR of the transactions contemplated hereby have been
duly authorized and approved by ASCR`s Board of Directors and its shareholders,
which authorization and approval has not since been amended or revoked. ASCR has
the corporate power and requisite authority to enter into this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by ASCR and constitutes the valid and binding obligation
of ASCR enforceable against ASCR in accordance with its terms. No agreement,
consent, approval, release or waiver of any person or entity, not a party to
this Agreement, and no consent of any governmental agency or authority is
required (i) to permit the performance by ASCR of its obligations under the
terms of this Agreement; or (ii) in order to make the representations and
warranties within this Article II true and accurate.
2.05 Absence of Restrictions. ASCR shall not be subject to any provision
of any agreement, charter, bylaw, mortgage, lease, indenture, instrument, order,
judgment, decree or other restriction or right of other parties which would
prohibit the execution of this Agreement by ASCR or which would prevent the
consummation of the transactions contemplated hereunder or which would prevent
or affect in any way compliance by ASCR with the terms, conditions and
provisions hereof. With respect to the Assets and the Business, the execution
and delivery of this Agreement by ASCR and performance by ASCR of its
obligations under the terms hereof will not accelerate, terminate, or result in
a breach, under any existing material agreements, contract, lease, loan, loan
commitment, joint venture or combination of any kind, to which ASCR is a party,
or result in the creation of any lien or encumbrance under any indenture,
mortgage, deed of trust, or other contract or agreement to which ASCR is a party
or by which it is bound.
2.06 Title to Assets. ASCR has good and marketable title to all the
Assets set forth in Exhibit A, attached hereto, except as provided in Schedule
2.06, attached hereto. The assets set forth in Exhibit A are in good condition,
normal wear and tear excepted, and usable in the ordinary course of business.
2.07 Litigation and Claims. ASCR is aware of no material claims, actions,
proceedings or investigations pending, asserted or threatened against, or
involving the Business or the Assets, except as disclosed in Schedule 2.07,
attached hereto.
-3-
2.08 Taxes. There are no unpaid taxes to ASCR for which ZAP would be
liable as a transferee of ASCR's Assets pursuant to the Internal Revenue Code or
other applicable Federal, state or local law. ASCR shall remain liable for any
obligations of ASCR which arose either subsequent or prior to Closing, except
those obligations and liabilities which ZAP has expressly assumed as provided
hereunder.
2.09 Agreements, Contracts and Commitments. ASCR is not a party to or
otherwise subject to any oral or written agreements or arrangement for the
purchase or sale of any of the Assets or agreement, contract or commitment
containing any covenant limiting the freedom of ASCR to engage in the Business.
ASCR is not in default in any material respect under any agreement, contract,
lease or other material document relating to the Business or the Assets, except
as indicated in Schedule 2.09, attached hereto. Except as stated in such
Schedule 2.09, there have been no claims of such material defaults and, to the
best of ASCR's knowledge, information and belief, there are no facts or
conditions which can reasonably be expected to result in such a material default
by ASCR.
2.10 Compliance with Laws. ASCR has complied in all material respects
with, and is not in violation in any material respect of any federal, state or
local statute, law, rule, or regulation with respect to the conduct of its
Business, or the ownership, operation, sale, purchase or possession of the
Assets.
2.11 Intellectual Property. ASCR's Intellectual Property constitutes all
such proprietary rights which are owned or held by ASCR and which are reasonably
necessary to, or used in the conduct of, the business of ASCR. ASCR owns or has
valid rights to use its Intellectual Property without conflict with the rights
of others. Except as set forth in Schedule 2.11, attached hereto, no person has
made or, to the knowledge of ASCR, threatened to make any claim that ASCR's use
of Intellectual Property is in violation of any license held by ASCR or
infringes any proprietary right or interest of any third party. To the knowledge
of ASCR, no third party is infringing upon any of ASCR's Intellectual Property.
ASCR holds its Intellectual Property free and clear of all Liens.
2.12 Expenses and Broker's Fees. To the knowledge of ASCR, ZAP shall not
incur, directly or indirectly, any liability for brokerage, finder's, financial
advisor's or agent's fees or commissions or expenses in connection with this
Agreement, or the transactions contemplated hereby, by reason of any action or
agreement on the part of ASCR. Each Party shall bear its own costs incurred in
connection with this Agreement, including attorneys' fees.
2.13 Full Disclosure. The representations and warranties contained in
this Agreement are subject to the exceptions specifically noted in the
disclosure schedules attached hereto. By this reference, such Schedules are
incorporated in and made a part of this Agreement. No representation or
warranty, as supplemented pursuant to the terms and provisions hereof, by ASCR
in this Agreement or in any Exhibit or schedule hereto, nor any documents,
written information, written statements or certificates furnished or to be
furnished by or on behalf of ASCR to ZAP pursuant hereto or in connection with
the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact; and, in the case of the statements set forth in
Section 2.03 hereof, omits or will omit to state a material fact necessary to
make the statement contained therein not misleading.
-4-
2.14 Implementation of Representations and Warranties and Certificates.
ASCR shall take all reasonable action necessary to render true, complete and
accurate, as of the Closing Date, ASCR`s representations and warranties
contained in this Agreement as supplemented above, and to perform or cause to be
performed as of the Closing Date the covenants and the obligations of ASCR
contained in this Agreement and ASCR shall refrain from taking any action (other
than action permitted under this Agreement or with the consent of ZAP) which
would render inaccurate, as of the Closing Date, any such representations or
warranties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ZAP
3.01 General. ZAP hereby represents and warrants the following:
3.02 Organization and Good Standing. ZAP is a California corporation duly
organized, validly existing and in good standing under the applicable laws of
the State of California, with requisite corporate power and authority to enter
into and perform this Agreement.
3.03 Authorization and Consents. The execution of this Agreement by ZAP
and the consummation by it of the transactions contemplated hereby has been duly
authorized and approved or ratified by all necessary corporate action. ZAP has
the corporate power and requisite authority to enter into this Agreement and
consummate the transactions contemplated hereby. This Agreement has been duly
executed and delivered by ZAP and constitutes the valid and binding obligation
of ZAP, enforceable against ZAP in accordance with its terms. No agreement,
consent, approval, release or waiver of any person or entity, not a party to
this Agreement and no consent of any governmental agency or authority is
required (i) to permit the performance by ZAP of its obligations under the terms
of this Agreement; or (ii) in order to render the representations and warranties
within this Article IV true and accurate.
3.04 Absence of Restrictions. ZAP is not subject to any provision of any
charter, bylaw, mortgage, lease, indenture, agreement, instrument, order,
judgment, or decree or any other restriction or right of other parties which
would prohibit the execution of this Agreement by ZAP, or which would prevent
the consummation of the transactions contemplated hereunder, or which would
prevent or affect in any way compliance by ZAP with the terms, conditions and
provisions hereof.
3.05 Litigation and Claims. ZAP is aware of no material claim, action,
proceeding or investigation pending, asserted or threatened against, or
involving its business or assets.
3.06 Agreements, Contracts and Commitments. ZAP is not a party to, or
otherwise subject to, any oral or written agreement or arrangement for the
purchase or sale of any of its assets or agreement, contract or commitment,
containing any covenant limiting the freedom of ZAP to engage in its business.
ZAP is not in default in any material respect under any agreement, contract,
lease or other material document relating to its business or assets. There have
been no claims of such material defaults and, to the best of ZAP's knowledge,
-5-
information and belief, there are no facts or conditions that can reasonably be
expected to result in such a material default by ZAP.
3.07 Compliance with Laws. ZAP has complied in all material respects
with, and is not in violation in any material respect of any federal, state or
local statute, law, rule, or regulation with respect to the conduct of its
business, or the ownership, operation, sale, purchase or possession of its
assets.
3.08 Full Disclosure. The representations and warranties contained in
this Agreement are subject to the exceptions specifically noted in the
disclosure Schedules attached hereto. By this reference, such schedules are
incorporated in and made a part of this Agreement. No representation or
warranty, as supplemented pursuant to the terms and provisions hereof, by ZAP in
this Agreement or in any Exhibit or schedule hereto, nor any documents, written
information, written statements or certificates furnished or to be furnished by
or on behalf of ZAP to ASCR pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact.
3.09 Implementation of Representations and Warranties and Certificates.
ZAP shall take all reasonable action necessary to render true, complete and
accurate, as of the Closing Date, ZAP`s representations and warranties contained
in this Agreement as supplemented pursuant above, and to perform or cause to be
performed as of the Closing Date the covenants and the obligations of ZAP
contained in this Agreement and ZAP shall refrain from taking any action (other
than action permitted under this Agreement or with the consent of ASCR) which
would render inaccurate, as of the Closing Date, any such representations or
warranties.
ARTICLE IV
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF ZAP AND ASCR TO CLOSE
4.01 Conditions Precedent to Obligation of ZAP to Close. The obligations
of ZAP to consummate the transactions contemplated by this Agreement are subject
to the fulfillment to ZAP`s reasonable satisfaction on or before the Closing of
each of the following conditions set forth below, subject to ZAP`s rights to
waive in writing any such condition:
(a) Representations, Warranties and Covenants. All representations and
warranties of ASCR contained in this Agreement, as supplemented pursuant to
Section 2.13 above, shall be true and correct in all material respects as of the
Closing Date as if such representations and warranties were made as of the
Closing Date, and ASCR shall have performed and shall have caused to be
performed all agreements, obligations and covenants required by this Agreement
to be performed by it on or prior to the Closing Date.
(b) Adverse Changes. There shall have been no adverse change in the
Business or the Assets including, without limitation, any adverse change in
ASCR's relationship with its customers, distributors, and suppliers, except as
listed in Schedule 4.01, attached hereto.
-6-
(c) Financial Statements. ASCR shall have delivered to ZAP for ZAP's
review and approval ASCR's financial statements described in Section 2.03, which
approval shall not be unreasonably withheld.
(d) Supplemental Schedules Approved. All Supplemental Schedules given by
ASCR, if any, shall have been reviewed and approved by ZAP, which approval shall
not be unreasonably withheld.
(e) Litigation. No action or proceeding before a court or any other
governmental agency or body shall have been instituted and be pending or
threatened by a third party to restrain or prohibit any of the transactions
contemplated hereby.
(f) Delivery of Certificate and Resolutions. ASCR shall have delivered to
ZAP a certificate of ASCR`s president and secretary: (i) stating that the
representations and warranties made by ASCR herein are true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of the Closing Date, (ii) stating that there has been no
breach of any covenant contained herein by ASCR, (iii) stating that all ASCR
conditions to Closing stated in this Agreement have been satisfied or waived,
(iv) stating that there has been no material adverse change with respect to
ASCR, (v) stating that ASCR knows of no challenge to the consummation of the
transactions contemplated by this Agreement and (vi) containing a copy of the
resolutions of ASCR`s board of directors and its shareholders approving this
Agreement and the consummation of the transactions contemplated hereby.
(g) Agreement and Consents. At or prior to the Closing, ASCR shall have
obtained all necessary consents to the transfer of the Assets to ZAP.
(h) Delivery of Assets; No Encumbrances. ASCR shall deliver good and
marketable title to the Assets free and clear of any encumbrances of any kind,
except for any encumbrances disclosed in Schedule 2.06, attached hereto.
4.02 Conditions Precedent to Obligation of ASCR to Close. The obligations
of ASCR to consummate the transactions contemplated by this Agreement are
subject to the fulfillment to ASCR`s satisfaction on or before the Closing Date
of each of the following conditions set forth below, subject to ASCR`s rights to
waive in writing any such condition:
(a) Representations, Warranties and Covenants. All representations and
warranties of ZAP contained in this Agreement, as supplemented pursuant to
Section 3.08 above, shall be true and correct in all material respects as of the
Closing Date as if such representations and warranties were made as of the
Closing Date, and ZAP shall have performed and shall have caused to be performed
all agreements, obligations and covenants required by this Agreement to be
performed by it on or prior to the Closing Date.
(b) Adverse Changes. There shall have been no adverse change in ZAP's
business or its financial condition, except as described in Schedule 4.02,
attached hereto.
-7-
(c) Supplemental Schedules Approved. All Supplemental Schedules given by
ZAP, if any, shall have been reviewed and approved by ASCR, which approval shall
not be unreasonably withheld.
(d) Litigation. No action or proceeding before a court or any other
governmental agency or body shall have been instituted and be pending or
threatened by a third party to restrain or prohibit any of the transactions
contemplated hereby.
(e) Delivery of Certificate and Resolutions. ZAP shall have delivered to
ASCR a certificate of ZAP's president and secretary: (i) stating that the
representations and warranties made by ZAP herein are true and correct in all
material respects on the Closing Date with the same force and effect as if they
had been made on and as of the Closing Date, respectively, (ii) stating that
there has been no breach of any covenant contained herein by ZAP, (iii) stating
that all ZAP conditions to the Closing stated in this Agreement have been
satisfied or waived, (iv) stating that there has been no material adverse change
with respect to ZAP, (v) stating that ZAP knows of no challenge to the
consummation of the transactions contemplated by this Agreement and (vi)
containing a copy of the resolutions of ZAP's board of directors approving this
Agreement and the consummation of the transactions contemplated hereby.
(f) Payment of Purchase Price. ZAP shall deliver the Purchase Price.
ARTICLE V
INDEMNIFICATION; SURVIVAL OR REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
5.01 Indemnification by ASCR. ASCR agrees to indemnify and hold ZAP, its
directors, officers, shareholders, agents, employees, successors and assigns
(collectively, "ZAP Indemnitees"), harmless from and against any and all claims,
causes of action, demands, losses, cost, expenses, obligations, damages,
deficiencies, or liabilities, including interest, penalties, and reasonable
attorneys fees resulting from (i) any liability of ASCR relating to the
operation of ASCR's Business prior to the Closing Date except for those
liabilities specifically assumed by ZAP pursuant to Section 2.03 hereof and (ii)
a breach of any representation, warranty or agreement of ASCR contained in this
Agreement. The foregoing indemnification shall survive the Closing, and shall
remain operative and in full force and effect, regardless of any investigation
or statement as to the result thereof made by or on behalf of any party.
5.02 Claims. In the event a claim is made against ZAP or any ZAP
Indemnitee for which they are (or either of them is) indemnified hereunder, ZAP
shall notify ASCR of such claim. In the event that any action indemnified
hereunder is brought against ZAP or a ZAP Indemnitee and ZAP shall notify ASCR
of the commencement thereof, ASCR shall, at its sole expense, assume the defense
thereof with counsel reasonably satisfactory to ZAP. ZAP shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such separate counsel shall be at the
expense of ZAP unless ASCR has authorized the employment of such counsel in
writing. ASCR shall have the
-8-
right to settle any such action or judgment, based on any such action, provided
that ASCR has previously rendered to ZAP satisfactory evidence of its ability to
pay any action or judgment, and contemporaneously with such settlement ASCR
shall pay the amount of such settlement. If ASCR shall fail to diligently defend
such action, ZAP, after written notice to ASCR, may do so with attorneys of its
own selection and ASCR shall be responsible for and shall pay any settlement or
judgment effected by ZAP and all attorneys' fees.
5.03 Indemnification by ZAP. ZAP agrees to indemnify and hold ASCR, its
directors, officers, shareholders, agents, employees, successors and assigns
(collectively, "ASCR`s Indemnitees"), harmless from and against any and all
claims, causes of action, demands, losses, cost, expenses, obligations, damages,
deficiencies, or liabilities, including interest, penalties, and reasonable
attorneys fees resulting from a breach of any representation, warranty or
agreement of ZAP contained in this Agreement. The foregoing indemnification
shall survive the Closing, and shall remain operative and in full force and
effect, regardless of any investigation or statement as to the result thereof
made by or on behalf of any party.
5.04 Claims. In the event a claim is made against ASCR or any ASCR
Indemnitee for which they are (or either of them is) indemnified hereunder, ASCR
shall notify ZAP of such claim. In the event that any action indemnified
hereunder is brought against ASCR or an ASCR Indemnitee and ASCR shall notify
ZAP of the commencement thereof, ZAP shall, at its sole expense, assume the
defense thereof with counsel reasonably satisfactory to ASCR. ASCR shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such separate counsel shall be at
the expense of ASCR unless ZAP has authorized the employment of such counsel in
writing. ZAP shall have the right to settle any such action or judgment, based
on any such action provided that ZAP has previously rendered to ASCR
satisfactory evidence of its ability to pay any action or judgment, and
contemporaneously with such settlement ZAP shall pay the amount of such
settlement. If ZAP shall fail to diligently defend such action, ASCR, after
written notice to ZAP, may do so with attorneys of its own selection and ZAP
shall be responsible for and shall pay any settlement or judgment effected by
ASCR and all attorneys' fees.
ARTICLE VI
ACCESS TO INFORMATION
6.01 Confidentiality. All information not previously disclosed to the
public which shall have been furnished by ASCR or ZAP to the other party shall
not be disclosed prior to the Closing to any person other than the party's
respective employees, legal counsel, and accountants, in confidence, or used for
any purpose other than as contemplated herein. In the event that the sale of the
Assets shall not be consummated, all such information, including any schedule,
analysis or other documents prepared by ASCR or ZAP, which shall be in writing,
shall remain confidential. The parties acknowledge that disclosure by a party of
such information except as permitted hereunder may result in substantial harm to
the other party.
6.02 Effect of Investigation. Any investigation of ASCR or ZAP by the
other party shall not affect any of the representations, agreements, covenants
or warranties set forth herein. Except as expressly waived in writing or
otherwise provided herein, all
-9-
representations and warranties shall continue in full force and effect, and the
parties shall continue to be bound by them. If an exception to any
representation or warranty has been disclosed on a disclosure Schedule or
Supplemental Schedule delivered by a party prior to Closing, and the other party
receiving such disclosure proceeds to close notwithstanding such disclosure,
then such other party's right to damages or indemnification from the disclosing
party as to matters covered by such disclosure shall be deemed waived by such
other party.
ARTICLE VII
GENERAL
7.01 Notices. Any notice or demand required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when delivered personally and signed receipt for such notice or demand is
secured, or mailed by registered mail or certified mail, postage prepaid, return
receipt requested, and addressed to the following persons at the following
respective address unless by any such notice a different person or address shall
have been designated by the addressee:
Notices to ZAP shall be sent to:
XXXXXXXX.xxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Notice to ASCR shall be sent to:
American Scooter & Cycle Rental
c/o Xxxx and Xxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
7.02 Governing Law; Arbitration. The validity, construction,
interpretation and enforcement of this Agreement shall be determined and
governed by the laws of the State of California. Further, in the event of any
dispute between the parties relative to this Agreement, the inducements or
representations to enter into this Agreement, or the parties' performance of the
terms of this Agreement, said dispute(s) shall be resolved through binding
arbitration pursuant to the rules of the American Arbitration Association or
other mutually agreeable body, before one (1) arbitrator selected by the
parties, with the sites of the arbitration agreed to be in San Francisco,
California.
7.03 Waiver and Modification. Any term or provision of this Agreement may
be waived at any time by a written instrument executed by the party which is
entitled to the benefit thereof; provided, however, that no such waiver shall
constitute a waiver by such party of any of its other rights and remedies, at
law or in equity. This Agreement may be amended, modified or supplemented at any
time only by a written instrument executed by all the parties hereto.
-10-
7.04 Cooperation and Further Assurances. The parties to this Agreement
shall fully cooperate with each other in connection with all general matters and
tax matters (including tax audits) involving either party, which relate in any
way to this Agreement. Such cooperation shall include, but not be limited to the
preparation of an asset purchase valuation and classification schedule, prepared
pursuant to Internal Revenue Code Section 1060 et seq., as revised, and the
granting to the individual party and the taxing authorities reasonable access to
relevant business records and evidence of payment; provided, however, the party
requesting such cooperation shall pay costs and expenses of the cooperating
party in connection with such cooperation.
7.05 Entire Agreement. This Agreement, including documents incorporated
herein by reference, the Exhibits and schedules attached hereto when duly
executed and delivered, constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior proposals, oral and
written, all previous negotiations and all other communications between the
parties with respect to the subject matter hereof (except to the extent any
other agreement may be incorporated into this Agreement by a writing executed by
ZAP and ASCR).
7.06 Headings. The titles to articles and paragraphs hereof are used for
convenience only and shall not be deemed to be a part hereof, or affect the
construction or interpretation of any provision hereof.
7.07 Attorneys' Fees. Except as otherwise provided herein, in connection
with enforcement of their respective rights hereunder, the parties shall each be
entitled to any right or remedy available at law or in equity, and the
prevailing party shall be entitled to reasonable attorneys' fees actually
incurred in connection therewith.
7.08 Severability. If any provision of this Agreement is held invalid
under any applicable statute or rule of law, such invalidity shall not affect
the other provisions of this Agreement that can be given effect without the
invalid provisions, and to this end the provisions of this Agreement are
declared severable. Notwithstanding the above, such invalid provision or clause
shall be construed and enforced, to the extent possible, in accordance with the
original intent of the parties.
7.09 Assignment. This Agreement may not be assigned to any party without
the written consent of the other party hereto.
7.10 Recitals. The recitals herein are incorporated by this reference
into this Agreement and shall bind the parties in accordance with their terms.
7.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered to be an original, but all of
which together shall constitute one and the same instrument.
-11-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers, thereunto duly authorized, as of the date first
above written.
ASCR: ZAP:
American Scooter and Cycle Rental, ZAP XXXXX.xxx, a California
Inc., a California corporation corporation
By: /s/ Xxxxxxx Xxxxx By: /s/ Signature
------------------------------------ ---------------------------
Xxxxxxx Xxxxx, CEO Its:
---------------------------
-12-
EXHIBIT A
ASCR INVENTORY FOR ZAPWORLD TRANSFER
MARCH 27, 2000
Yamaha Razz Scooters
Unit # Year Vin Plate Mileage
2 RED 1987 JYA3EPAOONA187470 CO21472 9,933
4 RED 1987 XXX0XXX00XX000000 CO21475 7,525
1 RED 1988 XXX0XXX00XX000000 CO21474 6,529
3 RED 1987 XXX0XXX00XX000000 CO21473 8,508
4 XXX 0000 XXX0XX000XX000000 14Y5199 4,824
5 1987 XXX0XXX00XX000000 CO21476 10,375
2 XXX 0000 XXX0XXX00XX000000 CO22991 4,424
8 1988 1JH2AF1607JK004219 HONDA 14J5753 4,440
Honda Elite 80 Scooters
Unit # Year Vin Plate Mileage
12 1996 3HIHF031OTD100036 14P7853 17,018
15 1996 0X0XX0000XX000000 14P6611 16,070
35 1994 0X0XX0000XX000000 14Y5211 21,419
34 1996 0X0XX0000XX000000 14K5885 24,125
16 1996 0X0XX0000XX000000 14P9311 6,308
33 1995 0X0XX0000XX000000 14K5903 24,995
24 1994 0X0XX0000XX000000 14K6702 23,968
18 1994 3H1HFO311RD900143 12V1291 21,640
20 1994 31HFO319SD000001 14M5654 26,381
EXHIBIT A
Honda Elite 150 Scooters
Unit # Year Vin Plate Mileage
48 1987 XX0XX0000XX000000 12X9166 11,132
49 1987 XX0XX000XXX000000 12G4244 12,870
white 1987 XX0XX0000XX000000 14J5753 4,558
Honda Helix 250 Scooters
Unit # Year Vin Plate Mileage
1 1996 XX0XX0000XX000000 14T9143 28,072
4 1996 XX0XX0000XX000000 14J5838 27,112
Motorcycles
Unit # Year Make Model Vin Plate Mileage
3 1994 Harley Davidson Sportster 883 0XX0XXX00XX000000 13X6466 47,823
2 1994 Harley Davidson Sportster 883 0XX0XXX00XX000000 13W7402 43,513
2 1998 Yamaha V-Star Classic JYAVM01Y9000222 14V6166 23,738
4 1998 Yamaha V-Star Classic XXXXX00X0XX000000 14V6164 22,110
3 1998 Yamaha V-Star Classic XXXXX00X0XX000000 14V6167 20,059
1 1998 Yamaha V-Star Classic XXXXX00X0XX000000 14V6165 27,204
1 1987 FORD RANGER TRUCK
VIN# 0XXXX00X0XXX00000
PLATE# 3F85877
EXHIBIT B
AMERICAN SCOOTER RENTAL, INC.
Balance Sheet
As of December 31, 1999
ASSETS
Current Assets
West America Bank 5,289.41
Xxxxx Fargo Bank 93,313.58
------------------
98,602.99
Fixed Assets
Furniture & Fixtures 3,123.06
Machines & Equipment 253,031.14
Electric Vehicle 11,030.20
Office Equipment 8,523.01
Less: Accumulated Depreciation (222,986.41)
------------------
52,721.00
Other Assets
Xxxxxxx Xxxxxx Investment 50,000.00
Organizational Expense 627.00
Less: Accumulated Amortization (627.00)
Goodwill 85,543.00
------------------
135,543.00
------------------
286,866.99
==================
LIABILITIES
Current Liabilities
Federal Tax Withheld 1,240.00
FICA Withheld 558.00
Medicare 130.50
State Income Tax Withheld 710.00
-----------------
2,638.50
Stockholders' Equity
Issued Common Stock 10,000.00
Paid in Capital 116,218.00
Retained Earnings 72,234.57
Net income YTD 85,775.92
-----------------
284,228.49
------------------
286,866.99
==================
Asset Purchase Agreement
American Scooter and Cycle Rental, Inc. - ZAP XXXXX.xxx
Schedule 2.06
ASCR has good and marketable title to all of the Assets set forth in Exhibit A.
Schedule 2.07
The only pending or threatened legal action asserted against ASCR is the matter
of Boop v. American Scooter and Cycle Rental, Inc., San Francisco Superior Court
Action No. 998587. The suit involves a claim by a customer who rented a motor
scooter and sustained personal injuries as the result of a vehicular accident.
The matter is covered by ASCR's liability insurance. Recently a court appointed
arbitrator awarded the plaintiff the sum of $50,000, a sum that is well within
the policy limits. The matter is expected to settle without any exposure to
ASCR.
Aside from the foregoing matter, ASCR is unaware of any other material claims,
actions, proceedings or investigations pending, asserted or threatened against,
or involving the Business or the Assets.
Schedule 2.09
ASCR is not in default in any material respect under any agreement, contract,
lease or other material document relating to the Business or the Assets. There
have been no claims of such material defaults and, to the best of ASCR's
knowledge, information and belief, there are no facts or conditions which can
reasonably be expected to result in such a material default by ASCR.
Schedule 2.11
No claims have been threatened or asserted by any person that the manner in
which ASCR conducts its business is in violation of any license held by ASCR or
that ASCR's use of Intellectual Property infringes any proprietary right or
interest of any third party.
ASCR makes no warranties or representations whatsoever concerning its ownership
or right to use any particular intellectual property.
