STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of November 28, 2003, among
Universal Express, Inc., a Nevada corporation ("Buyer"), SubContracting
Concepts, Inc., a New York corporation ("SCI"), SubContracting Concepts, Inc., a
Connecticut corporation ("SCI-CN") and SCI Two-Wheel, Inc., a Georgia
corporation ("SCI-GA" and together with SCI and SCI-CN individually and
collectively the "Company") and those individuals executing this Agreement as a
Seller (each a "Seller" and collectively the "Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers are the record and beneficial owner of the shares
(the "Seller Shares") of the issued and outstanding shares of common stock, no
par value per share, of SCI, SCI-CN and SCI-GA, as set forth below:
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SHAREHOLDER SCI SCI-CN SCI-GA
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 65 1625 65
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▇▇▇▇ ▇▇▇▇▇▇▇▇ 30 750 20
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 20 500 20
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 20 500 20
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▇▇▇▇ Gap 55 1375 55
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 10 250 10
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WHEREAS, each Seller desires to sell all of the Seller Shares owned by
that Seller to Buyer and Buyer desires to acquire all of the Seller Shares, each
on the terms and subject to the conditions contained herein (the "Sale");
NOW, THEREFORE, the parties hereto being fully informed in all matters
concerning the Sale and the other matters in connection therewith or addressed
herein and in consideration of the foregoing and the premises set forth in this
Agreement, agree as follows:
ARTICLE I
SALE OF SELLER SHARES
1.1 SALE OF SELLER SHARES. Upon the terms and subject to the conditions of this
Agreement, at the Closing, each Seller will convey, assign, transfer and deliver
to Buyer, and Buyer will acquire and accept from Seller, all right, title and
interest in and to the Seller Shares owned by that Seller, free and clear of any
Lien, claim or encumbrance.
1.2 CONVEYANCE. Such conveyance, assignment, transfer and delivery shall be
effected by delivery by each Seller to Buyer of certificates, duly endorsed or
accompanied by stock powers duly executed in blank with appropriate transfer
stamps, if any, affixed, and any other documents that are necessary to transfer
title to the Seller Shares to Buyer, free and clear of any and all Liens.
1.3 CONSIDERATION. The Purchase Price for the Seller Shares shall be the sum of
Eight Million Dollars ($8,000,000.00), adjusted as provided in section 1.3.2,
hereof, and will be payable, against delivery of the Seller Shares, as follows:
1.3.1
1.3.1.1 At the Closing, as follows: $500,000 in cash or other
immediately available funds, allocated among the Sellers in
accordance with the following ownership percentage (the
"Ownership Percentage)":
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SHAREHOLDER OWNERSHIP PERCENTAGE
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 32.5%
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▇▇▇▇ ▇▇▇▇▇▇▇▇ 15%
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 10%
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 10%
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▇▇▇▇ Gap 27.5%
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 5%
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1.3.1.2 On January 2nd, 2004 Buyer will deliver Five Million
shares of the class A common stock, par value $.005 per share
of Buyer (the "Buyer Stock"), valued at $.10 per share and
allocated among each Seller in accordance with his applicable
Ownership Percentage.
1.3.2 following the Closing in accordance with this subsection:
1.3.2.1 for purposes of this subsection 1.3.2, the following
terms shall have the meaning ascribed to such term in this sub
section ▇.▇.▇.▇:
"Additional Consideration Amount" means a sum
determined as follows: (i) (a) Testing Period NET
PROFITS (b) multiplied by 12.3 less (ii)
$1,000,000.00.
"Additional Consideration Applicable Shares" means,
for any period, the Net Profits Standard divided by
the Applicable Share Price for the period in question.
"AFR" means 5.03%.
"Applicable Share Price" shall mean, in respect of any
share of Buyer Stock on any date herein specified (i)
the average of the per share closing sales price on
each trading day during the current fiscal quarter on
the NASDAQ National Market System ("NASDAQ") or the
principal stock exchange on which such Buyer Stock is
listed or admitted to trading, (ii) if no sale takes
place during such fiscal quarter on NASDAQ or any such
exchange, the average of the reported per share
closing bid and asked prices during the preceding
fiscal quarter as officially quoted on NASDAQ or any
such exchange during the preceding quarter, (iii) if
the Buyer Stock is not then listed or admitted to
trading on NASDAQ or any stock exchange, the average
of the last reported per share closing bid and asked
prices for each day so listed during the immediately
preceding quarter in the over-the-counter market, as
furnished by the National Association of Securities
Dealers Automatic Quotation System or the National
Quotation Bureau, Inc. and (iv) if no such corporation
at the time is engaged in the business of reporting
such prices, then as furnished by (a) any similar firm
then engaged in such business, or (b) if there is no
such firm, as furnished by any member of the NASD
selected mutually by the Buyer and the holders of a
majority of the Seller Shares or, if they cannot agree
upon such selection, as selected by two such members
of the NASD, one of which shall be selected by the
Buyer and one of which shall be selected by the
holders of a majority of the Seller Shares.
"Final Payment Date" means the Payment Date upon which
the total of all additional consideration paid by the
Buyer to the Sellers pursuant to this section 13.2
equals the Additional Consideration Amount.
"Final Payment Amount" is the difference determined by
subtracting the sum of all Payments made by the Buyer
pursuant to this section 13.2 prior to the Final
Payment Date from the Additional Consideration Amount.
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"Fiscal Quarter" shall mean the three calendar month
period ending on March 31, June 30, September 30 and
December 31 of each calendar year.
"Net Income" means, for any period, the net income of
the Company and its subsidiaries, determined on a
consolidated basis in accordance with GAAP as
historically applied in preparing the financial
statements of and for the Company for the fiscal year
ending December 31, 2002; PROVIDED that there shall be
excluded there from the deficit of any person accrued
prior to the date it becomes a subsidiary of the
Company or is merged into or consolidated with the
Company or any of its subsidiaries.
"Net Profits" means, for any period, Net Income for
such period PLUS, without duplication and to the
extent reflected as a charge in the statement of such
Net Income for such period, the sum of (a) income tax
expense, (b) interest expense, amortization or
writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges
associated with any indebtedness, (c) depreciation and
amortization expense, (d) amortization of intangibles
(including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses (including,
whether or not otherwise includable as a separate item
in the statement of such Net Income for such period,
non-cash losses on sales of assets outside of the
ordinary course of business) and (f) any other
non-cash charges, and MINUS, to the extent included in
the statement of such Net Income for such period, the
sum of (i) interest income, (ii) any extraordinary,
unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item
in the statement of such Net Income for such period,
gains on the sales of assets outside of the ordinary
course of business) and (iii) any other non-cash
income, all as determined on a consolidated basis.
"Net Profits Standard" shall mean $650,000.
"Payment Date" is the last day of each Fiscal Quarter
through and including the Final Payment Date.
"Testing Period" shall mean the period of six fiscal
quarters commencing on January 1, 2004 and ending on
June 30, 2005.
"Testing Period Net Profits" shall be determined by
the following formula: (i) sum of the Net Profits for
the Company for each Fiscal Quarter during the Testing
Period (ii) divided by six and (iii) multiplied by
four.
1.3.2.2 As additional consideration for the Seller Shares, on
each Payment Date commencing on March 31, 2004 and ending on
the Final Payment Date, Buyer shall distribute to each Seller
his Ownership Percentage of (i) One Hundred Fifty Thousand
Dollars ($150,000.00) and (ii) that number of shares of Buyer
Stock equal to the sum resulting from dividing One Hundred
Thousand Dollars ($100,000.00) by the Applicable Share Price.
In lieu of delivering that portion of Additional Consideration
pursuant to this section 1.3.2 payable in the form of shares
of Buyer Stock, Buyer may elect to pay all or any portion of
such Additional Consideration payable in shares of Buyer
Stock, in cash valuing each share of Buyer Stock at the
Applicable Share Price.
1.3.2.3 The Company, Buyer and each Seller acknowledges that
computation of Additional Consideration is premised on the
Company being the sole provider of all independent contractor
services to courier and/or same day delivery services provided
by any subsidiary, affiliate and/or associate of the Buyer
following the Closing and the Company's provision of the same
in materially the same manner as such services are provided by
the Company prior to the Closing. The Company, each Seller and
the Buyer further acknowledges if either (i) the operation of
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the Company is changed by the Purchaser and/or otherwise after
the Closing or (ii) any affiliate, associate or subsidiary of
the Buyer, other than the Company, provides any independent
contractor services to courier and/or same day delivery
services after the Closing, the Additional Consideration
Amount payable pursuant to this section 13.2 shall equal Seven
Million Dollars ($7,000,000.00) and shall be paid in 28 equal
payments of $250,000.00 payable on each Payment Date until
December 31, 2010.
1.3.2.4 Without limiting any other provision hereof, on each
Payment Date in addition to any sum otherwise payable
hereunder, including sums payable pursuant to the final
sentence of sub section 1.3.2.3, the Buyer shall remit to the
Seller an amount equal to the unpaid portion of the Additional
Consideration Amount as of the first day of the fiscal quarter
in which such Payment Date occurs multiplied by twenty five
percent of the AFR.
1.3.3 The obligations of the Buyer to each Seller pursuant to sub
section 1.3.2 shall be secured by a pledge Agreement in the form
attached hereto as Exhibit "B" pursuant to the terms of which the Buyer
shall pledge the Seller Shares to each Seller. If the Buyer shall fail
to make all payments due under subsection 1.3 on three consecutive
Payment Dates or fails to make all payments due under subsection 1.3 on
five Payment Dates, consecutive or otherwise, then any seller may avail
itself of its rights under the Pledge Agreement, in addition to
enforcing its rights at law or in equity hereunder, or otherwise.
ARTICLE II
CLOSING
2.1 CLOSING. The Closing of the Sale (the "Closing") will take place on December
1, 2003 at the offices of the Company at 10:00 a.m. unless another date, time or
place is agreed to by the parties hereto. All matters at the Closing will be
considered to take place simultaneously, and no delivery of any document will be
deemed completed until all transactions and delivery of documents are completed.
2.2 DELIVERIES OF THE SELLERS AND THE COMPANY. At the Closing, each Seller will
execute and deliver or cause to be executed and delivered to Buyer:
2.2.1 STOCK CERTIFICATES. Stock Certificates evidencing the Seller's
Shares held by that Seller, each duly endorsed or accompanied by stock
powers duly executed in blank with appropriate transfer stamps, if any,
affixed, and any other documents that are necessary to transfer title
to the Seller's Shares to Buyer, free and clear of any and all Liens,
claims and/or encumbrances;
2.2.2 RESIGNATIONS. Resignations effective as of the Closing
of all members of the Board of Directors and officers of the
Company;
2.2.3 CERTIFICATE(S) OF GOOD STANDING. Certificate(s) of Good Standing,
dated not more than thirty (30) days prior to the Closing Date, with
respect to each entity comprising the Company issued by the office of
the state of such entities incorporation;
2.2.4 BOARD RESOLUTIONS. A copy of the resolutions of the Board of
Directors of each entity comprising the Company, certified by the
secretary of that entity, as having been duly and validly adopted and
in full force and effect authorizing execution and delivery of this
Agreement and performance by each entity comprising the Company of the
transactions contemplated hereby;
2.3 DELIVERIES OF BUYER. At the Closing, Buyer will deliver to each Seller,
simultaneously with delivery of the items referred to in Section 2.2 above,
payment of the purchase price payable at closing in cash, wire transfer or other
immediately available funds pursuant to sub section 1.3.1.1 and deliver of Stock
Certificates on January 2nd, 2004 in the name of each Seller evidencing the
shares of Buyer Stock to be delivered to that Seller pursuant to sub section
1.3.1.2 with appropriate transfer stamps, if any, affixed, and any other
documents that are necessary to evidence ownership of such Buyer's Shares by
that Seller, free and clear of any and all Liens, claims and/or encumbrances.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each Seller hereby represents, warrants and covenants to the Buyer, all such
representations, warranties and covenants being effective as of the date of this
Agreement, as follows:
3.1 BROKERS. The Buyer does not have nor will have, any obligation to pay any
broker's, finder's, investment banker's, financial adviser's or similar fee in
connection with this Agreement or the transactions contemplated hereby by reason
of any action taken by or on behalf of that Seller or the Company.
3.2 CAPITALIZATION OF THE COMPANY. As of the date hereof, the entire (i)
authorized capital stock, (ii) all validly issued, fully paid and nonassessable
outstanding shares, and (iii) all shares held in treasury for each entity
comprising the Company is set forth below:
------------------ ---------------- ------------------- ----------------------
Corporation Authorized Outstanding Treasury
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SCI 400 200 200
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SCI-CN 5000 5000 0
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SCI-GA 100000 200 99800
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3.3 OWNERSHIP OF SHARES; TITLE. That Seller is the owner of record and
beneficially of the Seller Shares; the Seller Shares represent such Seller's
Ownership Percentage of the issued and outstanding capital stock of each entity
comprising the Company. At the Closing that Seller shall transfer to Buyer good
and marketable title to the Seller Shares held by the Seller, free and clear of
any and all security interests, Liens, encumbrances, proxies and voting or other
agreements, except restrictions on transfer imposed by applicable federal and
state securities laws. There are no outstanding options, warrants, calls, rights
or commitments, or any other agreements of any character binding on the Company
with respect to the issued or unissued capital stock of the Company or
obligating the Company to issue, transfer or sell, or cause to be issued,
transferred or sold, any shares of capital stock of, or other equity interests
in, the Company or securities convertible into or exchangeable for such shares,
or equity interests, or obligating the Company to grant, extend or enter into
any such option, warrant, call, right, commitment or other agreement. There are
no contractual obligations of the Company to repurchase, redeem or otherwise
acquire any shares of capital stock of the Company. There are no voting trusts,
proxies or other agreements or understandings to which the Company or that
Seller is a party or is bound with respect to voting any shares of capital stock
of the Company.
3.4 ORGANIZATION AND STANDING. Each entity constituting the Company is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, is duly qualified to do business as a foreign
corporation and is in good standing in the states of the United States and
foreign jurisdictions where its ownership or leasing of property or the conduct
of its business requires it to be so qualified.
3.5 CONSENTS TO CONSUMMATION. No consent, approval or other action of any third
party is required to be obtained, and no notice or filing is required to be
provided or made, by the Seller or the Company in connection with the
transactions contemplated in this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents, warrants and covenants to each Seller as follows:
4.1 ORGANIZATION AND STANDING/SUBSIDIARY. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada, is
duly qualified to do business as a foreign corporation and is in good standing
in the states of the United States and foreign jurisdictions where its ownership
or leasing of property or the conduct of its business requires it to be so
qualified. The Buyer has those subsidiaries set forth on Exhibit "D".
4.2 POWER AND AUTHORITY. This Agreement constitutes the valid and binding
obligation of the Buyer, enforceable against it in accordance with its terms.
The Buyer has all requisite right, power and authority to execute and deliver
this Agreement and to perform all of its obligations under this Agreement.
4.3 NO CONFLICTS. Neither the execution and delivery of this Agreement by the
Buyer nor the consummation by the Buyer of the transactions contemplated hereby
(either at the Closing or with notice or lapse of time) will violate or conflict
with (i) the Buyer's Certificate of Incorporation or Bylaws, or (ii) any
judgment, ruling, order, writ, injunction, decree, statute, rule or regulation
applicable to the Buyer or any of its respective properties or assets.
4.4 BROKERS AND FINDERS. No Seller or the Company has and will not have any
obligation to pay any broker's, finder's, investment banker's, financial
adviser's or similar fee in connection with this Agreement or the transactions
contemplated hereby by reason of any action taken by or on behalf of Buyer.
4.5 CONSENTS TO CONSUMMATION. No consent, approval or other action of any third
party is required to be obtained by the Buyer in connection with the
transactions contemplated in this Agreement.
ARTICLE V
COVENANTS AND ADDITIONAL AGREEMENTS
5.1 ANNOUNCEMENTS. Until the completion of the Closing, neither any Seller nor
the Company, on the one hand, nor Buyer, on the other hand, or any
representative thereof, shall issue any press releases or otherwise make any
public statement with respect to the transactions contemplated hereby without
the prior written consent of all other parties.
5.2 ADDITIONAL AGREEMENTS. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
at its own expense to take, or cause to be taken, all action and to do, or cause
to be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement. In case at any time after the Closing any further action is
necessary or desirable to carry out the purposes of this Agreement, the proper
officers of the Buyer, the Company and each Seller shall take all such necessary
action.
5.3 POST CLOSING OPERATIONS. Until the payment of the Additional Consideration
in full, the Buyer will operate Company in the manner as the same has
historically been operated prior to the Closing and shall operate the same as a
wholly owned subsidiary of the Buyer and shall not allocate any expenses of any
entity, including the Buyer, to the Company during the Testing Period.
5.4 CAPTIVE INSURER. The Buyer shall finance the establishment of a captive
insurance fund or acquire a captive insurer for the benefit of the business of
the Company as an operating subsidiary of the Buyer. Any such funding will be
made when these funds are available to USXP
5.5 RETAINED EARNINGS. The Buyer on behalf of itself and the Company post
closing does hereby acknowledge that the Company has an amount equal to the
retained earnings of the Company reflected on its books and records as of
November 30, 2003. The Seller shall have these retained earnings distributed on
or before March 31st, 2004.
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5.6 PROMISSORY NOTE. Prior to the Closing, the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
shall enter into a modification agreement pursuant to terms of which the Company
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ shall modify the Company's obligations to him in the
principal amount of $200,000.00 so that the same is payable by the Company no
later than June 30, 2004.
5.7 AFFILIATES. The Buyer acknowledges that it has been apprised of the
affiliates of the Company as identified on Exhibit "A" and understands that the
same are not owned and/or controlled by the Company and the acquisition of the
Seller Shares will not transfer any ownership interests in or right to control
or participate in the control of such entities to the Company and/or the Buyer.
5.8 OBLIGATIONS. The Buyer shall provide the Company or arrange for the
provision to the Company of all financing necessary for the operation of the
Company post closing, including, but not limited to the financing and funds
required or contemplated by Exhibit "C", attached hereto and incorporated by
reference herein.
5.9 INSPECTION. Subject to confidentiality obligations and similar restrictions
that may be applicable to information furnished to the Company by third parties
that may be in the Company's possession from time to time (including
restrictions on the disclosure of government-classified information), prior to
the Closing, the Company shall allow Buyer and its accountants, counsel and
other representatives reasonable access, during normal business hours, by
advance arrangement with the Company's management and in the presence of
representatives of the Company and in such manner so as not to interfere unduly
with the Company's operations, to all of the properties, books, contracts,
commitments, tax returns and records of its business and appropriate officers
and employees, and shall furnish such representatives, at Buyer's expense for
copying only, with all financial and operating data and other information
concerning its affairs as Buyer may reasonably request and acceptable to the
Company.
ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF BUYER TO EFFECT THE CLOSING
The obligations of Buyer required to be performed by it at the Closing
shall be subject to the satisfaction, at or prior to the Closing, of each of the
following conditions, each of which may be waived by Buyer as provided herein
except as otherwise required by applicable law:
6.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS; COVENANTS. Each of the
representations and warranties of the Company and the Sellers contained in this
Agreement shall be true and correct in all material respects as of the date
hereof shall be true and correct in all material respects as of the Closing.
Each of the obligations of the Company and the Sellers required by this
Agreement to be performed by them at or prior to the Closing shall have been
duly performed and complied with in all material respects as of the Closing.
6.2 AUTHORIZATION; CONSENTS. All corporate action necessary to authorize the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby shall have been duly and validly taken by
the Company.
6.3 ABSENCE OF LITIGATION. No order, stay, injunction or decree of any court of
competent jurisdiction in the United States shall be in effect (i) that prevents
or delays the Sale or (ii) would impose any limitation on the ability of Buyer
effectively to exercise full rights of ownership of the Seller Shares. No
action, suit or proceeding before any court or any Governmental Entity shall be
pending or threatened, and no investigation by any Governmental Entity shall
have been commenced (and be pending), seeking to restrain or prohibit (or
questioning the validity or legality of) the Sale or seeking damages in
connection therewith which Buyer, in good faith and with the advice of counsel,
believes makes it undesirable to proceed with the Sale.
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6.4 LEGAL MATTERS. All certificates, instruments, opinions and other documents
required to be executed or delivered by or on behalf of each Seller and the
Company under the provisions of this Agreement, and all other actions and
proceedings required to be taken by or on behalf of the Seller and the Company
in furtherance of the Sale pursuant to the terms of this Agreement, shall be
reasonably satisfactory in form and substance to counsel for Buyer.
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF THE SELLERS
TO EFFECT THE CLOSING
The obligations of the Sellers required to be performed by them at the
Closing shall be subject to the satisfaction, at or prior to the Closing, of
each of the following conditions, each of which may be waived by any Seller as
provided herein except as otherwise required by applicable law:
7.1 REPRESENTATIONS AND WARRANTIES; AGREEMENTS. Each of the representations and
warranties of Buyer contained in this Agreement shall be true and correct in all
material respects on the date made and shall be true and correct in all material
respects as of the Closing. Each of the obligations of Buyer required by this
Agreement to be performed by it at or prior to the Closing shall have been duly
performed and complied with in all material respects as of the Closing.
7.2 AUTHORIZATION OF THE AGREEMENT; CONSENTS. All corporate action necessary to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by Buyer.
7.3 ABSENCE OF LITIGATION. No order, stay, injunction or decree of any court of
competent jurisdiction in the United States shall be in effect that prevents or
delays the Sale. No action, suit or proceeding before any Governmental Entity
shall be pending or threatened, and no investigation by any Governmental Entity
shall have been commenced (and be pending), seeking to restrain or prohibit (or
questioning the validity or legality of) the Sale or seeking damages in
connection therewith which Seller, in good faith and with the advice of counsel,
believes makes it undesirable to proceed with the Sale.
7.4 LEGAL MATTERS. All certificates, instruments, opinions and other documents
required to be executed or delivered by or on behalf of Buyer under the
provisions of this Agreement, and all other actions and proceedings required to
be taken by or on behalf of Buyer in furtherance of the Sale pursuant to the
terms of this Agreement, shall be reasonably satisfactory in form and substance
to counsel for the Sellers.
7.5 ▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇ AGREEMENTS. At the Closing the Buyer shall enter into
Employment Agreement/Consulting Agreements with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ in such form as each of them in his sole discretion shall agree.
ARTICLE VIII
MISCELLANEOUS
8.1 HEADINGS. The section headings herein are for convenience of reference only,
do not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
8.2 NOTICES. All notices or other communications required or permitted hereunder
shall be given in writing and shall be deemed sufficient if delivered by hand,
recognized overnight delivery service or mailed by registered or certified mail,
postage prepaid (return receipt requested), as follows:
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If to the Company:
SubContracting Concepts, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
If to any Seller: with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: P. ▇▇▇▇▇ ▇▇▇▇ Esq.
If to Buyer:
Universal Express, Inc.
1230 Avenue of the Americas
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: President
or such other address as shall be furnished in writing by such party, and any
such notice or communication shall be effective and be deemed to have been given
as of the date so delivered or three (3) days after the date so mailed;
PROVIDED, HOWEVER, that any notice or communication changing any of the
addresses set forth above shall be effective and deemed given only upon its
receipt.
8.3 ASSIGNMENT. This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, PROVIDED, HOWEVER, that neither this Agreement
nor any of the rights, interests, or obligations hereunder may be assigned by
any of the parties hereto without the prior written consent of the other
parties.
8.4 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties with respect to the transactions contemplated
hereby and supersedes all prior written or oral commitments, arrangements or
understandings between the parties with respect thereto and all prior drafts of
this Agreement. There are no restrictions, agreements, promises, warranties,
covenants or undertakings with respect to the transactions contemplated hereby
other than those expressly set forth herein.
8.5 WAIVER AND AMENDMENTS. Each Seller and the Company as one party, and Buyer
as the other party may by written notice to the other parties (i) extend the
time for the performance of any of the obligations or other actions of the other
parties, (ii) waive any inaccuracies in the representations or warranties of the
other parties contained in this Agreement, (iii) waive compliance with any of
the covenants of the other parties contained in this Agreement, (iv) waive
performance of any of the obligations of the other parties created under this
Agreement, or (v) waive fulfillment of any of the conditions to its own
obligations under this Agreement. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any subsequent breach, whether or not similar. This Agreement may be amended,
modified or supplemented only by a written instrument executed by the parties
hereto.
8.6 COUNTERPARTS. This Agreement may be executed by facsimile signature(s) and
in any number of counterparts, all of which shall be considered one and the same
agreement and each of which shall be deemed an original.
8.7 SEVERABILITY. If any one or more of the provisions of this Agreement shall
be held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions of this Agreement shall not be
affected thereby. To the extent permitted by applicable law, each party waives
any provision of law that renders any provision of this Agreement invalid,
illegal or unenforceable in any respect.
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8.8 TIME IS OF THE ESSENCE. Time is of the essence for purposes of this
Agreement.
8.9 GOVERNING LAW/JURSIDICTION. This Agreement shall be governed under the laws
of the State of New York without regard to conflict of law principles. Each
Party hereto submits to the jurisdiction of any federal or state court located
in New York, Albany or ▇▇▇▇▇▇ County, New York.
11.10 INTERPRETATION. When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement they shall be deemed to be followed by the words "without
limitation."
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
UNIVERSAL EXPRESS, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
By:
Its:
SUBCONTRACTING CONCEPTS, INC.,
a New York corporation
SubContracting Concepts, Inc.,
a Connecticut corporation
SCI Two-Wheel, Inc.,
a Georgia corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Its: President
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇ ▇▇▇▇
------------------
▇▇▇▇ ▇▇▇▇
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT "A"
Company Affiliates
o TOTAL BENEFITS MANAGEMENT, INC (TBM)
o Employee Leasing Company (PEO) with over 2,000 employees. TBM
acts as the staff leasing firm for many SCI customers in
supplying non-qualifying couriers and internal clerical positions
o ▇▇▇ and family own 50%
o (▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ )
o CONTRACTOR RESOURCE SOLUTIONS, INC (CRS)
o 3rd Party I/C administrator for the trucking industry.
o Owned by ▇▇▇, ▇▇▇▇ and ▇▇▇▇
o (▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇)
------------------
o RE-LEASE, LLC
o Equipment lease Management Company dealing in rolling stock and
communications equipment.
o Owned by ▇▇▇, Rob and Phil
o (▇▇▇.▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇)
--------------------
o CONSULTECH, LLC
o Labor law specialist consulting company owned by one of the SCI
partners.
o Consultech handles all SCI & CRS unemployment and IRS issues.
o ▇▇▇▇ owns 100% (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇)
-----------------------
o CREATIVE INSURANCE MANAGERS, INC (CIM)
o Licensed Retail insurance agency / broker
o Owned by ▇▇▇ and Phil
o CORPORATE DEVELOPMENT SERVICES INC (CDS)
o Software and data processing company specializing in custom
designed programming.
o Owned by Bob, Scott, ▇▇▇▇ and ▇▇▇ (▇▇▇.▇▇▇▇▇▇▇.▇▇▇ )
---------------
o ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ INC.
o Owned by Rob and ▇▇▇ 60/40%
o (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ )
o SAMEDAY CONSULTING
o Consulting for the expedited delivery business. Rob 100%
o ( ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ )
o REAL DEAL AUTHENTICATORS INC. (RDA)
o Claim Management and Work Comp hearing representation.
o Rob 100% (▇▇▇.▇▇▇▇▇-▇▇▇▇▇.▇▇▇ )
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Effective as of November 28, 2003, the shareholders of SubContracting Concepts,
Inc., a New York corporation, SubContracting Concepts, Inc., a Connecticut
corporation and SCI Two-Wheel, Inc., a Georgia corporation (collectively the
"Company") entered into a Stock Purchase Agreement with Universal Express, Inc.
("USXP"). Pursuant to that agreement as of December 1, 2002, these shareholders
sold all of the issued and outstanding shares of stock in each of these entities
(the "Seller Shares") to Universal Express, Inc. ("USXP"). USXP has provided and
has agreed to provide the following consideration for this transfer: (i)
$500,000 as of the Closing Date; (ii) 5,000,000 million shares of USXP's Class A
Common Stock; (iii) additional consideration. The additional consideration
amount is equal to (a) the annualized net profits made by the Company from
January 1, 2004 - June 30, 2005, (b) multiplied by 12.3 and (c) less $1,000,000.
The additional consideration, estimated to be approximately $7,000,000.00, is
payable at the rate of $250,000 per quarter until paid in full. Sixty percent of
the additional consideration is payable in cash and forty percent at the option
of USXP can be is paid in cash or stock. USXP's obligations for the additional
consideration is secured by a pledge of the Seller Shares.
EXHIBIT "B"
PLEDGE AGREEMENT
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EXHIBIT "C"
FINANCING NEEDS
Cash Flow Requirements
DESCRIPTION WHEN AMOUNT
Cash Payment Closing $500,000
Retained Earnings (est) 3/31/04 $435,000
Loan to ▇▇▇ 6/30/04 $200,000
Line of Credit* Closing $500,000
*Currently this line is at $400,000 and needs to be transferred to USXP
1st Quarter payment 3/31/04 $150,000
2nd Quarter payment 6/30/04 $150,000
3rd Quarter payment 9/30/04 $150,000
4th Quarter payment 12/31/04 $150,000
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EXHIBIT "D"
BUYER SUBSIDIARY(IES)
Such subsidiaries as appear in the current 10-Q and 10-K of the Buyer
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