STOCK PURCHASE AGREEMENT
BY AND AMONG
UNIVERSAL EXPRESS, INC.
AND
XX. XXXXXX X. XXXXXXXXX,
XXXXXXX INVESTMENTS, INC.
AND
SKYNET MIA.
ACQUISITION OF SKYNET MIA
BY UNIVERSAL EXPRESS, INC.
INDEX
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PAGE
PREAMBLE.................................................................. 1
1. SALE AND PURCHASE OF CAPITAL STOCK OF
SKYNET MIA AND RELATED MATTERS .................................... 2
1.1 Sale and Delivery of Stock ................................. 2
1.2 Purchase Price and Payment ................................. 2
1.3 Option to Purchase Remaining Stock ......................... 4
1.4 Xx. Xxxxxxxxx' Employment .................................. 5
1.5 Board of Directors of SkyNet MIA ........................... 5
1.6 Major Decisions ............................................ 5
1.7 Consulting Agreement-Xx. X.X. Xxxxxxxxx .................... 6
1.8 Consulting Agreement-Xx. Xxxxxx ............................ 6
1.9 Service Contract - SkyNet Peru ............................. 6
1.10 Entities Being Acquired .................................... 7
1.11 Trademarks ................................................. 7
1.12 Removal of Guaranties ...................................... 8
1.13 Credits .................................................... 8
1.14 Deposit .................................................... 8
2. OTHER DELIVERIES AND ASSURANCES ....................................... 9
2.1 Other Deliveries ........................................... 9
2.1.1 Corporate Books ............................................ 9
2.1.2 Financial Statements ....................................... 9
2.2 Assurances ................................................. 9
3. CLOSING ............................................................... 9
4. XX. XXXXXXXXX', XXXXXXX'X AND SKYNET MIA'S
REPRESENTATIONS AND WARRANTIES .................................... 10
4.1 Organization and Good Standing ............................. 10
4.2 Capitalization ............................................. 11
4.3 Authorization .............................................. 11
4.4 No Conflict; No Consents or Approval Required .............. 12
4.5 Litigation ................................................. 13
4.6 Contracts .................................................. 14
4.7 Patents, Trademarks and Trade Names ........................ 14
4.8 Tax Matters ................................................ 15
4.9 Lists of Certain Items ..................................... 15
4.10 Brokers .................................................... 18
4.11 Financial Statements ....................................... 18
4.12 Title to Real Estate; Leases ............................... 19
4.13 Transfer of Shares ......................................... 20
4.14 Disclosure ................................................. 20
5. USXP's REPRESENTATIONS AND WARRANTIES ................................. 21
5.1 Organization and Good Standing ............................. 21
5.2 Authorization .............................................. 21
6. TAX LIABILITIES ....................................................... 22
7. LITIGATION, CLAIMS AND LIABILITIES .................................... 22
7.1 Claims ..................................................... 22
7.2 Xx. Xxxxxxxxx', Xxxxxxx'x Obligations ...................... 22
8. SURVIVAL OF REPRESENTATIONS AND
CONVENANTS ........................................................ 23
9. BEST EFFORTS TO OBTAIN SATISFACTION OF
CONDITIONS ........................................................ 23
10.DUE DILIGENCE ......................................................... 23
11.WAIVER ................................................................ 24
12.AMENDMENTS ............................................................ 24
13.SECTION AND PARAGRAPH HEADINGS ........................................ 24
14.NOTICES ............................................................... 24
15.COUNTERPARTS .......................................................... 25
16.ENTIRE AGREEMENT ...................................................... 26
17.GOVERNING LAW ......................................................... 26
Exhibit 1 - Good Faith Deposit Agreement
Schedule A - Capital Stock of SkyNet MIA Group
Schedule B - Litigation
Schedule C - Patents and Trademarks
Schedule D - Insurance Policies
Schedule E - Real Property
Schedule F - Machinery and Equipment
Schedule G - Automobiles and Trucks
Schedule H - Leases
Schedule I - Sales Contracts and Customer Purchase Orders
Schedule J - Banks
Schedule K - Loan and Credit Agreements, etc.
A G R E E M E N T
-----------------
STOCK PURCHASE AGREEMENT, dated as of July 1, 1998, by and among
Universal Express, Inc., formerly known as Packaging Plus Services, Inc. until
it changed its name on June 30, 1998, ("USXP"), a publicly traded corporation,
located in Plainview, New York, Xx. Xxxxxx X. Xxxxxxxxx ("Xx. Xxxxxxxxx"),
Xxxxxxx Investments, Inc. ("Xxxxxxx") and SkyWorld International Courier., d/b/a
SkyNet Worldwide Express, located in Miami, Florida, and related privately held
companies (collectively, "SkyNet MIA").
W I T N E S S E T H:
--------------------
WHEREAS, USXP desires to purchase a majority ownership in SkyNet MIA;
and
WHEREAS, Xx. Xxxxxxxxx and Xxxxxxx desire to sell a majority ownership
in SkyNet MIA to USXP;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
1. SALE AND PURCHASE OF CAPITAL STOCK OF SKYNET MIA AND RELATED MATTERS
1.1 Sale and Delivery of Stock. Xx. Xxxxxxxxx and Xxxxxxx hereby agree
to sell, transfer and deliver to USXP, free of all liens and encumbrances, and
USXP agrees to purchase from them, on the date fixed in accordance with Section
3 for the closing hereunder (the "Closing Date") fifty-one (51%) of all of the
outstanding shares of the capital stock of SkyNet MIA. Certificates for the
SkyNet MIA capital stock, endorsed to USXP, shall be delivered on behalf of Xx.
Xxxxxxxxx and Xxxxxxx to USXP at the Closing.
1.2 Purchase Price and Payment. The purchase price and other
consideration to be paid by USXP to Xx. Xxxxxxxxx and Xxxxxxx, respectively, for
fifty-one (51%) of SkyNet MIA, 163 shares, upon USXP obtaining the necessary
funding at the Closing, except for the "Deposit" as provided in Section 1.14,
shall be as follows:
(A) Payment of $450,000 in cash by USXP to Xxxxxxx for the purchase of
163 common shares of SkyNet MIA, payable as follows:
(i) $300,000 at Closing; and
(ii) $10,000 per month on the 10th day of each month over 15
consecutive months following the Closing, secured by a
letter of credit, in the amount of the total obligation
(which may be drawn down for any monthly payment overdue
for 10 days, and which may be reduced for payments duly
made); and/or 51% of the Skynet MIA shares purchased
hereunder (163 shares), in escrow, with the right of USXP
to substitute, one for the other at any time. During the
time such shares are held as security, and there is no
default, USXP will have full powers of a shareholder,
including the right to vote such shares.
(B) A Letter of Credit or guarantee or a loan transaction acceptable to
Republic National Bank ("RNB") replacing at the Closing Xxxxxxx'x $500,000
letter of credit securing a RNB line of credit to SkyNet MIA.
(C) Additional capital contribution to SkyNet MIA payable as follows:
(i) $25,000 per month on the 20th day of each month over 14
consecutive months following the Closing, secured by a
letter of credit if it can be substituted for (B) above
or if it cannot be substituted, secured by USXP
restricted shares at the market price at Closing; and
(ii) $400,000 to be deposited at the Closing into a SkyNet MIA
account for working capital needs, which shall be used in
the discretion of the CEO of SkyNet MIA and the Chairman
of USXP.
1.3 OPTION TO PURCHASE REMAINING STOCK. Commencing one (1) year after
completion of the capital investment, USXP shall have the option, provided it is
in compliance with all of its payment and capital contribution obligations
hereunder, to purchase the remaining forty-nine percent (49%) of the remaining
ownership interest in SkyNet MIA (159 common shares) from Xx. Xxxxxxxxx over
seven (7) consecutive quarterly periods, in equal ownership amounts of 7% each,
for seven times operating income as determined by the auditors for the Skynet
MIA accounts, before taxes and interest, and intercompany charges, corporate
management fees/allocation, and similar items from USXP if any, for each
quarterly period, which purchases shall be completed within 60 days of the end
of each quarter. These shares may be assigned or sold to Xx. Xxxxxxx Xxxxxx by
Xx. Xxxxxxxxx, subject to this Agreement. USXP is required to purchase all of
such shares once it purchases part thereof and until all of the SkyNet MIA
shares are purchased hereunder, once this option is exercised by USXP, USXP will
not sell or assign any of its SkyNet shares to any person or entity not
affiliated with USXP and, further, until paid for in full, the shares may be
held in an appropriate escrow account, with USXP retaining full shareholder
rights, including voting rights, absent a default.
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1.4 XX. XXXXXXXXX' EMPLOYMENT. Xx. Xxxxxxxxx will receive an employment
contract from SkyNet MIA, which will include the following components:
(A) Position: President-CEO SkyNet MIA.
(B) 5 year term, with non-compete provision.
(C) Annual base salary of $200,000.
(D) Incentives of $100,000 (to be defined therein).
(E) USXP Stock options (minimum of $100,000 per year - to be defined
therein).
(F) Other benefits currently offered to SkyNet MIA employees.
1.5 BOARD OF DIRECTORS OF SKYNET MIA. SkyNet MIA will have a five (5)
person Board of Directors. Xx. Xxxxxxxxx will have 2 permanent seats and USXP
will have 3 seats. Directors and officers liability insurance will be provided
by SkyNet MIA, if such insurance can be obtained at a reasonable cost.
1.6 MAJOR DECISIONS. During the period of time that Xx. Xxxxxxxxx is a
minority shareholder in SkyNet MIA, USXP agrees that a special vote of 75% of
the common shares of SkyNet MIA will be required for the following actions:
(A) Bankruptcy filing.
(B) Sales of a substantial portion of the assets of SkyNet MIA.
(C) Sale or merger of SkyNet MIA.
(D) Borrowings of SkyNet MIA in excess of $500,000.
(E) Any contracts, loans, or payments from SkyNet MIA to USXP.
1.7 CONSULTING AGREEMENT WITH XX. X.X. XXXXXXXXX. It is intended that a
consulting agreement for five (5) years, to be further discussed, be entered
into with Xx. X.X. Xxxxxxxxx to assist SkyNet MIA, especially in coordinating
SkyBox and SkyNet linehaul and delivery operations, where appropriate, for an
annual fee of $36,000.
1.8 CONSULTING AGREEMENT WITH XX. XXXXXXX XXXXXX. It is intended that a
consulting agreement, to be further discussed, be entered into with Xx. Xxxxxxx
Xxxxxx, for his active participation in running and coordinating the Latin
American network - LACNA, for an annual fee of $36,000. 1.9 Service Contract -
SkyNet Peru. SkyNet MIA intends to enter into a 5 year service contract with
SkyNet Peru for the following services:
(A) Delivery and transfer service in the U.S. and to all foreign
countries.
(B) Current network rates being charged. Future increases based only on
cost justified as charged to other network members.
(C) Other terms to be determined in conjunction with SkyNet Peru.
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1.10 ENTITIES BEING ACQUIRED. The following companies currently form
part of the SkyNet MIA group (the "SkyNet MIA Group", including SkyNet MIA):
(A) SkyWorld International Couriers, Inc. D/B/A SkyNet (Florida Corp).
(B) SkyNet Worldwide Courier, Inc. (DC) (Delaware Corp.)
(C) SkyNet de Venezuela, SA 60% (Venezuela Corp.)
(D) SkyNet Worldwide Courier Network, Inc. (NY Corp-inactive)
1.11 TRADEMARKS. SkyNet MIA currently owns the trademark for "SkyNet
Worldwide Courier Network" in the U.S.A. and the key countries in Latin America,
such as Mexico, Brazil, Venezuela and Columbia. It does not own the trademark in
Argentina, but has a license for its use in that country.
1.12 REMOVAL OF GUARANTIES. The parties intend the removal of all
personal guaranties by Xx. Xxxxxxxxx, wherever possible. They intend that the
RNB loans/lines, Xxxxxxx loan and LC, Line Haul Services Agreement and certain
guarantee with airlines that currently provide services to SkyNet MIA will be
eliminated with the acquisition,
1.13 CREDITS. SkyNet XXX xxx use a portion of the amount due from
Skynet Holdings to USXP as a credit against current and future monies due
Holdings, by SkyNet MIA, which amount is currently approximately $135,000. This
credit will be treated as additional capital contributed by USXP to SkyNet MIA
at the time of Closing.
1.14 DEPOSIT. USXP has forwarded a $50,000 good faith deposit to Skynet
MIA for working capital pursuant to an Agreement dated May 28, 1998 attached
hereto as Exhibit 1. The terms of that Agreement shall govern the deposit and
are incorporated herein and made a part of this Agreement. If USXP fails to meet
its funding obligations at the Closing, and Xx. Xxxxxxxxx or Xxxxxxx or SkyNet
MIA are not in material breach of the terms of this Agreement and each of them
have performed their obligations in all material respects hereunder and are
ready to Close, unless such parties shall mutually agree otherwise, such deposit
shall be retained by SkyNet MIA and USXP and SkyNet MIA shall have no further
obligations under this Agreement.
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2. OTHER DELIVERIES AND ASSURANCES.
2.1 OTHER DELIVERIES. At the Closing, in addition to the delivery of
the certificates for the Shares, in accordance with Section 1.1 hereof, Xx.
Xxxxxxxxx and Xxxxxxx will cause to be delivered to USXP the following:
2.1.1 CORPORATE BOOKS. The minute books, registers, charters,
certificates of incorporation, by-laws, stock transfer books and corporate seals
of each of the SkyNet MIA Group or other records, or copies thereof, at USXP's
option.
2.1.2 CERTIFIED FINANCIAL STATEMENTS. Financial statements for the
SkyNet MIA Group, certified by its accountants, for the previous three fiscal
years of the SkyNet MIA Group.
2.2 ASSURANCES. Each party hereto shall take such other action from
time to time as the other party may reasonably request in order to more
effectively carry out the sale and the deliveries provided for in this
Agreement.
3. CLOSING. Subject to the terms and conditions of this Agreement, the
closing of the transactions provided for herein (the "Closing") shall take place
on or before June 1, 1999 at such time and place as the parties shall determine.
Such date may be mutually extended in writing by the parties and the parties may
agree to any actions or events which are to be handled on a post-closing basis.
Any such extensions or post-closing matters shall be deemed to relate back to
the June 1, 1999 Closing Date. Time is of the essence. The Employment Agreement,
the two Consulting Agreements and the Service Contract, referred to in Sections
1.4, 1.7, 1.8 and 1.9 hereof, respectively, shall be Closing documents.
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4. XX. XXXXXXXXX', XXXXXX'X AND SKYNET MIA'S REPRESENTATIONS AND WARRANTIES.
Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA hereby represent and warrant to USXP as
follows:
4.1 ORGANIZATION AND GOOD STANDING. Each of the SkyNet MIA Group are
corporations duly organized, validly existing and in good standing under the
laws of the Countries or States of the United States, of their incorporation or
charter, except as set forth herein. Each of the subsidiaries of SkyNet MIA
Group has authority to own, operate and lease its properties and to carry on its
business as now being conducted. Copies of the charters and By-Laws, and all
amendments thereto, of each of the SkyNet MIA Group have been delivered to USXP
and are complete and correct as of the date hereof. Each of the SkyNet MIA Group
is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of its properties owned or
leased or the nature of its activities makes such qualification necessary,
except where the failure so to qualify or to be in good standing would not have
a materially adverse effect on the business, operations, assets or financial
condition of each such entity.
4.2 CAPITALIZATION. Each of the SkyNet MIA Group has the
authorized, issued and outstanding capital stock set forth opposite its name in
Schedule A hereto. All of such issued and outstanding shares are validly issued,
fully paid and nonassessable. None of such SkyNet Group has authorized, issued
or outstanding any other shares of capital stock or any subscription or other
rights to the issuance or receipt of shares of its stock.
4.3 AUTHORIZATION. Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA have
all requisite corporate power and authority to enter into this Agreement and to
carry out their obligations hereunder. The execution and delivery of this
Agreement by Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA and the consummation by them
of the transactions contemplated hereby have been duly authorized by SkyNet
MIA's Boards of Director and no other corporate action or proceeding on the part
of Xx. Xxxxxxxxx, Xxxxxxx or SkyNet MIA is necessary for the execution or
delivery of this Agreement by them or for the consummation by them of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA and (assuming this Agreement
has been duly executed and delivered by USXP) is a legally valid and binding
obligation of Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA, enforceable against them in
accordance with its terms.
6
4.4 NO CONFLICT; NO CONSENTS OR APPROVALS REQUIRED. Neither the
execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby by Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA will,
with or without notice or passage of time, or both, (i) violate any provision of
the Certificate of Incorporation, charter or by-laws of any of the SkyNet MIA
Group, (ii) violate any law, rule, regulation, ordinance, order, writ,
injunction, judgment or decree applicable to SkyNet MIA or any of its
subsidiaries or by which any of the their respective properties or assets is
bound or affected, or (iii) conflict with or result in any breach of or
constitute a default under the terms, conditions or provisions of any note,
bond, mortgage, indenture, permit, license, franchise agreement, lease or other
contract, instrument or obligation to which Xx. Xxxxxxxxx, Xxxxxxx or SkyNet MIA
or any of its subsidiaries is a party or by which they or any of their
respective properties or assets is bound or affected, except, in the case of
clauses (ii) and (iii) above, for any such violation, conflict, breach or
default which individually or in the aggregate will not have a material adverse
effect on the business, operations, assets or financial condition of any of the
subsidiaries of the SkyNet MIA Group. Neither SkyNet MIA nor any of its
subsidiaries is required to submit any notice, report or other filing with any
governmental or regulatory authority or instrumentality in connection with the
execution, delivery or performance of this Agreement by them and the
consummation of the transactions contemplated hereby, except for any such
notice, report or filing which the failure to submit individually or in the
aggregate will not have a material adverse effect on the business, operations,
assets or financial condition of any of them.
4.5 LITIGATION. To the best knowledge of Mr. Xx. Xxxxxxxxx, Xxxxxxx or
SkyNet MIA, except as set forth on Schedule B, there is no action, proceeding or
investigation pending or threatened against or involving SkyNet or any of its
subsidiaries, divisions or businesses, which, if determined adversely, would
materially and adversely affect the financial condition, business or operations
of any of them, nor is there any judgment, decree, injunction, rule or order of
any court, governmental department, commission, agency, instrumentality or
arbitrator outstanding against any of them having, or which, insofar as can be
foreseen, in the future would be likely to have, any such effect.
4.6 CONTRACTS. To the best knowledge of Mr. Xx. Xxxxxxxxx, Xxxxxxx or
SkyNet MIA, neither SkyNet MIA or any subsidiary, division or business of the
SkyNet MIA Group is in material default under any contract made or obligation
owed by that business unit, which con-tract or obligation, individually or in
the aggregate, is material such business unit, part of the SkyNet MIA Group.
4.7 PATENTS, TRADEMARKS AND TRADE NAMES. Set forth in Schedule
C is a list of the patents and trademarks owned by the SkyNet MIA Group. Each of
the SkyNet MIA Group owns, or is licensed or otherwise has the full right to
use, all patents, trademarks, trade names, copyrights, technology, know-how and
processes currently used in or necessary for the conduct of its business as
currently conducted which are material to the financial condition, results of
operations or business of any such subsidiary. To the best knowledge of Xx.
Xxxxxxxxx, Xxxxxxx or SkyNet MIA, no claim has been asserted by any person with
respect to the use of any such patent, trademark, trade name, copyright,
technology, know-how or process or challenging or questioning the validity or
effectiveness of any such license, and neither Xx. Xxxxxxxxx, Xxxxxxx or SkyNet
MIA knows of any valid basis for any such claim, and the use of such patents,
trademarks, trade names, copyrights, technology, know-how and processes by the
SkyNet MIA Group does not, to their knowledge, infringe on the rights of any
person, other than any such claims, infringements and other matters as do not
give rise to any material liability on the part of any of the SkyNet MIA Group.
The "Skynet" trademark is in full force and effect as a registered xxxx in the
United States and is owned by Skynet MIA.
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4.8 TAX MATTERS. SkyNet MIA and each subsidiary and unit of the SkyNet
MIA Group has filed, or on behalf of each of the SkyNet MIA Group there has been
filed, all income, franchise, sales and, use tax returns, declarations and
information returns, local income, franchise, sales and use tax returns, and
declarations and information returns, which are required to be filed in the
jurisdictions in which each such unit is doing business. All taxes as shown on
said returns and all assessments received have been paid to the extent that such
taxes have become due. All such tax returns filed by or on behalf of each
subsidiary and unit of the SkyNet MIA Group, with respect to periods ending on
or prior to the Closing Date, shall be filed based on normal and consistent tax
accounting practices and in accordance with applicable law. 4.9 Lists of Certain
Items. The following lists, setting forth summary descriptions, as of the date
hereof, shall be true as of the Closing Date, except for changes occurring in
the ordinary course of business:
(i) INSURANCE POLICIES. Schedule D. A summary description of
all present policies of insurance with respect to SkyNet
MIA Group and covering all of its properties, buildings,
machinery, equipment, furniture, fixtures or operations,
all of which are presently in force;
(ii) REAL PROPERTY. Schedule E. All real property owned of
record or beneficially or leased by the SkyNet MIA Group,
and a brief description of all buildings and structures
located thereon.
(iii) MACHINERY AND EQUIPMENT. Schedule F. Machinery,
equipment, furniture and fixtures (each category listed
separately), as recorded in the books of account and
records of the SkyNet MIA Group, which are accurate in
all material respects;
(iv) AUTOMOBILES AND TRUCKS. Schedule G. All automobiles and
trucks owned or leased by the SkyNet MIA Group;
(v) LEASES. Schedule H. Each presently existing lease of
personal property to which any of the SkyNet MIA Group is
a party;
(iv) SALES CONTRACTS AND CUSTOMER PURCHASE ORDERS. Schedule I.
Schedule I lists each sales contract and customer
purchase order for the delivery of products or
performance of services, or both, by the SkyNet MIA
Group, which would result in the right to receive
revenues of at least $10,000 and a list of specific
contracts or commitments each involving purchases of
inventories or supplies in excess $10,000;
(vii) BANKS. Schedule J. The name of each bank in which any of
the SkyNet MIA Group has an account or safe deposit box,
and the names of all persons authorized to draw thereon
or have access thereto;
(viii) LOAN AND CREDIT AGREEMENTS, ETC. Schedule K: All
mortgages, pledges, deeds of trust, loan or credit
agreements, notes and similar instruments to which any of
the SkyNet MIA Group is a party, and all amendments or
modifications of any thereof.
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4.10 BROKERS. USXP, Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA represent
that none of them have incurred any obligation to pay a finder's fee or similar
acquisition services compensation in connection with this transaction, or if any
of them have, that party will pay such obligation.
4.11 FINANCIAL STATEMENTS. Xx. Xxxxxxxxx, Holstein and SkyNet MIA have
delivered to USXP balance sheets and income statements for each member of the
SkyNet MIA Group for the previous three fiscal years, together with any notes
thereto, and statements for seven months ending July 31, 1998, together with the
notes thereto, the "Financial Statements"). The Financial Statements have been
prepared from the books and records of SkyNet MIA Group which books and records
have been maintained in conformity with good business practices and fairly
present the financial condition and results of operations of each member of the
SkyNet MIA Group for the periods covered by such statements. Xx. Xxxxxxxxx,
Xxxxxxx and SkyNet MIA represent that the SkyNet MIA Group will be substantially
debt free at the Closing, except for debts listed in Schedule J hereto. All
account receivables and assets, tangible and intangible, including all cash in
bank accounts of the SkyNet Group, will be made available to USXP.
4.2 TITLE TO REAL ESTATE; LEASES. The SkyNet MIA Group have
good and valid title to the real property set forth on Schedule A, as being
owned by the SkyNet MIA Group, and the SkyNet MIA Group has good leasehold
interests under valid and binding leases with respect to the real property set
forth on Schedule A as being leased by the SkyNet MIA Group, in each case free
and clear of all mortgages, liens, security interests or encumbrances whatsoever
except (i) mechanics', carriers', workers', repairmen's or other like liens
arising or incurred in the ordinary course of business, (ii) liens for current
taxes due and not yet payable, (iii) liens for taxes which are being contested
in good faith by appropriate proceedings and are immaterial or have been bonded
in a manner reasonably satisfactory to USXP, (iv) liens, encumbrances, easement
and other imperfections of title disclosed in any title insurance policies or
reports previously prepared and furnished to USXP, (v) any normal utility,
ingress, egress, access or similar easements affecting any such real property
that do not materially interfere with the present use thereof, and (vi)
encumbrances, easements and other imperfections of title which do not and could
not materially interfere with the present use of the property or assets subject
thereto.
4.13 TRANSFER OF SHARES. Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA
will transfer title to the Shares to USXP on the Closing Date, free and clear of
all liens, pledges, encumbrances, voting trusts and voting agreements. There is
no existing option, warrant or other agreement (other than this Agreement) to
which they or any of the SkyNet MIA Group is a party requiring, and there are no
convertible or exchangeable securities of any of the SkyNet MIA Group which upon
conversion or exchange would require, the issuance or sale of any shares of the
capital stock of any of the SkyNet MIA Group.
4.14 DISCLOSURE. The representations and warranties made by
Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA herein do not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements made by them, in light of the circumstances under which they were
made, not materially misleading.
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5. USXP'S REPRESENTATIONS AND WARRANTIES.
USXP hereby represents and warrants to Xx. Xxxxxxxxx, Xxxxxxx and
SkyNet MIA as follows:
5.1 Organization and Good Standing. USXP is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada, with full corporate power and authority to carry on its business as it
is now being conducted and as proposed to be conducted.
5.2 Authorization. USXP has all requisite corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by USXP and the consummation by USXP of
the transactions contemplated hereby have been duly authorized by USXP's Board
of Directors and no other corporate action or proceeding on the part of USXP is
necessary for the execution or delivery of this Agreement by USXP or for the
consummation by USXP of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by USXP and (assuming this Agreement has been
duly executed and delivered by Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA) is a
legally valid and binding obligation of USXP enforceable against USXP in
accordance with its terms.
6. TAX LIABILITIES.
Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA agree that they shall be
responsible for and shall pay any tax liabilities of each of the SkyNet MIA
Group for all taxable periods ending with and prior to the Closing Date, except
for taxes and estimates thereof disclosed in writing to USXP.
7. LITIGATION, CLAIMS AND LIABILITIES.
7.1 CLAIMS. Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA have no knowledge of
any material claim against, or liability of, any of the SkyNet MIA Group, except
claims and liabilities disclosed in writing to USXP prior to the Closing.
7.2 Xx. Xxxxxxxxx', Xxxxxxx'x and SkyNet MIA's Obligations. Xx.
Xxxxxxxxx, Xxxxxxx and SkyNet MIA hereby agree to indemnify, hold harmless and
defend USXP and its shareholders, directors, officers and employees from all
material claims, liabilities or obligations incurred by, or arising from the
business of, any of the SkyNet MIA Group prior to the Closing, including the
payment of all expenses and attorneys' fees arising therefrom, except claims,
liabilities or obligations disclosed in writing to USXP prior to the Closing.
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8. SURVIVAL OF REPRESENTATIONS AND COVENANTS.
The representations, warranties and covenants of Xx.
Xxxxxxxxx, Xxxxxxx and SkyNet MIA and USXP in this Agreement shall survive the
Closing for a period of five years.
9. BEST EFFORTS TO OBTAIN SATISFACTION OF CONDITIONS.
Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA agree to use their best efforts
to perform and fulfill all conditions required to be performed by them and the
SkyNet MIA Group under this Agreement, and USXP agrees to use its best efforts
to perform and fulfill all conditions required to be performed by it under this
Agreement.
10. DUE DILIGENCE.
USXP and its employees and agents shall have free access to the books,
records and facilities of the SkyNet MIA Group, during normal business hours in
order to inspect the businesses of the SkyNet MIA Group. The SkyNet MIA Group
and Xx. Xxxxxxxxx and Xxxxxxx will cooperate fully and in good faith with USXP
in its "due diligence". All information obtained in such inspections shall be
held in strictest confidence and, if the acquisition of SkyNet MIA Group by USXP
should not be consummated, such information will not thereafter be used by USXP.
11. WAIVER.
The parties may mutually waive in writing any and all of the conditions
or requirements herein contained or defer them until after the Closing. All
parties hereto will keep this Agreement confidential until the closing.
12. AMENDMENTS.
USXP, Xx. Xxxxxxxxx, Xxxxxxx and SkyNet MIA, by mutual consent, may
amend or modify this Agreement, in such manner as may be agreed upon, by a
written instrument, executed by each of USXP, Xx. Xxxxxxxxx, Xxxxxxx and SkyNet
MIA.
13. SECTION AND PARAGRAPH HEADINGS.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
14. NOTICES.
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered or mailed
first class postage prepaid:
(a) To Xx. Xxxxxxxxx. If to Xx. Xxxxxxxxx, to
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(b) To Xxxxxxx. If to Xxxxxxx, to
Xxxxxxx Investments, Inc.
c/o Xxxxxx X. Xxxxx, Esq.
Holland & Knight
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
(c) To SkyNet MIA. If to SkyNet MIA, to
Xxxxxx X. Xxxxxxxxx, President.
SkyNet Worldwide Courier
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
(d) To USXP. If to USXP, to
Xxxxxxx X. Xxxxxxxx, President and CEO.
Universal Express, Inc.,
00 Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000.
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15. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties hereto
with respect to the transactions contemplated herein.
17. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without regard to the principles of conflicts
of laws thereunder.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement as of the date first above written.
UNIVERSAL EXPRESS, INC. SKYNET WORLDWIDE COURIER
By /s/XXXXXXX X. XXXXXXXX /s/ XXXXXX X. XXXXXXXXX
---------------------- -----------------------
Xxxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxxxx
President & CEO President
XXXXXXX INVESTMENTS, INC.
By STANDARD NOMINEES' LIMITED
By /s/ /s/ XXXXXX X. XXXXXXXXX
-------------------------- ------------------------
Authorized Signatory Xxxxxx X. Xxxxxxxxx
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