STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
by and among
TRAVEL XXXX HOLDINGS, INC.
a Florida Corporation
and
TRAVEL XXXX, INC.
a Florida Corporation
effective as of July 15, 2003
STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE
THIS STOCK PURCHASE AGREEMENT AND SHARE EXCHANGE, made and entered into
this 15th day of July, by and among Travel Xxxx Holdings, Inc., a Florida
corporation with its principal place of business located at 0000 XX 00xx Xx #0,
Xxxxxxx Xxxxx, XX 00000 ("Holdings"); Travel Xxxx, Inc., a Florida Corporation
with its principal place of business at 0000 XX 00xx Xx #0, Xxxxxxx Xxxxx, XX
00000 ("Travel Xxxx") and Xxxxx Xxxxxxxx, the sole shareholder of Travel Xxxx
("Shareholder") (collectively Travel Xxxx and Xxxxx Xxxxxxxx, the sole
shareholder of Travel Xxxx shall be known as the "Travel Xxxx Group").
Premises
A. This Agreement provides for the acquisition of Travel Xxxx whereby
Travel Xxxx shall become a wholly owned subsidiary of Holdings and in connection
therewith, the issuance of a total of 1,000,000 shares of Holdings to the Travel
Xxxx Shareholder.
B. The boards of directors of Travel Xxxx and Holdings have determined,
subject to the terms and conditions set forth in this Agreement, that the
transaction contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed acquisition.
Agreement
NOW, THEREFORE, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived here from, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
TRAVEL XXXX HOLDINGS, INC.
As an inducement to and to obtain the reliance of Travel Xxxx, Holdings
represents and warrants as follows:
Section 1.1 Organization. Holdings is a corporation duly organized,
validly existing, and in good standing under the laws of Florida and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign corporation in the jurisdiction in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Schedules attached hereto
(hereinafter defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto as in effect on the date hereof.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated by this Agreement in accordance with the terms
hereof will not violate any provision of Holding's articles of incorporation or
bylaws. Holdings has full power, authority and legal right and has taken all
action required by law, its articles of incorporation, its bylaws or otherwise
to authorize the execution and delivery of this Agreement.
Section 1.2 Capitalization. The authorized capitalization of Holdings
consists of 100,000,000 Common Shares, $0.001 par value per share, and
10,000,000 shares of Blank Check Preferred Stock, $.001 par value. As of the
date hereof, Holdings has 9,130,000 common shares issued and outstanding.
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. Holdings has no securities, warrants or options authorized or
issued.
Section 1.3 Subsidiaries. Holdings has no subsidiaries.
Section 1.4 Tax Matters: Books and Records.
(a) The books and records, financial and others, of Holdings are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Holdings has no liabilities with respect to the payment of any
country, federal, state, county, or local taxes (including any
deficiencies, interest or penalties).
(c) Holdings shall remain responsible for all debts incurred by Holdings
prior to the date of closing.
Section 1.5 Litigation and Proceedings. There are no actions, suits,
proceedings or investigations pending or threatened by or against or affecting
Holdings or its properties, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign or before any
arbitrator of any kind that would have a material adverse affect on the
business, operations, financial condition or income of Holdings. Holdings is not
in default with respect to any judgment, order, writ, injunction, decree, award,
rule or regulation of any court, arbitrator or governmental agency or
instrumentality or of any circumstances which, after reasonable investigation,
would result in the discovery of such a default.
Section 1.6 Material Contract Defaults. Holdings is not in default in any
material respect under the terms of any outstanding contract, agreement, lease
or other commitment which is material to the business, operations, properties,
assets or condition of Holdings, and there is no event of default in any
material respect under any such contract, agreement, lease or other commitment
in respect of which Holdings has not taken adequate steps to prevent such a
default from occurring.
Section 1.7 Information. The information concerning Holdings as set forth
in this Agreement and in the attached Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made in light
of the circumstances under which they were made, not misleading.
Section 1.8 Title and Related Matters. Holdings has good and marketable
title to and is the sole and exclusive owner of all of its properties,
inventory, interest in properties and assets, real and personal (collectively,
the "Assets") free and clear of all liens, pledges, charges or encumbrances.
Holdings owns free and clear of any liens, claims, encumbrances, royalty
interests or other restrictions or limitations of any nature whatsoever and all
procedures, techniques, marketing plans, business plans, methods of management
or other information utilized in connection with Holdings's business. No third
party has any right to, and Holdings has not received any notice of infringement
of or conflict with asserted rights of other with respect to any product,
technology, data, trade secrets, know-how, proprietary techniques, trademarks,
service marks, trade names or copyrights which, singly on in the aggregate, if
the subject of an unfavorable decision ruling or finding, would have a
materially adverse affect on the business, operations, financial conditions or
income of Holdings or any material portion of its properties, assets or rights.
Section 1.9 Contracts On the closing date:
(a) There are no material contracts, agreements franchises, license
agreements, or other commitments to which Holdings is a party or by
which it or any of its properties are bound:
(b) Holdings is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction or
any judgment, order, writ, injunction, decree or award materially and
adversely affects, or in the future may (as far as Holdings can now
foresee) materially and adversely affect , the business, operations,
properties, assets or conditions of Holdings; and
(c) Holdings is not a party to any material oral or written: (I) contract
for the employment of any officer or employee; (ii) profit sharing,
bonus, deferred compensation, stock option, severance pay, pension
benefit or retirement plan, agreement or arrangement covered by Title
IV of the Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of money;
(iv) guaranty of any obligation for the borrowing of money or
otherwise, excluding endorsements made for collection and other
guaranties, of obligations, which, in the aggregate exceeds $1,000;
(v) consulting or other contract with an unexpired term of more than
one year or providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement or other commitment involving payments by it for more than
$10,000 in the aggregate.
Section 1.10 Compliance With Laws and Regulations. To the best of
Holding's knowledge and belief, Holdings has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Holdings or would not result in Holdings incurring material liability.
Section 1.11 Insurance. All of the insurable properties of Holdings are
insured for Holdings `s benefit under valid and enforceable policy or policies
containing substantially equivalent coverage and will be outstanding and in full
force at the Closing Date.
Section 1.12 Approval of Agreement. The directors of Holdings have
authorized the execution and delivery of the Agreement by and have approved the
transactions contemplated hereby.
Section 1.13 Material Transactions or Affiliations. There are no material
contracts or agreements of arrangement between Holdings and any person, who was
at the time of such contract, agreement or arrangement an officer, director or
person owning of record, or known to beneficially own ten percent (10%) or more
of the issued and outstanding Common Shares of Holdings and which is to be
performed in whole or in part after the date hereof.
Holdings has no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into material transactions with any such
affiliated person.
Section 1.14 No Conflict With Other Instruments. The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Holdings is a
party or to which any of its properties or operations are subject.
Section 1.15 Governmental Authorizations. Holdings has all licenses,
franchises, permits or other governmental authorizations legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities and
corporation laws, as hereinafter provided, no authorization, approval, consent
or order of, or registration, declaration or filing with, any court or other
governmental body is required in connection with the execution and delivery by
Holdings of this Agreement and the consummation of the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF TRAVEL XXXX, INC.
As an inducement to, and to obtain the reliance of Holdings, Travel Xxxx
represents and warrants as follows:
Section 2.1 Organization. Travel Xxxx is a corporation duly organized,
validly existing and in good standing under the laws of Florida and has the
corporate power and is duly authorized, qualified, franchised and licensed under
all applicable laws, regulations, ordinances and orders of public authorities to
own all of its properties and assets and to carry on its business in all
material respects as it is now being conducted, including qualification to do
business as a foreign entity in the country or states in which the character and
location of the assets owned by it or the nature of the business transacted by
it requires qualification. Included in the Attached Schedules (as hereinafter
defined) are complete and correct copies of the articles of incorporation,
bylaws and amendments thereto as in effect on the date hereof. The execution and
delivery of this Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not,
violate any provision of Travel Xxxx'x certificate of incorporation or bylaws.
Travel Xxxx has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, bylaws or otherwise to authorize
the execution and delivery of this Agreement.
Section 2.2 Capitalization. The authorized capitalization of Travel Xxxx
consists of 100,000,000 shares, $0.001 par value and no preferred shares. As of
the date hereof, there are 100 shares issued and outstanding.
All issued and outstanding common shares have been legally issued, fully
paid, are nonassessable and not issued in violation of the preemptive rights of
any other person. Travel Xxxx has no other securities, warrants or options
authorized or issued.
Section 2.3 Subsidiaries. Travel Xxxx has no subsidiaries.
Section 2.4 Tax Matters; Books & Records
(a) The books and records, financial and others, of Travel Xxxx are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Travel Xxxx has no liabilities with respect to the payment of any
country, federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
(c) Travel Xxxx shall remain responsible for all debts incurred prior to
the closing.
Section 2.5 Information. The information concerning Travel Xxxx as set
forth in this Agreement and in the attached Schedules is complete and accurate
in all material respects and does not contain any untrue statement of a material
fact or omit to state a material fact required to make the statements made, in
light of the circumstances under which they were made, not misleading.
Section 2.6 Title and Related Matters. Travel Xxxx has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets") free and clear of all liens, pledges, charges or
encumbrances. Except as set forth in the Schedules attached hereto, Travel Xxxx
owns free and clear of any liens, claims, encumbrances, royalty interests or
other restrictions or limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with Travel Xxxx'x business. Except as set
forth in the attached Schedules, no third party has any right to, and Travel
Xxxx has not received any notice of infringement of or conflict with asserted
rights of others with respect to any product, technology, data, trade secrets,
know-how, proprietary techniques, trademarks, service marks, trade names or
copyrights which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse affect on the
business, operations, financial conditions or income of Travel Xxxx or any
material portion of its properties, assets or rights.
Section 2.7 Litigation and Proceedings. There are no actions, suits or
proceedings pending or threatened by or against or affecting Travel Xxxx, at law
or in equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse effect on the business, operations, financial condition, income
or business prospects of Travel Xxxx. Travel Xxxx does not have any knowledge of
any default on its part with respect to any judgement, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator or governmental
agency or instrumentality.
Section 2.8 Contracts. On the Closing Date:
(a) There are no material contracts, agreements, franchises, license
agreements, or other commitments to which Travel Xxxx is a party or by
which it or any of its properties are bound;
(b) Travel Xxxx is not a party to any contract, agreement, commitment or
instrument or subject to any charter or other corporate restriction or
any judgment, order, writ, injunction, decree or award which
materially and adversely affects, or in the future may (as far as
Travel Xxxx can now foresee) materially and adversely affect, the
business, operations, properties, assets or conditions of Travel Xxxx;
and
(c) Travel Xxxx is not a party to any material oral or written: (i)
contract for the employment of any officer or employee; (ii) profit
sharing, bonus, deferred compensation, stock option, severance pay,
pension, benefit or retirement plan, agreement or arrangement covered
by Title IV of the Employee Retirement Income Security Act, as
amended; (iii) agreement, contract or indenture relating to the
borrowing of money; (iv) guaranty of any obligation for the borrowing
of money or otherwise, excluding endorsements made for collection and
other guaranties of obligations, which, in the aggregate exceeds
$1,000; (v) consulting or other contract with an unexpired term of
more than one year or providing for payments in excess of $10,000 in
the aggregate; (vi) collective bargaining agreement; (vii) contract,
agreement, or other commitment involving payments by it for more than
$10,000 in the aggregate.
Section 2.9 No Conflict With Other Instruments.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which Travel Xxxx
is a party or to which any of its properties or operations are subject.
Section 2.10 Material Contract Defaults. To the best of Travel Xxxx'x
knowledge and belief, it is not in default in any material respect under the
terms of any outstanding contract, agreement, lease or other commitment which is
material to the business, operations, properties, assets or condition of Travel
Xxxx, and there is no event of default in any material respect under any such
contract, agreement, lease or other commitment in respect of which Travel Xxxx
has not taken adequate steps to prevent such a default from occurring.
Section 2.11 Governmental Authorizations. To the best of Travel Xxxx'x
knowledge, Travel Xxxx has all licenses, franchises, permits and other
governmental authorizations that are legally required to enable it to conduct
its business operations in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities or corporation
laws, no authorization, approval, consent or order of, or registration,
declaration or filing with, any court or other governmental body is required in
connection with the execution and delivery by Travel Xxxx of the transactions
contemplated hereby.
Section 2.12 Compliance With Laws and Regulations. To the best of Travel
Xxxx'x knowledge and belief, Travel Xxxx has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or condition of
Travel Xxxx or would not result in Travel Xxxx 's incurring any material
liability.
Section 2.13 Insurance. All of the insurable properties of Travel Xxxx
are insured for Travel Xxxx`s benefit under valid and enforceable policy or
policies containing substantially equivalent coverage and will be outstanding
and in full force at the Closing Date.
Section 2.14 Approval of Agreement. The directors of Travel Xxxx have
authorized the execution and delivery of the Agreement and have approved the
transactions contemplated hereby.
Section 2.15 Material Transactions or Affiliations. As of the Closing
Date, there will exist no material contract, agreement or arrangement between
Travel Xxxx and any person who was at the time of such contract, agreement or
arrangement an officer, director or person owning of record, or known by Travel
Xxxx to own beneficially, ten percent (10%) or more of the issued and
outstanding Common Shares of Travel Xxxx and which is to be performed in whole
or in part after the date hereof except with regard to an agreement with the
Travel Xxxx shareholders providing for the distribution of cash to provide for
payment of federal and state taxes on Subchapter S income. Travel Xxxx has no
commitment, whether written or oral, to lend any funds to, borrow any money from
or enter into any other material transactions with, any such affiliated person.
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
Section 3.1 Share Exchange/Delivery of Travel Xxxx Securities. On the
Closing Date, the holder of all of the Travel Xxxx Common Shares shall deliver
to Holdings (i) certificates or other documents evidencing all of the issued and
outstanding Travel Xxxx Common Shares, duly endorsed in blank or with executed
power attached thereto in transferrable form. On the Closing Date, all
previously issued and outstanding Common Shares of Travel Xxxx shall be
transferred to Holdings, so that Travel Xxxx shall become a wholly owned
subsidiary of Holdings.
Section 3.2 Issuance of Holdings Common Shares. In exchange for all of
the Travel Xxxx Common Shares tendered pursuant to Section 3.1, Holdings shall
issue to the Xxxxx Xxxxxxxx, the Travel Xxxx Shareholder, 1,000,000 Holdings
common shares which are restricted in accordance with Rule 144 of the 1933
Securities Act.
Section 3.3 Events Prior to Closing. Upon execution hereof or as soon
thereafter as practical, management of Holdings and Travel Xxxx shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions rulings or other instruments required by this Agreement
to be so delivered, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby, subject only to the
conditions to Closing referenced herein below.
Section 3.4 Closing. The closing ("Closing") of the transactions
contemplated by this Agreement shall be on or about July 31, 2003 ("Closing
Date").
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of directors or majority
interest of Shareholders of either Holdings or Travel Xxxx,
respectively, at any time prior to the Closing Date if:
(i) there shall be any action or proceeding before any court or any
governmental body which shall seek to restrain, prohibit or
invalidate the transactions contemplated by this Agreement and
which, in the judgment of such board of directors, made in good
faith and based on the advice of its legal counsel, makes it
inadvisable to proceed with the exchange contemplated by this
Agreement; or
(ii) any of the transactions contemplated hereby are disapproved by
any regulatory authority whose approval is required to consummate
such transactions.
In the event of termination pursuant to this paragraph (a) of this Section
3.5, no obligation, right, or liability shall arise hereunder and each party
shall bear all of the expenses incurred by it in connection with the
negotiation, drafting and execution of this Agreement and the transactions
herein contemplated.
(b) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of Holdings if Travel Xxxx shall
fail to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the
representations or warranties of Travel Xxxx contained herein shall be
inaccurate in any material respect, which noncompliance or inaccuracy
is not cured after 20 days written notice thereof is given to Travel
Xxxx. If this Agreement is terminated pursuant to this paragraph (b)
of this Section 3.5, this Agreement shall be of no further force or
effect and no obligation, right or liability shall arise hereunder.
(c) This Agreement may be terminated at any time prior to the Closing Date
by action of the board of directors of Travel Xxxx if Holdings shall
fail to comply in any material respect with any of its covenants or
agreements contained in this Agreement or if any of the
representations or warranties of Holdings contained herein shall be
inaccurate in any material respect, which noncompliance or inaccuracy
is not cured after 20 days written notice thereof is given to
Holdings. If this Agreement is terminated pursuant to this paragraph
(d) of this Section 3.5, this Agreement shall be of no further force
or effect and no obligation, right or liability shall arise hereunder.
In the event of termination pursuant to paragraph (b) and (c) of this
Section 3.5, the breaching party shall bear all of the expenses incurred by the
other party in connection with the negotiation, drafting and execution of this
Agreement and the transactions herein contemplated.
Section 3.6 Directors of Holdings After Acquisition. After the Closing
Date, Xxxxx Xxxxxxxx shall remain as the sole director of Holdings. Each
director shall hold office until his successor shall have been duly elected and
shall have qualified or until his earlier death, resignation or removal.
Section 3.7 Officers of Holdings . Upon the closing, the following person
shall remain as officer of Holdings:
NAME OFFICE
Xxxxx Xxxxxxxx Chief Executive Officer, Chief Financial Officer,
President and Secretary
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Prior to closing, Holdings
and Travel Xxxx will each afford to the officers and authorized representatives
of the other full access to the properties, books and records of each other, in
order that each may have full opportunity to make such reasonable investigation
as it shall desire to make of the affairs of the other and each will furnish the
other with such additional financial and operating data and other information as
to the business and properties of each other, as the other shall from time to
time reasonably request.
Section 4.2 Availability of Rule 144. Holdings and Travel Xxxx
shareholders holding "restricted securities, " as that term is defined in Rule
144 promulgated pursuant to the Securities Act will remain as "restricted
securities". Holdings is under no obligation to register such shares under the
Securities Act, or otherwise. The stockholders of Holdings and Travel Xxxx
holding restricted securities of Holdings and Travel Xxxx as of the date of this
Agreement and their respective heirs, administrators, personal representatives,
successors and assigns, are intended third party beneficiaries of the provisions
set forth herein. The covenants set forth in this Section 4.2 shall survive the
Closing and the consummation of the transactions herein contemplated.
Section 4.3 Special Covenants and Representations Regarding the Holdings
Common Shares to be Issued in the Exchange. The consummation of this Agreement,
including the issuance of the Holdings Common Shares to the Shareholders of
Travel Xxxx as contemplated hereby, constitutes the offer and sale of securities
under the Securities Act, and applicable state statutes. Such transaction shall
be consummated in reliance on exemptions from the registration and prospectus
delivery requirements of such statutes which depend, inter alia, upon the
circumstances under which the Travel Xxxx Shareholders acquire such securities.
Section 4.4 Third Party Consents. Holdings and Travel Xxxx agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
Section 4.5 Actions Prior and Subsequent to Closing.
(a) From and after the date of this Agreement until the Closing Date,
except as permitted or contemplated by this Agreement, Holdings and
Travel Xxxx will each use its best efforts to:
(i) maintain and keep its properties in states of good repair
and condition as at present, except for depreciation due to
ordinary wear and tear and damage due to casualty;
(ii) maintain in full force and effect insurance comparable in
amount and in scope of coverage to that now maintained by
it;
(iii) perform in all material respects all of its obligations
under material contracts, leases and instruments relating to
or affecting its assets, properties and business;
(b) From and after the date of this Agreement until the Closing Date,
Holdings will not, without the prior consent of Travel Xxxx:
(i) except as otherwise specifically set forth herein, make any
change in its articles of incorporation or bylaws;
(ii) declare or pay any dividend on its outstanding Common
Shares, except as may otherwise be required by law, or
effect any stock split or otherwise change its
capitalization, except as provided herein;
(iii) enter into or amend any employment, severance or agreements
or arrangements with any directors or officers;
(iv) grant, confer or award any options, warrants, conversion
rights or other rights not existing on the date hereof to
acquire any Common Shares; or
(v) purchase or redeem any Common Shares.
Section 4.6 Indemnification.
(a) Holdings hereby agrees to indemnify Travel Xxxx, each of the officers,
agents and directors and current shareholders of Travel Xxxx as of the
Closing Date against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened or any claim whatsoever), to
which it or they may become subject to or rising out of or based on
any inaccuracy appearing in or misrepresentation made in this
Agreement. The indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement; and
(b) Travel Xxxx hereby agrees to indemnify Holdings, each of the officers,
agents, directors and current shareholders of Holdings as of the
Closing Date against any loss, liability, claim, damage or expense
(including, but not limited to, any and all expense whatsoever
reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened or any claim whatsoever), to
which it or they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made in this Agreement.
The indemnification provided for in this paragraph shall survive the
Closing and consummation of the transactions contemplated hereby and
termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF HOLDINGS
The obligations of Holdings under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
Section 5.1 Accuracy of Representations. The representations and
warranties made by Holdings in this Agreement were true when made and shall be
true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and Holdings shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by Holdings prior to or at the Closing. Travel Xxxx
shall be furnished with a certificate, signed by a duly authorized officer of
Holdings and dated the Closing Date, to the foregoing effect.
Section 5.2 Director Approval. The Board of Directors of Holdings shall
have approved this Agreement and the transactions contemplated herein.
Section 5.3 Officer's Certificate. Travel Xxxx shall have been furnished
with a certificate dated the Closing Date and signed by a duly authorized
officer of Holdings to the effect that: (a) the representations and warranties
of Holdings set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; (b) Holdings has performed all
covenants, satisfied all conditions, and complied with all other terms and
provisions of this Agreement to be performed, satisfied or complied with by it
as of the Effective Date; (c) since such date and other than as previously
disclosed to Travel Xxxx, Holdings has not entered into any material transaction
other than transactions which are usual and in the ordinary course if its
business; and (d) no litigation, proceeding, investigation or inquiry is pending
or, to the best knowledge of Holdings, threatened, which might result in an
action to enjoin or prevent the consummation of the transactions contemplated by
this Agreement or, to the extent not disclosed in the Holdings Schedules, by or
against Holdings which might result in any material adverse change in any of the
assets, properties, business or operations of Holdings.
Section 5.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of Holdings.
Section 5.5 Other Items. Travel Xxxx shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Travel Xxxx may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF TRAVEL XXXX
The obligations of Travel Xxxx under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
Section 6.1 Accuracy of Representations. The representations and
warranties made by Travel Xxxx in this Agreement were true when made and shall
be true as of the Closing Date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing Date, and Travel Xxxx shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Travel Xxxx prior to or at the
Closing. Holdings shall have been furnished with a certificate, signed by a duly
authorized executive officer of Travel Xxxx and dated the Closing Date, to the
foregoing effect.
Section 6.2 Director Approval. The Board of Directors of Travel Xxxx
shall have approved this Agreement and the transactions contemplated herein.
Section 6.3 Officer's Certificate. Holdings shall be furnished with a
certificate dated the Closing date and signed by a duly authorized officer of
Travel Xxxx to the effect that: (a) the representations and warranties of Travel
Xxxx set forth in the Agreement and in all Exhibits, Schedules and other
documents furnished in connection herewith are in all material respects true and
correct as if made on the Effective Date; and (b) Travel Xxxx had performed all
covenants, satisfied all conditions, and complied with all other terms and
provisions of the Agreement to be performed, satisfied or complied with by it as
of the Effective Date.
Section 6.4 No Material Adverse Change. Prior to the Closing Date, there
shall not have occurred any material adverse change in the financial condition,
business or operations of nor shall any event have occurred which, with the
lapse of time or the giving of notice, may cause or create any material adverse
change in the financial condition, business or operations of Travel Xxxx.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby represents and
warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person for any
commission, brokerage or finder's fee or other payment with respect to this
Agreement or the transactions contemplated hereby based on any alleged agreement
or understanding between the indemnifying party and such third person, whether
express or implied from the actions of the indemnifying party.
Section 7.2 Law, Forum and Jurisdiction. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Florida,
United States of America.
Section 7.3 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to Holdings : Xxxxxx & Jaclin, LLP
0000 Xxxxx 0, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
If to Travel Xxxx: Travel Xxxx, Inc.
0000 XX 00xx Xx #0
Xxxxxxx Xxxxx, XX 00000
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered, mailed or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parties shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fees, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
Section 7.5 Confidentiality. Each party hereto agrees with the other
party that, unless and until the transactions contemplated by this Agreement
have been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not use such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries.This contract is solely between
Holdings and Travel Xxxx and except as specifically provided, no director,
officer, stockholder, employee, agent, independent contractor or any other
person or entity shall be deemed to be a third party beneficiary of this
Agreement.
Section 7.8 Entire Agreement.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 18 months.
Section 7.10 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
Section 7.11 Amendment or Waiver. Every right and remedy provided herein
shall be cumulative with every other right and remedy, whether conferred herein,
at law, or in equity, and may be enforced concurrently herewith, and no waiver
by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
Section 7.12 Expenses. Each party herein shall bear all of their
respective cost s and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
Section 7.13 Headings; Context. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
Section 7.14 Benefit. This Agreement shall be binding upon and shall inure
only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
Section 7.15 Public Announcements. Except as may be required by law,
neither party shall make any public announcement or filing with respect to the
transactions provided for herein without the prior consent of the other party
hereto.
Section 7.16 Severability. In the event that any particular provision or
provisions of this Agreement or the other agreements contained herein shall for
any reason hereafter be determined to be unenforceable, or in violation of any
law, governmental order or regulation, such unenforceability or violation shall
not affect the remaining provisions of such agreements, which shall continue in
full force and effect and be binding upon the respective parties hereto.
Section 7.17 Failure of Conditions; Xxxxxxxxxxx.Xx the event of any of the
conditions specified in this Agreement shall not be fulfilled on or before the
Closing Date, either of the parties have the right either to proceed or, upon
prompt written notice to the other, to terminate and rescind this Agreement. In
such event, the party that has failed to fulfill the conditions specified in
this Agreement will liable for the other parties legal fees. The election to
proceed shall not affect the right of such electing party reasonably to require
the other party to continue to use its efforts to fulfill the unmet conditions.
Section 7.18 No Strict Construction. The language of this Agreement shall
be construed as a whole, according to its fair meaning and intendment, and not
strictly for or against either party hereto, regardless of who drafted or was
principally responsible for drafting the Agreement or terms or conditions
hereof.
Section 7.19 Execution Knowing and Voluntary. In executing this Agreement,
the parties severally acknowledge and represent that each: (a) has fully and
carefully read and considered this Agreement; (b) has been or has had the
opportunity to be fully apprized by its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; (c) is executing
this Agreement voluntarily, free from any influence, coercion or duress of any
kind.
Section 7.20 Amendment. At any time after the Closing Date, this Agreement
may be amended by a writing signed by both parties, with respect to any of the
terms contained herein, and any term or condition of this Agreement may be
waived or the time for performance hereof may be extended by a writing signed by
the party or parties for whose benefit the provision is intended.
Section 7.21 Conflict of Interest. Both Travel Xxxx and Holdings
understand that Xxxxxx & Xxxxxx, LLP is representing both parties in this
transaction which represents a conflict of interest. Both Travel Xxxx and
Holdings have the right to different counsel due to this conflict of interest.
Notwithstanding the above, both Travel Xxxx and Holdings agree to waive this
conflict and have Xxxxxx & Jaclin, LLP represent both parties in the
above-referenced transaction. Both Travel Xxxx and Holdings agree to hold this
law firm harmless from any and all liabilities that may occur or arise due to
this conflict.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective officers, hereunto duly authorized, and
entered into as of the date first above written.
ATTEST: TRAVEL XXXX HOLDINGS, INC.
______________________________ By: /s/ Xxxxx Xxxxxxxx
ATTEST: TRAVEL XXXX, INC.
_________________________ By: /s/ Xxxxx Xxxxxxxx
TRAVEL XXXX, INC. SHAREHOLDER
/s/ Xxxxx Xxxxxxxx
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