EXHIBIT 2.1
ACQUISITION AGREEMENT
BY AND AMONG
PHOENIX INTERNATIONAL PUBLISHING, LLC,
AS PIP,
AND
THE HOLDER OF PIP INTERESTS,
AS THE HOLDER,
AND
ONLINE VACATION CENTER HOLDINGS CORP.,
AS ONVC.
DATED AS OF AUGUST 31, 2006
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (this "Agreement"), dated as of August 31,
2006, is made by and among ONLINE VACATION CENTER HOLDINGS CORP., a Florida
corporation ("ONVC"), PHOENIX INTERNATIONAL PUBLISHING, LLC, a Delaware limited
liability company ("PIP"), and Xxxxx Xxxx, an individual residing in Trophy
Club, Texas (the "Holder").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
is hereby acknowledged, the Holder desires to sell, transfer and deliver to
ONVC, and ONVC desires to purchase and acquire from the Holder, all of the
issued and outstanding ownership interests of PIP (the "PIP Interests") for the
consideration and on the terms set forth in this Agreement and the parties,
intending to be legally bound, hereby agree as follows:
1. SALE AND TRANSFER OF PIP INTERESTS; CLOSING
1.1 PIP INTERESTS
Subject to the terms and conditions of this Agreement, at the Closing
(defined below), the Holder will sell and transfer the PIP Interests to ONVC,
and ONVC will purchase and acquire the PIP Interests from the Holder.
1.2 CONSIDERATION
(a) The total consideration (the "Consideration") to be paid at the
Closing by ONVC to the Holder for the PIP Interests will be
1,450,000 restricted shares of ONVC common stock, par value
$0.0001 per share, (the "Restricted Shares") which shares shall
be subject to a Lock-Up Agreement in form and substance
satisfactory to ONVC and the Holder (the "Lockup Agreement").
(b) The Consideration shall be adjusted, if necessary, as required
pursuant to Section 3.1(d) hereof.
1.3 CLOSING
The acquisition and sale (the "Closing") provided for in this Agreement
will take place at the offices of Xxxxx Xxxxx, P.A., 110 Southeast 6th Street,
15th Floor, Xxxx Xxxxxxxxxx, XX 00000, at 10:00 a.m. (local time) on August 31,
2006, or at such other time and place as the parties may agree (the "Closing
Date").
1.4 CLOSING OBLIGATIONS
At the Closing, ONVC and the Holder shall receive their respective
Closing Deliverables as described on Exhibit A attached hereto, each in form and
substance reasonably satisfactory to ONVC and the Holder.
1.5 TAX TREATMENT
It is the intent of the parties that the exchange of stock contemplated
by this Agreement qualifies as a tax-free reorganization under section 368(a) of
the Internal Revenue Code.
1.6 ADMINISTRATION OF TAX MATTERS
(a) Tax Returns.
(i) The Holder shall prepare and timely file, or cause to be timely
filed, for PIP, the federal income Tax Return (defined below) and other Tax
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Returns, if any (the "Short Period Tax Returns"), that are required by law to be
filed for the taxable period of PIP that ends on or before the Closing Date and
the Holder shall be responsible for and shall pay as and when due any and all
Taxes (defined below), preparation, audit or other expenses or costs in
connection therewith. The Holder shall provide a copy of these Short Period Tax
Returns to ONVC together with the work papers and schedules utilized in their
preparation. The Holder, ONVC and PIP shall cooperate fully, as and to the
extent reasonably requested, in connection with the filing of the Short Period
Tax Returns and any audit, litigation or other proceeding with respect to the
Short Period Tax Returns. For clarification, all expenses incurred by PIP prior
to the Closing Date, including, but not limited to, expenses associated with (A)
the transactions contemplated by this Agreement, and (B) payments of
compensation to employees and other service providers, shall be paid by the
Holder and, to the extent so paid, shall be expenses of PIP reflected on the
Short Period Tax Returns.
(ii) Neither the Holder, ONVC nor PIP shall file an amended Tax Return
with respect to any and all taxable periods, or portions thereof, ending on or
before the Closing Date (the "Pre-Closing Tax Periods"), without the prior
written consent of the Holder, ONVC and PIP; except that such consents shall not
be required for any amendment filed in connection with any requirement or
finding of any audit by a Governmental Entity of the Tax Return to which the
amendment relates. The Holder shall indemnify ONVC and PIP for any liability,
cost or expense ONVC or PIP incurs as a result of any such amendment filed in
accordance with the terms of this Section 1.6(a)(ii).
(b) General Administration of Tax Matters. ONVC, PIP and the Holder
shall cooperate fully, as and to the extent reasonably requested,
in connection with any audit, litigation or other proceeding with
respect to Taxes and Tax Returns (which the Holder shall control
with respect to the Pre-Closing Tax Periods). Such cooperation
shall include the retention, and (upon the other party's request)
the provision, of records and information which are reasonably
relevant to any such audit, litigation or other proceeding and
making employees available on a mutually convenient basis to
provide additional information and explanation of any material
provided hereunder; provided, however, the Holder, with respect
to Pre-Closing Tax Periods, and ONVC and PIP, with respect to all
subsequent Tax Periods, shall pay the reasonable out-of-pocket
expenses incurred by the party providing such assistance;
provided, further, no party shall be required to provide
assistance at times or in amounts that would interfere
unreasonably with the business and operations of such party. The
Holder agrees to retain, and to make available to ONVC and PIP
upon their request, all books and records with respect to Tax
matters pertinent to PIP relating to the Pre-Closing Tax Periods,
until the expiration of any applicable statute of limitations or
extensions thereof.
As used in this Agreement, the term "Tax Return" shall mean all
reports, returns, information returns, declarations, statements and other
documents required to be filed in respect of Taxes.
As used in this Agreement, the term "Tax" shall mean all federal,
state, local, foreign and other governmental net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license, lease,
service, service use, withholding, payroll, employment, unemployment, excise,
severance, stamp, occupation, premium, property, windfall profits, customs,
duties or other taxes, fees, assessments or charges of any kind whatever,
together with any interest and any penalties, additions to tax or additional
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amounts with respect thereto, and the term "Tax" means any one of the foregoing
Taxes.
As used in this Agreement, the term "Governmental Entities" shall mean
any court, tribunal, governmental or regulatory authority, agency, department,
commission, instrumentality, body or other governmental entity of the United
States of America or any state or political subdivision thereof or any court or
arbitrator, and the term "Governmental Entity" means any one of the foregoing
Governmental Entities.
2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE HOLDER AND PIP
The Holder and PIP hereby represent and warrant to ONVC that all of the
following representations and warranties set forth in this Section 2.1 are true,
correct and complete as of the date of this Agreement and will be true, correct
and complete at and as of the Closing Date as though restated on and as of such
date.
(a) Ownership. The Holder is the record and beneficial owner and
holder of the PIP Interests, free and clear of any and all liens,
encumbrances, charges, claims, conditions, interests, options,
security interests, pledges, rights of first refusal or
restrictions of any kind (collectively, "Liens"). The Holder owns
100% of the outstanding equity and other securities of PIP. PIP
does not own, control, or have voting rights with respect to,
directly or indirectly, any interest in any other corporation,
partnership, association or other business entity and PIP is not
a party to any agreement relating to the acquisition of such an
interest. There are no agreements, rights, claims or obligations
relating to the issuance, sale, or transfer of any equity or
other securities of PIP.
(b) Authorization. PIP is duly organized and in good standing under
the laws of the State of Delaware and is duly qualified and in
good standing in each jurisdiction in which it conducts business
or owns property, except where the failure to be so qualified
could not reasonably be expected to have a material adverse
effect on its financial condition or business operations. Each of
the Holder and PIP has full right, power and authority to execute
and deliver this Agreement and the other Holder Documents
(defined below), to perform its obligations set forth herein and
therein and to consummate all of the transactions contemplated
hereby and thereby.
(c) Documents. The Holder and PIP have, or before the Closing will
have, approved the sale of the PIP Interests, this Agreement and
the transactions contemplated hereby, and approved, executed and
delivered this Agreement and certain other agreements and
instruments contemplated by this Agreement to be executed and
delivered by the Holder and PIP in connection herewith
(collectively, the "Holder Documents") and each of the Holder
Documents, when executed by the Holder or PIP, shall be the legal
valid and binding obligation of the Holder and PIP in accordance
with their terms, except as limited by (i) bankruptcy,
insolvency, reorganization, moratorium and other similar laws of
general application affecting the rights and remedies of
creditors and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity
or at law).
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(d) No Default. Neither the Holder or PIP, nor, to the knowledge of
the Holder and PIP, any vendor or party in contract with the
Holder or PIP, is in violation of any provision of, or in default
under, any of PIP's articles of association or operating
agreement or any indenture, mortgage, deed of trust,
indebtedness, agreement, judgment, decree, order, statute, rule
or regulation to which the Holder or PIP is a party or by which
any of them or their property is subject or bound and further,
the execution and delivery of the Holder Documents, the
performance of the obligations therein and the consummation of
the transactions contemplated thereby will not result in a
violation thereof, or a default thereunder.
(e) No Approvals. Neither the Holder nor PIP is required to obtain
the approval, authorization, consent, waiver or any other order
of any public or private entity (including any Governmental
Entity), person, board or body in connection with the
transactions contemplated by the Holder Documents, except as set
forth in Section 3.1(e) hereof.
(f) Financial Statements. The financial statements (all of which are
unaudited) of PIP, copies of which have been, or prior to the
Closing will have been, provided to ONVC, are true and correct in
all material respects and fairly present the assets, liabilities,
financial condition, results of operations, changes in
stockholders' equity, and cash flow of PIP (and of any person or
entity required by generally accepted accounting principles to be
consolidated or included therein) at their respective dates and
for their respective periods, all in accordance with generally
accepted accounting principles applied on a consistent basis,
subject in the case of unaudited statements only to normal
recurring year-end adjustments and footnotes (the effect and the
content of either of which will not, individually or in the
aggregate, be materially adverse to the financial condition or
business operations of PIP).
(g) No Material Adverse Change. From the date of the last financial
statements, there has not been any change that would materially
and adversely affect the financial position or results of
operations of PIP, or its ability to consummate the transactions
contemplated hereby, or that should be disclosed to ONVC in order
to make any statements or information furnished to ONVC, in light
of the circumstances under which they were made, not misleading,
which has not been disclosed in writing to ONVC.
(h) No Undisclosed Liabilities. There is no account, note, lease,
Tax, environmental liability, fine, penalty, civil or criminal
action, filing, liability, obligation, lien, encumbrance,
restriction or other duty affecting the Holder or PIP (nor, to
the knowledge of the Holder and PIP, is there any basis,
circumstance or fact that might give rise thereto), whether
realized or contingent, pending or threatened, known or unknown,
as of the date hereof or as of the date of the Closing, which has
not been disclosed in writing to ONVC.
(i) No Litigation. There is no action, suit, proceeding or
investigation at law or in equity, before or by any court, public
board or body, realized or contingent, pending or, to the
knowledge of the Holder and PIP, threatened, against or affecting
the Holder or PIP (nor, to the knowledge of the Holder and PIP,
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is there any basis, circumstance or fact therefore) as of the
date hereof or as of the date of the Closing, which has not been
disclosed in writing to ONVC.
(j) Ordinary Course of Business. Since January 1, 2006, PIP has
conducted its business only in the ordinary course of business
consistent with the past practice.
(k) Brokers or Finders. Neither the Holder nor PIP or its officers or
agents has incurred any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement. The
Holder will indemnify and hold ONVC harmless from any such
payment alleged to be due by or through the Holder or PIP as a
result of the action of the Holder or PIP or its officers or
agents.
2.2 REPRESENTATIONS AND WARRANTIES OF ONVC
ONVC hereby represents and warrants to the Holder and PIP that all of
the following representations and warranties set forth in this Section 2.2 are
true, correct and complete as of the date of this Agreement and will be true,
correct and complete at and as of the Closing Date as though restated on and as
of such date:
(a) Authorization. ONVC is duly organized, validly existing, and in
good standing under the laws of the state in which it was formed.
ONVC has full right, power and authority to execute and deliver
this Agreement and the other ONVC Documents (defined below), to
perform its obligations set forth herein and therein and to
consummate all of the transactions contemplated hereby and
thereby, including, without limitation, the issuance and delivery
of the Restricted Shares to the Holder.
(b) Documents. ONVC has, or before Closing will have, approved the
sale of the PIP Interests, this Acquisition Agreement and the
transactions contemplated hereby, and approved, executed and
delivered this Agreement and certain other agreements and
instruments contemplated by this Agreement to be executed and
delivered by ONVC in connection herewith (collectively, the "ONVC
Documents") and each of the ONVC Documents, when executed by
ONVC, shall be the legal, valid and binding obligation of ONVC in
accordance with their terms, except as limited by (i) bankruptcy,
insolvency, reorganization, moratorium and other similar laws of
general application affecting the rights and remedies of
creditors and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity
or at law).
(c) No Default. ONVC is not in violation of any provision of, or in
default under, and the execution and delivery of the ONVC
Documents, the performance of the obligations set forth therein
and the consummation of the transactions contemplated thereby
will not result in a violation of, or default under, any of
ONVC's articles of incorporation, by-laws or any indenture,
mortgage, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule or regulation to which ONVC is a
party or by which ONVC or its property is subject or bound.
(d) No Approvals. ONVC is not required to obtain the approval,
authorization, consent, waiver or any other order of any public
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or private entity (including any Governmental Entity), person,
board or body in connection with the transactions contemplated by
the ONVC Documents, except as set forth in Section 3.2(a) hereof.
(e) Valid Issuance. The Restricted Shares, when issued and delivered
in compliance with the provisions of this Agreement, will be
validly issued, fully paid and non-assessable and will be free
and clear of all Liens; provided, however, that the Restricted
Shares may be subject to restrictions on transfer under state
and/or federal laws, as set forth in the Lockup Agreement.
(f) Investment Intent. ONVC is acquiring the PIP Interests for its
own account and not with a view to their distribution within the
meaning of Section 2(11) of the Securities Act of 1933.
(g) SEC Reports. ONVC has filed, on a timely basis, all forms,
reports and documents (collectively, the "SEC Reports") required
to be filed with the Securities Exchange Commission in accordance
with the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since August 31, 2003. As of their respective
dates, each of the SEC Documents complied in all material
respects with all applicable requirements of the Securities Act
of 1933, as amended and the Exchange Act.
(h) Brokers or Finders. Neither ONVC nor its officers or agents have
incurred any obligation or liability, contingent or otherwise,
for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement. ONVC will
indemnify and hold the Holder harmless from any such payment
alleged to be due by or through ONVC as a result of the action of
ONVC or its officers or agents.
3. COVENANTS PRIOR TO CLOSING
3.1 COVENANTS OF THE HOLDER AND PIP
(a) Access and Investigation. Upon reasonable notice, PIP shall, and
the Holder shall cause PIP to, (1) afford ONVC and its
representatives access during normal business hours to its
personnel, properties (including subsurface testing), contracts,
books and records, and other documents and data, (2) furnish ONVC
with copies of all such contracts, books and records, and other
existing documents and data as ONVC may reasonably request, and
(3) furnish ONVC with such additional financial, operating, and
other data and information as ONVC may reasonably request.
(b) Due Diligence. The Holder and PIP shall reasonably cooperate with
ONVC in the conduct of its due diligence and shall furnish, at a
minimum, the information, documents and other items set forth on
Exhibit B attached hereto.
(c) Audit. PIP acknowledges that ONVC, as a publicly traded company,
will need audited financial statements of PIP. ONVC, at its
expense, will cause its accountants to conduct an audit of PIP
and to issue audited financial statements as diligently as
possible. The Holder and PIP will assist and provide ONVC and its
auditors access to conduct such audit and such further due
diligence in connection therewith as ONVC may require. PIP, ONVC
and the Holder each acknowledge that such audit may be completed
after the Closing.
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(d) Operation of PIP. PIP shall, and the Holder shall cause PIP to,
(1) conduct its business only in the ordinary course of business
consistent with its past practices; (2) use its best efforts to
preserve intact its current business organization, keep available
the services of its current officers, employees, and agents, and
maintain the relations and good will with suppliers, customers,
landlords, creditors, employees, agents, and others having
business relationships with it; (3) confer with ONVC concerning
material operational matters or any other matters material to
PIP's business; and (4) otherwise report periodically to ONVC
concerning the status of its business, operations, and finances.
Further, PIP shall NOT, and the Holder shall cause PIP not to,
(1) enter into, amend, modify, extend, terminate or permit to
expire (a) any agreement that involves more than $25,000 or
exceeds one year in term or (b) any compensation agreements,
benefit plans or insurance policies, or (2) dispose of any
assets, issue any securities or rights with respect to
securities, or declare or pay any bonuses, dividends or
distributions;
EXCEPT that PIP, prior to the Closing, may distribute or
dividend cash, shall pay or satisfy all shareholder loans
and, if necessary, shall pay or satisfy other liabilities,
all in aggregate amounts sufficient to cause, immediately
thereafter and at the Closing, the book value of assets of
PIP to equal or exceed the book value of liabilities of PIP,
all as determined in accordance with generally accepted
accounting principles consistently applied (if not, the
Consideration shall be reduced by any deficiency therein).
PIP, ONVC and the Holder acknowledge and agree that any
deficiency determined after the Closing as a result of the
conclusion of the audit shall be deducted from the
Restricted Shares by reducing the number of issued shares by
an amount equal to the dollar amount of any such deficiency
divided by $1.50 (representing the negotiated value per
share for purposes hereof) and the Holder shall, upon
written request from ONVC, return its share certificates
with appropriate transfer powers and instructions to ONVC
(or, if not received within 20 days, ONVC may cancel such
share certificates) and ONVC shall issue new certificates
less the shares to be deducted hereunder.
(e) Required Approvals. As promptly as practicable after the date of
this Agreement, the Holder and PIP will:
(1) seek and obtain the approval of these transactions by PIP's
Board of Director(s) or Manager(s), shareholders and
members,
(2) make all filings, if any, required by applicable law to be
made by them in connection with these transactions, and
(3) cooperate with ONVC with respect to all filings, if any,
that ONVC elects, or is required by any applicable law, to
make in connection with these transactions.
(f) Notifications. The Holder and PIP will promptly notify ONVC in
writing if the Holder or PIP becomes aware of (1) any fact or
condition that causes or constitutes a breach of the Holder's or
PIP's representations, warranties or covenants as of the date of
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this Agreement or as of the date of the Closing as if made as of
the date of the Closing, or (2) any fact or condition that should
be disclosed to ONVC in order to make any statements or
information furnished to ONVC, in light of the circumstances
under which they were made, not misleading.
(g) Exclusive Negotiation. Until such time, if any, as this Agreement
is terminated pursuant to Section 5.1 hereof, neither the Holder
nor PIP will directly or indirectly solicit, initiate, or
encourage any inquiries or proposals from, discuss or negotiate
with, provide any non-public information to, or consider the
merits of any unsolicited inquiries or proposals from, any person
or entity (other than ONVC) relating to any transaction involving
any sale of the PIP Interests, any sale of any of the businesses,
assets or equity or other securities of PIP (or any PIP
subsidiary, if any), or any merger, consolidation, business
combination, or similar transaction involving PIP (or any PIP
subsidiary, if any).
(h) Best Efforts. The Holder and PIP will use their reasonable
commercial efforts to cause the conditions in Article 4 hereof to
be satisfied.
3.2 COVENANTS OF ONVC
(a) Required Approvals. As promptly as practicable after the date of
this Agreement, ONVC will:
(1) seek and obtain the approval of these transactions by ONVC's
Board of Directors and, if required, shareholders,
(2) make all filings, if any, required by applicable law to be
made by it in connection with these transactions, and
(3) cooperate with the Holder and PIP with respect to all
filings, if any, that the Holder or PIP is required by any
applicable law to make in connection with these
transactions;
provided that this Agreement will not require ONVC to dispose of
or make any change in any portion of its business or to incur any
other burden to obtain any approval or governmental
authorization.
(b) Best Efforts. ONVC will use its reasonable commercial efforts to
cause the conditions in Article 4 hereof to be satisfied.
4. CONDITIONS PRECEDENT TO CLOSING
4.1 CONDITIONS PRECEDENT TO ONVC'S OBLIGATION TO CLOSE
ONVC's obligation to purchase and acquire the PIP Interests and to take
the other actions required to be taken by ONVC at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by ONVC, in whole or in part):
(a) Representations.
(i) Each of the representations and warranties made by the Holder and
PIP in this Agreement to the extent not qualified by materiality must
have been accurate in all material respects as of the date of this
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Agreement, and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date (except to the extent such
representations and warranties expressly relate to an earlier date, in
which case as of such earlier date).
(ii) Each of the representations and warranties made by the Holder and
PIP in this Agreement to the extent qualified by materiality must have
been accurate in all respects as of the date of this Agreement, and
must be accurate in all respects as of the Closing Date as if made on
the Closing Date (except to the extent such representations and
warranties expressly relate to an earlier date, in which case as of
such earlier date).
(b) Conditions. Each of the conditions required for the execution and
delivery of the Holder Documents, including, without limitation
those required herein, shall have been fulfilled or waived to the
satisfaction of ONVC.
(c) Holder's Performance. Each and every covenant and obligation of
the Holder and PIP hereunder required to be performed or complied
with at or prior to the Closing (considered collectively), and
each of these covenants and obligations (considered
individually), shall have been duly performed and complied with
in all respects.
(d) Due Diligence. ONVC shall have concluded its due diligence and
the audit of the PIP financial statements and the results thereof
shall be satisfactory to ONVC in its sole discretion; provided,
however, ONVC may elect to conclude the audit after the Closing
thereby waiving such condition in reliance upon any adjustments
as required by Section 3.1(d) hereof.
(e) Closing Deliverables. Each of the Closing Deliverables to be
delivered by the Holder to ONVC listed on Exhibit A attached
hereto shall have been delivered to the satisfaction of ONVC,
including the approvals required in Sections 3.1(e) and 3.2(a)
hereof.
(f) Ancillary Agreements. The Holder shall have executed the Lock-Up
Agreement and an Employment and Non-compete Agreement (the
"Employment Agreement"), in form and substance satisfactory to
ONVC and the Holder.
4.2 CONDITIONS PRECEDENT TO THE HOLDER'S OBLIGATION TO CLOSE
The Holder's obligation to sell the PIP Interests and to take the other
actions required to be taken by the Holder at the Closing is subject to the
satisfaction, at or prior to the Closing, of each of the following conditions
(any of which may be waived by the Holder, in whole or in part):
(a) Representations.
(i) Each of the representations and warranties made by ONVC in this
Agreement to the extent not qualified by materiality must have been
accurate in all material respects as of the date of this Agreement, and
must be accurate in all material respects as of the Closing Date as if
made on the Closing Date (except to the extent such representations and
warranties expressly relate to an earlier date, in which case as of
such earlier date).
(ii) Each of the representations and warranties made by ONVC in this
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Agreement to the extent qualified by materiality must have been
accurate in all respects as of the date of this Agreement, and must be
accurate in all respects as of the Closing Date as if made on the
Closing Date (except to the extent such representations and warranties
expressly relate to an earlier date, in which case as of such earlier
date).
(b) ONVC's Performance. Each and every covenant and obligation of
ONVC hereunder required to be performed or complied with at or
prior to the Closing (considered collectively), and each of these
covenants and obligations (considered individually), shall have
been duly performed and complied with in all respects.
(c) Closing Deliverables. Each of the Closing Deliverables to be
delivered by ONVC to the Holder listed on Exhibit A attached
hereto shall have been delivered to the satisfaction of the
Holder, including the approvals required in Sections 3.1(e) and
3.2(a) hereof.
(d) Ancillary Agreements. ONVC shall have executed the Lock-Up
Agreement and the Employment Agreement.
5. TERMINATION
5.1 TERMINATION EVENTS
This Agreement may, by written notice given prior to or at the Closing,
be terminated:
(a) by mutual consent of ONVC and the Holder;
(b) by either ONVC or the Holder if a material breach of any
provision of this Agreement has been committed by the other party
and such breach has not been cured;
(c) by ONVC if any of the conditions in Section 4.1 have not been
satisfied as of the Closing Date or if satisfaction of such a
condition is or becomes impossible (other than through the
failure of ONVC to comply with its obligations under this
Agreement) and ONVC has not waived such condition on or before
the Closing Date;
(d) by the Holder if any of the conditions in Section 4.2 have not
been satisfied as of the Closing Date or if satisfaction of such
a condition is or becomes impossible (other than through the
failure of the Holder to comply or with his obligations under
this Agreement) and the Holder has not waived such condition on
or before the Closing Date; or
(e) by either ONVC or the Holder if the Closing has not occurred
(other than through the failure of any party seeking to terminate
this Agreement to comply fully with its obligations under this
Agreement) on or before August 31, 2006, or such later date as
the parties may agree.
5.2 EFFECT OF TERMINATION
Each party's right of termination under Section 5.1 hereof is in
addition to any other rights it may have under this Agreement or otherwise, and
the exercise of a right of termination will not be an election of remedies. If
this Agreement is terminated pursuant to Section 5.1 hereof, all further
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obligations of the parties under this Agreement will terminate, except that the
obligations in Article VI and Sections 7.1 and 7.3 will survive; provided,
however, that if this Agreement is terminated by a party because of the breach
of the Agreement by the other party or because one or more of the conditions to
the terminating party's obligations under this Agreement is not satisfied as a
result of the other party's failure to comply with its obligations under this
Agreement, the terminating party's right to pursue all legal remedies will
survive such termination unimpaired.
6. INDEMNIFICATION; REMEDIES
6.1 SURVIVAL; INDEMNIFICATION AFFECTED BY KNOWLEDGE
All representations, warranties, covenants, and obligations in this
Agreement, the Holder Documents and the ONVC Documents will survive the Closing
for a period of twenty-four (24) months. Notwithstanding any provision contained
herein to the contrary, no Indemnified Person shall be entitled to
indemnification hereunder with respect to a breach by the Holder or PIP of any
representation or warranty made in this Agreement or any other Holder Document
that such Indemnified Person had knowledge of on the date of this Agreement. The
right to indemnification, payment of damages or other remedy based on such
representations, warranties, covenants, and obligations will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time after the execution and delivery of this
Agreement or the Closing Date, with respect to the accuracy or inaccuracy of or
compliance with, any such representation, warranty, covenant, or obligation. The
waiver of any condition based on the accuracy of any representation or warranty,
or on the performance of or compliance with any covenant or obligation, will not
affect the right to indemnification, payment of damages, or other remedy based
on such representations, warranties, covenants, and obligations.
6.2 INDEMNIFICATION BY THE HOLDER
The Holder will indemnify and hold harmless ONVC and its respective
representatives, stockholders, controlling persons, and affiliates
(collectively, the "Indemnified Persons") for, and will pay to the Indemnified
Persons the amount of, any loss, liability, claim, damage (specifically
excluding incidental, consequential, punitive or exemplary damages) or expense
(including costs of investigation and defense and reasonable attorneys' fees),
whether or not involving a third-party claim (collectively, "Damages"), arising,
directly or indirectly, from or in connection with: (a) any breach of any
representation, warranty or covenant made by the Holder or PIP in this Agreement
or in any other Holder Document, whether such breach is as of the date hereof or
as of the date of the Closing as if made on the date of the Closing; (b) any
breach by the Holder or PIP of any covenant or obligation of the Holder or PIP;
or (c) any action or omission by, or any product shipped or manufactured by, or
any services provided by, PIP prior to the date of the Closing.
6.3 INDEMNIFICATION BY ONVC
ONVC will indemnify and hold harmless the Holder and his successors and
permitted assigns, and will pay to the Holder the amount of any Damages arising,
directly or indirectly, from or in connection with (a) any breach of any
representation or warranty made by ONVC in this Agreement or in any ONVC
Document, whether such breach is as of the date hereof or as of the date of the
Closing as if made on the date of the Closing; (b) any breach by ONVC of any
covenant or obligation of ONVC; or (c) any action or omission by, or any product
shipped or manufactured by, or any services provided by, PIP after the date of
the Closing.
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6.4 PROCEDURE FOR INDEMNIFICATION
The party or parties making a claim for indemnification under this
Article 6 shall be, for the purposes of this Agreement, referred to as the
"Indemnified Party" and the party or parties against whom such claims are
asserted under this Article 6 shall be, for the purposes of this Agreement,
referred to as the "Indemnifying Party." All claims by any Indemnified Party
under this Article 6 shall be asserted and resolved as follows:
(a) In the event that (i) any action, proceeding, investigation,
litigation or suit (each, a "Proceeding") is asserted or
instituted by any person other than the parties to this Agreement
that could give rise to Damages for which an Indemnifying Party
could be liable to an Indemnified Party under this Agreement
(such Proceeding, a "Third Party Claim") or (ii) any Indemnified
Party under this Agreement shall have a claim to be indemnified
by any Indemnifying Party under this Agreement that does not
involve a Third Party Claim (such claim, a "Direct Claim"), the
Indemnified Party shall with reasonable promptness send to the
Indemnifying Party a written notice briefly specifying the nature
of such Third Party Claim or Direct Claim and the amount or
estimated amount thereof, which amount or estimated amount shall
not be conclusive of the final amount, if any, of such Third
Party Claim or Direct Claim (a "Claim Notice").
(b) In the event of a Third Party Claim, the Indemnifying Party shall
be entitled to appoint counsel of the Indemnifying Party's choice
at the expense of the Indemnifying Party to represent the
Indemnified Party and any others the Indemnifying Party may
reasonably designate in connection with such Third Party Claim
(in which case the Indemnifying Party shall not thereafter be
responsible for the fees and expenses of any separate counsel
retained by any Indemnified Party except as set forth below);
provided, however, that such counsel must be reasonably
acceptable to the Indemnified Party. Notwithstanding an
Indemnifying Party's election to appoint counsel to represent an
Indemnified Party in connection with a Third Party Claim, an
Indemnified Party shall have the right to retain separate counsel
to conduct the defense of such Third Party Claim, and only in the
case of clauses (i) and (iv) below (but not clauses (ii) and
(iii) below) the Indemnifying Party shall bear the reasonable
fees, costs and expenses of such separate counsel, if (i) the use
of counsel chosen by the Indemnifying Party to represent the
Indemnified Party would present such counsel with a conflict of
interest, (ii) the Third Party Claim seeks an injunction or other
equitable relief that would be binding on the Indemnified Party,
(iii) an adverse determination with respect to the Third Party
Claim could reasonably be expected to establish a material
adverse precedent or (iv) the Indemnifying Party shall not have
employed counsel to represent the Indemnified Party within a
reasonable time after notice of the institution of such Third
Party Claim. If and to the extent reasonably requested by the
Indemnifying Party, the Indemnified Party shall cooperate with
the Indemnifying Party and its counsel in contesting any Third
Party Claim that the Indemnifying Party defends or, if
appropriate and related to the Third Party Claim, in making any
counterclaim against the person asserting the Third Party Claim,
or any cross-complaint against any person. No Third Party Claim
may be settled or compromised (i) by the Indemnified Party
without the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld or delayed, or
13
(ii) by the Indemnifying Party without the prior written consent
of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed. In the event that any Indemnified Party or
Indemnifying Party settles or compromises or consents to the
entry of any judgment with respect to any Third Party Claim in
violation of the preceding sentence, then such violating party
shall pay and indemnify fully, hold harmless, and defend the
other party against any incremental Damages under this Article 6
caused by or arising from such settlement, compromise or consent
to the entry of judgment without the prior written consent of the
other party.
(c) In the event of a Direct Claim, the Indemnifying Party shall
notify the Indemnified Party within 45 days following receipt of
a Claim Notice whether or not the Indemnifying Party disputes
such claim.
(d) From and after the delivery of a Claim Notice relating to a Third
Party Claim, at the reasonable request of the Indemnifying Party,
each Indemnified Party shall grant the Indemnifying Party and its
representatives reasonable access to the books, records,
personnel and properties of such Indemnified Party to the extent
reasonably related to the matters to which the Third Party Claim
relates. All such access shall be granted during normal business
hours and shall be granted under conditions that will not
interfere with the business and operations of such Indemnified
Party. The Indemnifying Party shall not, and shall require its
representatives to not, use (except in connection with such Third
Party Claim) or disclose to any third party other than the
Indemnifying Party's representatives (except as may be required
by applicable law) any information obtained pursuant to this
Section 6.4(d).
6.5 LIMITATIONS ON INDEMNITY OBLIGATIONS
(a) Neither the Holder nor ONVC, respectively, shall have any
liability (for indemnification or otherwise) to the Indemnified
Persons with respect to any matters described in this Article 6
until the total amount of Damages attributable to the Holder or
ONVC, respectively, with respect to such matters exceeds $10,000
(the "Deductible"), and then only for the amount by which such
Damages exceed the Deductible.
(b) The maximum aggregate amount of Damages that the Holder or ONVC,
respectively, shall be obligated to pay to the Indemnified
Persons under this Article 6 shall be limited to an amount equal
to the value of the Consideration.
6.6 RIGHT OF SET-OFF
Upon notice to the Holder specifying in reasonable detail the basis for
such set-off, ONVC may set off any amount to which it may be entitled under this
Article 6 against amounts otherwise payable hereunder. The exercise of such
right of set-off by ONVC in good faith, whether or not ultimately determined to
be justified, will not constitute an event of default hereunder or under any
ONVC Document. Neither the exercise of nor the failure to exercise such right of
set-off or to give a notice of any claim hereunder will constitute an election
of remedies or limit ONVC in any manner in the enforcement of any other remedies
that may be available to it.
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6.7 SOLE REMEDY
Upon and after the Closing, the provisions of this Article 6 represent
the sole and exclusive remedy available to any party to this Agreement for any
misstatement or omission by any other party relating to any representation or
warranty contained herein or for any breach by any other party of any
representation, warranty, covenant or agreement contained herein and, except
with respect to fraudulent acts, each party hereby unconditionally waives any
other rights that it may have at law or in equity for any misstatement or
omission by any other party from any representation or warranty contained
herein, or any breach by any other party of any representation, warranty,
covenant or agreement contained herein.
7. GENERAL PROVISIONS
7.1 EXPENSES
Except as otherwise expressly provided in this Agreement, each party to
this Agreement will bear its respective expenses incurred in connection with the
preparation, execution, and performance of this Agreement and the transactions
contemplated hereby, including all fees and expenses of agents, representatives,
counsel, and accountants. In the event of termination of this Agreement, the
obligation of each party to pay its own expenses will be subject to any rights
of such party arising from a breach of this Agreement by another party.
7.2 PUBLIC ANNOUNCEMENTS
Any public announcement or similar publicity with respect to this
Agreement or the transactions contemplated hereby will be issued, if at all, at
such time and in such manner as ONVC determines. Unless consented to by ONVC in
advance, prior to the Closing, the Holder shall, and shall cause PIP to, keep
this Agreement strictly confidential and may not make any disclosure of this
Agreement to any person or entity, other than the accountants, attorneys and
other advisors and representatives of the Holder. The Holder and ONVC will
consult with each other concerning the means by which PIP's employees,
customers, and suppliers and others having dealings with PIP will be informed of
these contemplated transactions, and ONVC will have the right to be present for
any such communication.
7.3 CONFIDENTIALITY
ONVC and the Holder and PIP will maintain in confidence, and will cause
the directors, officers, employees, agents, and advisors of each to maintain in
confidence, and not use to the detriment of another party any written, oral, or
other information obtained in confidence from another party in connection with
this Agreement or these transactions, unless (a) such information is already
known to such party or to others not bound by a duty of confidentiality or such
information becomes publicly available through no fault of such party, (b) the
use of such information is necessary or appropriate in making any filing or
obtaining any consent or approval required for the consummation of these
transactions, or (c) the furnishing or use of such information is required by or
necessary or appropriate in connection with legal proceedings. If these
transactions are not consummated, each party will return or destroy as much of
such written information as the other party may reasonably request.
7.4 MISCELLANEOUS
All notices and communications hereunder will be deemed given upon
receipt by personal delivery, overnight courier, fax or e-mail or upon the 3rd
day following mailing by registered or certified mail, return receipt requested,
and either delivered or addressed to the addresses set forth herein. This
15
Agreement constitutes the entire agreement between the parties and supersedes
any prior understandings or agreements, written or verbal, between the parties.
This Agreement may be amended, supplemented, modified or discharged only in
writing executed by all parties. This Agreement may not be assigned by either
party. The headings of Sections in this Agreement are provided for convenience
only and shall not affect its construction or interpretation. This Agreement may
be executed in counterparts, each of which shall be deemed to be an original
copy of this Agreement and all of which, when taken together, shall be deemed to
constitute one and the same agreement. If any provision of this Agreement is
held invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement shall remain in full force and effect. Any dispute
hereunder shall be resolved by arbitration and all parties waive any right to a
trial by jury in connection therewith. Each party agrees that remedies for any
breach hereof include damages, specific performance, injunctive relief and other
equitable remedies, that no bond shall be required in connection therewith and
that the prevailing party shall be entitled to recover attorney's fees and
costs. This Agreement will be governed by the laws of the State of Florida
without regard to conflict of laws principles and venue and jurisdiction will
lie only in Broward County, Florida, and the Parties hereby consent to
jurisdiction and venue therein.
16
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
ONVC: ONLINE VACATION PIP: PHOENIX INTERNATIONAL
CENTER HOLDINGS CORP. PUBLISHING, LLC, for itself
and on behalf of all of its
subsidiaries
By: /s/ Xxxxxx. X. Xxxxxx By: /s/ Xxxxx Xxxx
------------------------- ------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxx Xxxx
Title: President Title: President
Address: 0000 XX 00xx Xxxxxx, Xxxxx 000 Address: 000 Xxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000 Trophy Xxxx, Xxxxx 00000
THE HOLDER: XXXXX XXXX
/s/ Xxxxx Xxxx
--------------
Address: 000 Xxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxx 00000
17
EXHIBIT A - CLOSING DELIVERABLES
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CLOSING 1. Acquisition Agreement
--------------------------------------------------------------------------------
TITLE 2. Interest Certificates representing PIP Interests
with Transfer Powers
INSTRUMENTS 3. General Certificates of the Holder
4. Stock Certificates representing Restricted Shares
and Transfer Letter
--------------------------------------------------------------------------------
AGREEMENTS 5. Employment and Non-Compete Agreement
6. Lock-Up Agreement
--------------------------------------------------------------------------------
ORGANIZATIONAL 7. General Certificates of PIP with Articles,
INSTRUMENTS Operating Agreement, Good Standing Certificate
and Resolutions/Actions
8. General Certificates of ONVC with Articles,
Bylaws, Good Standing Certificate and
Resolutions/Actions
9. Resignations of Manager
OTHER 10. Legal Opinion for PIP and Holder
11. Legal Opinion for ONVC
12. Form 13D and Xxxxx Filing for Holder
13. Form 8-K
14. Financial Statements for PIP (To Be Delivered
Post-Closing)
--------------------------------------------------------------------------------
DUE DILIGENCE 15. Corporate and Organizational
INSTRUMENTS 16. Business Descriptions
17. Financial Statements
18. Tax Matters
19. Securities
20. Financings
21. Receivables and Inventories
22. Property, Leases and Insurance
23. Intellectual Property
24. Employee Matters
25. Environmental Matters
26. Contract Matters
27. Litigation
28. Related Parties
29. Licenses
30. Consents
31. Other
EXHIBIT B - DUE DILIGENCE DELIVERABLES
The Holder and PIP will provide (A) within 5 business days of the date hereof
lists of the items set forth herein for PIP (and any Subsidiaries, if any) for
the last five years, and (B) within 5 business days of a request by ONVC
copies of any items set forth herein or in the lists provided hereunder.
1. CORPORATE AND ORGANIZATIONAL
1.1 Current organizational chart for subsidiaries, divisions and
hierarchy of officers.
1.2 Articles of Incorporation, Bylaws, Articles of Organization,
Operating Agreements, Certificates of Partnership, Partnership
Agreements.
1.3 Minute books, stock books and stock transfer ledgers (or similar
books and ledgers).
1.4 Good Standing Certificates for states of formation and foreign
qualifications.
1.5 Foreign qualifications or registrations, registered agents and
addresses, trade names.
1.6 Non-qualified jurisdictions with office, employees or agents.
1.7 Trade names or business names.
2. BUSINESS DESCRIPTIONS
2.1 Market studies, feasibility studies, analyses, and similar
reports.
2.2 Marketing and other descriptive brochures.
2.3 Press releases and press clippings.
2.4 Recent analyses prepared by investment bankers, engineers,
management consultants, accountants, or others, including
marketing studies, credit reports, and other types of reports,
financial or otherwise.
3. FINANCIAL STATEMENTS
3.1 Audited financial statements, both consolidated and
consolidating.
3.2 Unaudited interim financial statements since the most recent
audited financial statements.
3.3 Management financial reports to the directors, or any committee
thereof.
3.4 Sales projections and estimates, budget and budget projections
including assumptions therein.
3.5 Prepaid or deferred income or expenses.
3.6 Accounting policies and any changes therein, including revenue
recognition and depreciation.
3.7 Accountants' names and addresses and length of relationship.
3.8 Accountants' correspondence and reports to management, including
all management letters.
3.9 Write-downs or write-offs of notes, accounts receivable, or other
assets.
4. TAX MATTERS
4.1 Federal, state, local, and foreign income, payroll and franchise
tax returns.
4.2 Correspondence with IRS or other tax authorities concerning
audits, adjustments or compliance.
4.3 State, local and foreign taxes to which PIP is subject with
assessment, return and due dates.
4.4 Agreements, consents, elections, and waivers filed/made with the
IRS or other taxing authorities
4.5 Pending or threatened disputes with regard to tax matters.
4.6 "S corporation" elections, IRS notices of acceptance, and any
other information pertinent thereto.
4.7 Tax indemnification, sharing or allocation agreements.
4.8 Legal or accounting tax opinions relating to tax reporting.
5. SECURITIES
5.1 Securities descriptions, including common, preferred,
convertible, options, warrants, debt, etc.
5.2 Security holders' lists, with names, addresses, voting trusts and
holdings.
5.3 Security holder agreements, option agreements, plans and
warrants.
5.4 Reports, filings and correspondence with security holders, SEC
and state commissions.
5.5 Securities transfer restrictions and registration, preemptive or
other rights agreements.
5.6 Agreements pursuant to which securities have been acquired or
issued.
5.7 Private placement memoranda, prospectuses, or other documentation
relating to securities.
5.8 Agreements and plans for acquisition, merger or business
combinations.
6. FINANCINGS
6.1 Loan agreements, indentures, debt and other financing
instruments, and related materials.
6.2 Mortgages, liens, pledges, security interests, charges,
encumbrances and related materials.
6.3 Guarantees concerning the payment or performance of obligations
of third parties..
6.4 Correspondence with lenders and holders (including all consents,
notices, or waivers of default).
6.5 Schedule of all debt (including short-term, capitalized leases,
guarantees, and contingent).
7. RECEIVABLES AND INVENTORIES
7.1 Customers and suppliers accounting for more than 5% of any sales,
product line or service.
7.2 Customary sales credit terms.
7.3 Aging, names and addresses of accounts receivable in excess of
$25,000.
7.4 Bad debt reserves, history and policies.
7.5 Products and services currently sold by PIP, together with
applicable prices and discounts.
7.6 Inventory pricing procedures.
7.7 Major sources of supply for material, dollar purchases, and
available alternative supply sources.
8. PROPERTIES, LEASES AND INSURANCE
8.1 Real estate owned, leased, or used and materials related thereto.
8.2 Fixed assets, vehicles and equipment owned, leased, or used and
materials related thereto.
8.3 Portfolio investments, including cost basis and current value.
8.4 Acquisition contracts, leases, or other arrangements.
8.5 Title insurance and professional appraisals of any property or
equipment.
8.6 Liens, security interests, mortgages, conditional sales
contracts, etc. .
8.7 Insurance policies relating to the business, assets, or
properties of the Company.
8.8 insurance claims (over $5,000 in amount) currently pending.
8.9 Schedule of loss experience per insurance year.
9. INTELLECTUAL PROPERTY (PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS)
9.1 Patent registrations and applications.
9.2 Trademark (service xxxx and trade dress) use, registrations (or
lack thereof) and applications.
9.3 Copyright registrations and applications.
9.4 Manual or other written document detailing procedures for
protecting trade secrets.
9.5 Sale, licensing, merchandising or assignment agreements relating
to intellectual property.
9.6 Communications relating to the validity or infringement of
intellectual property.
9.7 Studies or reports relating to the validity or value of
intellectual property.
10. EMPLOYEES, BENEFIT PLANS, AND LABOR DISPUTES
10.1 Number of employees by function (executive, sales, clerical,
research, labor, etc.).
10.2 Name and address of each person with power of attorney to act on
behalf of any entity.
10.3 Labor union contracts, collective bargaining arrangements,
strikes, unrest or troubles.
10.4 Unfair labor practices complaints and status.
10.5 Pending or threatened requests, arbitrations, grievances, labor
disputes, strikes, or disturbances.
10.6 Performance bonus plans.
10.7 Employee pension and deferred compensation plans, actuarial
reports and financial statements.
10.8 Details on any terminated pension plans and unfunded pension
liabilities.
10.9 Employee benefit plans, vacation policies, holidays, etc..
10.10 Employee policies, handbooks or similar documents.
10.11 Employees who received compensation exceeding $50,000 in the last
fiscal year.
10.12 Employment, consulting or management agreements (written or
oral).
10.13 Confidentiality, noncompetition, or similar agreements.
10.14 Workers' compensation and unemployment compensation insurance and
claims by state.
11. LITIGATION
11.1 Pending or threatened claims, lawsuits, arbitrations or
investigations and any available insurance
11.2 Correspondence from counsel relating to litigation or contingent
liabilities.
11.3 Correspondence relating to actual or alleged infringement of
intellectual property rights.
11.4 Judgments, orders, and decrees to which PIP are subject.
11.5 Most recent response to auditors' request for information about
litigation/contingent liabilities.
11.6 Governmental permits, licenses, etc., and any matters in relation
thereto.
11.7 Litigation involving an officer/director re bankruptcy, crimes,
securities law, or business practice.
11.8 Investigations, pending or threatened, by any federal, state,
local, or foreign authorities.
11.9 Correspondence, reports, filings or other information regarding
any other regulatory bodies.
12. CONTRACTS AND ARRANGEMENTS
12.1 Standard forms of agreements, sales and purchase orders used by
PIP.
12.2 Warranty agreements, including product warranties, for completed
and executory contracts.
12.3 Oral contracts and commitments.
12.4 Sales agency and distribution agreements.
12.5 Contracts and commitments in default and the details thereof.
12.6 Contracts subject to or currently in renegotiation.
12.7 Agreements not to be performed within three months or involving
over $25,000.
12.8 Contracts with advertising or public relations agencies.
12.9 Suppliers (representing in excess of 5 percent of annual
purchases) of the Company.
12.10 Executory contracts, sales and purchase orders.
12.11 Contractual or customary credit terms and agreements from
suppliers and manufacturers.
12.12 Agreements and arrangements with distributors, dealers, sales
agents, or representatives.
12.13 Agreements and arrangements whereby the Company or any subsidiary
acts as a distributor.
12.14 Agreements relating to the supply of raw materials and supplies.
12.15 Agreements and documentation relating to acquisition, sale or
proposed sale of any business.
12.16 Joint venture or partnership agreements.
12.17 Franchise or distribution agreements.
12.18 Agreements not previously listed involving payment of
commissions, discounts, etc.
12.19 Contracts restricting competition o requiring the continuance of
any line of business.
12.20 Facts/circumstances that may result in cancellation, termination
or a claim under any agreement.
12.21 Agreements granting any right of first refusal to acquire any
business or assets.
12.22 Contracts and arrangements for trucking, delivery and/or
warehouse space.
12.23 Research and development agreements.
12.24 Technology license agreements.
13. ENVIRONMENTAL AND RELATED MATTERS
13.1 Internal and external environmental reports relating to current
or former properties.
13.2 Applications, statements, or reports filed or given to any
environmental regulatory body.
13.3 Notices, complaints, suits, or similar documents to or from any
environmental regulatory body.
13.4 Internal and external reports concerning compliance with waste
disposal regulations.
13.5 permits, shipping authorizations, manifests, and waste stream
authorizations.
13.6 Processes or facilities currently or previously operated that may
generate hazardous material.
13.7 Pollution control capital expenditure reports (including budget
requests).
13.8 Reports, manifests, or other documents relating to hazardous
waste or pesticide management.
13.9 Documents relating to PCBs or asbestos.
13.10 Public or private records reflecting existing or recent
environmental problems.
14. TRANSACTIONS WITH RELATED PARTIES
14.1 Related party, director and officer names, addresses , telephone
numbers and relationships.
14.2 Directors and officers liability insurance policies.
14.3 Related party agreements and/or conflicts.
14.4 Debt or obligations to or from any related party.
14.5 Assets or properties used or leased to or from any related party.
14.6 Other transactions with related parties.
15. LICENSES, FILINGS AND REPORTS
15.1 Federal, state, local, and foreign governmental permits,
licenses, and approvals.
15.2 Filings and reports with governmental agencies.
15.3 Correspondence, reports or notices to or from, or requirements or
obligations imposed or proposed by, any federal, state, local, or
foreign governmental agency.
16. CONSENTS AND NOTIFICATIONS
16.1 Consents required from any third party.
16.2 Notifications required from any third party.
17. MISCELLANEOUS
17.1 Bank accounts and safe deposit boxes, with authorized
signatories.
17.2 Memberships in trade associations.
17.3 Other matters not addressed herein which might be material to any
businesses, operations, properties, products, customers,
suppliers, employees or other aspects.
