Exhibit 10.8 Asset Purchase Agreement
ASSET PURCHASE AGREEMENT
by and among
TRAVELMAX INTERNATIONAL, INC.,
a Utah corporation
and
JETAWAY TRAVEL CORPORATION,
a California corporation
and
XXXXX XXXXXXX,
an individual
Dated as of January 5, 1998
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AGREEMENT
This Asset Purchase Agreement ("Agreement"), made and entered into as of
January 5, 1998, by and among TravelMax International Inc., a Utah
corporation ("TMI" or "Purchaser"), on the one hand, and Jetaway Travel
Corporation ("JTC"), a California corporation, and Xxxxx Xxxxxxx, an
individual ("Massoli") (collectively, "Sellers") on the other hand.
RECITALS
WHEREAS, JTS owns and operates the business, carried out under the names
of "Nu-Concepts in Travel" and "Jetaway Travel," of establishing independent
travel agents in home-based travel businesses (the "Business");
WHEREAS, Massoli owns 100% of the issued and outstanding shares of JTC
Common Stock; and
WHEREAS, Sellers desire to transfer to Purchaser and Purchaser desires
that Purchaser acquire from Sellers certain specific assets which are used in
operating the Business in exchange for the consideration delineated
hereinbelow;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
promises, covenants and conditions herein contained, the parties hereto do
hereby agree as follows:
1. CERTAIN DEFINITIONS. The following terms as used in this Agreement
shall have the meanings set forth below:
"Proprietary Information" shall mean all of the information regarding
any products or services related to the Transferred Assets (defined below)
which constitute reliable trade secrets or proprietary business information,
including, without limitation, such information as encompassed in all
drawings, designs, formulas, devices, compilations, computer programs and
software devices, plans, manuals, proposals, financial information, costs,
pricing information, marketing or sales plans, accounting, customer lists or
any other trade secrets or proprietary information whether now existing or
hereinafter developed whether it gives the disclosing party any competitive
advantage over those who do not know or use it, or whether it is patentable
or subject to copyright or trademark protection.
"Technical Information" means all information, knowledge, engineering
and technical data, manufacturing data, raw data, developments, projections,
proprietary data, manufacturing drawings, product specifications,
manufacturing and assembly techniques, production descriptions, skills,
methods, trade secrets, processes, procedures and knowhow and other
information or improvements thereto in existence on the date hereof or
thereafter developed, that are pertinent to the maintenance and exploitation
of the Transferred Assets (defined below).
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2. TRANSFER OF ASSETS.
2.1 TRANSFERRED ASSETS. On the basis of the representations and
warranties and subject to the terms and conditions hereinafter set forth, on
the Closing Date (defined below), Sellers shall transfer or shall cause to be
transferred to Purchaser, and Purchaser shall acquire, the specific assets of
JTC described in this Section 2.1 and listed in Schedule 2.1 attached hereto
(the "Transferred Assets"). Subject to the foregoing, "Transferred Assets"
means:
(a) Names, addresses, telephone, facsimile and e-mail numbers and all
other information ("Agent Database"), in both electronic and paper form,
possessed by JTC concerning the approximately 100,000 independent agents
("Independent Agents") selling travel services in the Business;
(b) All information, whether in document, graphic or electronic form,
related to the participation of the Independent Agents in the Business,
including correspondence, books, records, files, documents, original
marketing communications material (including communications, art work, art
boards, photography and negatives), training material for Independent Agents,
sales literature, customer lists and other records, owned by and in the
possession of Sellers;
(c) All Proprietary Information, Technical Information owned by JTC and
used in the management of the Transferred Assets;
(d) JTC's site on the Worldwide Web ("JTC's Website"), located at
"xxx.xx-xxxxxxxx.xxx" and maintained by Outwest Inc., pursuant to a contract
dated September 1, 1995, and a letter proposal dated January 7, 1998 for
future services, both as set forth in Schedule 2.1(d) hereto; and
(e) Introduction to the business opportunity in Canada with Travel
Travel Inc., as described in a letter by Xxxxxxx Xxxxxxxx, dated January 9,
1997, set forth in schedule 2.1(e) hereto.
3. NO ASSUMPTION OF LIABILITIES; RECEIPT OF REVENUES.
(a) Purchaser shall assume no liabilities of Sellers of any kind.
(b) Purchaser shall, pursuant to this Agreement, own any and all
revenues ("Agent Revenues") received from any of the Independent Agents on or
after the Closing Date. Sellers authorize Purchaser to endorse the name of
"Jetaway Travel Corporation," "Nu-Concepts in Travel" or any reasonable
variation thereof on any check, money order, or other evidence of remittance
of Agent Revenues. Sellers hereby appoint Purchaser their attorney-in-fact to
take any action to demand, xxx for, endorse, collect, and receive any and all
such Agent Revenues and to file any claim, proof of claim, or other
instrument of similar character and to take such other proceedings in
Sellers' name or in Purchaser's as the Purchaser may deem necessary or
advisable for the enforcement of this Agreement. Sellers shall execute and
deliver to Purchaser such other
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powers of attorney or other instruments as Sellers may request in order to
accomplish the foregoing.
4. PURCHASE PRICE. On the Closing Date (defined below), Purchaser
agrees to purchase the Transferred Assets in consideration of the following
as set forth below:
4.1 CASH PAYMENTS. On the Closing Date (defined below) Purchaser shall
deliver to Sellers the sum of $100,000, and sixty days thereafter shall
deliver to Sellers the sum of $50,000.
4.2 STOCK OF TMI. Ninety days after the Closing Date (defined below),
Purchaser shall deliver to Sellers a number of shares of the Common Stock of
TMI ("TMI Common Stock") equal in value to $150,000, as measured on the basis
of the average mean between the daily closing bid and asked price in the
over-the-counter market of such stock for each day in the five (5) business
day period ending on the date which is the eighty-ninth day after the Closing
Date.
5. CLOSING. The closing of this transaction (the "Closing") shall
take place as of the close of business on January 16, 1998 (the "Closing
Date") at the offices of Purchaser located at 0000 Xxx Xxxx, Xxxxxxx Xxxxx,
Xxxxxxxxxx 00000, or at such other place and date as the parties hereto agree
to in writing.
5.1 BOOKS AND RECORDS OF JTC. On or before Closing, Sellers shall
deliver or cause JTC to deliver to the office of Purchaser all of JTC's
books, records and other documents, for all necessary periods, which are
reasonable and necessary for the preparation of audited financial statements
("Financial Statements") of Purchaser, pursuant to Regulation S-X,
promulgated under the Securities Exchange Act of 1934, as amended. Purchaser
shall retain custody of such books, records and documents after the Closing,
shall maintain such books, records and documents in a separate location and
shall make them available to Sellers during all normal business hours.
Sellers agree to cooperate with Purchaser and accountants engaged by
Purchaser by providing any additional information and insuring that
employees, officers and directors of JTC are available for interviews, all
for the purpose of preparation of such Financial Statements.
6. REPRESENTATIONS AND WARRANTIES OF SELLERS.
6.1 ORGANIZATION AND GOOD STANDING; DUE AUTHORIZATION. JTC is a
corporation duly organized, validly existing, and in good standing under the
laws of California 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 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 Schedule 6.1 are complete and correct copies of
the Articles of Incorporation and Bylaws of JTC as in effect on the date
hereof. The execution and delivery of this Agreement does not, and the
consummation of the transaction contemplated by this Agreement in accordance
with the terms hereof will not, violate any provision of JTC's Articles of
Incorporation or Bylaws. JTC has taken all action required by law, its
Articles of Incorporation, its Bylaws or otherwise to authorize the execution
and delivery of this Agreement. JTC has full power, authority and legal
right and has taken all action required by law, its Articles of
Incorporation, Bylaws and otherwise to consummate the transactions herein
contemplated.
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6.2 TITLE TO TRANSFERRED ASSETS. At the Closing, Sellers shall have and
Purchaser shall receive good and marketable title to the Transferred Assets,
free and clear of any lien, mortgage, charge, security interest, pledge or
other encumbrance or other adverse claim or interest of any nature. JTC is
the sole and exclusive owner of the Transferred Assets as of the Closing
Date. Sellers have the right and power to assign all of its rights, title
and interest in and to the Transferred Assets. Sellers further represent and
warrant that they have not made any prior transfer, sale, assignment, pledge,
hypothecation or encumbrance to any other person or entity any right or
interest in, the Transferred Assets.
6.3 BINDING OBLIGATION; NO DEFAULT. Sellers have duly taken all action
necessary to authorize the execution, delivery and performance of this
Agreement and the other instruments and agreements contemplated hereby. Such
execution, delivery and performance does not and will not, to the best of
Sellers' knowledge, constitute a default under or a violation of any
agreement, order, award, judgment, decree, statute, law, rule, regulation or
any other instrument to which either Seller is a party or by which either
Seller or the property of either Seller may be bound or may be subject. This
Agreement constitutes the legal, valid and binding obligation of each Seller,
enforceable against each Seller in accordance with its terms.
6.4 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the execution and
delivery of this Agreement by Sellers nor compliance by Sellers with the
terms and conditions of this Agreement will: (a) require Sellers to obtain
the consent of any governmental agency; (b) result in any violation or breach
of any term of the Articles of Incorporation or bylaws of JTC; (c) constitute
a material default under any indenture, mortgage or deed of trust to which
either Seller is a party or by which either Seller or its properties may be
subject; (d) cause the creation or imposition of any lien, charge or
encumbrance on any of its assets; or (e) breach any statute or regulation of
any governmental authority, domestic or foreign, or will on the Closing Date
conflict with or result in a breach or any of the terms or conditions of any
judgment, order, injunction, decree or ruling of any court or governmental
authority, domestic or foreign, to which either Seller is subject.
6.5 CONSENTS. No consent, approval or authorization of, or declaration,
filing or registration with, any governmental or regulatory authority or any
third party is required to be made or obtained by Sellers in connection with
the execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
6.7 SECURITIES WARRANTIES. With respect to the TMI Common Stock, each
of the Sellers hereby represents and warrants to TMI that:
(a) The TMI Common Stock which may be acquired for the account of each
of the Sellers and not with a view to sale in connection with any
distribution of the TMI Common Stock;
(b) Each of the Sellers is acquiring the TMI Common Stock hereunder
without having received any form of general solicitation or general
advertising;
(c) Each of the Sellers or his representative, if any, has been provided
with, or given reasonable access to, full and fair disclosure of all material
information concerning TMI;
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(d) Each of the Sellers has a preexisting personal or business
relationship with TMI or certain of its officers, directors or controlling
persons, or by reason of his business or financial experience, each of the
Sellers can reasonably be assumed to have the capacity to represent his own
interests in connection with this Agreement;
(e) Each of the Sellers understands and hereby acknowledges that the TMI
Common Stock will be issued pursuant to those restrictions imposed by and
exemptions available pursuant to applicable federal and state laws and that
the certificates to be issued in respect of the TMI Common Stock may bear a
legend in a form satisfactory to counsel for TMI; in part, TMI's reliance
upon such exemptions is based on the representations and warranties made by
each of the Sellers in this Section 6.7;
(f) Each of the Sellers agrees that the certificates to be issued in
respect of the TMI Common Stock may bear a legend in a form satisfactory to
counsel for TMI reflecting the status of the TMI Common Stock as restricted
securities under Rule 144(a)(3) promulgated under the Securities Act of 1993
("Securities Act") and acknowledges that the transfer agent or registrar for
TMI may be instructed to restrict the transfer of the TMI Common Stock, in
accordance with such legend and any other restrictions provided in this
Agreement;
(g) Each of the Sellers hereby agrees that: (i) he will not sell,
transfer, hypothecate, pledge, assign or otherwise dispose of any of the TMI
Common Stock, except pursuant to the terms of this Agreement; and (ii) to a
registration statement filed under the provisions of the Securities Act, a
favorable no-action or interpretive letter received from the Commission or an
opinion of counsel satisfactory to TMI that such sale, transfer,
hypothecation, pledge, assignment or other disposition is exempt from the
registration requirements of the Securities Act and in California, pursuant
to an opinion of counsel satisfactory to TMI that such sale, transfer,
hypothecation, pledge, assignment or other disposition is exempt from the
registration requirements of the Securities Act and does not in any way
violate the terms of this Agreement; and
(h) Each of the Sellers hereby acknowledges that: (i) the shares of TMI
Common Stock referred to herein are being acquired after adequate
investigation of the business plan and prospects of TMI; (ii) each of the
Sellers is not relying upon the accuracy of any predictions as to the future
prospects or developments of TMI or its business and is well informed as to
the business of TMI and has reviewed its operations and financial statements;
(iii) each of the Sellers or their professional advisors has discussed the
financial condition and business operations of TMI with the officers and
directors of TMI and has been afforded the opportunity to ask questions with
respect thereto; and (iv) each of the Sellers specifically acknowledges that
the shares of TMI Common Stock are speculative and involve a very high degree
of risk and that there can be no assurance that TMI will achieve its business
objectives or, in particular, that it will ever have cash available for
distribution to its stockholders.
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
7.1 ORGANIZATION AND GOOD STANDING; DUE AUTHORIZATION. TMI is a
corporation duly organized, validly existing, and in good standing under the
laws of the state of Utah, and has the
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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 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 Schedule 7.1
are complete and correct copies of the Articles of Incorporation and Bylaws
of Purchaser as in effect on the date hereof. The execution and delivery of
this Agreement does not, and the consummation of the transaction contemplated
by this Agreement in accordance with the terms hereof will not, violate any
provision of Purchaser's articles of incorporation or Bylaws. Purchaser has
taken all action required by law, its articles of incorporation, its Bylaws
or otherwise to authorize the execution and delivery of this Agreement.
Purchaser has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, Bylaws and otherwise to
consummate the transactions herein contemplated.
7.2 BINDING OBLIGATION; NO DEFAULT. Purchaser has duly taken all
corporate action necessary to authorize the execution, delivery and
performance of this Agreement and the other instruments and agreements
contemplated hereby. Such execution, delivery and performance does not and
will not, violate its Articles of Incorporation or Bylaws, or to the best of
Purchaser's knowledge, constitute a default under or a violation of any
agreement, order, award, judgment, decree, statute, law, rule, regulation or
any other instrument to which Purchaser or the property of Purchaser may be
bound or may be subject. This Agreement constitutes the legal, valid and
binding obligation of Purchaser enforceable against Purchaser in accordance
with its terms.
7.3 COMPLIANCE WITH OTHER INSTRUMENTS, ETC. Neither the execution and
delivery of this Agreement by Purchaser nor compliance by Purchaser with the
terms and conditions of this Agreement will: (a) require Purchaser to obtain
the consent of any governmental agency; (b) result in any violation or breach
of any term or provision of the Articles of Incorporation or Bylaws of
Purchaser; (c) constitute a material default under any indenture, mortgage or
deed of trust to which Purchaser is a party or by which Purchaser or its
property may be subject; (d) cause the creation or imposition of any lien,
charge or encumbrance on any of its assets; or (e) breach any statute or
regulation of any governmental authority, domestic or foreign, or will on the
Closing Date conflict with or result in a breach of any of the terms or
conditions of any judgment, order, injunction, decree or ruling of any court
or governmental authority, domestic or foreign, to which Purchaser is
subject.
7.4 CONSENTS. No consent, approval or authorization of, or declaration,
filing or registration with, any governmental or regulatory authority or any
third party is required to be made or obtained by Purchaser in connection
with the execution, delivery and performance of this Agreement and the
transactions contemplated hereby.
7.5 TITLE TO THE TMI COMMON STOCK. Upon delivery to Sellers of the
certificates described in Section 4.2 of this Agreement, Sellers will receive
good and marketable title to the TMI Common Stock, and all such TMI Common
Stock shall be received by Sellers as validly issued, fully paid and
nonassessable, free and clear of all pledges, liens, encumbrances, security
interests, equities, options, claims, charges, limitations on voting rights
or rights to receive dividends, or other restrictions of any kind (other than
any generally imposed by federal, corporate or territorial securities laws or
as otherwise provided for in this Agreement).
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8. CONDITIONS TO SELLERS' OBLIGATIONS.
The obligations of each of Sellers to consummate the transactions
contemplated by this Agreement, both at the Closing and subsequently, are
subject to the fulfillment at the Closing of each of the conditions set forth in
this Section 8. Each of Sellers may waive any or all of these conditions in
whole or in part without prior notice; PROVIDED, HOWEVER, that no such waiver
shall constitute a waiver of any of its other rights or remedies, at law or in
equity, arising from any breach by Purchaser of any representation, warranty,
covenant or other agreement contained herein:
8.1 REPRESENTATIONS AND WARRANTIES OF PURCHASER. On the Closing Date,
all of the representations and warranties made herein by Purchaser shall be
true and correct as of that date, and all of the agreements of Purchaser
contained in this Agreement which are to be performed on or before the
Closing Date shall have been performed.
8.2 AUTHORIZATION OF ACTIONS. All action on the part of Purchaser
necessary and sufficient to authorize the execution, delivery and performance
of this Agreement and the consummation the transactions provided for herein
shall have been duly and validly taken by Purchaser, and Seller shall have
been furnished with a certificate of the Secretary or Assistant Secretary of
Purchaser setting forth a copy of the resolution or other instrument
authorizing the performance of all other transactions provided for in this
Agreement.
8.3 BINDING OBLIGATION; NO DEFAULT. The execution, delivery and
performance of this Agreement does not and will not violate Purchaser's
Articles of Incorporation or Bylaws or constitute a default under or a
violation of any agreement, order, award, judgment, decree, statute, law,
rule, regulation or any other instrument to which Purchaser is a party or by
which it or its property is bound or to which it or its property is bound or
to which it or its property is subject. This Agreement constitutes the
legal, valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
8.4 CONSENTS. All material consents, approvals or authorizations of, or
declarations, filings or registrations with, any governmental or regulatory
authority which are required to be made or obtained by Purchaser in
connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby shall have been obtained by Purchaser
and delivered to Sellers.
8.5 FORM OF DOCUMENTS. The form and substance of all certificates,
instruments and other documents delivered to Sellers under this Agreement
shall be satisfactory in all reasonable respects to Sellers and their counsel.
8.6 DELIVERY OF CLOSING DOCUMENTS. Purchaser shall have delivered to
Sellers on the Closing Date the closing documents required to be delivered
pursuant to Section 15 in form and substance satisfactory to Sellers and
their counsel.
8.7 ABSENCE OF PROCEEDINGS. No suit, action, investigation or other
proceeding shall be pending or threatened before any court or governmental or
regulatory agency or authority, and no suit, action, investigation or other
proceeding before any governmental or regulatory agency or authority shall
have been threatened, which seeks (or, in the case of an investigation,
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may lead to a suit, action or proceeding which seeks) to restrain, prohibit
or obtain damages or other relief in connection with the Agreement or the
consummation of the transactions contemplated hereby or which questions the
validity or legality of such transactions.
8.8 OPINION OF COUNSEL TO PURCHASER. Sellers shall receive an opinion,
dated the Closing Date, of Matthias & Xxxx LLP, counsel to Purchaser. Such
opinion shall be to the best of such counsel's knowledge and be in
substantially the following form:
(a) Purchaser is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Utah, 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 states in which the character and
location of the assets owned by it or the nature of the business transacted
by it requires qualification;
(b) To the best knowledge of such legal counsel, the execution and
delivery by Purchaser of this Agreement and the consummation of the
transactions contemplated by this Agreement in accordance with the terms
hereof will not conflict with or result in the breach of any term or
provision of Purchaser's articles of incorporation or Bylaws or constitute a
default or give rise to a right of termination, cancellation or acceleration
under any material mortgage, indenture, deed of trust, license agreement or
other obligation or violate any court order, writ, injunction or decree
applicable to Purchaser or their properties or assets;
(c) To the best of such counsel's knowledge, the execution and delivery
of this Agreement and consummation of the transactions contemplated hereby
have been duly authorized and approved by all necessary action of the Board
of Directors of Purchaser, and there are no dissenters' rights or rights of
appraisal with respect to the authorization, approval, execution and
completion of the transactions contemplated by this Agreement. This
Agreement has been duly and validly authorized, executed, and delivered and
constitutes the legal and binding obligation of Purchaser, enforceable in
accordance with its terms, except as limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors generally;
(d) To the best of such counsel's knowledge, no consent, approval or
authorization of or filing or registration with any governmental body or
agency of the United States federal government or of any state is required
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement.
9. CONDITIONS TO PURCHASER'S OBLIGATIONS.
The obligations of Purchaser to consummate the transactions contemplated
this Agreement, both at the Closing and subsequently, are subject to the
fulfillment at the Closing of each of the conditions set forth in this
Section 9. Purchaser may waive any or all of these conditions in whole or in
part without prior notice; PROVIDED, HOWEVER, that no such waiver shall
constitute a waiver of any of its other rights or remedies, at law or in
equity, arising from any breach by Sellers of any representation, warranty,
covenant or other agreement contained herein:
9.1 REPRESENTATIONS AND WARRANTIES OF SELLERS. On the Closing Date,
all of the representations and warranties made herein by each of Sellers
shall be true and correct as of that
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date, and all of the agreements of each of Sellers contained in this
Agreement which are to be performed on or before the Closing Date shall have
been performed.
9.2 AUTHORIZATION OF ACTIONS. All action on the part of Sellers
necessary and sufficient to authorize the execution, delivery and performance
of this Agreement and the consummation the transactions provided for herein
shall have been duly and validly taken by Sellers, and Purchaser shall have
been furnished with a certificate of the Secretary or Assistant Secretary of
JTC setting forth a copy of the resolution or other instrument authorizing
(a) the sale of the Transferred Assets and (b) the performance of all other
transactions provided for in this Agreement.
9.3 BINDING OBLIGATION; NO DEFAULT. The execution, delivery and
performance of this Agreement does not and will not violate JTC's Articles
of Incorporation or Bylaws or constitute a default under or a violation of
any agreement, order, award, judgment, decree, statute, law, rule, regulation
or any other instrument to which each of Sellers is a party or by which it or
its property is bound or to which it or its property is bound or to which it
or its property is subject. This Agreement constitutes the legal, valid and
binding obligation of each of Sellers, enforceable against each of Sellers in
accordance with its terms.
9.4 CONSENTS. All material consents, approvals or authorizations of,
or declarations, filings or registrations with, any governmental or
regulatory authority which are required to be made or obtained by Sellers in
connection with the execution, delivery and performance of this Agreement and
the transactions contemplated hereby shall have been obtained by Sellers and
delivered to Purchaser.
9.5 FORM OF DOCUMENTS. The form and substance of all certificates,
instruments and other documents delivered to Purchaser under this Agreement
shall be satisfactory in all reasonable respects to Purchaser and their
counsel.
9.6 DELIVERY OF CLOSING DOCUMENTS. Sellers shall have delivered to
Purchaser on the Closing Date the closing documents required to be delivered
pursuant to Section 14 in form and substance reasonably satisfactory to
Purchaser and their counsel.
9.7 ABSENCE OF PROCEEDINGS. There is no suit, action, investigation or
other proceeding shall be pending before any court or governmental or
regulatory agency or authority, and no suit, action, investigation or other
proceeding before any governmental or regulatory authority shall have been
threatened, which seeks (or, in the case of investigation, may lead to a
suit, action or proceeding which seeks) to restrain, prohibit or obtain
damages or other relief in connection with this Agreement or the consummation
of the transactions contemplated hereby or which questions the validity or
legality of such transactions.
9.8 OPINION OF COUNSEL TO SELLERS. Purchaser shall receive an opinion,
dated as of the Closing Date, of Xxx X. Xxxxxxxxx, Attorney at Law, counsel
to Sellers, if appropriate. Such opinions shall be to the best of such
counsel's knowledge and be in substantially the following form:
(a) JTC is a corporation duly organized, validly existing, and in good
standing under the laws of the State of California, 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
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respects as it is now being conducted, including qualification to do business
as a foreign corporation in the states in which the character and location of
the assets owned by it or the nature of the business transacted by it
requires qualification;
(b) To the best knowledge of such legal counsel, the execution and
delivery by Sellers of this Agreement and the consummation of the
transactions contemplated by this Agreement in accordance with the terms
hereof will not conflict with or result in the breach of any term or
provision of JTC's Articles of Incorporation or Bylaws or constitute a
default or give rise to a right of termination, cancellation or acceleration
under any material mortgage, indenture, deed of trust, license, agreement or
other obligation or violate any court order, writ, injunction or decree
applicable to JTC, or their properties or assets;
(c) To the best knowledge of such legal counsel, the execution and
delivery of this Agreement and consummation of the transactions contemplated
hereby have been duly authorized and approved by all necessary action of the
Board of Directors and stockholders of JTC, and there are no dissenters'
rights or rights of appraisal with respect to the authorization, approval,
execution and completion of the transactions contemplated by this Agreement.
This Agreement has been duly and validly authorized, executed and delivered
and constitutes the legal and binding obligations of JTC, enforceable in
accordance with its term, except as limited by bankruptcy and insolvency laws
and by other laws affecting the rights of creditors generally;
(d) To the best knowledge of such legal counsel, there are no actions,
suits or proceedings pending or threatened by or against or affecting the
Transferred Assets or the ability of Sellers to deliver the Transferred
Assets to Purchaser, at law or in equity, before any court or other
governmental or industry agency or instrumentality, domestic or foreign or
before any arbitrator of any kind; and
(e) To the best of such counsel's knowledge, no consent, approval or
authorization of or filing or registration with any governmental body or
agency of the United States federal government or of any state is required
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated by this Agreement.
10. OTHER AGREEMENTS.
10.1 AGREEMENT TO OBTAIN CONSENTS AND APPROVALS. Purchaser and Sellers
shall cooperate with one another to use their best efforts to obtain any and
all governmental or third-party consents and approvals necessary to complete
the transactions contemplated by this Agreement.
10.2 AGREEMENT CONCERNING CONDITIONS TO CLOSING. Sellers and Purchaser
shall agree to use their best efforts to cause the conditions set forth in
Sections 8 and 9 to be met prior to the Closing Date.
10.3 TRANSFER AND OTHER TAXES. Sellers shall pay at the Closing any and
all taxes, whether federal, state, local or foreign in the nature of sales,
transfer or similar taxes, arising out of the transactions contemplated by
this Agreement; PROVIDED, HOWEVER, that if the amount of any such tax is not
known on the Closing Date, Sellers shall pay at the Closing the amount of
such tax estimated by Purchaser and shall pay any additional amount due with
respect to such tax within
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five days after notice of such amount by Purchaser, or, if any such estimated
amount paid by Sellers shall be in excess of the actual amount of such tax,
with respect to such tax Purchaser will reimburse Sellers for such amount
within five days of the date Purchaser has notice of the actual amount due;
and provided further, that Sellers shall reimburse Purchaser for the amount
of any tax required to be paid by Sellers under this Section 10.3 but
actually paid by Purchaser pursuant to legal requirements or otherwise.
10.4 EMPLOYMENT AGREEMENT. Xxxxx Xxxxxxxx shall enter into an
employment agreement ("Employment Agreement") with Purchaser attached hereto
as Schedule 10.4. Sellers hereby expressly agree and acknowledge that the
non-disclosure and non-competition provisions set forth in Section 6 of the
Employment Agreement are material considerations for Purchaser's entering
into this Agreement.
11. SPECIAL COVENANTS.
11.1 STOCKHOLDER MEETING OF JTC. JTC, at a meeting of its stockholders
duly called by the board of directors to be held as soon as practicable
following execution of this Agreement, or pursuant to a unanimous consent of
the stockholders, present for the authorization and approval of the
stockholders, in accordance with the applicable provisions of the laws of the
State of California, this Agreement and the consummation of the transactions
contemplated with Purchaser, as set forth herein. In lieu of this
requirement, JTC may provide the approval required under this Section 11.1 by
a written consent of its stockholders acceptable under California law as
legal action taken in lieu of a stockholders' meeting.
11.2 AVAILABILITY OF RULE 144. Each of the parties acknowledges that
the TMI Common Stock to be issued pursuant to this Agreement will be
"restricted securities," as that term is defined in Rule 144 promulgated
pursuant to the Securities Act. TMI is under no obligation to register such
shares under the Securities Act.
11.3 INFORMATION FOR PURCHASER'S PUBLIC REPORTS. Upon written request
of TMI or its counsel, Sellers shall furnish Purchaser with all information
concerning Sellers, including all financial statements required for inclusion
in any public reports required to be filed by TMI pursuant to the Securities
Act, the Exchange Act or any other applicable federal or state law. Sellers
represent and warrant to TMI that, to the best of their knowledge and belief,
all information so furnished shall be true and correct in all material
respects without omission of any material fact required to make the
information stated not misleading.
11.4 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE TMI COMMON
STOCK. The consummation of this Agreement and the transactions herein
contemplated, including the issuance of the TMI Common Stock to the Sellers,
as contemplated hereby, constitutes the offer and sale of securities under
the Securities Act, and applicable state statutes. Such transactions 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 Sellers acquire such securities.
12. ACCESS TO INFORMATION.
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12.1 SELLERS' OBLIGATIONS. After the Closing Date, JTC shall give, or
cause to be given, to Purchaser and its representatives, during normal
business hours at Seller's premises and at Purchaser's expense, such
reasonable access to the personnel, properties, titles, contracts, books,
records, files, documents and affairs of Sellers and copies of titles,
contracts, books, records, files and documents as is necessary to allow
Purchaser to obtain information in connection with the Transferred Assets and
any claims, demands, other audits, suits, actions or proceedings by or
against Purchaser as the previous owner of the Transferred Assets. Sellers
shall cooperate fully with Purchaser after the Closing Date with respect to
any claims, demands, suits, actions and proceedings by or against Purchaser
as the previous owner of the Transferred Assets.
14. CLOSING DOCUMENTS TO BE DELIVERED BY SELLERS. On the Closing Date,
Sellers shall deliver to Purchaser:
14.1 ASSIGNMENT. A Xxxx of Sale and Assignment in the form attached as
Schedule 14.1 hereto.
14.2 CERTIFICATE. A certificate dated the Closing Date, signed by a
duly authorized officer of JTC, stating that all of Sellers' representations
and warranties set forth in this Agreement are true and correct on and as of
the Closing Date as if made on the Closing Date.
14.3 FURTHER INSTRUMENTS. Such further instruments with respect to the
transactions contemplated by this Agreement as Sellers are required to
deliver or as Purchaser may reasonably request.
15. CLOSING DOCUMENTS TO BE DELIVERED BY PURCHASER.
15.1 FURTHER INSTRUMENTS. Such further instruments with respect to the
transactions contemplated by this Agreement as Purchaser is required to
deliver or as Sellers may reasonably request.
15.2 CERTIFICATE. A certificate dated the Closing Date, signed by a
duly authorized officer of Purchaser, stating that all of Purchaser's
representations and warranties set forth in this Agreement are true and
correct on and as of the Closing Date as if made on the Closing Date.
15.3 EMPLOYMENT AGREEMENT. An executed copy of the Employment Agreement
provided for in Section 10.5 hereof.
16. INDEMNIFICATION; NOTICE OF BREACH.
16.1 PURCHASER'S INDEMNIFICATION. After the Closing, Purchaser shall
protect, defend, indemnify and hold harmless each of Sellers, its parents,
subsidiaries, and its officers, directors, employees, successors and assigns
from and against any losses, damages (but not including consequential damages
and penalties) and expenses (including, without limitation, reasonable
counsel fees, costs and expenses incurred in investigating and defending
against the assertion of such liabilities) which may be sustained, suffered
or incurred by them and which (a) are related to any breach by Purchaser of
its representations and warranties in this Agreement, or (b) arise out of the
use by Purchaser of the Transferred Assets after the Closing Date.
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16.2 SELLERS' INDEMNIFICATION. After the Closing, each of Sellers
shall protect, defend, indemnify and hold harmless Purchaser, its parents,
subsidiaries, officers, directors, employees, successors and assigns from and
against any losses, damages (but not including consequential damages and
penalties) and expenses (including, without limitation, reasonable counsel
fees, costs and expenses incurred in investigating and defending against the
assertion of such liabilities) which may be sustained, suffered or incurred
by them and which (a) are related to any breach by Sellers of their
representations and warranties in this Agreement, or (b) are based solely
upon BONA FIDE claims asserted by third parties against Purchaser with
respect to the Transferred Assets.
16.3 NOTICE. If any action, suit or proceeding shall be commenced, or
any claim or demand shall be asserted, in respect or which one party (the
"Indemnitee") proposes to demand indemnification under Section 16.1 or 16.2,
the party from which indemnification is sought (the "Indemnitor") shall be
notified to that effect with reasonable promptness and shall have the right
to assume the entire control of (including the selection of counsel), subject
to the right of the Indemnitee to participate (with counsel of its choice)
in, the defense, compromise or settlement thereof, but the fees and expenses
of such counsel shall be at the expense of the Indemnitee unless (a) the
employment of such counsel by the Indemnitee has been specifically authorized
by the Indemnitor, or (b) the named parties to any such action (including any
impleaded parties) include both the Indemnitee and the Indemnitor and the
Indemnitee shall have been advised by its counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Indemnitor. The Indemnitee shall cooperate fully in
all respects with the Indemnitor in any such defense, compromise or
settlement, including, without limitation, by making available all pertinent
information under its control to the Indemnitor. The Indemnitor shall not
compromise or settle any such action, suit, proceeding, claim or demand
without the prior written consent of the Indemnitee; PROVIDED, HOWEVER, that
in the event the approval described above is withheld, then the liabilities
of the Indemnitor shall be limited to the total sum representing the amount
of the proposed compromise or settlement and the amount of counsel fees
accumulated at the time such approval is withheld.
17. MISCELLANEOUS.
17.1 BROKERAGE AND FINDER'S FEES. Sellers and Purchaser represent to
and agree with each other that no broker or finder has been or shall be
involved in any manner in the negotiation or consummation of the transactions
contemplated hereby. Each of Sellers agrees to indemnify and save Purchaser
harmless from and against any and all claims, liabilities or obligations with
respect to brokerage or finder's fees or commissions in connection with the
transactions contemplated by this Agreement asserted by any person on the
basis of any statement or representation made or alleged to have been made by
Sellers. Purchaser agrees to indemnify and save Sellers and one or more of
its subsidiaries harmless from and against any and all claims, liabilities or
obligations with respect to brokerage or finder's fees or commissions in
connection with the transactions contemplated by this Agreement asserted by
any person or persons on the basis of any statement or representation made or
alleged to have been made by Purchaser.
17.2 EXPENSES. Each of the parties to this Agreement shall bear all of
its own expenses incurred by it in connection with this Agreement.
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17.3 RISK OF LOSS. The risk of any loss, damage, impairment,
confiscation or condemnation of the Transferred Assets or any part thereof
shall be upon Sellers at all times prior to the Closing Date. Prior to the
Closing, in the event of any such loss, damage, impairment, confiscation or
condemnation, the proceeds of, or any claim for any loss payable under, each
of Sellers' insurance policy, judgment or award with respect thereto shall be
payable to Sellers, and Sellers shall have no obligation to Purchaser to
repair, replace or restore any such property or to pay all or any part of
such proceeds to Purchaser. In the event such loss so impairs the
Transferred Assets so that Purchaser, in its sole and absolute discretion no
longer believes that the Business can operate as it does on the date of this
Agreement, Purchaser may terminate this Agreement without liability to
Purchaser.
17.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Sellers in this Agreement or in any instrument or document
delivered prior to or on the Closing Date shall survive indefinitely
following the Closing. The representations, warranties and covenants of
Purchaser in this Agreement or in any certificate or document delivered prior
to, on or after the Closing Date shall survive indefinitely following the
Closing.
17.5 LAW, FORUM AND JURISDICTION. This Agreement shall be construed and
interpreted in accordance with the laws of the State of California. Sellers
and Purchaser agree that any dispute arising under this Agreement, whether
during the term of the Agreement or at any subsequent time, shall be resolved
exclusively in the courts of California and Sellers and Purchaser hereby
submit to the jurisdiction of such courts for all purposes provided herein.
17.6 NOTICES. All notices and other communications and legal process
shall be in writing and shall be personally delivered, transmitted by
overnight courier by telecopier and followed by first class mail, or
transmitted by registered or certified mail, postage prepaid, with return
receipt requested, as elected by the party giving such notice, addressed as
follows:
If to Sellers: Jetaway Travel Corporation
0000 Xxxx Xxxxx Xxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
If to Purchaser: TravelMax International, Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx
Attn: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
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With a copy to Matthias & Xxxx LLP
0000 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
tel: 000-000-0000
fax: 000-000-0000
Notices shall be deemed to have been given: (i) on the fifth business
day after posting, if mailed as provided above, (ii) on the date of receipt
if delivered personally or by overnight courier, or (iii) on the next
business day after transmission if transmitted by telecopier in the manner
set forth above (and appropriate answerbacks have been received). Any party
hereto may change its address for purposes hereof by notice to the other
parties hereto.
17.7 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties hereto. This Agreement
supersedes any and all previous agreements, commitments and understandings
among the parties hereto, whether such agreements, commitments or
understandings were oral or written, and neither party hereto has relied or
will rely on any representation of the other except to the extent set forth
herein.
17.8 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.
17.9 COUNTERPARTS. This Agreement may be executed in counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the
parties hereto and delivered to the other.
17.10 COMPLIANCE WITH BULK SALES LAWS. The parties hereto shall comply
in all material respects with bulk sales laws of California and in all other
jurisdictions in which compliance by the transactions contemplated by this
Agreement with bulk sales laws shall be required by law.
17.11 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. In the event of any permitted
assignment by Purchaser, the assignee shall succeed to all of the rights and
obligations of the Purchaser under this Agreement; and in the event of any
permitted assignment by Sellers, the assignee shall succeed to all of the
rights and obligations of Sellers under this Agreement.
17.12 AMENDMENT AND WAIVER. This Agreement may be amended, or any
provision of this Agreement may be waived, provided that any such amendment
or waiver shall be binding on Purchaser only if such amendment or waiver is
set forth in a writing executed by Purchaser, and provided that any such
amendment or waiver shall be binding on Sellers only if such amendment or
waiver is set forth in a writing executed by Sellers. The waiver of any
party hereto of a breach
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of any provision of this Agreement shall not operate or be construed as a
waiver of any other breach.
17.13 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.
17.14 FURTHER ASSURANCES. After the Closing, Sellers and Purchaser
shall perform such further acts as may be necessary to transfer and convey
title to an possession of the Transferred Assets to Purchaser, and otherwise
comply with the terms of this Agreement. After the Closing Date, Sellers and
Purchaser shall give to each other, upon reasonable notice, reasonable access
to all relevant books, contracts and records concerning the Business as may
be required by Purchaser in its conduct thereof.
17.15 ATTORNEYS' FEES. In any action at law or in equity to enforce or
construe any provisions or rights under this Agreement, the unsuccessful
party or parties to such litigation, as determined by a court pursuant to a
final order, judgment or decree, shall pay to the successful party or parties
all costs, expenses and reasonable attorneys' fees incurred by such
successful party or parties (including, without limitation, such costs,
expenses and fees on any appeal), which costs, expenses and attorneys' fees
shall be included as part of any order, judgment or decree.
17.16 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 unenforcability 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.
17.17 FAILURE OF CONDITIONS; TERMINATION. In the event any of the
conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either Purchaser or Sellers have the right either to
proceed or, upon prompt written notice to the other, to terminate and rescind
this Agreement without liability to any other party. 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.
17.18 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 any specific term or
conditions hereof.
17.19 EXECUTION KNOWING AND VOLUNTARY. In executing this Agreement,
Purchaser and Sellers 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 apprised of his, her or its attorneys of the
legal effect and meaning of this document and all terms and conditions
hereof; (c) has been afforded the opportunity to negotiate as to any and all
terms hereof; and (d) is executing this Agreement voluntarily, free from any
influence, coercion or duress of any kind.
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17.20 LITIGATION BY THIRD PARTIES. In the event that suit is brought
by a third party to enjoin or otherwise interfere with the consummation of
the transactions contemplated herein, the parties agree that the bringing of
such litigation shall not entitle any party hereto to terminate the within
Agreement, but that the parties shall bring an action for declaratory relief
before a court of competent jurisdiction and shall terminate this Agreement
if such court adjudges termination to be required by the rights of such third
party.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement
to be duly executed and delivered in its name and on its behalf, all as of
the day and year first above written at Newport Beach, California.
("TMI")
TravelMax International, Inc.
By: /s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx, Vice-President
("JTC")
Jetaway Travel Corporation
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx, President
("Massoli")
/s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx
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