REDEMPTION AGREEMENT
EXHIBIT
4.1
REDEMPTION
AGREEMENT, dated as of March 28, 2008 (this “Agreement”),
between Travel Xxxx Holdings, Inc., a Delaware corporation (the “Company”),
having an office at 000 Xxxxx Xxxx Xxxx., Xxxxx 000, Xxxxx Xxxxxx, XX 00000,
Fountainhead
Capital Management Limited, having an office at 0 Xxxxxxx Xxxxx, Xxx Xxxxxx
St.
Helier, Jersey, Channel Islands JE4 5RP (“Fountainhead”),
and
La Pergola Investments Limited, having an office at 0
Xxxxxxx
Xxxxx, Xxx Xxxxxx St. Helier, Jersey, Channel Islands JE4 5RP
(“La
Pergola,”
and
collectively with Fountainhead, the “Redeeming
Parties”).
BACKGROUND
The
Company desires to redeem an aggregate of 2,000,000 shares (the “Shares”)
from
Fountainhead and La Pergola in exchange for an aggregate payment of $660,000
payable by delivery of a convertible promissory note, to be dated as of the
date
hereof, by the Company in favor of each of Fountainhead and La Pergola in the
form of Exhibits A and B, respectively, hereto (the “Notes”).
Fountainhead and La Pergola have each indicated to the Company that they are
willing to allow the Company to redeem the Shares from Fountainhead and La
Pergola in exchange for the Notes. The portion of the Shares to be redeemed
from
Fountainhead is 1,700,000, with the remaining 300,000 shares being redeemed
from
La Pergola.
NOW,
THEREFORE, in
consideration of the mutual covenants and promises contained herein and for
good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. REDEMPTION
OF SHARES; REDEMPTION ISSUANCE; CONSIDERATION
1.1 Redemption
of Shares; Redemption Issuance; Consideration.
The
Company shall redeem the Shares from the Redeeming Parties and the Redeeming
Parties shall tender the Shares to the Company for redemption in consideration
for the issuance by the Company of the Notes (the “Redemption
Issuance”).
At
the Closing (as defined below), the Company shall effect the Redemption Issuance
by delivering the Notes to the Redeeming Parties.
2. THE
CLOSING AND CLOSING DELIVERIES
2.1 Closing.
The
closing (the “Closing”)
of the
transactions contemplated by this Agreement shall take place on March 28, 2008
(the “Closing
Date”)
at
such place and at such time as the parties may mutually agree.
2.2 Deliveries.
At the
Closing, the Redeeming Parties shall deliver to the Company their respective
certificates representing the Shares accompanied by an executed stock transfer
power duly endorsed in blank with
signature guaranteed and such other documents as may be necessary to effect
the
transfer of the Shares to the Company free and clear of all liens, claims,
charges, security interests, and encumbrances of any kind whatsoever
against
delivery to the Redeeming Parties of the Notes as specified in Section 1.1
hereof. Each party shall certify and reaffirm
their representations and warranties to each other as set forth herein as of
the
Closing by delivering to the other party a certificate to such
effect.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company hereby represents and warrants to the Redeeming Parties as of the date
hereof (and the Company shall certify to Fountainhead as of the Closing) as
follows:
3.1 Organization,
Standing, etc.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite power and
authority to own, lease and operate its properties, to carry on its business
as
now conducted and now proposed to be conducted, to execute, deliver and enter
into this Agreement and to perform and carry out the terms of this
Agreement.
3.2 Authorization
and Binding Effect.
The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
of the Company. This Agreement constitutes the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
its terms, except as limited by bankruptcy and other laws relating to creditors
rights and subject to limitations on the availability of equitable
remedies.
4. REPRESENTATIONS
AND WARRANTIES OF THE REDEEMING PARTIES
The
Redeeming Parties hereby jointly and severally represent and warrant to the
Company as of the date hereof (and the Redeeming Parties shall certify to the
Company as of the Closing) as follows:
4.1 Shares.
The
Redeeming Parties are the owners of their respective portions of the Shares,
and
upon delivery of the Shares to the Company in accordance with this Agreement,
such Shares will be free of any encumbrance, lien, claims, charge, and security
interest or other interest of any kind whatsoever, and the Company shall be
the
sole lawful owner of the Shares. Except for this Agreement, no person has any
option or right to purchase or otherwise acquire the Shares, whether by contract
of sale or otherwise, nor is there a “short position” as to the Shares.
4.2 Authorization
and Binding Effect.
The
execution and delivery of this Agreement and the performance of the transactions
contemplated hereby are duly authorized (corporate or otherwise). This Agreement
constitutes the legal, valid and binding obligations of the
Redeeming Parties,
enforceable against each of the
Redeeming Parties in
accordance with its terms, except as limited by bankruptcy and other laws
relating to creditors rights and subject to limitations on the availability
of
equitable remedies.
5. MISCELLANEOUS
5.1 Amendment
and Waiver.
Any
term,
covenant, agreement or condition of this Agreement may be amended, with the
written consent of the Company, Fountainhead and La Pergola, or compliance
therewith may be waived (either generally or in a particular instance and
either
retroactively or prospectively), by one or more substantially concurrent written
instruments signed by the Company, Fountainhead and La Pergola.
5.2
Notices.
Any
notice, demand or other communication to be given hereunder by any party to
the
other shall be in writing and shall be mailed by certified mail, return receipt
requested, or delivered against receipt to the party to whom it is to be given
to the address of such party as set forth in the preamble to this Agreement
(or
to such other address as the party shall have furnished in accordance with
the
provisions of this Section 6.2). Any notice or other communication given by
certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party’s address which shall be deemed given at
the time of receipt thereof.
5.3 Survival
of Agreements, Representations and Warranties, etc.
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement.
5.4 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of and be enforceable by the
Company, Fountainhead, La Pergola, successors to the Company, Fountainhead
and
La Pergola, and the assigns of Fountainhead and La Pergola.
5.5 Governing
Law.
This
Agreement (including the validity thereof and the rights and obligations of
the
parties hereunder and thereunder) and all amendments and supplements hereof
and
thereof and all waivers and consents hereunder and thereunder shall be construed
in accordance with and governed by the internal laws of the State of Delaware
without regard to its conflict of laws rules.
5.6 Expenses.
Each
party shall bear its own costs and expenses (including legal fees and expenses)
incurred in connection with this Agreement and all of the transactions
contemplated hereby and thereby.
5.7 Specific
Performance.
Each of
the parties hereto acknowledges and agrees that the breach of this Agreement
would cause irreparable damage to the other parties hereto and that the other
parties hereto will not have an adequate remedy at law. Therefore, the
obligations of each of the parties hereto under this Agreement shall be
enforceable by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted
in connection therewith. Such remedies, however, shall be cumulative and not
exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
5.8 Miscellaneous.
This
Agreement embodies the entire agreement and understanding between Fountainhead,
La Pergola and the Company and supersedes all prior agreements and
understandings relating to the subject matter hereof. In case any provision
of
this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way
be
affected or impaired thereby. This Agreement may be executed in any number
of
counterparts and by the parties hereto on separate counterparts but all such
counterparts shall together constitute but one and the same instrument. This
Agreement may be reproduced by any electronic, photographic, photostatic,
magnetic, microfilm, microfiche, micro-card, miniature photographic, facsimile
or other similar process and the original thereof may be destroyed. The parties
agree that any such reproduction shall, to the extent permitted by law, be
as
admissible
in evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not the reproduction
was made in the regular course of business) and that any enlargement, facsimile
or further reproduction shall likewise be admissible in evidence. Facsimile
execution and delivery of this Agreement is legal, valid and binding execution
and delivery for all purposes.
[signature
page follows]
IN
WITNESS WHEREOF,
the
parties hereto have executed this Redemption Agreement as of the date first
set
forth above.
| TRAVEL XXXX HOLDINGS, INC. | |
|
By:
|
/s/
Xxxxxxxx Xxxxxx
|
|
Name:
Xxxxxxxx Alison
|
|
|
Title:
Chief Executive Officer
|
|
|
(Duly
Authorized)
|
|
|
FOUNTAINHEAD
CAPITAL
MANAGEMENT
LIMITED
|
|
|
By:
|
/s/
Xxxxxx X.X. Xxxxxx
|
|
Name:
Xxxxxx X.X. Xxxxxx
|
|
|
Title:
Attorney-in-Fact
|
|
|
(Duly
Authorized)
|
|
| LA PERGOLA INVESTMENTS LIMITED | |
|
By:
|
/s/
Xxxxxx X.X. Xxxxxx
|
|
Name:
Xxxxxx X.X. Xxxxxx
|
|
|
Title:
Attorney-in-Fact
|
|
[Signature
Page to Redemption Agreement]
