ASSET ACQUISITION AGREEMENT between CARAVAN ACQUISITION
CORPORATION ("Caravan"), a Delaware corporation, and the undersigned
signatories as representatives of E-VACATION XXX.XXX, an
unincorporated business ("E-Vacation Group").
WHEREAS, E-Vacation Group wishes to transfer certain assets
to Caravan in exchange for stock of Caravan in a transaction
intended to qualify as a reorganization within the meaning of
Section368(a)(1)(C) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, Caravan and E-Vacation Group adopt this
agreement and agree as follows:
1. TRANSFER OF ASSETS. At the Closing (as defined
hereinafter), E-Vacation Group shall transfer and deliver to Caravan
certain properties and assets listed in Schedule A hereto (the
"Assets").
2. TRANSFER OF CARAVAN SHARES. At the Closing, Caravan
shall deliver to E-Vacation Group one or more certificates
aggregating 4,700,000 shares of the voting common stock of Caravan,
$.0001 par value per share, fully paid and nonassessable, to the
persons and in the amounts listed in Schedule B hereto as payment in
full for the transfer of the Assets by E-Vacation Group under this
Agreement.
3. APPROVAL OF REPRESENTATIVES. This Agreement shall be
adopted by the representatives of E-Vacation Group.
4. REPRESENTATIONS AND WARRANTIES OF THE E-VACATION
GROUP. E-Vacation Group represents and warrants that:
4.1. TITLE. E-Vacation Group has good and marketable title
to the Assets and the Assets are not subject to any mortgage,
encumbrance, or lien of any kind except minor encumbrances that do
not materially interfere with the use of the Assets in the conduct
of business.
4.2. CONTRACTS. E-Vacation Group nor any member thereof is
a party to any material contract that would interfere or negate the
transfer of the Assets.
4.3. LITIGATION. There is not, to the knowledge of
E-Vacation Group, any pending, threatened, or existing litigation,
bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against E-Vacation Group
or against any of its representatives.
4.4. NO VIOLATION. Consummation of the transfer of Assets
will not constitute or result in a breach or default under any
provision of any indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any of the
Assets is subject or by which any representative of E-Vacation Group
is bound.
5. REPRESENTATIONS AND WARRANTIES OF CARAVAN. Caravan
represents and warrants that:
5.1. CORPORATE ORGANIZATION AND GOOD STANDING. Caravan is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
5.2. REPORTING COMPANY. Caravan has filed with the
Securities and Exchange Commission a registration statement on Form
F-10 which was declared effective pursuant to the Securities
Exchange Act of 1934 and is a reporting company pursuant to
Section12 thereunder.
5.3. REPORTING COMPANY STATUS. Caravan has timely filed and
is current on all reports required to be filed by it pursuant to
Section12(g) of the Securities Exchange Act of 1934.
5.4. CAPITALIZATION. Caravan's authorized capital stock
consists of 100,000,000 shares of Common Stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
outstanding.
5.5. STOCK RIGHTS. There are no stock grants, options,
rights, warrants or other rights to purchase or obtain the Caravan
common or peferred stock issued or committed to be issued.
5.6. ISSUED STOCK. All the outstanding shares of its common
stock were duly authorized and validly issued, fully paid and
non-assessable.
5.7. CORPORATE AUTHORITY. Caravan has all requisite
corporate power and authority to own, operate and lease its
properties, to carry on its business as it is now being conducted
and to execute, deliver, perform and conclude the transactions
contemplated by this Agreement and all other agreements and
instruments related to this Agreement.
5.8. AUTHORIZATION. Execution of this Agreement has been
duly authorized and approved by Caravan's board of directors.
5.9. SUBSIDIARIES. Caravan has no subsidiaries.
5.10. FINANCIAL STATEMENTS. Caravan's audited balance
sheets and the related statements of income and retained earnings,
dated as of February 10, 2000 copies of which will have been
delivered by Caravan to E-Vacation Group by the Closing Date (the
"Caravan Financial Statements"), fairly present the financial
condition of Caravan as of the date therein and the results of its
operations for the periods then ended in conformity with generally
accepted accounting principles consistently applied.
5.11. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the Caravan Financial
Statements, Caravan did not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting principles.
5.12. NO MATERIAL CHANGES. There has been no material
adverse change in the business, properties, or financial condition
of Caravan since the date of the Caravan Financial Statements.
5.13. LITIGATION. There is not, to the knowledge of
Caravan, any pending, threatened, or existing litigation,
bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Caravan or against
any of its officers.
5.14. CONTRACTS. Caravan is not a party to any material
contract not in the ordinary course of business that is to be
performed in whole or in part at or after the date of this Agreement.
5.15. TITLE. Caravan has good and marketable title to all
the real property and good and valid title to all other property
included in the Caravan Financial Statements. Except as set out in
the balance sheet thereof, the properties of Caravan are not subject
to any mortgage, encumbrance, or lien of any kind except minor
encumbrances that do not materially interfere with the use of the
property in the conduct of the business of Caravan.
5.16. TAX RETURNS. All required tax returns for federal,
state, county, municipal, local, foreign and other taxes and
assessments, including any and all interest, penalties and additions
imposed with respect to such amounts, have been properly prepared
and filed by Caravan for all years for which such returns are due
unless an extension for filing any such return has been filed. Any
and all federal, state, county, municipal, local, foreign and other
taxes and assessments including any and all interest, penalties and
additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected
in Caravan Financial Statements are adequate to cover any such taxes
that may be assessed against Caravan in respect of its business and
its operations during the periods covered by Caravan Financial
Statements and all prior periods.
5.17. NO VIOLATION. Consummation of the transfer of
Assets will not constitute or result in a breach or default under
any provision of any charter, bylaw, indenture, mortgage, lease, or
agreement, or any order, judgment, decree, law, or regulation to
which any property of Caravan is subject or by which Caravan is bound.
6. CONDUCT OF E-VACATION PENDING THE CLOSING DATE.
E-Vacation Group covenants that between the date of this Agreement
and the Closing Date it will use its best efforts to maintain and
preserve its Assets and it will not encumber, distribute, misuse or
deplete such Assets.
7. CONDUCT OF CARAVAN PENDING THE CLOSING DATE. Caravan
covenants that between the
date of this Agreement and the Closing Date:
7.1. No change will be made in Caravan's certificate of
incorporation or bylaws.
7.2. Caravan will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock otherwise than as provided herein.
7.3. Caravan will use its best efforts to maintain and
preserve its business organization, employee relationships, and
goodwill intact, and will not enter into any material commitment
except in the ordinary course of business.
8. CONDITIONS PRECEDENT TO OBLIGATION OF E-VACATION.
E-Vacation Group's obligation to consummate this transfer shall be
subject to fulfillment on or before the Closing Date of each of the
following conditions, unless waived in writing by E-Vacation Group:
8.1. CARAVAN'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of
Caravan set forth herein shall be true and correct at the Closing
Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
8.2. CARAVAN'S COVENANTS. Caravan shall have performed all
covenants required by this Agreement to be performed by it on or
before the Closing Date.
8.3. SUPPORTING DOCUMENTS OF CARAVAN. Caravan shall have
delivered to E-Vacation Group supporting documents in form and
substance satisfactory to E-Vacation Group, to the effect that:
(i) Caravan is a corporation duly organized, validly
existing, and in good standing.
(ii) Caravan's authorized and issued capital stock is as
set forth herein.
(iii) The execution and consummation of this Agreement have
been duly authorized and approved by Caravan's board
of directors.
9. CONDITIONS PRECEDENT TO OBLIGATION OF CARAVAN.
Caravan's obligation to consummate this transfer shall be subject to
fulfillment on or before the Closing Date of each of the following
conditions, unless waived in writing by Caravan:
9.1. E-VACATION'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of E-Vacation Group set forth herein
shall be true and correct at the Closing Date as though made at and
as of that date, except as affected by transactions contemplated
hereby.
9.2. E-VACATION GROUP'S COVENANTS. E-Vacation shall have
performed all covenants required by this Agreement to be performed
by it on or before the Closing Date.
9.3. SUPPORTING DOCUMENTS OF E-VACATION GROUP. E-Vacation
Group shall have delivered to Caravan supporting documents in form
and substance satisfactory to Caravan as shall be reasonably
requested by Caravan.
10. ACCESS. From the date hereof to the Closing Date,
Caravan and E-Vacation Group shall provide each other with such
information and permit each other's officers and representatives
such access to its properties and books and records as the other may
from time to time reasonably request. If the transfer is not
consummated, all documents received in connection with this
Agreement shall be returned to the party furnishing such documents,
and all information so received shall be treated as confidential.
11. CLOSING.
11.1. The transfers and deliveries to be made pursuant to
this Agreement (the "Closing") shall be made by and take place at
the offices of the Exchange Agent or other location designated by
the parties without requiring the meeting of the parties hereof.
All proceedings to be taken and all documents to be executed at the
Closing shall be deemed to have been taken, delivered and executed
simultaneously, and no proceeding shall be deemed taken nor
documents deemed executed or delivered until all have been taken,
delivered and executed.
11.2. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by
this Agreement or any signature required thereon may be used in lieu
of an original writing or transmission or signature for any and all
purposes for which the original could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission
or original signature.
11.3. At the Closing, E-Vacation Group shall deliver to the
Exchange Agent in satisfactory form, if not already delivered to
Caravan:
(i) A list of the Assets being exchanged and an
itemization of the number of shares of Caravan common
stock to be issued; and
(ii) Any document as may be specified herein or required
to satisfy the conditions, representations and
warranties enumerated elsewhere herein.
11.4. At the Closing, Caravan shall deliver to the Exchange
Agent in satisfactory form, if not already delivered to E-Vacation
Group:
(i) A list of the shareholders of record of Caravan,
including, wherever available, addresses and
telephone numbers;
(ii) Certificate of the Secretary of State of Delaware as
of a recent date as to the good standing of Caravan;
(iii) Certified copies of the resolutions of the
board of directors of Caravan authorizing the
execution of this Agreement and the
consummation of the transfer;
(iv) The Caravan Financial Statements;
(v) Secretary's certificate of incumbency of the officers
and directors of Caravan; and
(vi) Any document as may be specified herein or required
to satisfy the conditions, representations and
warranties enumerated elsewhere herein.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties
of the Constituent Corporations set out herein shall survive the
Closing Date.
13. ARBITRATION
13.1. SCOPE. The parties hereby agree that any and all
claims (except only for requests for injunctive or other equitable
relief) whether existing now, in the past or in the future as to
which the parties or any affiliates may be adverse parties, and
whether arising out of this agreement or from any other cause, will
be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
13.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The
parties hereby irrevocably consent to the jurisdiction of the
American Arbitration Association and the situs of the arbitration
(and any requests for injunctive or other equitable relief) within
the State of Delaware at a time and place chosen by American
Arbitration Association. Any award in arbitration may be entered in
any domestic or foreign court having jurisdiction over the
enforcement of such awards.
13.3. APPLICABLE LAW. The law applicable to the arbitration
and this agreement shall be that of the State of Delaware,
determined without regard to its provisions which would otherwise
apply to a question of conflict of laws. Any dispute as to the
applicable law shall be decided by the arbitrator.
13.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be
modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
13.5. RULE OF LAW. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules of
contract and other law of the jurisdiction whose law applies to the
arbitration so that the decision of the arbitrator will be, as much
as possible, the same as if the dispute had been determined by a
court of competent jurisdiction.
13.6. FINALITY AND FEES. Any award or decision by the
American Arbitration Association shall be final, binding and
non-appealable except as to errors of law or the failure of the
arbitrator to adhere to the arbitration provisions contained in this
agreement. Each party to the arbitration shall pay its own costs
and counsel fees except as specifically provided in this agreement.
13.7. MEASURE OF DAMAGES. In any adverse action, the
parties shall restrict themselves to claims for compensatory damages
and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
13.8. COVENANT NOT TO XXX. The parties covenant that under
no conditions will any party or any affiliate file any action
against the other (except only requests for injunctive or other
equitable relief) in any forum other than before the American
Arbitration Association, and the parties agree that any such action,
if filed, shall be dismissed upon application and shall be referred
for arbitration hereunder with costs and attorney's fees to the
prevailing party.
13.9. INTENTION. It is the intention of the parties and
their affiliates that all disputes of any nature between them,
whenever arising, whether in regard to this agreement or any other
matter, from whatever cause, based on whatever law, rule or
regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that
no party or affiliate be required to litigate in any other forum any
disputes or other matters except for requests for injunctive or
equitable relief. This agreement shall be interpreted in
conformance with this stated intent of the parties and their
affiliates.
13.10. SURVIVAL. The provisions for arbitration contained
herein shall survive the termination of this agreement for any reason.
14. GENERAL PROVISIONS.
14.1. FURTHER ASSURANCES. From time to time, each party
will execute such additional instruments and take such actions as
may be reasonably required to carry out the intent and purposes of
this Agreement.
14.2. WAIVER. Any failure on the part of either party
hereto to comply with any of its obligations, agreements, or
conditions hereunder may be waived in writing by the party to whom
such compliance is owed.
14.3. BROKERS. Each party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense arising
out of claims by brokers or finders employed or alleged to have been
employed by the indemnifying party.
14.4. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been given
if delivered in person or sent by prepaid first-class certified
mail, return receipt requested, or recognized commercial courier
service, as follows:
If to Caravan, to:
Caravan Acquisition Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to E-Vacation Group, to
X-XxxxxxxxXxx.xxx
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
14.5. GOVERNING LAW. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State
of Delaware.
14.6. ASSIGNMENT. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their
successors and assigns; provided, however, that any assignment by
either party of its rights under this Agreement without the written
consent of the other party shall be void.
14.7. COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Signatures sent by facsimile transmission
shall be deemed to be evidence of the original execution thereof.
14.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent
shall be Xxxxxxx & Associates, Washington, D.C. The Closing shall
take place upon the fulfillment by each party of all the conditions
of Closing required herein, but not later than 15 days following
execution of this agreement unless extended by mutual consent of the
parties.
14.9. REVIEW OF AGREEMENT. Each party acknowledges that it
has had time to review this agreement and, as desired, consult with
counsel. In the interpretation of this agreement, no adverse
assumption shall be made against any party on the basis that it has
prepared, or participated in the preparation of, this agreement.
14.10. SCHEDULES. All schedules attached hereto, if any,
shall be acknowledged by each party by signature or initials
thereon.
14.11. EFFECTIVE DATE. This effective date of this Agreement
shall be November 28, 2000.
SIGNATURE PAGE TO ASSET ACQUISITION AGREEMENT
BETWEEN CARAVAN ACQUISITION CORPORATION AND
REPRESENTATIVES OF E-VACATION XXX.XXX
IN WITNESS WHEREOF, the parties have executed this Agreement.
CARAVAN ACQUISITION CORPORATION
E-VACATION XXX.XXX
