______________________________________________________________________________
ASSET PURCHASE AGREEMENT
Dated as of MAY 8, 2023
by and between
GETAROUND, INC., as Purchaser,
and
HYRECAR INC., as Seller.
______________________________________________________________________________
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TABLE OF CONTENTS
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TABLE OF CONTENTS
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Article I Purchase and Sale of the Acquired Assets; Assumption of Assumed Liabilities | 4 | |
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1.1 | Purchase and Sale of the Acquired Assets | 4 |
1.2 | Excluded Assets | 5 |
1.3 | Assumption of Certain Liabilities | 5 |
1.4 | Excluded Liabilities | 6 |
1.5 | Assumption/Rejection of Certain Contracts | 6 |
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Article II Consideration; Payment; Closing | 8 | |
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2.1 | Consideration; Payment | 8 |
2.2 | Closing | 8 |
2.3 | Closing Deliveries by Seller | 8 |
2.4 | Closing Deliveries by Purchaser | 9 |
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Article III Representations and Warranties of Seller | 10 | |
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3.1 | Organization and Qualification | 10 |
3.2 | Authorization of Agreement | 10 |
3.3 | Conflicts; Consents | 10 |
3.4 | Assigned Contracts | 10 |
3.5 | Brokers | 11 |
3.6 | Due Diligence | 11 |
3.7 | No Additional Representations or Warranties | 11 |
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Article IV Representations and Warranties of Purchaser | 11 | |
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4.1 | Organization and Qualification | 11 |
4.2 | Authorization of Agreement | 12 |
4.3 | Conflicts; Consents | 12 |
4.4 | Financing | 12 |
4.5 | Brokers | 13 |
4.6 | No Litigation | 13 |
4.7 | Certain Arrangements | 13 |
4.8 | Solvency | 13 |
4.9 | No Additional Representations or Warranties | 13 |
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Article V Bankruptcy Court Matters | 14 | |
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5.1 | Bankruptcy Actions | 14 |
5.2 | Cure Costs | 15 |
5.3 | Sale Order | 15 |
5.4 | Approval | 16 |
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Article VI Covenants and Agreements | 16 | |
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6.1 | Conduct of Business of Seller | 16 |
6.2 | Access to Information | 17 |
6.3 | Reasonable Efforts; Cooperation | 18 |
6.4 | Further Assurances; Receipt of Misdirected Assets | 18 |
6.5 | Employees | 19 |
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Article VII Conditions to Closing | 19 | |
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7.1 | Conditions Precedent to the Obligations of Purchaser and Seller | 19 |
7.2 | Conditions Precedent to the Obligations of Purchaser | 19 |
7.3 | Conditions Precedent to the Obligations of Seller | 20 |
7.4 | Waiver of Conditions | 20 |
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Article VIII Termination | 21 | |
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8.1 | Termination of Agreement | 21 |
8.2 | Effect of Termination | 22 |
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Article IX Taxes | 22 | |
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9.1 | Transfer Taxes | 22 |
9.2 | Allocation of Purchase Price | 23 |
9.3 | Cooperation | 23 |
9.4 | Preparation of Tax Returns and Payment of Taxes | 23 |
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Article X Miscellaneous | 23 | |
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10.1 | Non-Survival of Representations and Warranties and Certain Covenants; Certain Waivers | 23 |
10.2 | Expenses | 23 |
10.3 | Notices | 24 |
10.4 | Binding Effect; Assignment | 25 |
10.5 | Amendment and Waiver | 25 |
10.6 | Third Party Beneficiaries | 25 |
10.7 | Non-Recourse | 25 |
10.8 | Severability | 25 |
10.9 | Construction | 26 |
10.10 | Schedules | 26 |
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10.11 | Complete Agreement | 26 |
10.12 | Specific Performance | 26 |
10.13 | Jurisdiction and Exclusive Venue | 27 |
10.14 | Governing Law; Waiver of Jury Trial | 27 |
10.15 | Counterparts and PDF | 28 |
10.16 | Bulk Sales Laws | 28 |
10.17 | Fiduciary Obligations | 28 |
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Article XI Additional Definitions and Interpretive Matters | 29 | |
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11.1 | Certain Definitions | 29 |
11.2 | Index of Defined Terms | 33 |
11.3 | Rules of Interpretation | 33 |
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INDEX OF SCHEDULES
Schedule 1.3(b) Designated Contracts
Schedule 3.3 Seller Conflicts; Consents
Schedule 4.3 Purchaser Conflicts; Consents
Schedule 6.1 Conduct of Business of Seller
Schedule 9.2 Allocation
Schedule 11.1(m) Critical Vendor List
Schedule 11.1(z) Permitted Encumbrances
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Asset Purchase Agreement
This Asset Purchase Agreement (this “Agreement XE “Agreement” ”), dated as of May 8, 2023, is made by and between Getaround, Inc., a Delaware corporation, or an entity to be formed by Getaround, Inc. (“Purchaser XE “Purchaser” ”), and HyreCar Inc., a Delaware corporation (“Seller XE “Seller” ”). Purchaser and Seller are referred to herein individually as a “Party XE “Party” ” and collectively as the “Parties XE “Parties” .” Capitalized terms used herein shall have the meanings set forth herein or in Article XI.
WHEREAS, on February 24, 2023 (the “Petition Date”), Seller filed a voluntary petition for relief under chapter 11 of the United States Bankruptcy Code, 11 U.S.C. §§ 101-1532 (the “Bankruptcy Code XE “Bankruptcy Code” ”), in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court XE “Bankruptcy Court” ”) thereby commencing a chapter 11 bankruptcy case (the “Bankruptcy Case XE “Bankruptcy Case” ”).
WHEREAS, Purchaser desires to purchase the Acquired Assets (as defined below) and assume the Assumed Liabilities (as defined below) from Seller, and Seller desires to sell, convey, assign, and transfer to Purchaser the Acquired Assets together with the Assumed Liabilities, in a sale authorized by the Bankruptcy Court pursuant to, inter alia, sections 105, 363, and 365 of the Bankruptcy Code, and in accordance with the other applicable provisions of the Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and the local rules for the Bankruptcy Court, all on the terms and subject to the conditions set forth in this Agreement and the Sale Order.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements set forth herein, intending to be legally bound hereby, Purchaser and Seller hereby agree as follows.
Purchase and Sale of the Acquired Assets;
Assumption of Assumed Liabilities
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Consideration; Payment; Closing
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Representations and Warranties of Seller
Except as (i) disclosed in any forms, statements or other documents filed with the Bankruptcy Court or (ii) set forth in the Schedules delivered by Seller concurrently herewith and subject to Section 10.10, Seller represents and warrants to Purchaser as follows.
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Representations and Warranties of Purchaser
Purchaser represents and warrants to Seller as follows.
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Bankruptcy Court Matters
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Covenants and Agreements
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Conditions to Closing
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Termination
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Taxes
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Miscellaneous
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Notices to Purchaser:
Getaround, Inc.
Attention: Spencer Jackson
Email: legal@getaround.com
with a copy to (which shall not constitute notice):
DBS Law
155 NE 100th St., Suite 205
Seattle, WA 98125
Attention: Daniel Bugbee
Email: dbugbee@lawdbs.com
Dominique Scalia
dscalia@lawdbs.com
Notices to Seller:
HyreCar Inc.
915 Wilshire Boulevard, Suite 1950
Los Angeles, CA 90017
Attention: Eduardo Iniguez
Email: eduardo.iniguez@hyrecar.com
with a copy to (which shall not constitute notice):
Greenberg Glusker Fields Claman & Machtinger LLP
2049 Century Park East, 26th Floor
Los Angeles, CA. 90067
Attn: Brian L. Davidoff
Email: bdavidoff@greenbergglusker.com
Jonathan Shenson
jshenson@greenberggluser.com
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Additional Definitions and Interpretive Matters
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[Signature page(s) follow.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized officers as of the date first above written.
SELLER:
HyreCar Inc.
By: /s/ Eduardo Iniguez
Name: Eduardo Iniguez
Title: Chief Executive Officer
PURCHASER:
Getaround, Inc.
By: /s/ Sam Zaid
Name: Sam Zaid
Title: Chief Executive Officer
Signature Page to Asset Purchase Agreement