[Exhibit 1 - Stock Purchase Agreement]
STOCK PURCHASE AGREEMENT
BETWEEN
SHU XXXXX XXXX
AMCO TRANSPORT HOLDINGS, INC.
AND
BESTWAY COACH EXPRESS, INC.
NOVEMBER 15, 2004
.A STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 15, 2004 (this
"Agreement"), by and between SHU XXXXX XXXX, a citizen of Hong Kong, (the
"Buyer"), AMCO TRANSPORT HOLDINGS, INC., a Delaware corporation ("AMCO" or the
"Company"), and BESTWAY COACH EXPRESS, INC., a New York corporation (the
"Seller"). The Buyer, the Company and the Seller are referred to collectively
herein as the "Parties".
.B BACKGROUND
The Seller owns 7,000,000 shares of the issued and outstanding common
stock, $0.00001 par value per share ("Common Stock"), of the Company and is the
holder of that certain Promissory Note dated April 23, 2002 made by the Company
in favor of Seller, as amended by that certain first amendment to the Promissory
Note dated April 19, 2003, copies of which are attached hereto marked Exhibits
A1 and A2 respectively (collectively the "Promissory Note").
The Buyer desires to purchase from the Seller, and the Seller desire to
sell to the Buyer, 6,900,000 shares (the "Shares") of Common Stock and Seller's
right, title and interest to the Promissory Note on the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties, intending to be legally bound,
hereby agree as follows.
1. Definitions. Capitalized terms used, but not otherwise defined,
herein have the meanings ascribed to such terms in Appendix A hereto.
2. Purchase and Sale of Shares.
(a) Basic Transaction. On and subject to the terms and
conditions of this Agreement and for the consideration specified below, Buyer
shall purchase from the Seller, and the Seller shall sell, convey and transfer
to the Buyer:
i) six million nine hundred thousand (6,900,000)
shares of Common Stock of the Company;
and
ii) all Seller's right, title and interest in and to
the Promissory Note.
(b) [Reserved]
(c) Purchase Price. The Buyer shall pay to the Seller in the
aggregate at the Closing Three Hundred Twenty Five Thousand Dollars
($325,000.00) (the "Purchase Price") by delivery of cash payable by
wire transfer or delivery of other immediately available funds.
(d) Adjustment of the Purchase Price. In the event that the
Company shall have any Liabilities or Indebtedness other than the
principal and accrued interest due under the Promissory Note as of the
Closing, the Purchase Price shall be reduced on a Dollar for Dollar
basis by the amount of such liability, provided, however, that if the
amount of such Liabilities and Indebtedness, excluding the Company's
obligation under the Promissory Note, equals or exceeds $50,000.00, it
shall be deemed that the Seller is unable to perform under this
Agreement and the Buyer shall be entitled to terminate this Agreement
under Section 10 (a)(ii) below.
(e) The Closing. The closing of the transactions contemplated
by this Agreement (the "Closing") shall take place by exchange of
documents among the Parties by fax or courier, as appropriate,
following the satisfaction or waiver of all conditions to the
obligations of the Parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective
Parties will take at the Closing itself) or such other date as the
Buyer and the Seller may mutually determine (the "Closing Date");
provided, however, that the Closing Date shall not be later than 5:00
p.m. (Eastern Time) November 19, 2004, unless extended by written
agreement of all Parties. Once the Parties each have made the
respective deliveries called for herein, the Closing shall be deemed to
have occurred.
(f) Deliveries at the Closing. At the Closing: (i) the Seller
shall deliver to the Buyer the various certificates, instruments, and
documents referred to in Section 7(a) below, (ii) the Buyer shall
deliver to the Seller the various certificates, instruments, and
documents referred to in Section 7 (b) below, (iii) the Seller shall
deliver to the Buyer stock certificates representing all of the Shares,
endorsed in blank or accompanied by duly executed assignment documents
and including a Medallion Guarantee, (iv) Seller shall deliver to Buyer
the original Promissory Note an assignment of the Promissory Note from
the Seller to the Buyer in the form attached hereto as Exhibit B (or if
the original Promissory Note is not available, a copy of the Promissory
Note and and indemnity agreement in the form attach hereto as Exhibit
B), and (v) the Buyer shall deliver to the Seller the Purchase Price.
3. Representations and Warranties Concerning the Transaction.
(a) Representations and Warranties of the Seller. The Seller
represents and warrants to the Buyer that the statements contained in this
Section 3(a) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(a)).
(i) Authorization of Transaction. The Seller has full
power and authority to execute and
deliver this Agreement and to perform its obligations hereunder and the
execution, delivery and performance of this Agreement has been authorized by all
required corporate action. This Agreement constitutes the valid and legally
binding obligation of the Seller, enforceable in accordance with its terms and
conditions, except as enforcement may be limited by bankruptcy, insolvency,
priority or other laws or court decisions relating to or affecting generally the
enforcement of creditors' rights or affecting generally the availability of
equitable remedies. The Seller need not give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any Governmental
Authority in order to consummate the transactions contemplated by this
Agreement.
(ii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any Governmental Authority to which the
Seller is subject, or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Seller is a party or by which he is bound or to which any of his assets is
subject.
(iii) Brokers' Fees. The Seller does not have any
Liability or obligation to pay any fees
or commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Buyer or the Company could become
liable or obligated.
(iv) Shares. The Seller is the owner of record and
the beneficial owner of the Shares,
free and clear of any restrictions on transfer (other than any restrictions
under the Securities Act and state securities laws), Taxes, Security Interests,
options, warrants, purchase rights, contracts, commitments, equities, claims,
and demands. The Seller is not a party to any option, warrant, purchase right,
or other contract or commitment that could require the Seller to sell, transfer,
or otherwise dispose of any capital stock of the Company (other than pursuant to
this Agreement). The Seller is not a party to any voting trust, proxy, or other
agreement or understanding with respect to the voting of any capital stock of
the Company. The Shares were duly and validly issued and are fully-paid and
non-assessable. Upon delivery of the Shares to the Buyer pursuant to this
Agreement, the Buyer will acquire valid title thereto, free and clear of any
Security Interests.
(v) Promissory Note. The Seller has good, valid and
marketable title to the Promissory
Note, free and clears from all Security Interests or encumbrances. The Seller
has not assigned, pledged, hypothecated or otherwise encumbered the Promissory
Note. Upon delivery of the original Promissory Note and a duly executed
assignment thereof to the Buyer pursuant to this Agreement, the Buyer will
acquire valid title thereto, free and clear of any Security Interests. The
Seller has not received any payments of principal or interest under the
Promissory Note, nor has Seller compromised, forgiven or otherwise reduced the
amount of principal and interest due under the Promissory Note.
(b) Representations and Warranties of the Buyer. The Buyer
represents and warrants to the Seller that the statements contained in this
Section 3(b) are correct and complete as of the date of this Agreement and will
be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Section 3(b)).
(i) Authorization of Transaction. The Buyer has full
power and authority to execute and
deliver this Agreement and to perform his obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of the Buyer, enforceable
in accordance with its terms and conditions, except as enforcement may be
limited by bankruptcy, insolvency, priority or other laws or court decisions
relating to or affecting generally the enforcement of creditors' rights or
affecting generally the availability of equitable remedies. The Buyer need not
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any Governmental Authority in order to consummate the
transactions contemplated by this Agreement.
(ii) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, will (A) violate any
constitution, statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any Governmental Authority to which the
Buyer is subject, or (B) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
the Buyer is a party or by which it is bound or to which any of its assets are
subject.
(iii) Brokers' Fees. The Buyer has no Liability or
obligation to pay any fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement for which the Seller could become liable or
obligated.
(iv) Status of the Buyer. The Buyer represents and
warrants that (A) the Buyer is
acquiring the Shares for its own account for investment and not for the account
of any other person and not with a view to or for distribution, assignment or
resale in connection with any distribution within the meaning of the Securities
Act, (B) the Buyer agrees not to sell or otherwise transfer the Shares unless
they are registered under the Securities Act and any applicable state securities
laws, or an exemption or exemptions from such registration are available, (C)
the Buyer represents that it has knowledge and experience in financial and
business matters such that it is capable of evaluating the merits and risks of
acquiring the Shares, (D) the Buyer has had access to all documents, records,
and books of the Company pertaining to the investment and was provided the
opportunity ask questions and receive answers regarding the terms and conditions
of the acquisition of the Shares and to obtain any additional information which
the Company possesses or was able to acquire without unreasonable effort and
expense, and Buyer received information concerning the Company, Seller and the
Shares equivalent to that which would have been included in a registration
statement prepared under the Securities Act of 1933, as amended (the "Securities
Act"), and (E) the Buyer has no need for the liquidity in its investment in the
Company and could afford the complete loss of such investment.
(v) Buyer not Insolvent. Buyer is not insolvent or
bankrupt and will not be insolvent or
bankrupt after purchasing the Shares.
(vi) No General Solicitation. Buyer was not solicited
by Seller or anyone on Seller's
behalf to enter into any transaction through any form of general solicitation or
general advertising, as those terms are defined in Regulation D under the
Securities Act.
(vii) Risk Acknowledgment. Buyer acknowledges that
the Company has no assets or operating
business and that the Shares are speculative and involve a high degree of risk,
including among many other risks that the Shares will be restricted as elsewhere
described in this Agreement and will not be transferable unless first registered
under the Securities Act or pursuant to an exemption from such act's
registration requirements.
(viii) Restrictive Legend and Stop Order. The Shares
when delivered to Buyer will not be
registered under the Securities Act or applicable state laws, but shall be
transferred in reliance upon the exemptions from registration provided by
Section 4(1) of the Securities Act and under analogous state securities laws, on
the grounds that the sale of the Shares does not involve any public offering and
that Seller is not thereby acting as an issuer, underwriter or dealer. The
Shares are "restricted securities" as that term is defined in Rule 144(a) of the
General Rules and Regulations under the Securities Act and must be held
indefinitely, and the prior written consent of the Company will be necessary for
their resale or other transfer, unless they are subsequently registered under
the Act or an exemption from the Act's registration requirements is available
for their resale or transfer. All certificates delivered evidencing the Shares
shall bear a restrictive legend substantially in the following form:
"The shares represented by this Certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), and are
"restricted securities" as that term is defined in Rule 144 under
the Act. These shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement
under the Act, or pursuant to an exemption from registration under
the Act."
4. Representations and Warranties Concerning the Company. The Seller
represents and warrants to the Buyer that the statements contained in this
Section 4 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 4).
(a) SEC Reports. The Company has filed all reports,
registration statements, definitive proxy statements and other documents and all
amendments thereto and supplements thereof required to be filed by it with the
U.S. Securities and Exchange Commission ("SEC") since March 9, 2001 (the "SEC
Reports"), all of which have complied in all material respects with the
applicable requirements of the Securities Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations promulgated
thereunder. As of the respective dates of filing in final or definitive form
(or, if amended or superseded by a subsequent filing, then on the date of such
subsequent filing), none of the Company's SEC Reports contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading.
(b) Organization of Company. The Company is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware. The Company is duly authorized to conduct business and is in good
standing under the laws of each jurisdiction where such qualification is
required. The Company has full corporate power and authority and all licenses,
permits, and authorizations necessary to carry on its business. The Company has
no subsidiaries and does not control any other subsidiaries, directly or
indirectly, or have any direct or indirect equity participation in any other
entity.
(c) Capitalization; No Restrictive Agreements. The Company's
authorized capital stock, as of the date of this Agreement and as of the
Closing, consists of 500,000,000 shares of Common Stock, $0.00001 par value per
share, of which 9,550,750 shares are issued and outstanding and 20,000,000
shares of Preferred Stock, $0.00001 par value per share, none of which are
issued and outstanding. The Company has reserved 20,000,000 shares of its
authorized but unissued shares of Common Stock of each of its AMCO 2002 Stock
Plan and its AMCO 2002 Employee Stock Compensation Plan (collectively, "Stock
Option Plans"). The Company has not approved or made any grants under either
Stock Option Plan. Other than the 40,000,000 shares of Common Stock reserved
under its Stock Option Plans, the Company has not reserved any shares of its
Common Stock for issuance upon the exercise of options, warrants or any other
securities that are exercisable or exchangeable for, or convertible into, Common
Stock. All of the issued and outstanding shares of Common Stock are validly
issued, fully paid and non-assessable and have been issued in compliance with
applicable laws, including, without limitation, applicable federal and state
securities laws. There are no outstanding options, warrants or other rights of
any kind to acquire any additional shares of capital stock of the Company or
securities exercisable or exchangeable for, or convertible into, capital stock
of the Company, nor is the Company committed to issue any such option, warrant,
right or security. There are no agreements relating to the voting, purchase or
sale of capital stock (i) between or among the Company and any of its
stockholders, (ii) between or among the Seller and any third party, or (iii) to
the best knowledge of the Seller between or among any of the Company's
stockholders. Except as noted in Section 12(q), below the Company is not a party
to any agreement granting any stockholder of the Company the right to cause the
Company to register shares of the capital stock of the Company held by such
stockholder under the Securities Act.
(d) Promissory Note. The issuance and delivery of the
Promissory Note to the Seller was duly authorized by all requisite corporate
action and the Promissory Note constitutes a legal, valid and binding obligation
of the Company and is enforceable with respect to the Company in accordance with
its terms, except as enforcement may be limited by bankruptcy, insolvency,
priority or other laws or court decisions relating to or affecting generally the
enforcement of creditors' rights or affecting generally the availability of
equitable remedies. Upon delivery of the Promissory Note and the assignment
thereof to the Buyer pursuant to this Agreement, the Buyer will acquire valid
title thereto, free and clear of any Security Interests. The Company has not
made any payments in respect of principal or interest due under the Promissory
Note nor is the Company aware of any assignment of the Promissory Note by the
Seller.
(e) Financial Statements. Except as set forth in Schedule
4(e), the Financial Statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis,
fairly present the financial condition, results of operations and cash flows of
the Company as of the respective dates thereof and for the periods referred to
therein and are consistent with the books and records of the Company. As of the
Closing, the Company does not have any liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for taxes other than under the Promissory Note.
(f) Absence of Certain Changes. Except as set forth in
Schedule 4(f), since December 31, 2003, there has not been any event or
condition of any character which has adversely affected, or may be expected to
adversely affect, the Company's business or prospects, including, but not
limited to any adverse change in the condition, assets, liabilities (existing or
contingent) or business of the Company from that shown in the Financial
Statements.
(g) Legal Proceedings. Except as set forth in Schedule 4(g),
there is no legal, administrative, investigatory, regulatory or similar action,
suit, claim or proceeding which is pending or, to the Seller's knowledge,
threatened against the Company which, if determined adversely to the Company,
could have, individually or in the aggregate, a material adverse effect on the
business, assets, or prospects of the Company or which in any manner challenges
or seeks to prevent, enjoin, alter or delay the transactions contemplated by
this Agreement.
(h) Legal Compliance. Except as set forth in Schedule 4(h) the
Company has complied in all material respects with all applicable laws
(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of all Governmental Authorities, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against the Company alleging any
failure so to comply. To the Seller's knowledge, neither the Company, nor any
officer, director, employee, consultant or agent of the Company has made,
directly or indirectly, any payment or promise to pay, or gift or promise to
give or authorized such a promise or gift, of any money or anything of value,
directly or indirectly, to any governmental official, customer or supplier for
the purpose of influencing any official act or decision of such official,
customer or supplier or inducing him, her or it to use his, her or its influence
to affect any act or decision of a Governmental Authority or customer, under
circumstances which could subject the Company or any officers, directors,
employees or consultants of the Company to administrative or criminal penalties
or sanctions.
(i) Tax Matters. Except as set forth in Schedule 4(i):
(i) The Company has filed all Tax Returns that it was
required to file. All such Tax
Returns were correct and complete in all respects. All Taxes owed by the Company
have been paid. The Company is not currently the beneficiary of any extension of
time within which to file any Tax Return. No claim has ever been made by an
authority in a jurisdiction where the Company does not file Tax Returns that it
is or may be subject to taxation by that jurisdiction. There are no Security
Interests on any of the assets of the Company that arose in connection with any
failure (or alleged failure) to pay any Tax..
(ii) The Company has withheld and paid all Taxes
required to have been withheld and paid in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party.
(iii) The Seller does not expect any authority to
assess any additional Taxes for any period
for which Tax Returns have been filed. There is no dispute or claim concerning
any Liability with respect to any Taxes of the Company either (A) claimed or
raised by any authority in writing or (B) as to which the Seller has knowledge
based upon personal contact with any agent of such authority. No Tax Returns of
the Company have ever been audited or are currently the subject of an audit. The
Seller has delivered to the Buyer correct and complete copies of all federal and
state income and other material Tax Returns, examination reports, and statements
of deficiencies assessed against or agreed to by the Company since inception.
(iv) The Company has not waived any statute of
limitations in respect of Taxes or agreed to
any extension of time with respect to a Tax assessment or deficiency.
(v) The Company has not filed consent under Code
Section 341(f) concerning collapsible
corporations. The Company has not made any payments, is not obligated to make
any payments, and is not a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be deductible
under Code Section 280G. The Company has not been a United States real property
holding corporation within the meaning of Code Section 897(c) (2) during the
applicable period specified in Code Section 897(c) (1) (A) (ii). The Company is
not a party to any Tax allocation or sharing agreement. The Company (A) is not
and has not been a member of an Affiliated Group filing a consolidated federal
income Tax Return and (B) does not have any Liability for the Taxes of any
Person under Reg. Section 1.1502-6 (or any similar provision of state, local, or
foreign law), as a transferee or successor, by contract, or otherwise.
(j) Employee Matters. The Company has no employees. The
officers and directors of the Company named in the SEC Reports handle the
affairs of the Company. None of such officers and directors is owed any
compensation for any services provided to the Company. The Company has no
obligation in respect of employee benefits payable to current or former
employees, officers or directors. There is no existing or, to the best of the
knowledge of the Company and the Seller, threatened, labor strikes or labor
disputes, grievances, controversies or other labor troubles affecting the
Company or its business.
(k) Disclosure. No representation or warranty by the Seller
contained in this Agreement, and no statement contained in the any document,
certificate or other instrument delivered or to be delivered by or on behalf of
the Seller pursuant to this Agreement, contains or will contain any untrue
statement of a material fact or omit or will omit to state any material fact
necessary, in light of the circumstances under which it was or will be made, in
order to make the statements herein or therein not misleading.
5. Pre-Closing Covenants. The Parties agree as follows with respect to
the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use his or its best
efforts to take all action and to do all things necessary, proper, or advisable
in order to consummate and make effective the transactions contemplated by this
Agreement (including satisfaction, but not waiver, of the closing conditions set
forth in Section 7 below).
(b) Notices and Consents. The Seller will cause the Company to
give any notices to third parties, and will cause the Company to use its best
efforts to obtain any third party consents, that the Buyer may reasonably
request. Each of the Parties will (and the Seller will cause the Company to)
give any notices to, make any filings with, and use its best efforts to obtain
any authorizations, consents, and approvals of Governmental Authorities
necessary in order to consummate the transactions contemplated hereby.
(c) Operation of Business. The Seller will not cause or permit
the Company to engage in any practice, take any action, or enter into any
transaction outside the Ordinary Course of Business. Without limiting the
generality of the foregoing, the Seller will not cause or permit the Company to
(i) declare, set aside, or pay any dividend or make any distribution with
respect to its capital stock or redeem, purchase, or otherwise acquire any of
its capital stock except as otherwise expressly specified herein, (ii) issue,
sell, or otherwise dispose of any of its capital stock, or grant any options,
warrants, preemptive or other rights to purchase or obtain (including upon
conversion, exchange, or exercise) any of its capital stock, (iii) make any
capital expenditures, loans, or incur any other obligations or liabilities, (iv)
enter into any agreements involving expenditures individually, or in the
aggregate, of more than $1,000 (other than agreements for professional services
which will be paid in full at or prior to the Closing) (v) make any payment of
interest or principal on the Promissory Note or (vi) otherwise engage in any
practice, take any action, or enter into any transaction out of the ordinary
course of business.
(d) Preservation of Business. The Seller will cause the
Company to keep its business and properties substantially intact, including the
filing of all reports required to be filed with the Securities and Exchange
Commission and the NASD in order to maintain the Company's status as a reporting
company and in order to continue the quotation of the Company's Common Stock on
the NASD's Over-the-Counter Bulletin Board.
(e) Full Access. The Seller will permit, and the Seller will
cause the Company to permit, representatives of the Buyer to have full access at
all reasonable times, to all properties, personnel, accountants, suppliers, and
third party service providers, books, records (including Tax records),
contracts, and documents of or pertaining to the Company.
(f) Notice of Developments. The Seller will give prompt
written notice to the Buyer of any material adverse development causing a breach
of any of the representations and warranties in Section 4 above. Each Party will
give prompt written notice to the others of any material adverse development
causing a breach of any of his own representations and warranties in Section 3
above. No disclosure by any Party pursuant to this Section 5(f), however, shall
be deemed to amend or supplement the disclosures contained in the Schedules
hereto or to prevent or cure any misrepresentation, breach of warranty, or
breach of covenant.
6. Post-Closing Covenants. The Parties agree as follows with respect to
the period following the Closing.
(a) General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party may
reasonably request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 8 below). The Seller acknowledges and agrees that from and after the
Closing the Buyer will be entitled to possession of all documents, books,
records (including Tax records), agreements, and financial data of any sort
relating to the Company.
(b) Litigation Support. In the event and for so long as any
Party actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or transaction on or prior
to the Closing Date involving the Company, the other Party will cooperate with
him or it and his or its counsel in the contest or defense, make available their
personnel, and provide such testimony and access to their books and records as
shall be necessary in connection with the contest or defense, all at the sole
cost and expense of the contesting or defending Party (unless the contesting or
defending Party is entitled to indemnification therefor under Section 8 below).
(c) Transition. The Seller will not take any action that is
designed or intended to have the effect of discouraging any lessor, licensor,
customer, supplier, or other business associate of the Company from maintaining
the same business relationships with the Company after the Closing as it
maintained with the Company prior to the Closing.
(d) Name Change. As soon as practicable following the Closing (and in any event
within 180 days following the Closing), the Company shall, and the Buyer shall
cause the Company to, file with appropriate governmental authorities amendments
to the Company's certificate of incorporation and other organizational documents
to change the Company's name to any name other than "AMCO Transport Holdings,
Inc." or any name including the word "AMCO" or that is otherwise confusingly
similar to the name AMCO Transport Holdings, Inc. The Buyer and the Company
shall coordinate with the Seller and give the Seller sufficient notice regarding
the name change such that the Seller will be able to reserve such name in the
State of Delaware for use by the Seller.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation of
the Buyer to consummate the transactions to be performed by him in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 3(a) and Section 4 above shall be true and correct in all material
respects at and as of the Closing Date;
(ii) the Seller shall have performed and complied
with all of his covenants hereunder in all material respects through the
Closing;
(iii) the Company shall have procured all of the
third party consents specified in Section 5(b) above;
(iv) no action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement,
(B) cause any of the transactions contemplated by this Agreement to be rescinded
following consummation, (C) affect adversely the right of the Buyer to own the
Shares and to control the Company, or (D) affect adversely the right of the
Company to own its assets and to operate its businesses (and no such injunction,
judgment, order, decree, ruling, or charge shall be in effect);
(v) the Seller shall have delivered to the Buyer a
certificate to the effect that (A) each of the conditions specified above in
Section 7(a)(i)-(iv) is satisfied in all respects, and (B) as of the Closing,
the Company has no Liabilities or Indebtedness other than under the Promissory
Note;
(vi) [Reserved];
(vii) the Buyer shall have received the resignations,
effective as of the Closing from each director and officer of the Company.;
(viii) there shall not have been any occurrence,
event, incident, action, failure to act, or transaction since December 31, 2003
which has had or is reasonably likely to cause a material adverse effect on the
business, assets, properties, financial condition, results of operations or
prospects of the Company;
(ix) [Reserved];
(x) the Buyer shall have received such pay-off
letters and releases relating to Indebtedness and Liabilities as it shall have
requested and such pay-off letters shall be in form and substance satisfactory
to it;
(xi) the Buyer shall have conducted UCC, judgment
lien and tax lien searches with respect to the Company, the results of which
indicate no liens on the assets of the Company;
(xii) the Company shall have delivered its
Certificate of Incorporation and bylaws, both as amended to the Closing Date,
certified by the Secretary of the Company and the Company shall deliver to the
Buyer the Company's original minute book and corporate seal and all other
original corporate documents;
(xiii) the Company shall deliver to the Buyer a
Certificate of Good Standing in respect of
the Company issued by the Delaware Secretary of State dated no earlier than 5
days prior to the closing.
(xiv) the Company shall have filed all of the reports
required to be filed under the Exchange Act during the 12 months preceding the
Closing (or such shorter period as the Company was required to file such
reports) and the Company shall have otherwise met all of the requirements of
Rule 144(c) of the Securities Act;
(xv) the Company shall have maintained at and
immediately after the Closing its status as a company whose Common Stock is
quoted on the OTC Bulletin Board that is maintained by the National Association
of Securities Dealers, Inc.; and
(xvi) all actions to be taken by the Seller in
connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be satisfactory in form and substance to
the Buyer.
The Buyer may waive any condition specified in this Section 7(a) at or
prior to the Closing in writing executed by the Buyer.
(b) Conditions to Obligation of the Seller. The obligation of
the Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in
Section 3(b) above shall be true and correct in all material respects at and as
of the Closing Date;
(ii) the Buyer shall have performed and complied with
all of its covenants hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending
or threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator wherein
an unfavorable injunction, judgment, order, decree, ruling, or charge would (A)
prevent consummation of any of the transactions contemplated by this Agreement
or (B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect);
(iv) the Buyer shall have delivered to the Seller a
certificate to the effect that each of the conditions specified above in Section
7(b) (i)-(iii) is satisfied in all respects;
(v) all actions to be taken by the Buyer in
connection with consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be satisfactory in form and substance to
the Seller.
The Seller may waive any condition specified in this Section 7(b) at or
prior to the Closing in writing executed by the Seller.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
representations and warranties of the Parties shall survive the Closing
hereunder (even if a Party knew or had reason to know of any misrepresentation
or breach of warranty by another Party at the time of Closing) and continue in
full force and effect for a period of eighteen (18) months thereafter.
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event the Seller breaches (or in the event
any third party alleges facts that, if true, would mean the Seller has breached)
any of its representations, warranties, and covenants contained herein, and, if
there is an applicable survival period pursuant to Section 8(a) above, provided
that the Buyer makes a written claim for indemnification against the Seller
within such survival period, then the Seller shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer through
and after the date of the claim for indemnification (including any Adverse
Consequences the Buyer may suffer after the end of any applicable survival
period) resulting from, arising out of, relating to, in the nature of, or caused
by the breach (or the alleged breach).
(ii) The Seller shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused by any Liability
of the Company (whether or not accrued or otherwise disclosed) (x) for any Taxes
of the Company with respect to any Tax year or portion thereof ending on or
before the Closing Date (or for any Tax year beginning before and ending after
the Closing Date to the extent allocable to the portion of such period beginning
before and ending on the Closing Date) and (y) for the unpaid Taxes of any
Person (other than the Company) under Section 1.1502-6 of the Regulations
adopted under the Code (or any similar provision of state, local, or foreign
law), as a transferee or successor, by contract, or otherwise.
(iii) The Seller shall indemnify the Buyer from and
against the entirety of any Liabilities arising out of the ownership of the
Shares or operation of the Company prior to the Closing.
(iv) The Seller shall indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer may suffer resulting
from, arising out of, relating to, in the nature of, or caused by any
Indebtedness of the Company existing as of the Closing Date after adjustment
pursuant to Section 2(d).
(c) Indemnification Provisions for Benefit of the Seller. In
the event the Buyer breaches (or in the event any third party alleges facts
that, if true, would mean the Buyer has breached) any of its representations,
warranties, and covenants contained herein, and, if there is an applicable
survival period pursuant to Section 8(a) above, provided that the Seller makes a
written claim for indemnification against the Buyer within such survival period,
then the Buyer shall indemnify the Seller from and against the entirety of any
Adverse Consequences the Seller may suffer through and after the date of the
claim for indemnification (including any Adverse Consequences the Seller may
suffer after the end of any applicable survival period) resulting from, arising
out of, relating to, in the nature of, or caused by the breach (or the alleged
breach).
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") which
may give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified Party shall
promptly notify each Indemnifying Party thereof in writing; provided, however,
that no delay on the part of the Indemnified Party in notifying any Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to
defend the Indemnified Party against the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 10 days
after the Indemnified Party has given notice of the Third Party Claim that the
Indemnifying Party will indemnify the Indemnified Party from and against the
entirety of any Adverse Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or caused by the Third
Party Claim, (B) the Indemnifying Party provides the Indemnified Party with
evidence reasonably acceptable to the Indemnified Party that the Indemnifying
Party will have the financial resources to defend against the Third Party Claim
and fulfill its indemnification obligations hereunder, (C) the Third Party Claim
involves only money damages and does not seek an injunction or other equitable
relief, (D) settlement of, or an adverse judgment with respect to, the Third
Party Claim is not, in the good faith judgment of the Indemnified Party, likely
to establish a precedential custom or practice adverse to the continuing
business interests of the Indemnified Party, and (E) the Indemnifying Party
conducts the defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting
the defense of the Third Party Claim in accordance with Section 8(d)(ii) above,
(A) the Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably), and (C) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section
8(d)(ii) above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it reasonably
may deem appropriate (and the Indemnified Party need not consult with, or obtain
any consent from, any Indemnifying Party in connection therewith), (B) the
Indemnifying Parties will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim (including
attorneys' fees and expenses), and (C) the Indemnifying Parties will remain
responsible for any Adverse Consequences the Indemnified Party may suffer
resulting from, arising out of, relating to, in the nature of, or caused by the
Third Party Claim to the fullest extent provided in this Section 8.
(e) Other Indemnification Provisions. The Seller hereby
indemnifies the Company against any and all claims that may be filed by a
current or former officer, director or employee of the Seller by reason of the
fact that such person was a director, officer, employee, or agent of the Company
or was serving the Company at the request of the Seller or the Company as a
partner, trustee, director, officer, employee, or agent of another entity,
whether such claim is for accrued salary, compensation, indemnification,
judgments, damages, penalties, fines, costs, amounts paid in settlement, losses,
expenses, or otherwise and whether such claim is pursuant to any statute,
charter document, bylaw, agreement, or otherwise) with respect to any action,
suit, proceeding, complaint, claim, or demand brought against the Company
(whether such action, suit, proceeding, complaint, claim, or demand is pursuant
to an agreement, applicable law, or otherwise).
9. Tax Matters. The following provisions shall govern the allocation of
responsibility as between the Buyer and the Seller for certain tax matters
following the Closing Date. Seller has caused federal and applicable state tax
returns to be filed for the Company covering the year ended December 31, 2003,
and no taxes were owed under any such returns. Buyer shall cause the Company to
prepare and file all tax returns due for 2004 and subsequent years.
(a) Cooperation on Tax Matters. Seller has provided to the
Buyer copies of all tax returns in Seller's possession filed by the Company and
of all books and records of the Company in Seller's possession. Seller also
agrees to cooperate with Buyer and the Company to answer his questions regarding
all tax returns filed by the Company while Seller was a majority shareholder of
the Company.
(b) Tax Sharing Agreements. There are not now and there never
have been any tax sharing agreements in place involving the Company.
(c) Certain Taxes. All transfer, documentary, sales, use,
stamp, registration and other such Taxes and fees (including any penalties and
interest) incurred in connection with this Agreement shall be paid by the Seller
when due, and Seller will, at his own expense, file all necessary Tax Returns
and other documentation with respect to all such transfer, documentary, sales,
use, stamp, registration and other Taxes and fees, and, if required by
applicable law, the Buyer will, and will cause its affiliates to, join in the
execution of any such Tax Returns and other documentation.
10. Termination.
(a) Termination of Agreement. The Parties may terminate this
Agreement as provided below:
(i) the Buyer and the Seller may terminate this
Agreement by mutual written agreement at any time prior to the Closing;
(ii) the Buyer may terminate this Agreement by giving
written notice to the Seller at any time prior to the Closing if (A) the
aggregate of the Company's Liabilities and Indebtedness, (other than under the
Promissory Note) is equal to, or exceeds $50,000 as provided in Section 2 (d)
above; (B) in the event the Seller has breached any material representation,
warranty, or covenant contained in this Agreement in any material respect and
the Buyer has notified the Seller of the breach, and the breach has continued
without cure for a period of 10 days after the notice of breach or (C) if the
Closing shall not have occurred on or before November 19, 2004 by reason of the
failure of any condition precedent under Section 7(a) hereof (unless the failure
results primarily from the Buyer itself breaching any representation, warranty,
or covenant contained in this Agreement); and
(iii) the Seller may terminate this Agreement by
giving written notice to the Buyer at any time prior to the Closing (A) in the
event the Buyer has breached any material representation, warranty, or covenant
contained in this Agreement in any material respect, the Seller has notified the
Buyer of the breach, and the breach has continued without cure for a period of
10 days after the notice of breach or (B) if the Closing shall not have occurred
on or before November 19, 2004, by reason of the failure of any condition
precedent under Section 7(b) hereof (unless the failure results primarily from
the Seller himself breaching any representation, warranty, or covenant contained
in this Agreement).
(b) Effect of Termination. If this Agreement terminates
pursuant to Section 10(a)(i), 10(a)(ii) or 10(a)(iii) above, all rights and
obligations of the Parties hereunder shall terminate without any Liability of
any Party to any other Party, except for any Liability of a Party that is then
in breach.
11. [Reserved]
12. Miscellaneous.
(a) Facsimile Execution and Delivery. Facsimile execution and
delivery of this Agreement is legal, valid and binding execution and delivery
for all purposes.
(b) Press Releases and Public Announcements. No Party shall
issue any press release or make any public announcement relating to the subject
matter of this Agreement without the prior written approval of the other Party;
provided, however, that any Party may make any public disclosure it believes in
good faith is required by applicable law or any listing or trading agreement
concerning its publicly-traded securities (in which case the disclosing Party
will use its best efforts to advise the other Parties prior to making the
disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(e) Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of his or its rights, interests, or obligations hereunder without the prior
written approval of the Buyer and the Seller; provided, however, that the Buyer
may (i) assign any or all of its rights and interests hereunder to one or more
of its Affiliates, and (ii) designate one or more of its Affiliates to perform
its obligations hereunder, but no such assignment shall operate to release Buyer
or a successor from any obligation hereunder unless and only to the extent that
Seller agrees in writing.
(f) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(g) Headings. The Section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Seller:
Shu Xxxxx Xxxx
7/F, Shum Tower
000 Xxx Xxxxx Xxxx Xxxxxxx
Xxxxxx Xxx, XX
With copy to:
Xxxx Xxxx Lin, CEO
CBC International Corporation
000 X. Xxxx Xxx. Xxxxx # 000
Xxxxxxxx, XX 00000
With copy to:
Xxxx & Xxxxx, LLP
00000 Xxx Xxxxxx Xxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
If to the Buyer:
Bestway Coach Express Inc.
0 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
With copy to:
Xxxxxx Xxxx & Priest LLP
000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Parties notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York without
giving effect to any choice or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York..
(j) Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and signed by
the Buyer and the Seller. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(k) Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
(l) Expenses. Each of the Parties and the Company will bear
his or its own costs and expenses (including legal fees and expenses) incurred
in connection with this Agreement and the transactions contemplated hereby. The
Seller agrees that the Company has not borne or will not bear any of the
Seller's costs and expenses (including any of his legal fees and expenses) in
connection with this Agreement or any of the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Any reference to any federal, state or local
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The word
"including" shall mean including without limitation. The Parties intend that
each representation, warranty, and covenant contained herein shall have
independent significance. If any Party has breached any representation,
warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty, or covenant relating to the same
subject matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact that the
Party is in breach of the first representation, warranty, or covenant. Nothing
in the disclosure Schedules attached hereto shall be deemed adequate to disclose
an exception to a representation or warranty made herein, however, unless the
disclosure Schedules identifies the exception with particularity and describes
the relevant facts in detail. Without limiting the generality of the foregoing,
the mere listing (or inclusion of a copy) of a document or other item in the
disclosure Schedules or supplied in connection with the Buyer's due diligence
review, shall not be deemed adequate to disclose an exception to a
representation or warranty made herein (unless the representation or warranty
has to do with the existence of the document or other item itself).
(n) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
(o) Specific Performance. Each of the Parties acknowledges and
agrees that the other Parties would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that the other Parties shall be entitled to an injunction or injunctions
to prevent breaches of the provisions of this Agreement and to enforce
specifically this Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof having
jurisdiction over the Parties and the matter (subject to the provisions set
forth in Section 12(p) below), in addition to any other remedy to which they may
be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to
the jurisdiction of any state or federal court sitting in Orange County,
California, in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or proceeding so
brought and waives any bond, surety, or other security that might be required of
any other Party with respect thereto. Any Party may make service on any other
Party by sending or delivering a copy of the process to the Party to be served
at the address and in the manner provided for the giving of notices in Section
12(h) above. Nothing in this Section 12(p), however, shall affect the right of
any Party to bring any action or proceeding arising out of or relating to this
Agreement in any other court or to serve legal process in any other manner
permitted by law or at equity. Each Party agrees that a final judgment in any
action or proceeding so brought shall be conclusive and may be enforced by suit
on the judgment or in any other manner provided by law or at equity.
(q) Buyer Acknowledges Registration Rights. Buyer and the
Company acknowledge that the Company has unilaterally locked up certain of its
outstanding common shares without the agreement or consent of such holders,
which include among others 1,282,872 Common Stock shares held by Xxxxxxx X.
Xxxxxx and his transferees (the "Lock-up Shares"), all of which shares may under
the terms of such lock-up only be resold upon registration under the Securities
Act or pursuant to an available exemption from Securities Act registration
requirements. Schedule 12(q) sets forth a list of shareholders affected by the
lock-up and the number of shares held by such person. Buyer and the Company
acknowledge and agree that the Company has granted to the holders of the Lock-Up
Shares piggyback registration rights pursuant to which the Company must at its
sole expense register the Lock-Up Shares under the Securities Act in the event
the Company files any registration statement thereunder which registers the
offer and sale of its securities for cash.
[Signature page to follow]
IN WITNESS WHEREOF, the undersigned Parties have executed this Stock
Purchase Agreement as of the date first above written.
SELLER
BESTWAY COACH EXPRESS, INC.
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
BUYER
/s/ Xxx Xxxxx Xxxx
Xxx Xxxxx Xxxx
COMPANY
AMCO TRANSPORT HOLDINGS, INC.
/s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, President
.C APPENDIX A
..D DEFINITIONS
As used herein, the following terms have the respective meanings set
forth below:
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, lost value,
expenses, and fees, including court costs and attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of Code Section
1504(a) or any similar group defined under a similar provision of state or local
law.
"Buyer" has the meaning set forth in the preface above.
"Closing" has the meaning set forth in Section 2(e) above.
"Closing Date" has the meaning set forth in Section 2(e) above.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means AMCO Transport Holdings, Inc., a Delaware Corporation.
"Disclosure Schedule" means the list schedules provided pursuant to this
Agreement, each Schedule to be numbered to correspond with the numbers of the
Section in the Agreement to which it relates.
"Financial Statements" means the audited and unaudited accounting records
contained in the SEC Reports.
"Governmental Authority" means any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
or any court of the United States of America or any political subdivision
thereof, or of any other country.
"Indebtedness" of any Person means, in each case whether or not accrued
on the books of such Person, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or services, (b) all
obligations of such Person upon which interest charges are customarily paid or
which are evidenced by notes, bonds, debentures, credit agreements or similar
agreements or investments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property or assets
purchased by such Person, (d) all obligations of such Person under capitalized
leases, (e) all obligations of such Person in respect of acceptances, letters of
credit or letters of guaranty issued or created for the account of such Person,
and (f) all liabilities secured by any Security Interest on any property owned
by such Person, whether or not such Person has assumed or otherwise become
liable for the payment thereof.
"Indemnified Party" has the meaning set forth in Section 8(d) (i) above.
"Indemnifying Party" has the meaning set forth in Section 8(d) (i) above.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"Parties" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Promissory Note" has the meaning set forth in the recitals above.
"Purchase Price" has the meaning set forth in Section 2(b) above.
"SEC Reports" has the meaning set forth in Section 4(a).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any adverse claim, mortgage, pledge, lien,
encumbrance, option, restriction on transfer, easement, right of way, matter of
survey, charge, or other security interest, whether perfected by a filing of a
UCC-1 financial statement or otherwise.
"Seller" has the meaning set forth in the preface above.
"Shares" has the meaning set forth in the recitals above.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"Tax" means any federal, state or local income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental (including taxes under Code Section 59A), customs duties,
capital stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Liability" has the meaning set forth in Section 4(h) (iii) above.
"Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"Third Party Claim" has the meaning set forth in Section 8(d) (i) above.
