EXHIBIT 10.12
VEHICLE PURCHASE AGREEMENT
by and among
SKYNET HOLDINGS, INC.
and
FLEET ACQUISITION CORP.
as the Buyers
NEVADA YELLOW CAB CORPORATION,
and
NEVADA CHECKER CAB CORPORATION
and
NEVADA STAR CAB CORPORATION
as Sellers
Dated March 15, 1999
TABLE OF CONTENTS
Page
1. DEFINITIONS........................................................ 1
1.1 Definitions.................................................. 1
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1.2 Interpretation Provisions.................................... 3
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2. SALE AND PURCHASE OF VEHICLES...................................... 4
2.1 Agreement to Sell and Purchase Vehicles...................... 4
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2.2 Taking of Necessary Action; Further Action................... 4
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3. PAYMENT OF THE PURCHASE CONSIDERATION.............................. 5
3.1 Purchase Consideration....................................... 5
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3.2 Escrow Provisions............................................ 5
4. REPRESENTATIONS OF SELLERS......................................... 6
4.1 Organization and Standing of NYC............................. 6
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4.2 Organization and Standing of NCC............................. 6
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4.3 Organization and Standing of NSC............................. 6
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4.4 Due Authorization............................................ 6
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4.5 Bulk Sales Compliance and Transfer Taxes..................... 6
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4.6 SkyNet Stock................................................. 7
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5. REPRESENTATIONS OF SKYNET AND SUB.................................. 8
5.1 Organization and Standing of SkyNet.......................... 8
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5.2 Organization and Standing of Sub............................. 8
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5.3 Authorization and Enforceability............................. 8
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5.4 SkyNet Stock................................................. 9
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5.5 Approval..................................................... 9
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6. CLOSING 9
6.1 Closing...................................................... 9
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6.2 Obligations of the Sellers................................... 9
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6.3 Obligations of SkyNet and Sub................................10
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7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYERS......................10
7.1 Performance..................................................10
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7.2 Registration Rights Agreement................................10
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7.3 Closing Under Asset Purchase Agreement.......................10
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7.4 Certificate..................................................10
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER......................11
8.1 Performance..................................................11
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8.2 Closing Under Asset Purchase Agreement.......................11
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8.3 Registration Rights Agreement................................11
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8.4 Certificate..................................................11
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9. POST CLOSING COVENANTS.............................................11
9.1 Restrictions on Transfer of SkyNet Stock.....................11
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9.2 Compliance with Law..........................................11
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10. INDEMNIFICATION AND RELATED MATTERS...............................12
10.1 Survival of Representations.................................12
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10.2 Indemnification by the Sellers..............................12
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10.3 Indemnification by the Buyers...............................12
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10.4 Third Party Claims..........................................13
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11. GENERAL...........................................................14
11.1 Entire Agreement............................................14
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11.2 Binding Effect; Benefits; Assignment........................14
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11.3 Headings....................................................14
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11.4 Amendment and Waiver........................................14
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11.5 Governing Law...............................................14
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11.6 Arbitration.................................................15
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11.7 Public Disclosure...........................................15
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11.8 Notices.....................................................15
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11.9 Counterparts................................................16
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11.10 Expenses...................................................16
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11.11 Invalidity.................................................16
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Schedules
1.1.1 Vehicles
3.3.1 Issuance of SkyNet Stock to Sellers
5.1 Certificate of Incorporation and Bylaws of SkyNet
5.2 Articles of Incorporation and Bylaws of Sub
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VEHICLE PURCHASE AGREEMENT
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This VEHICLE PURCHASE AGREEMENT (the "Agreement") is made as of March
15, 1999, by and among SKYNET HOLDINGS, INC., a publicly-owned Delaware
corporation ("SkyNet") and FLEET ACQUISITION CORP. ("Sub"), a Nevada corporation
which is a wholly-owned subsidiary of SkyNet (SkyNet and Sub are collectively
referred to as the "Buyers"), and NEVADA YELLOW CAB CORPORATION, a Nevada
corporation ("NYC"), NEVADA CHECKER CAB CORPORATION, a Nevada corporation
("NCC"), and NEVADA STAR CAB CORPORATION, a Nevada corporation ("NSC") (NYC, NCC
and NSC are sometimes referred to individually as a "Seller" and collectively,
the "Sellers").
WITNESSETH:
WHEREAS, Sellers own certain vehicles leased to Nevada Fleet
Management, Inc. ("NFM") for use in a routed courier delivery business operated
by NFM from various locations in Nevada, California, Oregon, Washington,
Arizona; and
WHEREAS, SkyNet currently operates a worldwide courier business; and
WHEREAS, Buyers and NFM are parties to a certain Asset Purchase
Agreement dated as of March 11, 1999 (the "Asset Purchase Agreement") pursuant
to which the Buyers will acquire certain assets and vehicles owned by NFM and
used by NFM in its routed carrier delivery business; and
WHEREAS, Sellers desire to sell certain of their vehicles, which
vehicles are specifically described on a schedule hereto; and
WHEREAS, the Buyers wish to purchase certain of the vehicles
identified herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and representations herein contained, and for other good
and legal consideration, the receipt and sufficiency of which is hereby
acknowledged, the Sellers and the Buyers, intending to be legally bound hereby,
agree as follows:
1. DEFINITIONS
1.1 Definitions.
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When used in this Agreement, the following terms, in their singular
and plural forms, shall have the meanings assigned to them below:
"Act" means the Securities Act of 1933, as amended.
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"Agreement" is defined in the initial paragraph hereof.
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"Buyers" is defined in the initial paragraph hereof.
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"Claim" means (i) a claim or demand for any and all Liabilities,
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damages, losses, obligations, deficiencies, encumbrances, penalties, costs and
expenses, including reasonable attorneys' fees, resulting from, related to or
arising out of (A) any inaccuracy in any representation, any misrepresentation
or non-fulfillment of any covenant set forth in this Agreement; (B) Sellers'
ownership of the Vehicles; (C) any and all Proceedings, demands, assessments,
audits, judgments and claims arising out of any of the foregoing.
"Closing" is defined in Section 6.1.
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"Closing Date" is defined in Section 6.1.
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"Encumbrance" means any claim, lien, pledge, option, charge, easement,
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security interest, deed of trust, mortgage, right-of-way, encroachment, building
or use restriction, conditional sales agreement, encumbrance or other right of
third parties, whether voluntarily incurred or arising by operation of law, and
includes any agreement to give any of the foregoing in the future, and any
contingent sale or other title retention agreement or lease in the nature
thereof.
"Escrow Agent" means ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇.
"Governmental Authority" means any foreign, federal, state, regional
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or local authority, agency, body, court or instrumentality, regulatory or
otherwise, which, in whole or in part, was formed by or operates under the
auspices of any foreign, federal, state, regional or local government.
"Indemnified Party" is defined in Section 11.4.
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"Knowledge" or "to the knowledge" of a party (or similar phrases)
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means to the extent of matters (i) which are actually known by such party or
(ii) which, based on facts of which such party is aware, would be known to a
reasonable Person in similar circumstances exercising reasonable judgment, and
when used in the context of the Sellers shall be deemed to include the knowledge
of the officers, directors and shareholders of the Sellers.
"Law" means any common law and any federal, state, regional, local or
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foreign law, rule, statute, ordinance, rule, order or regulation.
"Liabilities" means liabilities, obligations, claims or debts of the
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Sellers of any type or nature, whether matured, unmatured, contingent or
unknown, including, without limitation, tort, contract or other claims asserted
against the Sellers which are based on acts or omissions occurring on, before or
after the Closing Date.
"Lien" means any lien, charge, covenant, condition, easement, adverse
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claim, demand, encumbrance, security interest, option, pledge, or any other
title defect, easement or restriction of any kind.
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"1993 Act" means the Securities Act of 1933.
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"1934 Act" means the Securities Exchange Act of 1934.
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"Person" means any individual, corporation (including any non-profit
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corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, or other entity
or Governmental Authority.
"Proceeding" means any, arbitration, hearing, litigation, or suit
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(whether civil, criminal or, administrative) commenced, brought, conducted, or
heard by or before, or otherwise involving, any administrative law, civil or
criminal judge or any mediator, Governmental Authority or arbitrator.
"Purchase Consideration" is defined in Section 3.1.1.
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"Registration Rights Agreement" means the Registration Rights
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Agreement by and between the Sellers, NFM and SkyNet in form and substance to be
agreed by the parties and delivered at the Closing.
"Securities Reports" is defined in Section 4.21.2.
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"Sellers" is defined in the initial paragraph of this Agreement.
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"SkyNet Indemnified Party" is defined in Section 11.2.1.
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"Termination Date" means March 30, 1999.
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"Vehicles" means those vehicles to be sold by the Sellers to Sub
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hereunder, as identified on Schedule 1.1.1 hereto.
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1.2 Interpretation Provisions.
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1.2.1 The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement refer to this Agreement as a whole
and not to any particular provision of this Agreement, and article, section,
schedule and exhibit references are to this Agreement unless otherwise
specified. The meaning of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. The term "or" is disjunctive
but not necessarily exclusive. The terms "include" and "including" are not
limiting and mean "including without limitation."
1.2.2 References to agreements and other documents shall be deemed to
include all subsequent amendments and other modifications thereto.
1.2.3 References to statutes shall include all regulations
promulgated thereunder and references to statutes or regulations shall be
construed as including all statutory and regulatory provisions consolidating,
amending or replacing the statute or regulation.
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1.2.4 The captions and headings of this Agreement are for convenience
of reference only and shall not affect the construction of this Agreement.
1.2.5 The schedules and exhibits to this Agreement are a material
part hereof and shall be treated as if fully incorporated into the body of the
Agreement.
2. SALE AND PURCHASE OF VEHICLES
2.1 Agreement to Sell and Purchase Vehicles.
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2.1.1 Subject to the terms and conditions hereof and on the basis of
and in reliance upon the covenants, agreements and representations set forth
herein, on the Closing Date Sellers shall sell and deliver the Vehicles to Sub,
and Sub shall purchase the Vehicles from the Sellers. The Vehicles shall be
sold, transferred and conveyed by the Sellers to Sub on an "as is, where is"
basis, with no express or implied warranties of any kind other than that the
Assets and Vehicles shall be free and clear of any and all Liens, and Buyers
agree such construction with respect to warranties is reasonable.
2.1.2 In addition to the foregoing, the parties will, upon request
and without additional consideration, at and subsequent to the Closing Date,
execute and deliver all such further instruments of conveyance and transfer and
confirmation thereof as may be reasonably requested by Sub in order to make
further effective the provisions of this Agreement and to assure the transfers
and vesting of title provided for by this Agreement. All such transfers and
assignments of title shall vest and be effective on the Closing Date.
2.1.3 Buyers shall be responsible for the payment of any obligation
for Taxes (other than Seller's corporate Taxes) arising as a result of the
transactions contemplated by this Agreement, including without limitation
transfer taxes and vehicle registration expenses incident to the sale of the the
Vehicles;
2.2 Taking of Necessary Action; Further Action.
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The Sellers and each Buyer shall take such reasonable lawful action as
may be reasonably necessary or appropriate in order to effect the consummation
of the transactions contemplated by this Agreement as promptly as practicable.
If, at any time after the Closing Date, any such further action is reasonably
necessary or desirable to carry out the purposes of this Agreement, to vest Sub
with full right, title and possession to all the property, rights, privileges,
power and franchises of the Sellers, the officers and directors of each of the
Buyers and the Sellers are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and necessary
action.
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3. PAYMENT OF THE PURCHASE CONSIDERATION
3.1 Purchase Consideration.
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3.1.1 Purchase Consideration
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The purchase consideration ("Purchase Consideration") for the Vehicles
shall consist of 120,625 newly-issued shares of common stock of SkyNet (the
"SkyNet Stock"). The SkyNet Stock will be issued to the Sellers as set forth on
Schedule 3.1.1.
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3.2 Escrow Provisions.
3.2.1 Notwithstanding the other provisions of this Article 3, at the
Closing the Buyers and Sellers shall deliver to the Escrow Agent, registered in
the name of each Seller, that number of shares of SkyNet Stock equal to fifty
percent of the total number of shares of SkyNet Stock to be delivered by SkyNet
pursuant to Section 3.1.1 (the "Escrow Shares"). The Escrow Shares shall be
held by the Escrow Agent pursuant to the terms of an Escrow Agreement acceptable
in form and substance to the parties and to be delivered at the Closing (the
"Escrow Agreement").
3.2.2 In the event a Claim arises under this Agreement as to which
the parties agree a SkyNet Indemnified Party is entitled to indemnification or
as to which the arbitration proceeding provided for under Section 11.6 has been
completed, the SkyNet Indemnified Party shall be entitled to receive in
settlement of such Claim a distribution out of the Escrow Shares of such number
of Escrow Shares as are equal in "value" to the amount of the Claim. All Claims
made, if any, on account of any Seller's indemnification obligations under
Section 10.2 hereof shall be resolved by ascribing a "value" to the Escrow
Shares being distributed to the SkyNet Indemnified Party of $4.00 per share.
3.2.3 Except for Escrow Shares with a value (determined in accordance
with Section 3.2.2) equal to the amount of any Claims by SkyNet Indemnified
Parties that may be pending at such time, on (i) the six month anniversary of
the Closing Date, Escrow Agent shall retain one-half of the original number of
Escrow Shares and shall distribute the remainder to Seller in accordance with
the Escrow Agreement, and (ii) on the one year anniversary of the Closing Date,
Seller shall be entitled to delivery from the Escrow Agent any Escrow Shares
that have not been delivered to, or required to have been delivered to, SkyNet
Indemnified Parties pursuant to Section 3.2.2, Article 10 hereof or the Escrow
Agreement on or prior to such date. At all times that all or any part of the
Escrow Shares are held by the Escrow Agent, (i) all dividends or distributions
made with respect to the Escrow Shares shall be deposited with the Escrow Agent
and held in accordance with the Escrow Agreement and (ii) Sellers shall have the
sole right and power to exercise all voting rights pertaining to all or any part
of the Escrow Shares.
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4. REPRESENTATIONS OF SELLERS
As an inducement of the Buyers to enter into this Agreement, the
Sellers hereby make, as of the Closing Date, the following representations to
the Buyers, except as otherwise set forth in written disclosure schedules (the
"Sellers' Schedules") which shall be delivered to the Buyers prior to the date
of Closing, a copy of which is attached hereto. The Sellers' Schedules are
numbered to correspond to the various sections of this Article 4 setting forth
certain exceptions to the representations contained in this Article 4 and
certain other information called for by this Agreement. Unless otherwise
specified, no disclosure made in any particular Sellers' Schedule shall be
deemed made in any other Schedule unless expressly made therein (by cross-
reference or otherwise).
4.1 Organization and Standing of NYC.
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NYC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. NYC has all requisite corporate
power and authority to sell the Assets, free and clear of any and all Liens.
4.2 Organization and Standing of NCC.
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NCC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. NCC has all requisite corporate
power and authority to sell the Assets, free and clear of any and all Liens.
4.3 Organization and Standing of NSC.
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NSC is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. NSC has all requisite corporate
power and authority to sell the Assets, free and clear of any and all Liens.
4.4 Due Authorization.
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This Agreement has been duly authorized, executed and delivered by
each of the Sellers and constitutes a valid and binding agreement of each
Seller, enforceable in accordance with its terms, except as such enforcement may
be limited by applicable bankruptcy, insolvency, moratorium, and other similar
laws relating to, limiting or affecting the enforcement of creditors rights
generally or by the application of equitable principles. As of the Closing all
corporate action on the part of each of the Sellers required under applicable
law in order to consummate the transactions contemplated hereby will have
occurred. The Sellers represent that (i) the approval of their respective
stockholders is not required by Law or Sellers' Articles of Incorporation or
Bylaws in order to consummate the transactions contemplated by this Agreement;
or (ii) such approval has been obtained.
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4.5 Bulk Sales Compliance and Transfer Taxes.
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The sale and transfer of the Vehicles to be acquired pursuant to this
Agreement will not result in or be subject to any law pertaining to bulk sales
or transfers which either: (i) makes such sales or transfers ineffective as to
creditors of the Sellers or (ii) exposes the Buyers to liabilities asserted by
creditors of the Sellers.
4.6 SkyNet Stock.
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4.6.1 The SkyNet Stock is not being registered under the Act on the
basis of the statutory exemption provided by Section 4(2) thereof, relating to
transactions not involving a public offering, and SkyNet's reliance on the
statutory exemption thereof is based in part on the representations of each of
the Sellers contained in this Agreement;
4.6.2 Each of the Sellers represents (a) that it has, or as of the
Closing, will have reviewed such reports and registration statements of SkyNet
as have been filed with the Securities and Exchange Commission and the
Confidential Private Placement Memorandum dated December 22, 1998, as
supplemented (the "Securities Reports") and that it has such knowledge and
experience in financial and business matters that it is capable of utilizing the
information set forth therein concerning SkyNet to evaluate the risk of
investing in SkyNet; (b) that it has been advised that the SkyNet Stock to be
issued by SkyNet will not be registered under the Act, except as otherwise
provided in this Agreement or the Registration Rights Agreement, and
accordingly, such Seller may only be able to sell or otherwise dispose of such
shares in accordance with Rule 144 or except as otherwise provided in this
Agreement; (c) that the SkyNet Stock will be held for investment and not with a
view to, or for resale in connection with the public offering or distribution
thereof; (d) that the SkyNet Stock so issued will not be sold without
registration thereof under the Act (unless such shares are subject to
registration or in the opinion of counsel to SkyNet an exemption from such
registration is available), or in violation of any law; and (e) that the
certificate or certificates representing the SkyNet Stock will be imprinted with
a legend in form and substance substantially as follows:
'THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE
SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN
EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, BASED ON AN OPINION LETTER OF COUNSEL FOR THE COMPANY OR
A NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION."
and SkyNet is hereby authorized to notify its transfer agent of the status of
the SkyNet Stock and to take such other action including, but not limited to,
the placing of a "stop-transfer" order on the transfer agent's books and records
to assure compliance with the Act.
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4.6.3 Each Seller has, either upon the date hereof or before the
Closing hereunder, been afforded the opportunity to review and is familiar with
the Securities Reports and has based its decision to invest solely on the
information contained therein, and the information contained within this
Agreement and the associated exhibits and schedules, and has not been furnished
with any other literature, prospectus or other information except as included in
the Reports or this Agreement; and
4.6.4 Each Seller understands that no federal or state agency has
approved or disapproved the SkyNet Stock, passed upon or endorsed the merits of
the transfer of such shares set forth within this Agreement, or made any finding
or determination as to the fairness of such shares for investment.
5. REPRESENTATIONS OF SKYNET AND SUB
As an inducement of the Sellers to enter into this Agreement, SkyNet
and Sub hereby make as of the Closing Date, the following representations to the
Sellers, except as otherwise set forth in written disclosure schedules (the
"Buyers' Schedules") which shall be delivered to the Sellers prior to the
Closing, a copy of which is attached hereto. The Buyers' Schedules are numbered
to correspond to the various sections of this Article 5 setting forth certain
exceptions to the representations contained in this Article 5 and certain other
information called for by this Agreement. Unless otherwise specified, no
disclosure made in any particular Buyers' Schedule shall be deemed made in any
other Buyers' Schedule unless expressly made therein (by cross-reference or
otherwise).
5.1 Organization and Standing of SkyNet.
-----------------------------------
SkyNet is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. SkyNet has all requisite
corporate power and authority to enter into this Agreement. A certified copy of
SkyNet's Certificate of Incorporation and Bylaws are attached as Schedule 5.1.
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5.2 Organization and Standing of Sub.
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Sub is a corporation duly organized, validly existing and in good
standing in the State of Nevada. Sub has all requisite corporate power and
authority to enter into this Agreement. A certified copy of Sub's Articles of
Incorporation and Bylaws are attached as Schedule 5.2.
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5.3 Authorization and Enforceability
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This Agreement has been duly authorized, and executed the Buyers and
constitutes a valid and binding agreement of each of the Buyers, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium, and other similar laws relating
to, limiting or affecting the enforcement of creditors rights generally or by
the application of equitable principles. As of the Closing all corporate
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action on the part of each Buyer required under applicable law in order to
consummate the transactions contemplated hereby will have occurred. The Buyers
represent that (i) the approval of its stockholders is not required by Law or
SkyNet's Certificate of Incorporation, Sub's Articles of Incorporation or the
Buyers' Bylaws in order to consummate the transactions contemplated by this
Agreement; or (ii) such approval has been obtained.
5.4 SkyNet Stock.
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The SkyNet Stock to delivered by SkyNet at Closing pursuant to Section
3.1.1 hereof shall be validly and legally issued, free and clear of any and all
Liens, and fully paid and non-assessable.
5.5 Approval.
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The Board of Directors of each of SkyNet and Sub has approved the
execution of this Agreement and the transactions contemplated thereby.
6. CLOSING
6.1 Closing.
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Subject to satisfaction or waiver of all conditions precedent set
forth in Sections 8 and 9 of this Agreement, the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place on March 16,
1999 or the day on which the last of the conditions precedent set forth in
either Section 8 or 9 of this Agreement is fulfilled (the "Closing Date") or at
such other time, date and place as the parties may agree. The Closing shall be
conducted at the offices of Fleet Delivery Service at 10:00 a.m. on March 15,
1999 or at such other times as the parties may designate. The effective time of
the transactions contemplated by this Agreement shall be 12:01 a.m. Pacific
Standard Time on March 15, 1999.
6.2 Obligations of the Sellers.
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At or prior to the Closing, the Sellers shall deliver to the Buyers,
in each case, in form and substance satisfactory to the Buyers:
6.2.1 a ▇▇▇▇ of Sale in form and substance acceptable to the parties
and such other instruments of transfer or assignment as shall be necessary or
appropriate to vest in Sub good and marketable title to the Vehicles;
6.2.2 a certificate of the Chief Executive Officer or President of
each of the Sellers, dated as of the Closing Date, to the effect that such
Seller has performed and complied with in all material respects all of the
covenants, agreements and obligations set forth in this Agreement to be
performed or complied with by it on or prior to the Closing Date;
6.2.3 copies of resolutions adopted by the Board of Directors of NYC
duly authorizing and approving the execution of this Agreement and the
consummation of the
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transactions contemplated hereby, certified by an appropriate officer as being
true and correct as of the Closing Date;
6.2.4 such other documents as may be described in Articles 8 and 9 of
this Agreement.
6.3 Obligations of SkyNet and Sub.
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At the Closing, SkyNet and Sub shall deliver:
6.3.1 the SkyNet Stock, in accordance with Article 3 of this
Agreement;
6.3.2 a certificate of the Chief Executive Officer or President of
SkyNet and Sub, dated as of the Closing Date, to the effect that SkyNet and Sub
have performed and complied with in all material respects all of the covenants,
agreements and obligations set forth in this Agreement to be performed or
complied with by it on or prior to the Closing Date;
6.3.3 copies of resolutions adopted by the Board of Directors of each
of SkyNet and Sub duly authorizing and approving the execution of this Agreement
and the consummation of the transactions contemplated hereby, certified by an
appropriate officer as being true and correct as of the Closing Date; and
6.3.4 such other documents as may be described in Articles 8 and 9 of
this Agreement.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYERS
All obligations of the Buyers under this Agreement are subject to the
satisfaction by the Sellers at or before the Closing of all of the following
conditions, except to the extent expressly waived in writing by the Buyers:
7.1 Performance.
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The Sellers shall have performed and complied in all material respects
with all agreements and conditions required by this Agreement to be performed or
complied with by the Sellers prior to or at the Closing.
7.2 Registration Rights Agreement.
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The Registration Rights Agreement agreeable in form and substance to
the parties shall have been executed and delivered by the Sellers.
7.3 Closing Under Asset Purchase Agreement.
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The Closing contemplated by the Asset Purchase Agreement shall have
occurred.
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7.4 Certificate.
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Each of the Sellers have delivered to the Buyers a certificate, dated
as of the Closing Date, of the Sellers to the effect that the conditions set
forth in Sections 7.1, 7.2 and 7.3 have been satisfied.
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
All obligations of the Sellers under this Agreement are subject to the
satisfaction by the Buyers at or before the Closing of all of the following
conditions, except to the extent expressly waived in writing by the Sellers:
8.1 Performance.
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The Buyers shall have performed and complied, in all material
respects, with all agreements and conditions required by this Agreement to be
performed or complied with by the Buyers prior to or at the Closing.
8.2 Closing Under Asset Purchase Agreement.
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The Closing contemplated by the Asset Purchase Agreement shall have
occurred.
8.3 Registration Rights Agreement.
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The Registration Rights Agreement shall have been executed and
delivered by SkyNet.
8.4 Certificate.
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The Buyers shall have delivered to the Sellers a certificate, dated as
of the Closing Date, to the effect that the conditions set forth in Sections
8.1, 8.2 and 8.3 have been satisfied.
9. POST CLOSING COVENANTS
The Sellers covenant to and agree with the Buyers, and the Buyers
covenant to and agree with Sellers, as follows:
9.1 Restrictions on Transfer of SkyNet Stock.
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In order to assist in compliance with federal and state securities
laws and to further the purposes of this Agreement, each of the Sellers agrees
that it will not, except as may be permitted or contemplated by the Registration
Rights Agreement, sell, transfer, pledge, hypothecate or otherwise encumber any
of the SkyNet Stock until the one year anniversary of the Closing Date.
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9.2 Compliance with Law.
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The Buyers agree that they shall use their respective best efforts to
comply with all applicable Laws on and after the Closing Date.
10. INDEMNIFICATION AND RELATED MATTERS
10.1 Survival of Representations.
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The representations contained in this Agreement, the schedules and
exhibits hereto, and any agreement, document, instrument or certificate
delivered hereunder, shall survive the Closing until the two year anniversary of
the Closing Date.
10.2 Indemnification by the Sellers.
------------------------------
10.2.1 The Sellers shall jointly and severally indemnify each of
SkyNet and Sub (individually, a "SkyNet Indemnified Party" and collectively,
"SkyNet Indemnified Parties") against, defend and hold each harmless from the
following:
10.2.1.1 any liability, loss, damage or deficiency resulting from or arising
out of any inaccuracy in or breach of any representation by the Sellers in this
Agreement;
10.2.1.2 any liability, loss, damage or deficiency resulting from or arising
out of any breach or nonperformance of any covenant or obligation made or
incurred by the Sellers in this Agreement; and
10.2.1.3 any and all reasonable costs and expenses (including reasonable legal
and accounting fees) related to any of the foregoing. In the event that the
Buyers makes a Claim which is determined pursuant to the arbitration proceeding
specified in Section 14.6 hereof to be without reasonable basis in law or fact,
the Buyers shall bear all reasonable costs and expenses (including court costs
and reasonable legal and accounting fees), incurred by the Sellers in
investigating and defending against such Claim.
10.2.2 The Buyers shall be entitled to offset any amounts due to it
under this Section 10.2 against the Escrow Shares to the extent Escrow Shares
are available, which shall be the limit of Seller's liability for this Section
and any and all of Seller's liability arising from or relating to this
Agreement.
10.3 Indemnification by the Buyers.
-----------------------------
SkyNet and Sub shall jointly and severally indemnify the Sellers
against, defend and hold them harmless from the following:
10.3.1 any liability, loss, damage or deficiency resulting from or
arising out of any inaccuracy in or breach of any representation by the Buyers
in this Agreement;
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10.3.2 any liability, loss, damage or deficiency resulting from or
arising out of any breach or nonperformance of any covenant or obligation made
or incurred by the Buyers in this Agreement; and
10.3.3 any and all reasonable costs and expenses (including
reasonable legal and accounting fees) related to any of the foregoing. In the
event that any Seller makes a Claim which is determined pursuant to the
arbitration proceeding specified in Section 12.6 hereof to be without reasonable
basis in law or fact, such Sellers shall bear all reasonable costs and expenses
(including court costs and reasonable legal and accounting fees), incurred by
the Buyers in investigating and defending against such Claim.
10.4 Third Party Claims.
------------------
10.4.1 If any Proceeding (including, without limitation, negotiations
with federal, state, local or foreign tax authorities) shall be threatened or
commenced by a third party in respect of which a party (an "Indemnified Party")
may make a Claim hereunder, the Indemnified Party shall notify the party
obligated to indemnify such party hereunder (the "Indemnifying Party") to that
effect with reasonable promptness (so as to not prejudice such party's rights)
after the commencement or threatened commencement of such Proceeding, and the
Indemnifying Party shall have the opportunity to defend against such Proceeding
(or, if the Proceeding involves to a significant extent matters beyond the scope
of the indemnity provisions contained herein, those Claims that are covered
hereby), subject to the limitations set forth below.
10.4.2 If the Indemnifying Party elects to defend against any
Proceeding (or, as described in the preceding parenthetical in Section 11.4.1,
above, one or more claims relating thereto), the Indemnifying Party shall notify
the Indemnified Party to that effect with reasonable promptness. In such case,
the Indemnified Party shall have the right to employ its own counsel and
participate in the defense of such matter, but the fees and expenses of counsel
shall be at the expense of the Indemnified Party unless the employment of such
counsel at the expense of the Indemnifying Party shall have been authorized in
writing by the Indemnifying Party.
10.4.3 Any party granted the right to direct the defense of a
threatened or actual Proceeding hereunder shall: (i) keep the other party fully
informed of material developments in the Proceeding at all stages thereof; (ii)
promptly submit to the other party copies of all pleadings, responsive
pleadings, motions and other similar legal documents and papers received in
connection with the Proceeding; (iii) permit the other party and its counsel, to
the extent practicable, to confer on the conduct of the defense of the
Proceeding; and (iv) to the extent practicable, permit the other party and its
counsel an opportunity to review all legal papers to be submitted prior to their
submission. The parties shall make available to each other and each other's
counsel and accountants all of its or their books and records relating to the
Proceeding, and each party shall render to the other such assistance as may be
reasonably required in order to insure the proper and adequate defense of the
Proceeding. The parties shall use their respective good faith efforts to avoid
the waiver of any privilege of either party.
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10.4.4 The assumption of the defense of any matter by an Indemnifying
Party shall not constitute an admission of responsibility to indemnify or in any
manner impair or restrict such party's rights to later seek reimbursement of its
costs and expenses if the Indemnifying Party had no indemnification obligation
under this Agreement with respect to such matter. An Indemnifying Party may
elect to assume the defense of a matter at any time during the pendency of such
matter, even if initially such party did not elect to assume such defense, so
long as such assumption at such later time would not prejudice the rights of the
Indemnified Party. No settlement of a matter by the Indemnified Party shall be
binding on an Indemnifying Party for purposes of such party's indemnification
obligations hereunder.
11. GENERAL
11.1 Entire Agreement.
----------------
This Agreement, and the exhibits and schedules hereto and the
agreements specifically referred to herein, set forth the entire agreement and
understanding of the Sellers and the Buyers in respect of the transactions
contemplated hereby and supersede all prior agreements, arrangements and
understandings relating to the subject matter hereof. No representation,
promise, inducement or statement of intention has been made by the Sellers or
the Buyers that is not embodied in this Agreement or in the documents
specifically referred to herein and neither the Sellers nor the Buyers shall be
bound by or liable for any alleged representation, promise, inducement or
statement of intention not so set forth.
11.2 Binding Effect; Benefits; Assignment.
------------------------------------
The terms of this Agreement shall be binding upon, inure to the
benefit of and be enforceable by and against each of the Sellers and their
respective successors and authorized assigns, and the Buyers and their
respective successors and authorized assigns. Nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies under or by reason of this Agreement except as expressly indicated
herein. Neither the Sellers nor the Buyers shall assign any of their respective
rights or obligations under this Agreement to any other person, firm or
corporation without the prior written consent of the other party.
11.3 Headings.
--------
The headings of the sections and paragraphs of this Agreement have
been inserted for convenience of reference only and shall in no way restrict or
otherwise modify any of the terms or provisions hereof.
11.4 Amendment and Waiver.
--------------------
This Agreement may be amended, modified, superseded or canceled and
any of the terms, covenants, representations or conditions hereof may be waived
only by a written
14
instrument executed by the Sellers and the Buyers or, in the case of a waiver,
by or on behalf of the party waiving compliance.
11.5 Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada as applicable to contracts made and to be
performed in Nevada, without regard to conflict of laws principles.
11.6 Arbitration.
-----------
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be determined by binding arbitration as set forth
in Section 12.6 applying the laws of the State of Nevada. Any arbitration
pursuant to this Agreement shall be conducted in ▇▇▇▇▇ County, Nevada in
accordance with the Nevada arbitration rules. The arbitration shall be final
and binding upon all the parties (so long as the award was not procured by
corruption, fraud or undue means) and the arbitrator's award shall not be
required to include factual findings or legal reasoning. The arbitrator(s) may
award the prevailing party reasonable attorneys' fees and other legal expenses
incurred in connection with the arbitration proceeding. Judgment on the award
rendered by the arbitrator(s) shall be entered in district court in ▇▇▇▇▇
County, Nevada.
11.7 Public Disclosure.
-----------------
Except as required by Law, neither the Buyers nor the Sellers shall
make any public disclosure of the existence or terms of this Agreement or the
transactions contemplated hereby without the prior written consent of the other
party, which consent shall not be unreasonably withheld. In the event that the
Sellers or the Buyers determines that the disclosure of the existence or terms
of this Agreement is required by Law, such party shall so notify the other
parties and shall provide to the other party a copy of any such public
disclosure prior to releasing the same.
11.8 Notices.
-------
All notices, requests, demands and other communications to be given
pursuant to the terms of this Agreement shall be in writing and shall be deemed
to have been duly given if hand delivered, sent by overnight mail by a
nationally recognized overnight delivery service or mailed first class, postage
prepaid:
15
(a) If to the Sellers:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇
Nevada Yellow Cab Corporation
Nevada Checker Cab Corporation
Nevada Star Cab Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to the Buyers:
SkyNet Holdings, Inc.
Fleet Acquisition Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ Ingersoll Professional Corporation
Eleven ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address by prior written notice to the other party.
16
11.9 Counterparts.
------------
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and such counterparts shall together
constitute one and the same instrument. A facsimile signature on any
counterpart shall be deemed to be an original signature.
11.10 Expenses.
--------
Each party shall pay their own respective expenses, costs and fees
incurred in connection with the negotiation, preparation, execution and delivery
of this Agreement and each of the Related Documents and the consummation of the
transactions contemplated hereby, including, without limitation, the fees and
expenses of their respective legal counsel, accountants and financial advisors.
11.11 Invalidity.
----------
In the event that any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein shall be held to be invalid, illegal or unenforceable in any
jurisdiction, such provisions shall be deemed amended to the extent necessary
for such provisions to be valid, reasonable and enforceable in such
jurisdiction; provided, however, that such provisions shall not be deemed
amended for purposes of their enforcement in any jurisdiction in which such
provisions would be valid, legal and enforceable without amendment.
17
IN WITNESS WHEREOF, the parties hereto have caused this Vehicle
Purchase Agreement to be duly executed as of the day and year first above
written.
SKYNET HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chief
Executive Officer
FLEET ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chief
Executive Officer
NEVADA YELLOW CAB CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
NEVADA CHECKER CAB CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
NEVADA STAR CAB CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
18
