EXHIBIT 2.2
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SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT ("Agreement"), dated as of August 25,
2005, is by and among Xxxx Xxxxxxx Cigar Corporation, a Florida corporation (the
"Company") and Online Vacation Center Holdings, Inc., a Florida corporation
("Acquisition"); and the shareholders of Acquisition identified on Schedule 1.1,
constituting all of the shareholders of Acquisition (hereinafter collectively
referred to as the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders own 100% of the issued and outstanding
capital stock of Acquisition (the "Equity Interests");
WHEREAS, Acquisition currently provides vacation services through its
wholly owned operating subsidiary, Online Vacation Center, Inc.;
WHEREAS, the Company desires to acquire from the Shareholders, and the
Shareholders desire to sell to the Company, all of the Equity Interests in
exchange (the "Exchange") for the issuance by the Company of an aggregate of up
to 15,000,000 shares (the "Company Shares") of the Company's common stock, par
value $.0001 per share (the "Company Common Stock") making Acquisition a
wholly-owned subsidiary of the Company, on the terms and conditions set forth
below;
NOW, THEREFORE, in consideration of the promises and of the mutual
representations, warranties and agreements set forth herein, the parties hereto
agree as follows:
ARTICLE I
EXCHANGE
1.1 Exchange. Subject to (i) the terms and conditions of this Agreement
on the Closing Date (as hereinafter defined):
(a) The Company shall issue and deliver the Company Shares to the
Shareholders allocated in the amounts designated on Schedule 1.1, which Shares
shall constitute approximately 89% of the Company's issued and outstanding
capital stock on a fully diluted basis after giving effect to the Exchange and
Asset Purchase Agreement (as hereinafter defined).
(b) As the consideration, the Shareholders shall transfer to the
Company the Equity Interests in Acquisition.
1.2 Time and Place of Closing. The closing of the transactions
contemplated hereby (the "Closing") shall take place at the offices of Xxxxxx &
Xxxx, LLP, 000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000, Xxxx Xxxxxxxxxx, Xxxxxxx
00000 on the first business day following the effectiveness of the Information
Statement described herein (the "Closing Date") or at such other place as the
Company and Acquisition may agree.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Acquisition and the Shareholders
that as of the Closing of this Agreement and the closing of the Asset Purchase
Agreement dated even herewith by and between Xxxx Xxxxx and the Company ("Asset
Purchase Agreement"):
2.1 Due Organization and Qualification; Due Authorization.
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of formation, with full
corporate power and authority to own, lease and operate its respective business
and properties and to carry on its respective business in the places and in the
manner as presently conducted or proposed to be conducted. The Company is in
good standing as a foreign corporation in each jurisdiction in which the
properties owned, leased or operated, or the business conducted, by it requires
such qualification except for any such failure, which when taken together with
all other failures, is not likely to have a material adverse effect on the
business of the Company taken as a whole.
(b) The Company does not own, directly or indirectly, any capital
stock, equity or interest in any corporation, firm, partnership, joint venture
or other entity.
(c) The Company has all requisite corporate power and authority to
execute and deliver this Agreement, and to consummate the transactions
contemplated hereby and thereby. The Company has taken all corporate action
necessary for the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, and this Agreement constitutes the
valid and binding obligation of the Company, enforceable against the Company in
accordance with its respective terms, except as may be affected by bankruptcy,
insolvency, moratoria or other similar laws affecting the enforcement of
creditors' rights generally and subject to the qualification that the
availability of equitable remedies is subject to the discretion of the court
before which any proceeding therefore may be brought.
2.2 No Conflicts or Defaults. The execution and delivery of this
Agreement by the Company and the consummation of the transactions contemplated
hereby do not and shall not (a) contravene the Articles of Incorporation or
Bylaws of the Company or (b) with or without the giving of notice or the passage
of time (i) violate, conflict with, or result in a breach of, or a default or
loss of rights under, any material covenant, agreement, mortgage, indenture,
lease, instrument, permit or license to which the Company is a party or by which
the Company is bound, or any judgment, order or decree, or any law, rule or
regulation to which the Company is subject, (ii) result in the creation of, or
give any party the right to create, any lien, charge, encumbrance or any other
right or adverse interest ("Liens") upon any of the assets of the Company, (iii)
terminate or give any party the right to terminate, amend, abandon or refuse to
perform, any material agreement, arrangement or commitment to which the Company
is a party or by which the Company's assets are bound, or (iv) accelerate or
modify, or give any party the right to accelerate or modify, the time within
which, or the terms under which, the Company is to perform any duties or
obligations or receive any rights or benefits under any material agreement,
arrangement or commitment to which it is a party.
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2.3 Capitalization. The authorized capital stock of the Company
immediately prior to giving effect to the Asset Purchase Agreement consists of
30,000,000 shares of Common Stock par value $.0001 per share, of which 1,799,777
shares are issued and outstanding and 1,000,000 shares of Preferred Stock, none
of which are outstanding. All of the outstanding shares of capital stock are,
and the Company Shares when issued in accordance with the terms hereof will be,
duly authorized, validly issued, fully paid and non-assessable, and have not
been or, with respect to the Company Shares, will not be, issued in violation of
any preemptive right of stockholders. The Company Shares are not subject to any
preemptive or subscription right, any voting trust agreement or other contract,
agreement, arrangement, option, warrant, call, commitment or other right of any
character obligating or entitling the Company to issue, sell, redeem or
repurchase any of its securities, and there is no outstanding security of any
kind convertible into or exchangeable for Common Stock. The Company has not
granted registration rights to any person.
2.4 Financial Statements. Schedule 2.4 contains copies of the
consolidated balance sheet of the Company at December 31, 2004 and the related
statements of operations, stockholders' equity and cash flows for the fiscal
year then ended, including the notes thereto, as audited by Xxxxxx, Xxxxxxxx &
Associates, certified public accountants and the unaudited balance sheet of the
Company at June 30, 2005, and the related consolidated statements of operations,
stockholders' equity and cash flows for the six month period then ended prepared
by the Company's management (the "Company Financial Statements"). The Company
Financial Statements have been prepared in accordance with U.S. generally
accepted accounting principles applied on a basis consistent throughout all
periods presented, subject to, in the case of the interim statements, audit
adjustments, which are not expected to be material. Such statements present
fairly the financial position of the Company as of the dates and for the periods
indicated. The books of account and other financial records of the Company have
been maintained in accordance with good business practices.
2.5 Further Financial Matters. The Company does not have any
liabilities or obligations, whether secured or unsecured, accrued, determined,
absolute or contingent, asserted or unasserted or otherwise, which are required
to be reflected or reserved in a balance sheet or the notes thereto under
generally accepted accounting principles, but which are not reflected in the
Company Financial Statements.
2.6 Taxes. The Company has filed all United States federal, state,
county, local and foreign national, provincial and local returns and reports
which were required to be filed on or prior to the date hereof in respect of all
income, withholding, franchise, payroll, excise, property, sales, use, value
added or other taxes or levies, imposts, duties, license and registration fees,
charges, assessments or withholdings of any nature whatsoever (together,
"Taxes"), and has paid all Taxes (and any related penalties, fines and interest)
which have become due pursuant to such returns or reports or pursuant to any
assessment which has become payable, or, to the extent its liability for any
Taxes (and any related penalties, fines and interest) has not been fully
discharged, the same have been properly reflected as a liability on the books
and records of the Company and adequate reserves therefore have been
established. All such returns and reports filed on or prior to the date hereof
have been properly prepared and are true, correct (and to the extent such
returns reflect judgments made by the Company, as the case may be, such
judgments were reasonable under the circumstances) and complete in all material
respects. No tax return or tax
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return liability of the Company or such subsidiary has been audited or,
presently under audit. The Company has not given or been requested to give
waivers of any statute of limitations relating to the payment of any Taxes (or
any related penalties, fines and interest). There are no claims pending or, to
the knowledge of the Company, threatened, against the Company or such subsidiary
for past due Taxes. All payments for withholding taxes, unemployment insurance
and other amounts required to be paid for periods prior to the date hereof to
any governmental authority in respect of employment obligations of the Company
or such subsidiary, including, without limitation, amounts payable pursuant to
the Federal Insurance Contributions Act, have been paid or shall be paid prior
to the Closing and have been duly provided for on the books and records of the
Company and in the Company Financial Statements.
2.7 Indebtedness; Contracts; No Defaults.
(a) There are no material instruments, agreements, indentures,
mortgages, guarantees, notes, commitments, accommodations, letters of credit or
other arrangements or understandings, whether written or oral, to which the
Company is a party (collectively, the "Company Agreements").
(b) Neither the Company nor, to the Company's knowledge, any other
person or entity is in breach in any material respect of, or in default in any
material respect under, any material contract, agreement, arrangement,
commitment or plan to which the Company is a party, and no event or action has
occurred, is pending or is threatened, which, after the giving of notice,
passage of time or otherwise, would constitute or result in such a material
breach or material default by the Company or, to the knowledge of the Company,
any other person or entity. The Company has not received any notice of default
under any contract, agreement, arrangement, commitment or plan to which it is a
party, which default has not been cured to the satisfaction of, or duly waived
by, the party claiming such default on or before the date hereof.
2.8 Personal Property. The Company has good and marketable title to all
of its tangible personal property and assets, including, without limitation, all
of the assets reflected in the Company Financial Statements that have not been
disposed of in the ordinary course of business or pursuant to the Asset Purchase
Agreement and such property is free and clear of all Liens or mortgages.
2.9 Real Property.
(a) Schedule 2.9 sets forth a true and complete list of all property
owned by, or leased or subleased by or to, the Company.
(b) Except as set forth on Schedule 2.9, each lease to which the
Company is a party is valid, binding and in full force and effect with respect
to the Company and no notice of default or termination under any such lease is
outstanding.
2.10 Compliance with Law. The Company is not conducting its business or
affairs in violation of any applicable foreign, federal, state or local law,
ordinance, rule, regulation, court or administrative order, decree or process,
or any requirement of insurance carriers. The Company has not received any
notice of violation or claimed violation of any such law, ordinance, rule,
regulation, order, decree, process or requirement.
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2.11 No Adverse Changes. There have not been (a) any material adverse
change in the business, prospects, the financial or other condition, or the
respective assets or liabilities of the Company or any subsidiary of the Company
as reflected in the Company Financial Statements, (b) any material loss
sustained by the Company or any subsidiary of the Company, including, but not
limited to any loss on account of theft, fire, flood, explosion, accident or
other calamity, whether or not insured, which has materially and adversely
interfered, or may materially and adversely interfere, with the operation of the
Company's or such subsidiary's business, or (c) any event, condition or state of
facts, including, without limitation, the enactment, adoption or promulgation of
any law, rule or regulation, the occurrence of which materially and adversely
does or would affect the results of operations or the business or financial
condition of the Company or any subsidiary of the Company.
2.12 Litigation. (a) There is no claim, dispute, action, suit,
proceeding or investigation pending or, to the knowledge of the Company,
threatened, against or affecting the business of the Company or challenging the
validity or propriety of the transactions contemplated by this Agreement, at law
or in equity or admiralty or before any federal, state, local, foreign or other
governmental authority, board, agency, commission or instrumentality, nor to the
knowledge of the Company, has any such claim, dispute, action, suit, proceeding
or investigation been pending or threatened, during the 12-month period
preceding the date hereof; (b) there is no outstanding judgment, order, writ,
ruling, injunction, stipulation or decree of any court, arbitrator or federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality, against or materially affecting the business of the Company
and (c) the Company has not received any written or verbal inquiry from any
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality concerning the possible violation of any law, rule
or regulation or any matter disclosed in respect of its business.
2.13 Insurance. The Company maintains insurance against all risks
customarily insured against by companies in its industry. All such policies are
in full force and effect, and no subsidiary has received any notice from any
insurance company suspending, revoking, modifying or canceling (or threatening
such action) any insurance policy issued to the Company or subsidiary.
2.14 Articles of Incorporation and By-laws; Minute Books. The copies of
the Articles of Incorporation and Bylaws of the Company and all amendments to
each are true, correct and complete. The minute books of the Company contain
true and complete records of all meetings and consents in lieu of meetings of
its Board of Directors (and any committees thereof), or similar governing
bodies, since the time of its organization.
2.15 Employee Benefit Plans. Except as set forth on Schedule 2.15, the
Company does not maintain, nor has the Company maintained in the past, any
employee benefit plans (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), or any plans, programs,
policies, practices, arrangements or contracts (whether group or individual)
providing for payments, benefits or reimbursements to employees of the Company,
former employees, their beneficiaries and dependents under which such employees,
former employees, their beneficiaries and dependents are covered through an
employment relationship with the Company, any entity required to be aggregated
in a controlled group or affiliated service group with the Company for purposes
of ERISA or the Internal Revenue Code of 1986 (the "Code")
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(including, without limitation, under Section 414(b), (c), (m) or (o) of the
Code or Section 4001 of ERISA, at any relevant time ("Benefit Plans").
2.16 Patents; Trademarks and Intellectual Property Rights. Except as
provided on Schedule 2.16, the Company does not own or possesses any material
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, Internet web site(s) or proprietary rights of any nature.
2.17 Affiliate Transactions. Except as disclosed in the Asset Purchase
Agreement or periodic and annual reports filed with the SEC pursuant to the
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), neither the Company nor any officer, director or employee of the Company
(or any of the relatives or Affiliates of any of the aforementioned Persons) is
a party to any agreement, contract, commitment or transaction with the Company
or affecting the business of the Company, or has any interest in any property,
whether real, personal or mixed, or tangible or intangible, used in or necessary
to the Company which will subject the Company to any liability or obligation
from and after the Closing Date.
2.18 Trading. The Company's Common Stock is currently listed for
trading on the Over the Counter Bulletin Board, ("OTCBB") and the Company has
received no notice that its Common Stock is subject to being delisted therefrom.
2.19 Compliance. The Company has complied in all material respects with
all applicable foreign, federal and state laws, rules and regulations,
including, without limitation, the requirements of the Exchange Act and the
Securities Act of 1933, as amended (the "Securities Act") and is current in its
filings.
2.20 Filings. None of the filings made by the Company under the
Securities Act or the Exchange Act make any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ACQUISITION
Acquisition represents and warrants to the Company that now and/or as
of the Closing:
3.1 Due Organization and Qualification; Subsidiaries; Due
Authorization.
(a) Acquisition and each subsidiary of Acquisition is an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of formation, with full power and authority to own, lease and
operate its business and properties and to carry on its business in the places
and in the manner as presently conducted or proposed to be conducted.
Acquisition and each subsidiary of Acquisition is in good standing as a foreign
corporation in each jurisdiction in which the properties owned, leased or
operated, or the business conducted, by it requires such qualification except
for any such failure, which when taken together with all other failures, is not
likely to have a material adverse effect on the business of Acquisition taken as
a whole.
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(b) Acquisition and each subsidiary of Acquisition does not own,
directly or indirectly, any capital stock, equity or interest in any
corporation, firm, partnership, joint venture or other entity, except as set
forth on Schedule 3.1.
(c) Acquisition has requisite power and authority to execute and
deliver this Agreement, and to consummate the transactions contemplated hereby
and thereby. Acquisition has taken all action necessary for the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and this Agreement constitutes the valid and binding obligation of
Acquisition, enforceable against Acquisition in accordance with its terms,
except as may be affected by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and subject to the
qualification that the availability of equitable remedies is subject to the
discretion of the court before which any proceeding therefore may be brought.
3.2 Information Supplied for Information Statement. The information
supplied by Acquisition for inclusion in the information statement filed with
the SEC in connection with this Agreement at the time the information statement
is declared effective by the SEC shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The information
supplied by Acquisition for inclusion in the information statement to be sent to
the shareholders of the Company in connection with the solicitation of proxies
for the Company shareholder vote shall not, on the date the information
statement is first mailed to the shareholders of the Company, contain any
statement which, at such time, is false or misleading with respect to any
material fact, or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they are
made, not false or misleading; or omit to state any material fact necessary to
correct any statement in any earlier communication with respect to the
solicitation of proxies for the Company shareholder vote which has become false
or misleading. If at any time prior to the Company's special meeting of
shareholders any event or information should be discovered by the Company which
should be set forth in a supplement to the information statement, Acquisition
shall promptly inform the shareholders of the Company.
3.3 No Conflicts or Defaults. The execution and delivery of this
Agreement by Acquisition and the consummation of the transactions contemplated
hereby do not and shall not (a) contravene the organizational documents of
Acquisition or any subsidiary, or (b) with or without the giving of notice or
the passage of time, (i) violate, conflict with, or result in a breach of, or a
default or loss of rights under, any material covenant, agreement, mortgage,
indenture, lease, instrument, permit or license to which Acquisition or such
subsidiary is a party or by which Acquisition or such subsidiary or any of their
respective assets are bound, or any judgment, order or decree, or any law, rule
or regulation to which Acquisition, such subsidiary or any of their respective
assets are subject, (ii) result in the creation of, or give any party the right
to create, any Lien upon any of the assets of any subsidiary, or (iii) terminate
or give any party the right to terminate, amend, abandon or refuse to perform,
any material agreement, arrangement or commitment to which any subsidiary is a
party or by which any subsidiary or any of its assets are bound, or (iv)
accelerate or modify, or give any party the right to accelerate or modify, the
time within which, or the terms under which any subsidiary is to perform any
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duties or obligations or receive any rights or benefits under any material
agreement, arrangement or commitment to which it is a party.
3.4 Capitalization. Set forth on Schedule 3.4 is a list of all
Shareholder Equity Interests, setting forth the names, addresses and number of
shares owned. All of the Equity Interests are, and when transferred in
accordance with the terms hereof, will be, duly authorized, validly issued,
fully paid and nonassessable, and have not been or will not be transferred in
violation of any rights of third parties. The Equity Interests are not subject
to any preemptive or subscription right, any voting trust agreement or other
contract, agreement, arrangement, option, warrant, call, commitment or other
right of any character obligating or entitling any Shareholder to issue, sell,
redeem or repurchase any Equity Interest, and there is no outstanding security
of any kind convertible into or exchangeable for shares.
3.5 Financial Statements. Schedule 3.5 contains copies of the
consolidated balance sheet of Acquisition and its subsidiaries at December 31,
2004 and the related statements of operations, stockholders' equity and cash
flows for the fiscal year then ended, including the notes thereto, as audited by
Xxxxxx, Xxxxxxxx & Associates, certified public accountants and the unaudited
balance sheet of the Acquisition at June 30, 2005, and the related consolidated
statements of operations, stockholders' equity and cash flows for the six month
period then ended prepared by the Acquisition's management (the "Acquisition
Financial Statements").
3.6 Further Financial Matters. Except as set forth on Schedule 3.6,
Acquisition has no material liabilities or obligations, whether secured or
unsecured, accrued, determined, absolute or contingent, asserted or unasserted
or otherwise, which are required to be reflected or reserved in a balance sheet
or the notes thereto under generally accepted accounting principles, but which
are not reflected in the Acquisition Financial Statements.
3.7 Taxes. Except as indicated on Schedule 3.7, Acquisition has
complied with all relevant legal requirements relating to registration or
notification for taxation purposes. All tax returns and reports filed on or
prior to the date hereof have been properly prepared and are true, correct (and
to the extent such returns reflect judgments made by the subsidiaries, such
judgments were reasonable under the circumstances) and complete in all material
respects. Except as indicated on Schedule 3.7, no extension for the filing of
any such return or report is currently in effect. Except as indicated on
Schedule 3.7, no tax return or tax return liability of Acquisition has been
audited or, presently under audit. All taxes which have been asserted to be
payable as a result of any audits have been paid or have been provided for in
the Acquisition Financial Statements. Except as indicated on Schedule 3.7,
Acquisition has not given or been requested to give waivers of any statute of
limitations relating to the payment of any Taxes (or any related penalties,
fines and interest). Except as indicated on Schedule 3.7, all payments for
withholding taxes, unemployment insurance and other amounts required to be paid
for periods prior to the date hereof to any governmental authority in respect of
employment obligations of the subsidiaries have been paid or shall be paid prior
to the Closing and have been duly provided for on the books and records of
Acquisition and in the Acquisition Financial Statements.
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3.8 Indebtedness; Contracts; No Defaults.
(a) Schedule 3.8 sets forth a true, complete and correct list of all
material instruments, agreements, indentures, mortgages, guarantees, notes,
commitments, accommodations, letters of credit or other arrangements or
understandings, whether written or oral, to which the subsidiaries are a party
(collectively, the "Acquisition Operating Agreements"). An agreement shall not
be considered material for the purposes of this Section 3.8(a) if it provides
for expenditures or receipts of less than US $100,000 and has been entered into
by any subsidiary in the ordinary course of business. The Acquisition Operating
Agreements constitute all of the contracts, agreements, understandings and
arrangements required for the operation of the business of Acquisition or which
have a material effect thereon. Copies of all such material written Acquisition
Operating Agreements have previously been delivered or otherwise made available
to the Company and such copies are true, complete and correct as of the date
hereof.
(b) Except as disclosed on Schedule 3.8, neither Acquisition or any
subsidiary of Acquisition nor, to Acquisition's knowledge, any other person or
entity, is not in breach in any material respect of, or in default in any
material respect under, any material contract, agreement, arrangement,
commitment or plan to which Acquisition or any subsidiary of Acquisition is a
party, and no event or action has occurred, is pending or is threatened, which,
after the giving of notice, passage of time or otherwise, would constitute or
result in such a material breach or material default by such subsidiary to the
knowledge of any other person or entity. No subsidiary has received any notice
of default under any contract, agreement, arrangement, commitment or plan to
which it is a party, which default has not been cured to the satisfaction of, or
duly waived by, the party claiming such default on or before the date hereof.
3.9 Personal Property. Except as set forth on Schedule 3.9, Acquisition
has good and marketable title to all of its tangible personal property and
assets, including, without limitation, all of the assets reflected in the
Acquisition Financial Statements that have not been disposed of in the ordinary
course of business since June 30, 2005, free and clear of all Liens or
mortgages, except for any Lien for current taxes not yet due and payable and
such restrictions, if any, on the disposition of securities as may be imposed by
federal or applicable state securities laws.
3.10 Real Property.
(a) Schedule 3.10 sets forth a true and complete list of all real
property owned by, or leased or subleased by or to, Acquisition or its
subsidiaries.
(b) Except as set forth on Schedule 3.10, each lease to which
Acquisition or its subsidiaries are a party is valid, binding and in full force
and effect with respect to Acquisition or such subsidiary and, to the knowledge
of Acquisition, all other parties thereto; no notice of default or termination
under any such lease is outstanding.
3.11 Compliance with Law. Except as set forth on Schedule 3.11,
Acquisition and each subsidiary is conducting its respective business or affairs
in material compliance with applicable law, ordinance, rule, regulation, court
or administrative order, decree or process, or any requirement of insurance
carriers. Neither Acquisition nor any subsidiary has received any notice of
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violation or claimed violation of any such law, ordinance, rule, regulation,
order, decree, process or requirement.
3.12 No Adverse Changes. Except as set forth on Schedule 3.12, since
June 30, 2005, there has not been (a) any material adverse change in the
business, prospects, the financial or other condition, or the respective assets
or liabilities of Acquisition and its subsidiaries as reflected in the
Acquisition Financial Statements, (b) any material loss sustained by Acquisition
and its subsidiaries, including, but not limited to any loss on account of
theft, fire, flood, explosion, accident or other calamity, whether or not
insured, which has materially and adversely interfered, or may materially and
adversely interfere, with the operation of Acquisition's business, or (c) to the
best knowledge of Acquisition, any event, condition or state of facts,
including, without limitation, the enactment, adoption or promulgation of any
law, rule or regulation, the occurrence of which materially and adversely does
or would affect the results of operations or the business or financial condition
of Acquisition.
3.13 Litigation. Except as set forth on Schedule 3.13, (a) there is no
claim, dispute, action, suit, proceeding or investigation pending or, to the
knowledge of Acquisition threatened, against or affecting the business of
Acquisition or any of its subsidiaries, or challenging the validity or propriety
of the transactions contemplated by this Agreement, at law or in equity or
admiralty or before any authority, board, agency, commission or instrumentality,
nor to the knowledge of Acquisition, has any such claim, dispute, action, suit,
proceeding or investigation been pending or threatened, during the 12-month
period preceding the date hereof; (b) there is no outstanding judgment, order,
writ, ruling, injunction, stipulation or decree of any court, arbitrator or
federal, state, local, foreign or other governmental authority, board, agency,
commission or instrumentality, against or materially affecting the business of
Acquisition or any of its subsidiaries; and (c) Acquisition has not received nor
has any subsidiary received any written or verbal inquiry from any federal,
state, local, foreign or other governmental authority, board, agency, commission
or instrumentality concerning the possible violation of any law, rule or
regulation or any matter disclosed in respect of its business.
3.14 Insurance. Acquisition and its subsidiaries maintain insurance
against all risks customarily insured against by companies in its industry. All
such policies are in full force and effect, and no subsidiary has received any
notice from any insurance company suspending, revoking, modifying or canceling
(or threatening such action) any insurance policy issued to Acquisition or
subsidiary.
3.15 Articles of Incorporation; Minute Books. The copies of the
Articles of Incorporation of Acquisition and its subsidiaries, and all
amendments to each are true, correct and complete. The minute books of
Acquisition and its subsidiaries contain true and complete records of all
meetings and consents in lieu of meetings of their Board of Directors (and any
committees thereof), or similar governing bodies, since the time of their
respective organization. The stock records of Acquisition are true, correct and
complete.
3.16 Employee Benefit Plans. Except as set forth on Schedule 3.16,
Acquisition does not have in existence any share incentive, share option scheme
or profit sharing bonus or other such incentive scheme for any of its directors
or employees. Except as set forth on Schedule 3.16 or required under the
applicable laws, there are no arrangements, schemes, customs or practices
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(whether legally enforceable or not) in operation for the payment of or
contributions towards any provident fund, pensions, allowances, lump sums or
other like benefits on retirement or on death or during periods of sickness or
disablement for the benefit of any director or former director or employee or
former employee or for the benefit of the dependents of any such persons nor has
any proposal been announced to establish any such agreement or agreements.
3.17 Patents; Trademarks and Intellectual Property Rights. Acquisition
and each subsidiary owns or possesses sufficient legal rights to all patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, internet web site(s) proprietary rights and processes necessary for
its business as now conducted without any conflict with or infringement of the
rights of others. Except as set forth on Schedule 3.17, there are no outstanding
options, licenses or agreements of any kind relating to the foregoing, and no
subsidiary is bound by, or a party to, any options, licenses or agreements of
any kind with respect to the patents, trademarks, service marks, trade names,
copyrights, trade secrets, licenses, information, proprietary rights and
processes of any other person or entity.
3.18 Brokers. All negotiations relative to this Agreement and the
transactions contemplated hereby have been carried without the intervention of
any Person in such a manner as to give rise to any valid claim by any Person
against any Shareholder for a finder's fee, brokerage commission or similar
payment.
3.19 Purchase for Investment.
(a) The Shareholders are acquiring the Company Shares for investment
for their own account and not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and the Shareholders have no present
intention of selling, granting any participation in, or otherwise distributing
the same. The Shareholders further represent that they do not have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participation to such person or to any third person, with respect to any of the
Company Shares.
(b) Acquisition and the Shareholders understand that the Company Shares
are not registered under the Securities Act on the ground that the sale and the
issuance of securities hereunder is exempt from registration under the
Securities Act pursuant to Section 4(2) thereof, and that the Company's reliance
on such exemption is predicated on Acquisition's and the Shareholders'
representations set forth herein. Each Shareholder is deemed to be an
"accredited investor" as that term is defined in Rule 501(a) of Regulation D
under the Securities Act.
3.20 Investment Experience. Each Shareholder acknowledges that it can
bear the economic risk of its investment, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits
and risks of the investment in the Company Shares.
3.21 Information. Acquisition and the Shareholders have carefully
reviewed such information as Acquisition and the Shareholders deemed necessary
to evaluate an investment in the Company Shares. To the full satisfaction of
Acquisition and the Shareholders, it has been furnished all materials that it
has requested relating to the Company and the issuance of the Company Shares
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hereunder, and Acquisition and each Shareholder has been afforded the
opportunity to ask questions of representatives of the Company to obtain any
information necessary to verify the accuracy of any representations or
information made or given to Acquisition and the Shareholders. Notwithstanding
the foregoing, nothing herein shall derogate from or otherwise modify the
representations and warranties of the Company set forth in this Agreement, on
which Acquisition and each Shareholder has relied in making an Exchange of the
Equity Interests of the Company Shares.
3.22 Restricted Securities. Acquisition and each Shareholder
understands that the Company Shares may not be sold, transferred, or otherwise
disposed of without registration under the Act or an exemption there from, and
that in the absence of an effective registration statement covering the Company
Shares or any available exemption from registration under the Securities Act,
the Company Shares must be held indefinitely. Acquisition and each Shareholder
is aware that the Company Shares may not be sold pursuant to Rule 144
promulgated under the Securities Act unless all of the conditions of that Rule
are met. Among the conditions for use of Rule 144 may be the availability of
current information to the public about the Company.
ARTICLE IV
INDEMNIFICATION
4.1 Indemnity of Acquisition and the Shareholders. The Company agrees
to jointly and severally defend, indemnify and hold harmless Acquisition and the
Shareholders from and against, and to reimburse Acquisition and the Shareholders
with respect to, all liabilities, losses, costs and expenses, including, without
limitation, reasonable attorneys' fees and disbursements, asserted against or
incurred by Acquisition by reason of, arising out of, or in connection with any
material breach of any representation or warranty contained in this Agreement
made by the Company or in any document or certificate delivered by the Company
pursuant to the provisions of this Agreement or in connection with the
transactions contemplated thereby.
4.2 Indemnity of the Company. Acquisition jointly and severally agree
to defend, indemnify and hold harmless the Company from and against, and to
reimburse the Company with respect to, all liabilities, losses, costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements, asserted against or incurred by the Company by reason of, arising
out of, or in connection with any material breach of any representation or
warranty contained in this Agreement and made by Acquisition or any Shareholder
or in any document or certificate delivered by Acquisition or any Shareholder
pursuant to the provisions of this Agreement or in connection with the
transactions contemplated thereby.
4.3 Indemnification Procedure. A party (an "Indemnified Party") seeking
indemnification shall give prompt notice to the other party (the "Indemnifying
Party") of any claim for indemnification arising under this Article 4. The
Indemnifying Party shall have the right to assume and to control the defense of
any such claim with counsel reasonably acceptable to such Indemnified Party, at
the Indemnifying Party's own cost and expense, including the cost and expense of
reasonable attorneys' fees and disbursements in connection with such defense, in
which event the Indemnifying Party shall not be obligated to pay the fees and
disbursements of separate counsel for such in such action. In the event,
however, that such Indemnified Party's legal counsel shall determine that
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defenses may be available to such Indemnified Party that are different from or
in addition to those available to the Indemnifying Party, in that there could
reasonably be expected to be a conflict of interest if such Indemnifying Party
and the Indemnified Party have common counsel in any such proceeding, or if the
Indemnified Party has not assumed the defense of the action or proceedings, then
such Indemnifying Party may employ separate counsel to represent or defend such
Indemnified Party, and the Indemnifying Party shall pay the reasonable fees and
disbursements of counsel for such Indemnified Party. No settlement of any such
claim or payment in connection with any such settlement shall be made without
the prior consent of the Indemnifying Party which consent shall not be
unreasonably withheld.
ARTICLE V
DELIVERIES
5.1 Items to be delivered to Acquisition and the Shareholders prior to
or at Closing by the Company.
(a) articles of incorporation and amendments thereto, bylaws and
amendments thereto, certificate of good standing in the Company's state of
incorporation;
(b) all applicable schedules hereto;
(c) all minutes and resolutions of board of director and shareholder
meetings in possession of the Company;
(d) shareholder list of the Company;
(e) all financial statements and tax returns in possession of the
Company;
(f) resolution from the Company's current director appointing designees
of Acquisition to the Company's Board of Directors;
(g) letters of resignation from the Company's current officer and
director to be effective upon Closing and after the appointments described in
this section;
(h) certificates representing Company Shares issued in the
denominations as set forth opposite the respective names of the Shareholders as
set forth on Schedule 1.1 on or before the Closing, duly authorized, validly
issued, fully paid for and non-assessable;
(i) copies of board, and if applicable, shareholder resolutions
approving this transaction and authorizing the issuances of the shares hereto;
and
(j) any other document reasonably requested by Acquisition that it
deems necessary for the consummation of this transaction.
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5.2 Items to be delivered to the Company prior to or at Closing by
Acquisition.
(a) articles of incorporation and amendments thereto and amendments
thereto with respect to Acquisition and each subsidiary;
(b) all applicable schedules hereto;
(c) all minutes and resolutions of board of directors and shareholder
meetings of Acquisition and each subsidiary in possession of Acquisition;
(d) shareholder list of Acquisition;
(e) all financial statements and tax returns in possession of
Acquisition;
(f) resolution from Acquisition's current directors appointing
designees of Acquisition to the Company's Board of Directors;
(g) copies of board and shareholder resolutions approving the Exchange;
and
(h) any other document reasonably requested by the Company that it
deems necessary for the consummation of this transaction.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions Precedent to Closing. The obligations of the parties
under this Agreement shall be and are subject to fulfillment, prior to or at the
Closing, of each of the following conditions any of which may be waived by the
parties:
(a) The SEC shall have been given the opportunity to review this
Agreement and the transactions disclosed in the information statement.
(b) That each of the representations and warranties of the parties
contained herein shall be true and correct at the time of the Closing Date as if
such representations and warranties were made at such time.
(c) That the parties shall have performed or complied with all
agreements, terms and conditions required by this Agreement to be performed or
complied with by them prior to or at the time of the Closing.
(d) No material adverse change shall have occurred in the financial,
business or trading conditions of the Company (excluding disposal of its
subsidiaries) or Acquisition from the date hereof up to and including the
Closing Date.
6.2 Conditions to Obligations of the Company. The obligations of the
Company shall be subject to fulfillment by Acquisition and/or the Shareholders
prior to or at the Closing of each of the following conditions, any of which may
be waived by the Company:
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(a) Acquisition shall have paid the costs and expenses of the Company
as provided in Section 12.11.
(b) Acquisition shall have no more than 1,899,777 shares of its common
stock outstanding.
(c) The Company shall have executed a Lock Up Agreement with Xxxx Xxxxx
and the shareholders of the Company listed on Schedule 6.3(e), (i) restricting
such shareholders from selling or transferring his or her share ownership in the
Company for a period of 12 months from the Closing Date and (ii) providing for
other Company obligations.
6.3 Conditions to Obligations of Acquisition. The obligations of
Acquisition shall be subject to fulfillment by the Company prior to or at the
Closing of each of the following conditions, any of which may be waived by
Acquisition:
(a) The Company shall have delivered evidence reasonably satisfactory
to Acquisition regarding the approval of the shareholders of the Company for
this Agreement and the sale of the Company's assets referred to in the Asset
Purchase Agreement.
(b) As of the Closing, the Company shall have transferred all of its
assets (including equity interests in its subsidiaries) and assigned all of its
liabilities whatsoever, contingent or otherwise, to the effect that immediately
prior to the Exchange, the Company will have no assets nor liabilities exceeding
$1,000. All such transfers shall be made under the Asset Purchase Agreement.
(c) Less than 10% of the shareholders of the Company shall have
exercised their dissenters' rights in respect to the transactions related to the
Asset Purchase Agreement.
(d) Xxxx Xxxxx and the shareholders of the Company listed on Schedule
6.3(e) shall have executed a Lock Up Agreement, restricting such shareholders
from selling or transferring his or her share ownership in the Company for a
period of 12 months from the Closing Date.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Company Special Meeting or Information Statement. The Company shall
(i) in accordance with the Florida Business Corporation Act, its Articles of
Incorporation and Bylaws, duly call, give notice of, convene and hold a special
meeting of the Company shareholders or receive a written consent from a majority
of the Company's shareholders for the purpose of voting upon the approval of (a)
this Agreement, (b) the Asset Purchase Agreement, (c) an amendment to its
Articles of Incorporation changing the Company's corporate name, (d) an
amendment to its Articles of Incorporation eliminating preemptive rights, (e) an
amendment to its Articles of Incorporation increasing its authorized common
stock, (f) adopting a Management and Director Equity Incentive and Compensation
Plan and (g) any related proposals; and (ii) recommend that the Company
shareholders vote in favor of all such matters.
15
7.2 Further Action; Consents; Filings. Upon the terms and subject to
the conditions hereof, each of the parties hereto shall (i) use all commercially
reasonable efforts to take, or cause to be taken, all appropriate action and do,
or cause to be done, all things necessary, proper or advisable under applicable
law or otherwise to consummate and make effective the Exchange and this
Agreement, (ii) use all reasonable efforts to obtain from third parties any
consents, licenses, permits, waivers, approvals, authorizations or orders
required to be obtained or made by Acquisition or the Company or any Acquisition
subsidiary, in connection with the authorization, execution and delivery of this
Agreement and the consummation of the Exchange and the other transactions
contemplated by this Agreement and (iii) make all necessary filings, and
thereafter make any other required submissions, with respect to this Agreement,
the asset sale and the other transactions contemplated by this Agreement that
are required under any applicable law.
7.3 Fairness Opinions. On or prior to the Closing, the parties shall
have received an opinion or opinions from an investment banking firm or other
business evaluation firm mutually acceptable to the Company and Acquisition,
addressed to the board of directors of the Company, to the effect that this
Agreement, the Asset Purchase Agreement and related transactions contemplated by
this Agreement are fair to the stockholders of the Company from a financial
point of view.
ARTICLE VIII
COVENANTS
8.1 Shareholders Vote. As soon as practicable after the date hereof,
the Company shall (a) cause the preparation and filing with the Securities and
Exchange Commission an information statement with respect to this Agreement, the
Asset Purchase Agreement, and the amendment to the articles of incorporation
changing the Company's name terminating preemptive rights, increasing the
authorized common stock and adopting a Management and Director Equity Incentive
Plan, and (b) obtain the consent of a majority of its shareholders.
8.2 OTCBB Listing. Acquisition shall provide such information as may be
reasonably requested by OTCBB relating to the continued listing of the Company's
Common Stock on OTCBB.
8.3 Shareholders Consent. Each of the Shareholders agree to the
Exchange of their Equity Interest for the Company Shares.
ARTICLE IX
NO PUBLIC DISCLOSURE
9.1 No Public Disclosure. Without the prior written consent of the
others, none of the Company or Acquisition will, and will each cause their
respective representatives not to, make any release to the press or other public
disclosure with respect to either the fact that discussions or negotiations have
taken place concerning the transactions contemplated by this Agreement, the
existence or contents of this Agreement or any prior correspondence relating to
this transactions contemplated by this Agreement, except for such public
disclosure as may be necessary, in the written opinion of outside counsel
(reasonably
16
satisfactory to the other parties) for the party proposing to make the
disclosure not to be in violation of or default under any applicable law,
regulation or governmental order. If either party proposes to make any
disclosure based upon such an opinion, that party will deliver a copy of such
opinion to the other party, together with the text of the proposed disclosure,
as far in advance of its disclosure as is practicable, and will in good faith
consult with and consider the suggestions of the other party concerning the
nature and scope of the information it proposes to disclose.
ARTICLE X
CONFIDENTIAL INFORMATION
10.1 Confidential Information. In connection with the negotiation of
this Agreement and the consummation of the transactions contemplated hereby,
each party hereto will have access to data and confidential information relating
to the other party. Each party hereto shall treat such data and information as
confidential, preserve the confidentiality thereof and not duplicate or use such
data or information, except in connection with the transactions contemplated
hereby, and in the event of the termination of this Agreement for any reason
whatsoever, each party hereto shall return to the other all documents, work
papers and other material (including all copies thereof) obtained in connection
with the transactions contemplated hereby and will use reasonable efforts,
including instructing its employees who have had access to such information, to
keep confidential and not to use any such data or information; provided,
however, that such obligations shall not apply to any data and information (i)
which at the time of disclosure, is available publicly, (ii) which, after
disclosure, becomes available publicly through no fault of the receiving party,
(iii) which the receiving party knew or to which the receiving party had access
prior to disclosure by the disclosing party, (iv) which is required by law,
regulation or exchange rule, or in connection with legal process, to be
disclosed, (v) which is disclosed by a receiving party to its attorneys or
accountants, who shall respect the above restrictions, or (vi) which is obtained
in connection with any Tax matters and is disclosed in connection with the
filing of Tax returns or claims for refund or in conducting an audit or other
proceeding.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated at any time before
or, at Closing, by:
(a) The mutual agreement of the constituent parties;
(b) Any party if:
(i) Any provision of this Agreement applicable to a party
shall be materially untrue or fail to be accomplished;
(ii) Any legal proceeding shall have been instituted or shall
be imminently threatening to delay, restrain or prevent the consummation of this
Agreement; or
17
(iii) If by December 31, 2005, the conditions precedents to
Closing are not satisfied.
11.2 Effect of Termination. In the event of termination of this
Agreement pursuant to Section 11.1, this Agreement shall become void, there
shall be no liability under this Agreement on the part of the Company or
Acquisition or any of their respective officers or directors, and all rights and
obligations of each party hereto shall cease, except as otherwise provided in
this Agreement, including, but not limited to Section 12.11.
ARTICLE XII
MISCELLANEOUS
12.1 Survival of Representations, Warranties and Agreements. All
representations and warranties and statements made by a party to in this
Agreement or in any document or certificate delivered pursuant hereto shall
survive the Closing Date for so long as the applicable statute of limitations
shall remain open. Each of the parties hereto is executing and carrying out the
provisions of this agreement in reliance upon the representations, warranties
and covenants and agreements contained in this agreement or at the closing of
the transactions herein provided for and not upon any investigation which it
might have made or any representations, warranty, agreement, promise or
information, written or oral, made by the other party or any other person other
than as specifically set forth herein.
12.2 Access to Books and Records. During the course of this transaction
through Closing, each party agrees to make available for inspection all
corporate books, records and assets, and otherwise afford to each other and
their respective representatives, reasonable access to all documentation and
other information concerning the business, financial and legal conditions of
each other for the purpose of conducting a due diligence investigation thereof.
Such due diligence investigation shall be for the purpose of satisfying each
party as to the business, financial and legal condition of each other for the
purpose of determining the desirability of consummating the proposed
transaction. The Parties further agree to keep confidential and not use for
their own benefit, except in accordance with this Agreement any information or
documentation obtained in connection with any such investigation.
12.3 Further Assurances. If, at any time after the Closing, the parties
shall consider or be advised that any further deeds, assignments or assurances
in law or that any other things are necessary, desirable or proper to complete
the merger in accordance with the terms of this agreement or to vest, perfect or
confirm, of record or otherwise, the title to any property or rights of the
parties hereto, the Parties agree that their proper officers and directors shall
execute and deliver all such proper deeds, assignments and assurances in law and
do all things necessary, desirable or proper to vest, perfect or confirm title
to such property or rights and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors the parties are fully
authorized to take any and all such action.
12.4 Notice. All communications, notices, requests, consents or demands
given or required under this Agreement shall be in writing and shall be deemed
18
to have been duly given when delivered to, or received by prepaid registered or
certified mail or recognized overnight courier addressed to, or upon receipt of
a facsimile sent to, the party for whom intended, as follows, or to such other
address or facsimile number as may be furnished by such party by notice in the
manner provided herein:
If to the Company:
Xxxx Xxxxxxx Cigar Corporation
0000 X.X. 00xx Xxxxxxx, Xxxxx X-0
Xxxxx, Xxxxxxx 00000
Attention: President
Tel: 000-000-0000
Fax: 000-000-0000
If to Acquisition:
Online Vacation Center Holdings, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President
Tel: 000-000-0000
Fax: 000-000-0000
If to the Shareholders:
0000 X.X. 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Or such other as Acquisition may notify to the other parties
to the Agreement by not less than five (5) Business Day's
notice.
12.5 Entire Agreement. This Agreement, the Schedules and any
instruments and agreements to be executed pursuant to this Agreement, sets forth
the entire understanding of the parties hereto with respect to its subject
matter, merges and supersedes all prior and contemporaneous understandings with
respect to its subject matter and may not be waived or modified, in whole or in
part, except by a writing signed by each of the parties hereto. No waiver of any
provision of this Agreement in any instance shall be deemed to be a waiver of
the same or any other provision in any other instance. Failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
its rights under such provision.
12.6 Successors and Assigns. This Agreement shall be binding upon,
enforceable against and inure to the benefit of, the parties hereto and their
respective heirs, administrators, executors, personal representatives,
successors and assigns, and nothing herein is intended to confer any right,
remedy or benefit upon any other person. This Agreement may not be assigned by
any party hereto except with the prior written consent of the other parties,
which consent shall not be unreasonably withheld.
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12.7 Governing Law. This Agreement shall in all respects be governed by
and construed in accordance with the laws of the State of Florida are applicable
to agreements made and fully to be performed in such state, without giving
effect to conflicts of law principles.
12.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.9 Construction. Headings contained in this Agreement are for
convenience only and shall not be used in the interpretation of this Agreement.
References herein to Articles, Sections and Exhibits are to the articles,
sections and exhibits, respectively, of this Agreement. The Disclosure Schedules
are hereby incorporated herein by reference and made a part of this Agreement.
As used herein, the singular includes the plural, and the masculine, feminine
and neuter gender each includes the others where the context so indicates.
12.10 Severability. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, this Agreement
shall be interpreted and enforceable as if such provision were severed or
limited, but only to the extent necessary to render such provision and this
Agreement enforceable.
12.11 Costs and Expenses. Acquisition shall be responsible for all of
its expenses and its shareholders expenses incurred in connection with this
Agreement and the transactions in connection herewith, including the fees to any
brokers or financial advisors employed by Acquisition. The Company shall be
responsible for all of its expenses incurred in connection with this Agreement
and the transactions in connection herewith, including the fees of any brokers
or financial advisors employed by the Company. However, personal expenses
incurred by Xxxx Xxxxx in connection with the Asset Purchase Agreement shall be
assumed by Xx. Xxxxx. Notwithstanding the provisions herein, Acquisition shall
pay or reimburse the Company for any costs and expenses associated with the
fairness opinion(s) required for the consummation of this Agreement and/or the
Asset Purchase Agreement. Acquisition shall be responsible for all costs
(including legal fees and expenses) associated with the Information Statement to
be filed with the Securities and Exchange Commission. In addition, Acquisition
shall pay the Company's legal fees (estimated to be approximately $5,000) and
accounting fees in connection with this Agreement and the transactions in
connection herewith.
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the date first set forth above.
XXXX XXXXXXX CIGAR CORPORATION
By: /s/ Xxxx Xxxxx
---------------------
Xxxx Xxxxx, President
ONLINE VACATION CENTER HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: President
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DISCLOSURE SCHEDULES
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