STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
SEGWAY III CORP.
a New Jersey Corporation
and
SPEEDHAUL INCORPORATED
a New Jersey Corporation
effective as of October 15, 2004
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 15th day of October, 2004, by and among Segway III Corp., a New Jersey
corporation with its principal place of business located at 000 Xxxxx 0, Xxxxx
000, Xxxxxxxxx, XX 00000 ("Segway"); Speedhaul Incorporated, a New Jersey
Corporation with its principal place of business at 0 Xxx Xxxx Xxxx., Xxxxxx, XX
00000 ("Speedhaul") and Xxxxxx Xxxxxx, the sole shareholder of Speedhaul
Incorporated ("Shareholder") (collectively Speedhaul and Xxxxxx Xxxxxx shall be
known as the "Speedhaul Group").
Premises
A. This Agreement provides for the acquisition of Speedhaul whereby
Speedhaul shall become a wholly owned subsidiary of Segway and in connection
therewith, the issuance of a total of 20,000,000 shares of Segway to the
Shareholder and the cancellation of 3,000,000 shares held by Xxxxxxx Xxxxxx, the
President and principal stockholder of Segway.
B. The boards of directors of Speedhaul 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 III CORP.
As an inducement to and to obtain the reliance of Speedhaul, 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 Holding'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.
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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 shares of Preferred Stock, $0.0001 par value. As of the date hereof,
Segway has 5,308,300 common shares issued and outstanding.
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.
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' business. No third party has any
right to, and Segway has not received any notice of infringement of or conflict
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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.
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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 SPEEDHAUL, INC.
As an inducement to, and to obtain the reliance of Segway, Speedhaul
represents and warrants as follows:
Section 2.1 Organization. Speedhaul 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 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 Speedhaul's certificate of incorporation or bylaws.
Speedhaul 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 Speedhaul
consists of 2,500 shares of common stock, no par value and no preferred shares.
As of the date hereof, there are 2,500 shares of common stock 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. Speedhaul has no other securities, warrants or options
authorized or issued.
Section 2.3 Subsidiaries. Speedhaul has no subsidiaries.
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Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of Speedhaul are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Speedhaul 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) Speedhaul shall remain responsible for all debts incurred prior to the
closing.
Section 2.5 Information. The information concerning Speedhaul 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. Speedhaul 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, Speedhaul 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 Speedhaul's business. Except as set
forth in the attached Schedules, no third party has any right to, and Speedhaul
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 Speedhaul 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 Speedhaul, 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 Speedhaul. Speedhaul 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 Speedhaul is a party or by which it or any of its
properties are bound;
(b) Speedhaul 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
Speedhaul can now foresee) materially and adversely
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affect, the business, operations, properties, assets or
conditions of Speedhaul; and
(c) Speedhaul 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 Speedhaul is
a party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of Speedhaul'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
Speedhaul, and there is no event of default in any material respect under any
such contract, agreement, lease or other commitment in respect of which
Speedhaul has not taken adequate steps to prevent such a default from occurring.
Section 2.11 Governmental Authorizations. To the best of Speedhaul's
knowledge, Speedhaul 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 Speedhaul of the transactions
contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of
Speedhaul's knowledge and belief, Speedhaul 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
Speedhaul or would not result in Speedhaul 's incurring any material liability.
Section 2.13 Insurance. All of the insurable properties of Speedhaul are
insured for Speedhaul`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 Speedhaul have
authorized the execution and delivery of the Agreement and have approved the
transactions contemplated hereby.
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Section 2.15 Material Transactions or Affiliations. As of the Closing Date,
there will exist no material contract, agreement or arrangement between
Speedhaul 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
Speedhaul to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of Speedhaul and which is to be performed in whole or
in part after the date hereof except with regard to an agreement with the
Speedhaul shareholders providing for the distribution of cash to provide for
payment of federal and state taxes on Subchapter S income. Speedhaul 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.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of Speedhaul Securities. On the Closing
Date, the holders of all of the Speedhaul Common Shares shall deliver to Segway
(i) certificates or other documents evidencing all of the issued and outstanding
Speedhaul 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 Speedhaul shall be transferred to Segway, so that
Speedhaul shall become a wholly owned subsidiary of Segway.
Section 3.2 Issuance of Segway Common Shares. In exchange for all of the
Speedhaul Common Shares tendered pursuant to Section 3.1, Segway shall issue to
Xxxxxx Xxxxxx, the sole Shareholder of Speedhaul a total of 20,000,000 shares
which are restricted in accordance with Rule 144 of the 1933 Securities Act. In
addition, on the Closing Date, Xxxxxxx Xxxxxx, the sole officer, director and
principal shareholder of Segway will cancel 3,000,000 shares of his Segway
common stock.
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Segway and Speedhaul 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. In addition, prior to Closing,
Speedhaul shall provide Segway with updated audited financial statements to be
filed with Segway's Form 8-K filing with the SEC within three (3) days of
Closing.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be upon receipt of the audited financial
statements of Speedhaul as set forth above. ("Closing Date"). Notwithstanding
same, in the event that Speedhaul has not provided the audited financial
statements by December 31, 2004, either party may have the right to void this
Agreement.
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either Segway or Speedhaul, respectively,
at any time prior to the Closing Date if:
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(i) there shall be any action or proceeding 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 judgment 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 hereby 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 Speedhaul 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 Speedhaul 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
Speedhaul. 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 Speedhaul 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,
Xxxxxx Xxxxxx shall become the sole 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 person
shall become the sole officer of Segway:
NAME OFFICE
Xxxxxx Xxxxxx Chief Executive Officer, Chief Financial
Officer, President and Secretary
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Section 3.8 Repayment of Loan. Segway agrees that upon execution of this
agreement it will pay a total of $9,500 to the holder of a loan owed by
Speedhaul. In the event, that Speedhaul fails to provide the audited financial
statements set forth in Section 3.4 and this transaction does not close, then
Speedhaul agrees to immediately repay the full $9,500 to Segway.
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Segway and
Speedhaul 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 Speedhaul 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 Speedhaul holding
restricted securities of Segway and Speedhaul 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
Speedhaul 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 Speedhaul Shareholders acquire such securities.
Section 4.4 Third Party Consents. Segway and Speedhaul 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 Speedhaul 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;
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(b) From and after the date of this Agreement until the Closing Date,
Segway will not, without the prior consent of Speedhaul:
(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 Speedhaul, each of the
officers, agents and directors and current shareholders of
Speedhaul 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) Speedhaul 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. Speedhaul shall be furnished with a
certificate, signed by a duly authorized officer of Segway and dated the Closing
Date, to the foregoing effect.
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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. Speedhaul 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
Speedhaul, 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. Speedhaul shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Speedhaul may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SPEEDHAUL
The obligations of Speedhaul 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 Speedhaul 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 Speedhaul shall have performed and complied with
all covenants and conditions required by this Agreement to be performed or
complied with by Speedhaul prior to or at the Closing. Segway shall have been
furnished with a certificate, signed by a duly authorized executive officer of
Speedhaul and dated the Closing Date, to the foregoing effect.
Section 6.2 Director Approval. The Board of Directors of Speedhaul 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
Speedhaul to the effect that: (a) the representations and warranties of
Speedhaul set forth in the Agreement and in all Exhibits, Schedules and other
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documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; and (b) Speedhaul 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 Speedhaul.
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 : Xxxxxxx X. Xxxxxx
c/o Anslow & Jaclin, LLP
000 Xxxxx 0, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
If to Speedhaul: Speedhaul, Inc.
0 Xxx Xxxx Xxxx.
Xxxxxx, XX 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.
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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 Speedhaul 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.
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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; Xxxxxxxxxxx.Xx 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.
Section 7.21 Conflict of Interest. Both Speedhaul and Segway understand
that Xxxxxx & Xxxxxx, LLP is representing both parties in this transaction which
represents a conflict of interest. In addition, Xxxxxxx X. Xxxxxx is the
principal shareholder and sole officer and director of Segway. Both Speedhaul
and Segway have the right to different counsel due to this conflict of interest.
Notwithstanding the above, both Speedhaul and Segway agree to waive this
conflict and have Xxxxxx & Xxxxxx, LLP represent both parties in the
above-referenced transaction. Both Speedhaul and Segway agree to hold this law
firm harmless from any and all liabilities that may occur or arise due to this
conflict.
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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 III CORP.
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Xxxxxxx X. Xxxxxx
President
ATTEST: SPEEDHAUL INCORPORATED
By:/s/ Xxxxxx Xxxxxx
-------------------------------- ---------------------------------
Xxxxxx Xxxxxx
President
WITNESS: SPEEDHAUL INCORPORATED SHAREHOLDER
/s/ Xxxxxx Xxxxxx
-------------------------------- ---------------------------------
Xxxxxx Xxxxxx
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