--------------------------------------------------------------------------------
EXHIBIT 2.1
ACQUISITION AGREEMENT
BY AND BETWEEN
XXXXXXXXXXXXX.XXX, INC.,
AS STC,
AND
ALL OF THE STOCKHOLDERS OF STC,
AS HOLDERS,
AND
ONLINE VACATION CENTER HOLDINGS CORP.,
AS ONVC.
DATED AS OF JANUARY 19, 2007.
--------------------------------------------------------------------------------
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement"), dated as of January 19,
2007, is made by ONLINE VACATION CENTER HOLDINGS CORP., a Florida corporation
("ONVC"), XXXXXXXXXXXXX.XXX, INC., a Florida corporation ("STC"), and Xxxxx
Xxxxxxx, as the sole shareholder of STC ("Holder").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of which
is hereby acknowledged, STC and Holder desire to sell, and ONVC desires to
acquire, certain assets of STC (the "STC Assets"), as set forth in the Schedule
of Assets attached hereto, 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 STC ASSETS; CLOSING
1.1 STC ASSETS.
Subject to the terms and conditions of this Agreement, at the Closing,
STC will sell and transfer the STC Assets to ONVC, and ONVC will acquire the STC
Assets from STC.
1.2 CONSIDERATION.
The total consideration (the "Consideration") to be paid by ONVC to STC
for the STC Assets will be paid as follows:
(a) $ 125,000 Cash (the "Cash Consideration") payable by
wire transfer or cashiers check at closing;
(b) 125,000 restricted shares of ONVC common stock, par
value $0.0001 per share (the "Restricted Shares"), of
which 125,000 shares shall be subject to a Lock-Up
Agreement whereby 50,000 shares shall be released on
the 1-year anniversary of closing and 75,000 shares
shall be released on the 2-year anniversary of
closing.
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 January 19,
2007, or at such other time and place as the parties may agree.
1.4 CLOSING OBLIGATIONS
STC and Holder have indicated their acceptance of this Agreement by
their execution hereof. At the Closing, ONVC will have received the Closing
Deliverables as described in Exhibit A attached hereto, including the Xxxx of
Sale, all in form and substance reasonably satisfactory to ONVC.
1.5 RESERVED
1.6 SUBSIDIARY
ONVC shall have the right to establish a subsidiary prior to the
Closing, for the purpose of executing the terms of this Agreement. In the event
ONVC elects to establish such a subsidiary, the STC Assets shall be transferred,
in accordance with the terms of this Agreement, to the subsidiary. ONVC will
remain bound by the terms of this Agreement.
1
2. REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF HOLDER AND STC
Each of Holder and STC hereby represents and warrants to ONVC as
follows:
(a) Ownership. STC is and will be on the Closing Date the record and
beneficial owner and holder of the STC Assets, free and clear of any
and all liens or encumbrances. STC has no subsidiaries.
(b) Authorization. Holder is an individual. STC is duly organized and in
good standing under the laws of the State in which it was formed and is
duly qualified and in good standing in each jurisdiction in which such
registration is required. Each of Holder and STC has full right, power
and authority to execute and deliver the Holder Documents (as defined
below), to perform its obligations therein and to consummate all of the
transactions contemplated thereby.
(c) Documents. Each of Holder and STC has, or before Closing will have,
approved the sale of the STC Assets, this Acquisition Agreement and the
transactions contemplated hereby, and approved, executed and delivered
this Acquisition Agreement and certain agreements, instruments to be
executed and delivered by each of Holder and STC in connection herewith
(collectively, the "Holder Documents") and each of the Holder
Documents, when executed by Holder or STC, shall be the legal valid and
binding obligation of each of Holder and STC in accordance with their
terms.
(d) No Default. Neither Holder nor STC, nor any vendor or party in contract
with Holder or STC , is in violation of any provision of, or in default
under, STC's articles of incorporation, by-laws, articles of
organization, operating agreement or partnership agreement or any
indenture, mortgagee, deed of trust, indebtedness, agreement, judgment,
decree, order, statute, rule or regulation to which Holder or STC 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 Holder nor STC is required to obtain the
approval, authorization, consent or any other order of any public or
private 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 and other information of
STC, copies of which have been, or prior to 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 STC (and
of any person or entity required by sound accounting principles to be
consolidated or included therein) at their respective dates and for
their respective periods, all in accordance with sound accounting
principles applied on a consistent basis, subject 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).
(g) No Material Adverse Change. From the date of the last audited financial
statements to the date hereof, there has not been, and through the date
of Closing, there will not have been, any change that would materially
and adversely affect the financial position or results of operation of
STC, or the ability of Holder or STC to consummate the transactions
contemplated hereby.
2
(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 STC Assets (nor is there any basis, circumstance or
fact that might give rise thereto), whether realized or contingent,
pending or threatened, or known, as of the date hereof or as of the
date of Closing, which has not been, or prior to Closing, will not have
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 threatened, known or unknown,
against or affecting the STC Assets (nor is there any basis,
circumstance or fact therefor) as of the date hereof or as of the date
of Closing, which has not been, or prior to Closing, will not have
been, disclosed in writing to ONVC.
(j) Ordinary Course of Business. Neither Holder nor STC have, nor prior to
Closing will they have, taken, or failed or chosen not to take, any
action in contemplation of the transactions contemplated hereby other
than in the ordinary course of business consistent with the past
practices of Holder or STC, which has not been, or prior to Closing,
will not have been, disclosed in writing to ONVC.
(k) Brokers or Finders. Neither Holder nor STC or their 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, except for Innovative Travel
Acquisitions, Inc. whose fees and expenses shall be paid directly by
Holder. Holder will indemnify and hold ONVC and STC harmless from any
such payment alleged to be due by or through Holder or STC as a result
of the action of Holder or STC or their officers or agents.
(l) Securities Representations. STC and Holder hereby represent and warrant
to Company as follows: (1) STC and Holder are "Accredited Investors",
as such term is defined in Rule 501(a) to the Securities Act of 1933,
as amended (the "Securities Act"); (2) STC's and Holder's addresses as
set forth on the Xxxx of Sale are STC's and Holder's true and correct
residences and STC and Holder have no present intention of becoming a
resident of any other state or jurisdiction; (3) the Restricted Shares
are being acquired solely for STC's and Holder's own account, for
investment, and are not being purchased with a view to or for the
resale, distribution, subdivision, or fractionalization thereof and STC
and Holder have no present plans to enter into any contract,
undertaking, agreement, or arrangement relating thereto; (4) STC and
Holder understand that none of the Restricted Shares have been or will
be registered under the Securities Act, that STC and Holder have no
rights to require that the Restricted Shares be registered under the
Securities Act or any state securities or blue sky laws; that STC and
Holder may have to hold the Restricted Shares for a substantial period
of time and that it may not be possible for STC and Holder to liquidate
STC's and Holder's investment in Company; and that in any event the
Restricted Shares may not be assigned, transferred, pledged, or
otherwise sold or offered for sale except pursuant to an effective
registration statement under the Securities Act or pursuant to an
exemption from registration under the Securities Act, the availability
of which must be established by STC and Holder to the satisfaction of
Company; and in replacement or exchange therefore, are to bear a
restrictive legend to this effect; (5) STC and Holder are acquiring the
Restricted Shares without being furnished any offering literature or
prospectus, but STC and Holder have been granted, and are relying upon,
STC's and Holder's personal discussions, investigations and due
diligence of Company and its officers; (6) STC and Holder have such
knowledge and experience in business and financial matters that STC and
Holder are capable of evaluating the business and financial matters of
3
Company and the risks and merits relating thereto; (7) that there has
never been any representation, guarantee, or warranty made to STC and
Holder by any broker, Company, its agents or employees, or any other
person, expressly or by implication, as to any gain or profit to be
derived from, or the approximate or exact length of time that STC and
Holder may be required to remain an owner of, the Restricted Shares, or
as to any other matter not expressly contained herein.
2.2 REPRESENTATIONS AND WARRANTIES OF ONVC
ONVC hereby represents and warrants to Holder as follows:
(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 the ONVC
Documents (as defined below), to perform its obligations therein and to
consummate all of the transactions contemplated thereby.
(b) Documents. ONVC has, or before Closing will have, approved the sale of
the STC Assetss, this Acquisition Agreement and the transactions
contemplated hereby, and approved, executed and delivered this
Acquisition Agreement and certain agreements, instruments 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.
(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 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, mortgagee, 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 or any other order of any public or private
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) 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.
(f) Reserved.
(g) 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 and ONVC will indemnify and
hold 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 AND POST-CLOSING
3.1 COVENANTS OF HOLDER AND STC
(a) Access and Investigation. Holder and STC each will (1) afford ONVC and
its representatives reasonable access to its personnel, properties
4
(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. Holder and STC each shall cooperate with ONVC in the
conduct of its due diligence and shall furnish, at a minimum, the
information, documents and other items set forth in Exhibit B attached
hereto. Each of Holder, STC and ONVC herby acknowledge that all items
required under Exhibit B have been provided by Holder to ONVC and that
Holder makes no representations or warranties with respect to such due
diligence materials, except as set forth in Section 2.1 hereof.
(c) Audit. STC acknowledges that ONVC, as a publicly traded company, may
need audited financial statements of the STC Assets. ONVC, at its
expense, may cause its accountants to conduct an audit of STC Assets
and to issue audited financial statements as diligently possible.
Holder and STC each 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. Holder, STC and ONVC each
acknowledge and agree that such audit may be completed after the
Closing.
(d) Operation of STC. Holder and STC each will: (1) conduct its business
only in the ordinary course of business and not take, or fail or choose
not to take, any action in contemplation of the transactions
contemplated hereby or other than in the ordinary course of business
consistent with its past practices; (b) 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 operational or any other
matters of a material nature; and (4) otherwise report periodically to
ONVC concerning the status of its business, operations, and finances.
Further, Holder and STC each will NOT: (1) enter into, amend, modify,
extend, terminate or permit to expire (a) any agreement that involves
more than $25,000 or exceeds one year 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.
ONVC intends to purchase the assets of STC, excluding those assets not
listed on the Schedule of Assets and all liabilities of STC (the
"Excluded Assets"), which Excluded Assets may be transferred or
distributed by STC to Holder (or entities owned or controlled by
Holder), provided that a right of first refusal on all or any portion
of such Excluded Assets will be granted as set forth herein.
(e) Required Approvals. As promptly as practicable after the date of this
Agreement, Holder and STC each will:
(1) seek and obtain the approval of these transactions by Holder's and
STC's Board of Director(s) and shareholders,
(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. Holder and STC each will promptly notify ONVC in writing
if Holder or STC becomes aware of (1) any fact or condition that causes
5
or constitutes a breach of Holder's or STC's representations,
warranties or covenants as of the date of this Agreement or as of the
date of Closing as if made as of the date of 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 Holder nor STC 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 STC Assets, any sale of any of
the businesses, assets or equity or other securities of STC, or any
merger, consolidation, business combination, or similar transaction
involving STC.
(h) Efforts. Holder and STC each will use their reasonable commercial
efforts to cause the conditions in Article 4 hereof to be satisfied.
(i) Bookings. Holder and STC each will be responsible for all bookings of
cruises made prior to the date of Closing and any travel expenses or
fulfillment associated therewith. This includes those bookings for
travel which will not take place until after the date of Closing. In
the event ONVC is required to incur any expenses, with respect to any
such booking made prior to the date of Closing, ONVC shall be entitled
to a right of set-off, as provided in Section 6.5 below.
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 Holder and STC with respect to all filings, if any,
that Holder or STC 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) Notifications. ONVC will promptly notify Holder and STC in writing if
ONVC becomes aware of any fact or condition that causes or constitutes
a breach of ONVC's representations, warranties or covenants as of the
date of this Agreement or as of the date of Closing as if made as of
the date of Closing.
(c) Efforts. ONVC will use its reasonable commercial efforts to cause the
conditions in Article 4 hereof to be satisfied.
(d) Bookings. ONVC will be responsible for all bookings of cruises made
after the date of Closing.
4. CONDITIONS PRECEDENT TO CLOSING
4.1 CONDITIONS PRECEDENT TO ONVC'S OBLIGATION TO CLOSE
ONVC's obligation to acquire the STC Assets 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):
6
(a) Representations. Each of the representations and warranties made by
Holder and STC herein and in the Holder Documents is true and correct
in all material respects as of the date hereof and as of the date of
Closing as if made on the date of Closing.
(b) Conditions. Each of the conditions required for the execution and
delivery of the Holder Documents, including, without limitation those
required herein, has been fulfilled in all material respects or waived
to the satisfaction of ONVC and all parties thereto.
(c) Holder's Performance. Each and every covenant and obligation of Holder
and STC 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), has been duly performed and
complied with in all material respects.
(d) Due Diligence. ONVC has concluded its due diligence except for the
audit of the STC Assets, which each of Holder, STC and ONVC have agreed
will be conducted post-closing.
(e) Closing Deliverables. Each of the Closing Deliverables listed in
Exhibit A attached hereto has been delivered to the satisfaction of
ONVC, including the approvals required in Sections 3.1(e) and 3.2(a)
hereof.
(f) Ancillary Agreements. Xxxxx Xxxxxxx shall have entered into a
Confidentiality & Non-Compete Agreement and a Right of First Refusal
Agreement with ONVC in form and substance satisfactory to ONVC.
5. TERMINATION
5.1 TERMINATION EVENTS
This Agreement may, by notice given prior to or at the Closing, be
terminated:
(a) by mutual consent of ONVC and Holder;
(b) by either ONVC or Holder if a material breach of any provision of this
Agreement has been committed by the other party and such breach has not
been waived or cured within 20 days after written notice to the party
in breach;
(c) by ONVC if any of the conditions in Section 4.1 has 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; or
(d) by either ONVC or 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
January 19, 2007, 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
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.
7
6. INDEMNIFICATION; REMEDIES
6.1 SURVIVAL; INDEMNIFICATION NOT 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. 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,
whether before or 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 HOLDER AND STC
Holder and STC 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 (including incidental
and consequential damages), expense (including costs of investigation and
defense and reasonable attorneys' fees) or diminution of value, 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 Holder or STC in this Agreement or in any other
Holder Document, whether such breach is as of the date hereof or as of the date
of Closing as if made on the date of Closing; or (b) any action or omission by,
or any product shipped or manufactured by, or any services provided by, STC
prior to the date of Closing.
6.3 INDEMNIFICATION BY ONVC
ONVC will indemnify and hold harmless Holder and STC, and will pay to
Holder and STC 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 Closing as if made on the date of Closing; or
(b) any action or omission by, or any product shipped or manufactured by, or any
services provided by, STC after the date of Closing.
6.4 PROCEDURE FOR INDEMNIFICATION
(a) Promptly after receipt by an indemnified party of notice of a potential
indemnified third-party claim, such indemnified party will give written
notice thereof to the indemnifying party, but the failure to notify the
indemnifying party will not relieve the indemnifying party of any
liability that it may have to any indemnified party, except to the
extent that the indemnifying party demonstrates that the defense of
such action is prejudiced by the indemnifying party's failure to give
such notice. The indemnifying party shall assume, and pay all fees and
costs incurred in, the defense of such action with counsel reasonably
satisfactory to the indemnified party (including separate
representation if the indemnifying party is also a party to such
action). No compromise or settlement of any claim may be effected
without the written consent of both the indemnifying and the
indemnified parties, which consents shall not be unreasonably withheld
or delayed.
8
(b) A claim for indemnification for any matter not involving a third-party
claim may be asserted by notice to the party from whom indemnification
is sought.
6.5 RIGHT OF SET-OFF
Upon notice to Holder and STC specifying in reasonable detail the basis
for such set-off, ONVC may (and, if so directed by Holder, shall) set off any
amount to which it may be entitled under this Article 6 against amounts
otherwise due and 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.
6.6 LIMITATIONS ON INDEMNITY OBLIGATIONS
(a) Neither 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 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 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.
6.7 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 these
transactions, 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 contemplated transactions 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 Holder shall, and shall cause STC to, keep this
9
Agreement strictly confidential and may not make any disclosure of this
Agreement to any person or entity. Holder and ONVC will consult with each other
concerning the means by which STC's employees, customers, and suppliers and
others having dealings with STC 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 Holder and STC 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
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. 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 and venue and jurisdiction will lie in Broward County,
Florida.
10
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
ONVC: ONLINE VACATION CENTER HOLDINGS CORP. STC: XXXXXXXXXXXXX.XXX, INC.
By: /S/ Xx Xxxxxx By: /s/ Xxxxx Xxxxxxx
--------------------------------------- -------------------------------------------
Name, Title: Xxxxxx X. Xxxxxx, President Name, Title: Xxxxx Xxxxxxx, President
Address: 0000 XX 00xx Xxxxxx, Xxxxx 000 Address: 0000 Xxxxx Xxxx Xxxxx Xxxx., #000
Xxxxxxxxxx, Xxxxxxx 00000 Royal Xxxx Xxxxx, Xxxxxxx 00000
Holder: XXXXX XXXXXXX
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name, Title: Xxxxx Xxxxxxx
Address: 0000 Xxxxx Xxxx Xxxxx Xxxx., #000
Xxxxx Xxxx Xxxxx, Xxxxxxx 00000
11
