Exhibit 10.1
SUBSIDIARY ACQUISITION AGREEMENT
Subsidiary Acquisition Purchase Agreement dated as of January 21, 2010 (this
"Agreement") by and between United Aircraft Development Partners, Inc., a
Wyoming corporation and (the "Company"), and Utilicraft Aerospace Industries,
Inc, a Nevada corporation ("Purchaser").
WHEREAS, Purchaser and the Company desire to have Purchaser acquire
from the Company and its Shareholders 100% of the Company's issued and
outstanding common stock shares (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
I. ACQUISITION OF COMMON STOCK
A. Transaction. Purchaser hereby agrees to issue 103,250,000 shares
of its restricted common stock to the Shareholders of the Company in exchange
for 13,750,000 shares of the Company's Common Stock owned by its Shareholders,
representing 100% of the Company's issued and outstanding Common Stock in a
transaction exempt from the registration and prospectus delivery requirements of
the Securities and Exchange Act of 1933, as amended (the "Securities Act"), the
Common Stock.
B. Purchaser Board Seats. Purchaser agrees that upon the Closing of
this Transaction, it will appoint one individual nominated by the present
Company Board to serve on the Purchaser's Board of Directors.
C. Stock Options and Warrants. The Company agrees that it will secure
consents to cancel all stock options and warrants outstanding as the date of
closing.
D. Company agrees to contribute its Memorandum of Understanding to
merge with an aerospace operating company and its Letter of Intent for major
funding from a company with associations with Humanitarian Relief Organizations
as part of this transaction.
II. PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to and covenants and agrees with
the Company as follows:
A. Purchaser is purchasing the Common Stock for its own account, for
investment purposes only and not with a view towards or in connection with the
public sale or distribution thereof in violation of the Securities Exchange Act.
B. Purchaser is (i) an "accredited investor" within the meaning of
Rule 501 of Regulation D under the Securities Exchange Act, (ii) experience in
making investments of the kind contemplated by this Agreement, (iii) capable, by
reason of its business and financial experience, of evaluating the relative
merits and risks of an investment in the Common Stock Shares, and (iv) able to
afford the loss of its investment in the Common Stock Shares.
C. This Agreement has been duly and validly authorized, executed and
delivered by Purchaser and is a valid and binding agreement of Purchaser
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and except as
rights to indemnity and contribution may be limited by federal or state
securities laws or the public policy underlying such laws.
D. Purchaser represents that it has satisfactory information and data
to move forward with the transaction.
E. The Purchaser (i) has duly and validly authorized and reserved for
issuance shares of its common stock, which is a number sufficient for the
issuance of the common stock contemplated by this Subsidiary Acquisition
Agreement. The Purchaser understands and acknowledges the potentially dilutive
effect on the issuance of the common stock shares.
F. The Purchaser has the requisite corporate power and authority to
enter into this Agreement (as such term is hereinafter defined) and to perform
all of its obligations hereunder and thereunder (including the issuance, sale
and delivery to Company and its Shareholders of the Common Stock Shares). The
execution, delivery and performance by the Purchaser of the Documents and the
consummation by the Purchaser of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate actions
on the part of the Purchaser and no further filing, consent, or authorization is
required by the Purchaser. Each of the Documents has been duly and validly
executed and delivered by the Purchaser and each Document constitutes a valid
and binding obligation of the Purchaser enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and except as rights to indemnity and contribution
may be limited by federal or state securities laws or the public policy
underlying such laws. The Common Stock Shares have been duly and validly
authorized for issuance by the Purchaser. For purposes of this Agreement, the
term "Documents" means (i) this Agreement.
G. Validity of Issuance of the Common Stock Shares. The Common Stock
Shares upon their issuance will be validly issued and outstanding, fully paid
and nonassessable, and not subject to any preemptive rights.
III. THE COMPANY'S REPRESENTATIONS
The Company represents and warrants as of the date hereof to the Purchaser that,
except as set forth in this Agreement, the statements contained in this Section
3 are complete and accurate as of the date of this Agreement. As used in this
Section 3, the term "Knowledge" shall mean the knowledge of the members of the
board of directors of the Company and/or the officers or employees of the
Company after reasonable investigation.
A. Capitalization.
1. The authorized capital stock of the Company consists of
500,000,000 shares of Common Stock of which 13,750,000 shares are issued and
outstanding as of the date hereof and are fully paid and non assessable. The
Common Shares are to be exchanged for Utilicraft Aerospace Industries, Inc.
shares as set forth in Section I A. above.
2. Except as disclosed herein by the Company, there are no
preemptive, subscription, "call," right of first refusal or other similar rights
to acquire any capital stock of the Company that have been issued or granted to
any person and no other obligations of the Company to issue, grant, extend or
enter into any security, option, warrant, "call," right, commitment, agreement,
arrangement or undertaking with respect to any of their respective capital
stock.
B. Organization; Company Status.
1. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the state or jurisdiction in
which it is incorporated and is duly qualified as a foreign corporation in all
jurisdictions in which the failure so to qualify would reasonably be expected to
have a material adverse effect on the business, properties, prospects, condition
(financial or otherwise) or results of operations of the Company or on the
consummation of any of the transactions contemplated by this Agreement (a
"Material Adverse Effect").
C. Full Disclosure. There is no fact known to the Company (other than
general economic or industry conditions known to the public generally) that has
not been fully disclosed in this Agreement that (i) reasonably could be expected
to have a Material Adverse Effect or (ii) reasonably could be expected to
materially and adversely affect the ability of the Company to perform its
obligations pursuant to the Documents.
D. Absence of Events of Default. No "Event of Default" (as defined in
any agreement or instrument to which the Company is a party) and no event which,
with notice, lapse of time or both, would constitute an Event of Default (as so
defined), has occurred and is continuing.
E. Registration Rights. The shareholders of the Company as of the
Closing (as such term is hereinafter defined), shall have "piggy-back" rights in
any future registration statements filed by the Company under the Securities and
Exchange Act relating to any of its Common Stock Shares.
F. No Misrepresentation. No representation or warranty of the Company
contained in this Agreement or any of the other Documents, any schedule, annex
or exhibit hereto or thereto or any agreement, instrument or certificate
furnished by the Company to Purchaser pursuant to this Agreement contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
G. Finder's Fee. There is no finder's fee, brokerage commission or
like payment in connection with the transactions contemplated by this Agreement
for which Purchaser is liable or responsible.
H. Subsidiaries. The Company does not presently own or control,
directly or indirectly, any interest in any other corporation, association, or
other business entity. The Company is not a participant in any joint venture,
partnership, or similar arrangement, except as disclosed to Purchaser.
I. Litigation. Other than as disclosed in this Agreement and to
Purchaser, there is no action, suit, proceeding or investigation pending or, to
the Company's knowledge, currently threatened against the Company that questions
the validity of this Agreement, the Documents, or the right of the Company to
enter into such agreements, or to consummate the transactions contemplated
hereby or thereby, or that might result, either individually or in the
aggregate, in any material adverse changes in the business, assets or condition
of the Company, taken as a whole, financially or otherwise, or any change in the
current equity ownership of the Company. The Company is not a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
proceeding or investigation by the Company pending or that the Company intends
to initiate.
J. Agreements. Except for agreements explicitly contemplated hereby,
there are no agreements, understandings or proposed transactions between the
Company and any of its officers, directors, Affiliates, or any affiliate
thereof.
K. Tax Returns. The Company has made and filed all federal and state
income and all other tax returns, reports and declarations required by any
jurisdiction to which it is subject and (unless and only to the extent that the
Company has set aside on its books provisions reasonably adequate for the
payment of all unpaid and unreported taxes) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any such
claim.
IV. CERTAIN COVENANTS AND ACKNOWLEDGMENTS
A. Stockholder Listing. The Company will provide Purchaser with a
current stockholder listing upon the signing of this Agreement.
V. ISSUANCE OF COMMON STOCK
A. The Purchaser undertakes and agrees that no instruction other than
the instructions referred to in this Article V shall be given to its transfer
agent for the Common Stock Shares and that they shall be freely transferable on
the books and records of the Purchaser as and to the extent provided in this
Agreement and applicable law. Nothing contained in this Section V.A. shall
affect in any way the Company's Shareholders' obligations and agreement to
comply with all applicable Securities laws upon resale of such common stock.
B. The Purchaser shall, at its own cost and expense, take all
necessary action to assure that the Purchaser's transfer agent shall issue stock
certificates in the name of the Company's Stockholders representing the number
of shares of common stock issuable by this Agreement.
VI. CLOSING DATE
The "Closing" shall upon the execution of this Agreement by the
Parties thereto and the delivery of the shares specified in this Agreement by
both Parties, and the date on which the Closing occurs shall be referred to
herein as the "Closing Date".
VII. CONDITIONS TO THE COMPANY'S OBLIGATIONS
Purchaser understands that the Company's shareholders' obligation to
deliver their certificates representing 13,750,000 shares of the Company's
Common Stock at Closing to Purchaser pursuant to this Agreement is conditioned
upon:
A. Delivery by Purchaser of a copy of its letter of instruction to
its Signature Stock Transfer Agent, for the issuance of 103,250,000 shares of
Purchaser's common stock to the Company's Shareholders in the individual amounts
corresponding to the amounts on their Company certificates;
B. The accuracy on the Closing Date of the representations and
warranties of Purchaser contained in this Agreement as if made on the Closing
Date (except for representations and warranties which, by their express terms,
speak as of and relate to a specified date, in which case such accuracy shall be
measured as of such specified date) and the performance by Purchaser in all
material respects on or before the Closing Date of all covenants and agreements
of Purchaser required to be performed by it pursuant to this Agreement on or
before the Closing Date; and
C. There shall not be in effect any law or order, ruling, judgment or
writ of any court or public or governmental authority restraining, enjoining or
otherwise prohibiting any of the transactions contemplated by this Agreement.
VIII. CONDITIONS TO PURCHASER'S OBLIGATIONS
The Company understands that Purchaser's obligation to purchase the
Company Shareholders' Common Stock Shares on the Closing Date pursuant to this
Agreement is conditioned upon:
A. Delivery by the Company's Shareholders of the Common Stock Shares
to Purchaser to be exchanged for corresponding number of Purchaser Common Stock
Shares;
B. The accuracy on the Closing Date of the representations and
warranties of the Company contained in this Agreement as if made on the Closing
Date (except for representations and warranties which, by their express terms,
speak as of and relate to a specified date, in which case such accuracy shall be
measured as of such specified date) and the performance by the Company in all
respects on or before the Closing Date of all covenants and agreements of the
Company required to be performed by it pursuant to this Agreement on or before
the Closing Date, all of which shall be confirmed to Purchaser by delivery of
the certificate of the chief executive officer of the Company to that effect;
C. The Company shall have delivered to the Purchaser unanimous
resolutions of the Company's Board of Directors executed by the Company's
Directors authorizing and approving the execution of the Documents and the
transactions contemplated by this Agreement;
D. There not having occurred any event or development, and there
being in existence no condition, having or which reasonably and foreseeably
could have a Material Adverse Effect;
E. There shall not be in effect any law, order, ruling, judgment or
writ of any court or public or governmental authority restraining, enjoining or
otherwise prohibiting any of the transactions contemplated by this Agreement;
F. The Company shall have obtained all consents, approvals or waivers
from governmental authorities and third persons necessary for the execution,
delivery and performance of the Documents and the transactions contemplated
thereby, all without material cost to the Company;
G. Purchaser shall have received such additional documents,
certificates, payment, assignments, transfers and other deliveries as it or its
legal counsel may reasonably request and as are customary to effect a closing of
the matters herein contemplated;
H. The Company shall have received a consent of its Shareholders as
to their agreement for the Common Stock Share Exchange with Purchaser on the
basis as set forth in I.A. above.
IX. SURVIVAL; INDEMNIFICATION
A. The representations, warranties and covenants made by each of the
Company and Purchaser in this Agreement, the annexes, schedules and exhibits
hereto and in each instrument, agreement and certificate entered into and
delivered by them pursuant to this Agreement shall survive the Closing and the
consummation of the transactions contemplated hereby. In the event of a breach
or violation of any of such representations, warranties or covenants, the party
to whom such representations, warranties or covenants have been made shall have
all rights and remedies for such breach or violation available to it under the
provisions of this Agreement or otherwise, whether at law or in equity,
irrespective of any investigation made by or on behalf of such party on or prior
to the Closing Date.
B. The Company hereby agrees to indemnify and hold harmless
Purchaser, its affiliates and their respective officers, directors, employees,
consultants, partners, members and attorneys (collectively, the " Purchaser
Indemnitees ") from and against any and all losses, claims, damages, judgments,
penalties, liabilities and deficiencies (collectively, " Losses ") and agrees to
reimburse Purchaser Indemnitees for all reasonable out-of-pocket expenses
(including the reasonable fees and expenses of legal counsel), in each case
promptly as incurred by Purchaser Indemnitees and to the extent arising out of
or in connection with:
1. any misrepresentation, omission of fact or breach of any of the
Company's representations or warranties contained in this Agreement or the other
Documents, or the annexes, schedules or exhibits hereto or thereto or any
instrument, agreement or certificate entered into or delivered by the Company
pursuant to this Agreement or the other Documents;
2. any failure by the Company to perform any of its covenants,
agreements, undertakings or obligations set forth in this Agreement or the other
Documents or any instrument, certificate or agreement entered into or delivered
by the Company pursuant to this Agreement or the other Documents; or
C. Promptly after receipt by a party seeking indemnification pursuant
to this Article VIII (an "Indemnified Party ") of written notice of any
investigation, claim, proceeding or other action in respect of which
indemnification is being sought (each, a " Claim "), the Indemnified Party
promptly shall notify the Company against whom indemnification pursuant to this
Article VIII is being sought (the " Indemnifying Party ") of the commencement
thereof, but the omission so to notify the Indemnifying Party shall not relieve
it from any liability that it otherwise may have to the Indemnified Party except
to the extent that the Indemnifying Party is materially prejudiced and forfeits
substantive rights or defenses by reason of such failure. In connection with any
Claim as to which both the Indemnifying Party and the Indemnified Party are
parties, the Indemnifying Party shall be entitled to assume the defense thereof.
Notwithstanding the assumption of the defense of any Claim by the Indemnifying
Party, the Indemnified Party shall have the right to employ separate legal
counsel and to participate in the defense of such Claim, and the Indemnifying
Party shall bear the reasonable fees, out-of-pocket costs and expenses of such
separate legal counsel to the Indemnified Party if (and only if): (x) the
Indemnifying Party shall have agreed to pay such fees, out-of-pocket costs and
expenses, (y) the Indemnified Party and the Indemnifying Party reasonably shall
have concluded that representation of the Indemnified Party and the Indemnifying
Party by the same legal counsel would not be appropriate due to actual or, as
reasonably determined by legal counsel to the Indemnified Party, potentially
differing interests between such parties in the conduct of the defense of such
Claim, or if there may be legal defenses available to the Indemnified Party that
are in addition to or disparate from those available to the Indemnifying Party
or (z) the Indemnifying Party shall have failed to employ legal counsel
reasonably satisfactory to the Indemnified Party within a reasonable period of
time after notice of the commencement of such Claim. If the Indemnified Party
employs separate legal counsel in circumstances other than as described in
clauses (x), (y) or (z) above, the fees, costs and expenses of such legal
counsel shall be borne exclusively by the Indemnified Party. Except as provided
above, the Indemnifying Party shall not, in connection with any Claim in the
same jurisdiction, be liable for the fees and expenses of more than one firm of
legal counsel for the Indemnified Party (together with appropriate local
counsel). The Indemnifying Party shall not, without the prior written consent of
the Indemnified Party (which consent shall not unreasonably be withheld), settle
or compromise any Claim or consent to the entry of any judgment that does not
include an unconditional release of the Indemnified Party from all liabilities
with respect to such Claim or judgment.
D. In the event one party hereunder should have a claim for
indemnification that does not involve a claim or demand being asserted by a
third party, the Indemnified Party promptly shall deliver notice of such claim
to the Indemnifying Party. If the Indemnified Party disputes the claim, such
dispute shall be resolved by mutual agreement of the Indemnified Party and the
Indemnifying Party or by binding arbitration conducted in accordance with the
procedures and rules of the American Arbitration Association. Judgment upon any
award rendered by any arbitrators may be entered in any court having competent
jurisdiction thereof.
X. GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Nevada, without regard to the conflicts of law
principles of such state.
XI. SUBMISSION TO JURISDICTION
Each of the parties hereto consents to the exclusive jurisdiction of
the federal courts whose districts encompass any part of Xxxxx County or the
state courts of the State of Nevada sitting in the City of Las Vegas in
connection with any dispute arising under this Agreement and the other
Documents. Each party hereto hereby irrevocably and unconditionally waives, to
the fullest extent it may effectively do so, any defense of an inconvenient
forum or improper venue to the maintenance of such action or proceeding in any
such court and any right of jurisdiction on account of its place of residence or
domicile. Each party hereto irrevocably and unconditionally consents to the
service of any and all process in any such action or proceeding in such courts
by the mailing of copies of such process by registered or certified mail (return
receipt requested), postage prepaid, at its address specified in Article XVII.
Each party hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
XII. WAIVER OF JURY TRIAL
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RESPECTIVE RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER DOCUMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND OTHER DOCUMENTS. EACH PARTY HERETO (i)
CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT
IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
XIII. COUNTERPARTS; EXECUTION
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but both of which counterparts
shall together constitute one and the same instrument. A facsimile transmission
of this signed Agreement shall be legal and binding on both parties hereto.
XIV. HEADINGS
The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this Agreement.
XV. SEVERABILITY
In the event any one or more of the provisions contained in this
Agreement or in the other Documents should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
XVI. ENTIRE AGREEMENT; REMEDIES, AMENDMENTS AND WAIVERS
This Agreement and the Documents constitute the entire agreement
between the parties hereto pertaining to the subject matter hereof and supersede
all prior agreements, understandings, negotiations and discussions, whether oral
or written, of such parties. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by both parties. No waiver
of any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provision hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
XVII. NOTICES
Except as may be otherwise provided herein, any notice or other
communication or delivery required or permitted hereunder shall be in writing
and shall be delivered personally, or sent by telecopier machine or by a
nationally recognized overnight courier service, and shall be deemed given when
so delivered personally, or by telecopier machine or overnight courier service
as follows:
A. If to the Company, to:
United Aircraft Development Partners, Inc.
0000 Xxxxx Xxx.
Xxxxxxxx, Xxxxxxx 00000
B. If to Purchaser, to:
Utilicraft Aerospace Industries, Inc.
Double Xxxxx Xxxxxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
The Company or Purchaser may change the foregoing address by notice given
pursuant to this Article XVII.
XVIII. CONFIDENTIALITY
Each of the Company and Purchaser agrees to keep confidential and not
to disclose to or use for the benefit of any third party the terms of this
Agreement or any other information which at any time is communicated by the
other party as being confidential without the prior written approval of the
other party; provide, however, that this provision shall not apply to
information which, at the time of disclosure, is already part of the public
domain (except by breach of this Agreement) and information which is required to
be disclosed by law (including, without limitation, pursuant to Item 601(b)(10)
of Regulation S-K under the Common Stock Shares Act and the Exchange Act).
XIX. ASSIGNMENT
This Agreement shall not be assignable by the Company or Purchaser without the
prior written consent of the Other Party.
IN WITNESS WHEREOF, the parties hereto have duly caused this
Agreement to be executed and delivered on the date first above written.
United Aircraft Utilicraft Aerospace
Development Partners, Inc. Industries, Inc.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxx X. Xxxxxx
---------------------------- ------------------------------
Name: Xxxxxxx Xxxxxxxx, Director Name: Xxxx X. Xxxxxx, Chairman
