STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
SEGWAY VII CORP.
a New Jersey Corporation
and
XXXXXXX0X.XXX, INC.
a Nevada Corporation
effective as of April 30, 2002
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 30th day of April, 2002 by and among Segway VII Corp., a New Jersey
corporation with its principal place of business located at 0000 Xxxxx 0, 0xx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (Segway"); Xxxxxxx X. Xxxxxx ("Xxxxxx") and
Xxxxx Xxxxxx ("Xxxxxx"), (collectively Xxxxxx and Jaclin shall be known as the
"Segway Shareholders"); XxxXxxx0X.xxx, Inc., a Nevada Corporation with its
principal place of business at 000 xxxxxx Xxxxxx, Xxxx Xxxxx Xxxx, Xxxxxxxxx
00000 ("WayCool") and the shareholders of WayCool ("WayCool Shareholders") as
set forth on Exhibit A attached hereto (collectively WayCool and the
shareholders of WayCool shall be known as the "WayCool Group").
Premises
A. This Agreement provides for the acquisition of WayCool whereby
WayCool shall become a wholly owned subsidiary of Segway and in connection
therewith, the transfer of 9,000,000 shares of Segway by the Segway Shareholders
to the WayCool Group and its designees.
B. The officers and boards of directors of WayCool and Segway have
determined, subject to the terms and conditions set forth in this Agreement,
that the transaction contemplated hereby is desirable and in the best interests
of their stockholders, respectively. This Agreement is being entered into for
the purpose of setting forth the terms and conditions of the proposed
acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
SEGWAY VII CORP.
As an inducement to and to obtain the reliance of WayCool, Segway
represents and warrants as follows:
Section 1.1 Organization. Segway is a corporation duly organized,
validly existing, and in good standing under the laws of New Jersey and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules attached hereto
(hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Segway's articles of incorporation or
bylaws. Segway has full power, authority and legal right and has taken all
action required by law, its articles of incorporation, its bylaws or otherwise
to authorize the execution and delivery of this Agreement.
Section 1.2 Capitalization. The authorized capitalization of Segway
consists of 100,000,000 Common Shares, $0.0001 par value per share, and
20,000,000 Preferred Shares, $0.0001 par value. As of the date hereof, Segway
has 10,000,000 common shares issued and outstanding.
Segway is presently a 1934 Exchange Act reporting company and has filed all
necessary reports, quarterly, annual and special with the Securities and
Exchange Commission of the United States on a timely basis.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Segway has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Segway has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Segway are in all
material respects complete and correct and have been maintained
in accordance with good business accounting practices; and
(b) Segway has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Segway shall remain responsible for all debts incurred by Segway
prior to the date of closing.
Section 1.5 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Segway or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of Segway. Segway is not in
default with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
Section 1.6 Material Contract Defaults. Segway is not in default in any
material respect under the terms of any outstanding contract, agreement, lease
or other commitment which is material to the business, operations, properties,
assets or condition of Segway, and there is no event of default in any material
respect under any such contract, agreement, lease or other commitment in respect
of which Segway has not taken adequate steps to prevent such a default from
occurring.
Section 1.7 Information. The information concerning Segway as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made in
light of the circumstances under which they were made, not misleading. Segway's
filings with the SEC are complete and accurate in all material respects and do
not contain any untrue statement of a material fact or omit to state a material
fact required to make the statements made in light of the circumstances under
which they were made, not misleading.
Section 1.8 Title and Related Matters. Segway has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interest in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Segway owns free and clear of any liens, claims, encumbrances,
royalty interests or other restrictions or limitations of any nature whatsoever
and all procedures, techniques, marketing plans, business plans, methods of
management or other information utilized in connection with Segway's business.
No third party has any right to, and Segway has not received any notice of
infringement of or conflict with asserted rights of other with respect to any
product, technology, data, trade secrets, know-how, proprietary techniques,
trademarks, service marks, trade names or copyrights which, singly on in the
aggregate, if the subject of an unfavorable decision ruling or finding, would
have a materially adverse affect on the business, operations, financial
conditions or income of Segway or any material portion of its properties, assets
or rights.
Section 1.9 Contracts On the closing date:
(a) There are no material contracts, agreements franchises, license
agreements, or other commitments to which Segway is a party or by
which it or any of its properties are bound:
(b) Segway is not a party to any contract, agreement commitment or
instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or
award materially and adversely affects, or in the future may (as
far as Segway can now foresee) materially and adversely affect ,
the business, operations, properties, assets or conditions of
Segway; and
(c) Segway is not a party to any material oral or written: (I)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option,
severance pay, pension benefit or retirement plan, agreement or
arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture
relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties, of
obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than
one year or providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement or other commitment involving payments by it for more
than $10,000 in the aggregate.
Section 1.10 Compliance With Laws and Regulations. To the best of
Segway's knowledge and belief, Segway has complied with all applicable statutes
and regulations of any federal, state or other governmental entity or agency
thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Segway or would not result in Segway incurring material liability.
Section 1.11 Insurance. All of the insurable properties of Segway
are insured for Segway's benefit under valid and enforceable policy or policies
containing substantially equivalent coverage and will be outstanding and in full
force at the Closing Date.
Section 1.12 Approval of Agreement. The directors of Segway have
authorized the execution and delivery of the Agreement by and have approved the
transactions contemplated hereby.
Section 1.13 Material Transactions or Affiliations. There are no
material contracts or agreements of arrangement between Segway and any person,
who was at the time of such contract, agreement or arrangement an officer,
director or person owning of record, or known to beneficially own ten percent
(10%) or more of the issued and outstanding Common Shares of Segway and which is
to be performed in whole or in part after the date hereof. Segway has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into material transactions with any such affiliated person.
Section 1.14 No Conflict With Other Instruments. The execution
of this Agreement and the
consummation of the transactions contemplated by this Agreement will not result
in the breach of any term or provision of, or constitute an event of default
under, any material indenture, mortgage, deed of trust or other material
contract, agreement or instrument to which Segway is a party or to which any of
its properties or operations are subject.
Section 1.15 Governmental Authorizations. Segway has all licenses,
franchises, permits or other governmental authorizations legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Segway of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF XXXXXXX0X.XXX, INC.
As an inducement to, and to obtain the reliance of Segway, WayCool
represents and warrants as follows:
Section 2.1 Organization. WayCool is a corporation duly organized,
validly existing and in good standing under the laws of Nevada and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign entity in the country or states in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The execution and
delivery of this Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of WayCool's certificate of incorporation or bylaws.
WayCool has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, bylaws or otherwise to authorize
the execution and delivery of this Agreement.
Section 2.2 Capitalization. The authorized capitalization of WayCool
consists of 50,000,000 shares, $0.001 par value and 1,000,000 preferred shares,
$0.001 par value. As of the date hereof, there are 14,246,667 shares issued and
outstanding.
All issued and outstanding common shares have been legally issued,
fully paid, are nonassessable and not issued in violation of the preemptive
rights of any other person. WayCool has no other securities, warrants or options
authorized or issued.
Section 2.3 Subsidiaries. WayCool has no subsidiaries.
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of WayCool are in
all material respects complete and correct and have been
maintained in accordance with good business accounting practices;
and
(b) WayCool has no liabilities with respect to the payment of any
country, federal, state, county, local or other taxes (including
any deficiencies, interest or penalties).
(c) WayCool shall remain responsible for all debts incurred prior to
the closing.
Section 2.5 Information. The information concerning WayCool as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
Section 2.6 Title and Related Matters. WayCool has good and marketable
title to and is the sole and exclusive owner of all of its properties,
inventory, interests in properties and assets, real and personal (collectively,
the "Assets") free and clear of all liens, pledges, charges or encumbrances.
Except as set forth in the Schedules attached hereto, WayCool owns free and
clear of any liens, claims, encumbrances, royalty interests or other
restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with WayCool's business. Except as set forth
in the attached Schedules, no third party has any right to, and WayCool has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of WayCool or any material portion of
its properties, assets or rights.
Section 2.7 Litigation and Proceedings. There are no actions, suits or
proceedings pending or threatened by or against or affecting WayCool, at law or
in equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse effect on the business, operations, financial condition, income
or business prospects of WayCool. WayCool does not have any knowledge of any
default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator or governmental
agency or instrumentality.
Section 2.8 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises, license
agreements, or other commitments to which WayCool is a party or
by which it or any of its properties are bound;
(b) WayCool is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate
restriction or any judgment, order, writ, injunction, decree or
award which materially and adversely affects, or in the future
may (as far as WayCool can now foresee) materially and adversely
affect, the business, operations, properties, assets or
conditions of WayCool; and
(c) WayCool is not a party to any material oral or written: (i)
contract for the employment of any officer or employee; (ii)
profit sharing, bonus, deferred compensation, stock option,
severance pay, pension, benefit or retirement plan, agreement or
arrangement covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or indenture
relating to the borrowing of money; (iv) guaranty of any
obligation for the borrowing of money or otherwise, excluding
endorsements made for collection and other guaranties of
obligations, which, in the aggregate exceeds $1,000; (v)
consulting or other contract with an unexpired term of more than
one year or providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement, or other commitment involving payments by it for more
than $10,000 in the aggregate.
Section 2.9 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which WayCool is a
party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of WayCool's
knowledge and belief, it is not in default in any material respect under the
terms of any outstanding contract, agreement, lease or other commitment which is
material to the business, operations, properties, assets or condition of
WayCool, and there is no event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of which WayCool has
not taken adequate steps to prevent such a default from occurring.
Section 2.11 Governmental Authorizations. To the best of WayCool's
knowledge, WayCool has all licenses, franchises, permits and other governmental
authorizations that are legally required to enable it to conduct its business
operations in all material respects as conducted on the date hereof. Except for
compliance with federal and state securities or corporation laws, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by WayCool of the transactions contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of
WayCool's knowledge and belief, WayCool has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
WayCool or would not result in WayCool 's incurring any material liability.
Section 2.13 Insurance. All of the insurable properties of WayCool are
insured for WayCool's benefit under valid and enforceable policy or policies
containing substantially equivalent coverage and will be outstanding and in full
force at the Closing Date.
Section 2.14 Approval of Agreement. The directors of WayCool have
authorized the execution and delivery of the Agreement and have approved the
transactions contemplated hereby.
Section 2.15 Material Transactions or Affiliations. As of the Closing
Date, there will exist no material contract, agreement or arrangement between
WayCool and any person who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known by WayCool
to own beneficially, ten percent (10%) or more of the issued and outstanding
Common Shares of WayCool and which is to be performed in whole or in part after
the date hereof except with regard to an agreement with the WayCool shareholders
providing for the distribution of cash to provide for payment of federal and
state taxes on Subchapter S income. WayCool has no commitment, whether written
or oral, to lend any funds to, borrow any money from or enter into any other
material transactions with, any such affiliated person.
Section 2.16 Filings. WayCool covenants that it will assist Segway in
the preparation of all filings required by the Securities Exchange Act in a
timely manner, including but not limited to, the filing of a Form 8K within
fifteen (15) days after the execution of this Agreement and the delivery of the
audited financial statements for WayCool in sufficient time to allow for the
filing of an amended 8K with the audited financial statements within sixty (60)
days thereafter.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of WayCool Securities. On the
Closing Date, the holders of all of the WayCool Common Shares shall deliver to
Segway (i) certificates or other documents evidencing all of the issued and
outstanding WayCool Common Shares, duly endorsed in blank or with executed power
attached thereto in transferrable form. On the Closing Date, all previously
issued and outstanding Common Shares of WayCool shall be transferred to Segway,
so that WayCool shall become a wholly owned subsidiary of Segway.
Section 3.2 Transfer of Segway Common Shares. In exchange for all of
the WayCool Common Shares tendered pursuant to Section 3.1, the Shareholders
shall transfer to WayCool or its designees a total of 9,000,000 Segway common
shares which are restricted in accordance with Rule 144 of the 1933 Securities
Act. The 9,000,000 common shares shall be transferred to WayCool in the
following manner:
Stockholder /# Shares of Segway % of ownership
--------------------------------------------------- ----------------------------- --------------------------
Xxxxx, Xxxxxxx 79,551 0.8839%
Xxxxxx Xxxxx 637 0.0071%
Design Number S 159,102 1.7678%
Xxxxxx, Xxxxxxx 15,912 0.1768%
Hatch Family Trust 861,057 9.5673%
Xxxxx, Xxxx 1,750,115 19.4457%
Xxxxxx, Xxxxxxx 320 0.0036%
Xxxxxx, Xxxxx 20,686 0.2298%
IGE 334,110 3.7123%
Xxxxxxxxxx, Xxxx 7,956 0.0884%
Xxxxx, Xxxxxxx 13,049 0.1450%
Xxxxxxxxxx, Xxx & Xxxxxxxx 319 0.0035%
Providence Sierra Corporation 795,505 8.8389%
Xxxxxxx, Xxxxxxxxx 39,773 0.4419%
Xxxxxxx, Xxxxx 39,773 0.4419%
Xxxxxxx, Xxxx 1,138,850 12.6539%
Xxxxxxx, Xxxxxxx 39,773 0.4419%
Xxxxxxx, Xxxx Total 23,868 0.2652%
Xxxxxxx, Xxxxx Total 143,194 1.5910%
Xxxxxxx, Xxx Total 159,100 1.7678%
Xxxxxxx, Xxxxx Total 1,137,577 12.6397%
Xxxxxxx, Xxxxxx Total 39,773 0.4419%
Westminster Holdings, LTD 2,200,000 24.4444%
Grand Total 9,000,000 100.0000%
========= =========
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Segway and WayCool shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions rulings or other instruments required by this Agreement
to be so delivered, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby, subject only to the
conditions to Closing referenced herein below.
Section 3.4 Closing. The closing ("Closing") of the
transactions contemplated by this Agreement shall be on or about April 30, 2002
("Closing Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board o directors or
majority interest of Shareholders of either Segway or WayCool,
respectively, at any time prior to the Closing Date if:
(i) there shall be any action or proceedin before any court or
any governmental body which shall seek to restrain, prohibit
or invalidate the transactions contemplated by this
Agreement and which, in the judgement of such board of
directors, made in good faith and based on the advice of its
legal counsel, makes it inadvisable to proceed with the
exchange contemplated by this Agreement; or
(ii) any of the transactions contemplated hereb are disapproved
by any regulatory authority whose approval is required to
consummate such transactions.
In the event of termination pursuant to this paragraph (a) of this
Section 3.5, no obligation, right, or liability shall arise hereunder and each
party shall bear all of the expenses incurred by it in connection with the
negotiation, drafting and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of Segway if WayCool
shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of
the representations or warranties of WayCool contained herein
shall be inaccurate in any material respect, which noncompliance
or inaccuracy is not cured after 20 days written notice thereof
is given to WayCool. If this Agreement is terminated pursuant to
this paragraph (b) of this Section 3.5, this Agreement shall be
of no further force or effect and no obligation, right or
liability shall arise hereunder.
(c) This Agreement may be terminated at any time prior to the Closing
Date by action of the board of directors of WayCool if Segway
shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of
the representations or warranties of Segway contained herein
shall be inaccurate in any material respect, which noncompliance
or inaccuracy is not cured after 20 days written notice thereof
is given to Segway. If this Agreement is terminated pursuant to
this paragraph (d) of this Section 3.5, this Agreement shall be
of no further force or effect and no obligation, right or
liability shall arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of this
Section 3.5, the breaching party shall bear all of the expenses incurred by the
other party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
Section 3.6 Directors of Segway After Acquisition. After the Closing
Date, Xxxx Xxxx, Xxxxx Xxxxxxx, and Xxxx Xxxxxxx shall become the directors of
Segway and Xxxxxxx X. Xxxxxx will resign as Director of Segway. Each director
shall hold office until his successor shall have been duly elected and shall
have qualified or until his earlier death, resignation or removal.
Section 3.7 Officers of Segway . Upon the closing, the following
persons shall be elected as officers of Segway in accordance with procedures set
forth in the Segway bylaws:
NAME OFFICE
--------------------------------------------------------------
Xxxx Xxxx President
Xxxxx X. Xxxxxxx Secretary
Xxxx X. Xxxxxxx Treasurer
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Segway
and WayCool will each afford to the officers and authorized representatives of
the other full access to the properties, books and records of each other, in
order that each may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of the other and each will furnish the
other with such additional financial and operating data and other information as
to the business and properties of each other, as the other shall from time to
time reasonably request.
Section 4.2 Availability of Rule 144. Segway and WayCool shareholders
holding "restricted securities, " as that term is defined in Rule 144
promulgated pursuant to the Securities Act will remain as "restricted
securities". Segway is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Segway and WayCool holding
restricted securities of Segway and WayCool as of the date of this Agreement and
their respective heirs, administrators, personal representatives, successors and
assigns, are intended third party beneficiaries of the provisions set forth
herein. The covenants set forth in this Section 4.2 shall survive the Closing
and the consummation of the transactions herein contemplated.
Section 4.3 Special Covenants and Representations Regarding the Segway
Common Shares to be Issued in the Exchange. The consummation of this Agreement,
including the issuance of the Segway Common Shares to the Shareholders of
WayCool as contemplated hereby, constitutes the offer and sale of securities
under the Securities Act, and applicable state statutes. Such transaction shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the WayCool Shareholders acquire such securities.
Section 4.4 Third Party Consents. Segway and WayCool agree to cooperate
with each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing Date,
except as permitted or contemplated by this Agreement, Segway and WayCool will
each use its best efforts to:
(i) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to
ordinary wear and tear and damage due to casualty;
(ii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by
it;
(iii) perform in all material respects all of its obligations
under material contracts, leases and instruments relating to
or affecting its assets, properties and business;
(b) From and after the date of this Agreement until the Closing Date,
Segway will not, without the prior consent of WayCool:
(i) except as otherwise specifically set forth herein, make any
change in its articles of incorporation or bylaws;
(ii) declare or pay any dividend on its outstanding Common
Shares, except as may otherwise be required by law, or
effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii) enter into or amend any employment, severance or agreements
or arrangements with any directors or officers;
(iv) grant, confer or award any options, warrants, conversion
rights or other rights not existing on the date hereof to
acquire any Common Shares; or
(v) purchase or redeem any Common Shares.
Section 4.6 Indemnification.
(a) Segway hereby agrees to indemnify WayCool, each of the officers,
agents and directors and current shareholders of WayCool as of
the Closing Date against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or any
claim whatsoever), to which it or they may become subject to or
rising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification
provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and
termination of this Agreement; and
(b) WayCool hereby agrees to indemnify Segway, each of the officers,
agents, directors and current shareholders of Segway as of the
Closing Date against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or any
claim whatsoever), to which it or they may become subject arising
out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The indemnification
provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF SEGWAY
The obligations of Segway under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and
warranties made by Segway in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and Segway shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Segway prior to or at the Closing. WayCool shall
be furnished with a certificate, signed by a duly authorized officer of Segway
and dated the Closing Date, to the foregoing effect.
Section 5.2 Director Approval. The Board of Directors of
Segway shall have approved this Agreement and the transactions contemplated
herein.
Section 5.3 Officer's Certificate. WayCool shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Segway to the effect that: (a) the representations and warranties of
Segway set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; (b) Segway has performed all
covenants, satisfied all conditions, and complied with all other terms and
provisions of this Agreement to be performed, satisfied or complied with by it
as of the Effective Date; (c) since such date and other than as previously
disclosed to WayCool, Segway has not entered into any material transaction other
than transactions which are usual and in the ordinary course if its business;
and (d) no litigation, proceeding, investigation or inquiry is pending or, to
the best knowledge of Segway, threatened, which might result in an action to
enjoin or prevent the consummation of the transactions contemplated by this
Agreement or, to the extent not disclosed in the Segway Schedules, by or against
Segway which might result in any material adverse change in any of the assets,
properties, business or operations of Segway.
Section 5.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of Segway.
Section 5.5 Other Items. WayCool shall have received such
further documents, certificates or instruments relating to the transactions
contemplated hereby as WayCool may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF WAYCOOL
The obligations of WayCool under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
Section 6.1 Accuracy of Representations. The representations and
warranties made by WayCool in this Agreement were true when made and shall be
true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and WayCool shall have
performed and
complied with all covenants and conditions required by this Agreement to be
performed or complied with by WayCool prior to or at the Closing. Segway shall
have been furnished with a certificate, signed by a duly authorized executive
officer of WayCool and dated the Closing Date, to the foregoing effect.
Section 6.2 Director Approval. The Board of Directors of WayCool
shall have approved this Agreement and the transactions contemplated herein.
Section 6.3 Officer's Certificate. Segway shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
WayCool to the effect that: (a) the representations and warranties of WayCool
set forth in the Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true and correct
as if made on the Effective Date; and (b) WayCool had performed all covenants,
satisfied all conditions, and complied with all other terms and provisions of
the Agreement to be performed, satisfied or complied with by it as of the
Effective Date.
Section 6.4 No Material Adverse Change. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of WayCool.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.2 Law, Forum and Jurisdiction. This Agreement
shall be construed and interpreted in accordance with the laws of the State of
New Jersey, United States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Segway : Xxxxxx & Xxxxxx, LLP
0000 Xxxxx 0, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
If to WayCool: XxxXxxx0X.xxx, Inc.
000 Xxxxxx Xxxxxx
Xxxx Xxxxx Xxxx, Xxxxxxxxx 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 Confidentiality. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to
have full knowledge of all information set forth in the other party's schedules
delivered pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries. This contract is solely between
Segway and WayCool and except as specifically provided, no director, officer,
stockholder, employee, agent, independent contractor or any other person or
entity shall be deemed to be a third party beneficiary of this Agreement.
Section 7.8 Entire Agreement. This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations,
warranties and covenants of the respective parties shall survive the Closing
Date and the consummation of the transactions herein contemplated for 18 months.
Section 7.10 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original and all of
which taken together shall be but a single instrument.
Section 7.11 Amendment or Waiver. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Expenses. Each party herein shall bear all of their
respective cost s and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
Section 7.13 Headings; Context. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
Section 7.14 Benefit. This Agreement shall be binding upon and shall
inure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.15 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.16 Severability. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
Section 7.17 Failure of Conditions; Termination. In the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this
Agreement. In such event, the party that has failed to fulfill the conditions
specified in this Agreement will liable for the other parties legal fees. The
election to proceed shall not affect the right of such electing party reasonably
to require the other party to continue to use its efforts to fulfill the unmet
conditions.
Section 7.18 No Strict Construction. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against either party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.19 Execution Knowing and Voluntary. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
Section 7.20 Amendment. At any time after the Closing Date, this
Agreement may be amended by a writing signed by both parties, with respect to
any of the terms contained herein, and any term or condition of this Agreement
may be waived or the time for performance hereof may be extended by a writing
signed by the party or parties for whose benefit the provision is intended.
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: SEGWAY VII CORP.
By:
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XXXXXXX X. XXXXXX
President
SEGWAY VII CORP. SHAREHOLDERS
WITNESS:
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XXXXXXX X. XXXXXX
WITNESS:
------------------------------------ ----------------------------------
XXXXX X. XXXXXX
ATTEST: XXXXXXX0X.XXX, INC.
By:
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XXXXXX X. XXXX, President
XXXXXXX0X.XXX, INC. SHAREHOLDERS
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XXXX X. XXXXXXX
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XXXXX XXXXXXX
