EXHIBIT 10.17
SHARE PURCHASE AND SALE AGREEMENT
This SHRE PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
as of December 31, 2006 by and between ISRAMCO INC., a Delaware corporation
("Seller"), and CHESNY ESTATES LTD., a British Virgin Islands company ("Buyer")
WHEREAS MAGIC 1 CRUISE LINE CORP. (the "COMPANY") is a company duly incorporated
and registered in the British Virgin Islands, and
WHEREAS The Company is the owner of the cruise liner M/V "MIRAGE 1", IMO number
7221433 a Bahamas flagged vessel (the "VESSEL"), and
WHEREAS The Seller is the owner of 50,000 shares par value 1 USD each
constituting 100% of the issued shares capital of the Company (the
"SHARES"); and
WHEREAS The Seller desires to sell, transfer and deliver the Shares to the Buyer
and the Buyer desires to purchase and receive the Shares from the
Seller, subject to the terms and conditions set forth herein,
In consideration of the mutual promises contained herein, the benefits
to be derived by each party hereunder and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller
agree as follows:
ARTICLE I
PURCHASE AND SALE
1. 1.1 PURCHASE AND SALE. Seller agrees to sell and convey and
Buyer agrees to purchase and pay for the Shares, subject to the
terms and conditions of this Agreement,
1.2 EFFECTIVE DATE. The purchase and sale of the Shares shall be
effective for all purposes as of December 31, 2006, at 12:01
A.M., Delaware local time (the "Effective Date").
ARTICLE II
PURCHASE PRICE
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PURCHASE PRICE
2. 2.1 PURCHASE PRICE. The purchase price for the Shares shall be $
2,300,000 (the "Purchase Price"), subject to adjustments as set
forth in section 2.2 below.
2.2 ADJUSTMENT TO PURCHASE PRICE. Purchase Price shall be adjusted
as follows and the resulting amount shall be considered as the
Final Purchase Price.
(a) 7 days after the issuance of the audited financial
reports of the Company as of December 31, 2006. the
Purchase Price shall be adjusted, upward or downward (as
the case may be) to reflect a purchase price equal to
the sum of Sellers shareholders loan to Magic deducted
by equity deficit (the "Final Purchase Price").
3 day after the adjustment of the Purchase Price and
calculation of the Final Purchase Price, Purchaser shall
pay the Seller, or shall receive from the Seller (as the
case may be), the balance between the Final Purchase
Price and the Purchase Price.
2.3 PAYMENT. Upon execution of this Agreement, the Buyer shall pay
the full Purchase Price, as provided in section 4(a) to this
Agreement..
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3. 3.1 REPRESENTATIONS AND WARRANTIES OF SELLER , Seller represents
and warrants to Buyer as follows:
(a) Seller is a corporation duly organized, validly existing
under the laws of the State of Delaware.
(b) Seller has all requisite power and authority to enter
this Agreement, and to perform obligations under this
Agreement. The consummation of the transactions
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contemplated by this Agreement will not violate, nor be
in conflict with, any provision of Seller's, bylaws or
governing documents, or any agreement or instrument to
which a Seller is a party or is bound, or any judgment,
decree, order, statute, rule or regulation applicable to
Seller.
(c) The execution, delivery and performance of this
Agreement and the transactions contemplated hereby have
been duly and validly authorized by all requisite action
or the part of Seller. The execution and the delivery by
Seller of this Agreement, transfer of the Shares and the
performance and consummation of the transactions
contemplated herein by Seller will not (i) violate any
law or order to which Seller is subject, or (ii) breach
any Material contract, order, or permit to which Seller
is a party or by which Seller is bound,or (ii) conflict
with or violate any agreement governing Seller's
organization or management or any Material agreement or
(iii) require any consent of any third party which will
not be obtained at reasonable time.
(d) This Agreement has been duly executed and delivered on
behalf of Seller, and all documents and instruments
required hereunder to be executed and delivered by
Seller shall have been duly executed and delivered. This
Agreement does, and such documents and instruments
shall, constitute legal and valid obligations of Seller.
(e) Copy of the Certificate of Incorporation of the Company
its Mernorandum and Article of Association attached
hereto and as Appendices "A" and "A1".
(f) The authorized capital of the Company is USD 50,000, the
issued and outstanding capital of the Company is USD
50,000, comprised of 50,000 par value of USD 1 each,
numbered 1 - 50,000.
(g) Seller is the sole legal owner of the Shares that
constitute 100% of the issued shares capital of the
Company. Copy of the share Certificate is attached as
Appendix "B".
(h) The Shares are free and clear of any encumbrance or any
third party's interest.
(i) There are no obligations of, or undertakings by the
Company to issue stock or other securities of the
Company, and there are no other share capital,
preemptive rights, convertible securities, outstanding
warrants, options or other rights to subscribe for,
purchase of acquire from the Company and share capital
of the Company, nor has the Company agreed to issue any
such securities, warrants, options of rights in the
future.
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(j) The Company is not a guarantor in respect of any third
party's loan, including the Seller.
(k) There is no action, suit, proceeding of investigation
pending or, to the Seller's knowledge, threatened,
against the Company. The Company paid all taxes to the
Registrar of Companies in BVI until 2006 (inclusive),
and delivered all notices and reports requested under
applicable law.
(l) The Company is not in default under any agreement or
other instrument to which the Company is a party or with
respect to any law, statue, regulation, order, writ,
injunction, decree, or judgment of any court or any
governmental department, commission, which default may
materially adversely affect the Company's business.
(m) Seller shall be responsible for all debts and/or
undertakings of the Company of whatever nature which
have arisen of created or their source relate to the
period prior to the Effective Dade.
(n) Since its incorporation, the Company has operated only
in the usual course of business.
(o) No action, proceeding or governmental inquiry or
investigation is pending or threatened against the
Company or the Vessel.
(p) The Company has good and marketable title to the Vessel,
free and clear of all Encumbrances except for a mortgage
as specified in Appendix 'C'.
(q) The sole director of the Company is Xx. Xxxx Tsuff.
3.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
(a) Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of
the British Virgin Islands.
(b) Buyer has all requisite power and authority to carry on
business as presently conducted by the Company, to enter
this Agreement, and to perform obligations under this
Agreement. The consummation of the transactions
contemplated by this Agreement will not violate, nor be
in conflict with, any provision of Buyer's charter,
bylaws or governing documents, or any agreement or
instrument to which a Buyer is
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a party or is bound, or any judgment, decree, order,
statute, rule or regulation applicable to Buyer.
(c) The execution, delivery and performance of this
Agreement and the transactions contemplated hereby have
been duly and validly authorized by all requisite action
or the part of Buyer.
(d) This Agreement has been duly executed and delivered on
behalf of Buyer, and all documents and instruments
required hereunder to be executed and delivered by Buyer
have been duly executed and delivered. This Agreement
does, and such documents and instruments shall,
constitute legal and valid obligations of Buyer.
(e) Buyer has no liability to pay any compensation to any
broker, finder, or agent with respect to this
transactions for which Seller could become directly or
indirectly liable
(f) Buyer has the financial ability and the required sources
to meet his undertakings, under this Agreement.
(g) Subject to the accuracy of the Sellers' representation
as specified in this Agreement and the fulfillment of
the Seller' undertaking as specified in this Agreement,
Buyer waives all claims and/or demands against the
Seller in respect of this Agreement.
(h) Buyer is an experienced investor, capable of evaluating
the merits and risks of the investment contemplated
herein and Buyer hereby acknowledges that it had full
opportunity to inquire and receive information relating
to the Company and the Vessel. Buyer has sufficient
knowledge and experience in business and financial
matters, so as to reach an informed and knowledgeable
decision to purchase the Shares. Buyer relied on its own
knowledge and investigation carried out on behalf of
Buyer by independent consultants and experts with
respect to the business and potential of the Company.
(i) Buyer acknowledges it was provided by Seller with all
information and data required by Buyer and Buyer has all
sufficient information in order to enter this Agreement.
(j) Buyer acknowledges it is entering this Agreement on "as
is" basis without relying on any representation or
warranties from Seller, except those expressly set forth
in this Agreement .Buyer is relying solely on its own
knowledge and independent review (including but not
limited to the Buyer being the lessee of the Vessel in
the years 2205 and 2006 ).
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3.3 DISCLAIMER.
To the extent required by applicable Law to be operative, the
disclaimers of certain warranties contained in this SECTION 3.3
are "conspicuous disclaimers" for purposes of any applicable
Law.
(a) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT
AND THE CONVEYANCES, BUYER AGREES THAT SELLER IS CONVEYING THE SHARES
WITHOUT REPRESENTATION, WARRANTY, OR INDEMNITY, EITHER EXPRESSED OR
IMPLIED AT COMMON LAW, BY STATUTE, OR OTHERWISE (ALL OF WHICH SELLER
HEREBY DISCLAIMS), RELATING TO (I) TITLE, (II) MERCHANTABILITY, DESIGN,
OR QUALITY, OR (III) FITNESS FOR ANY PARTICULAR PURPOSE.
(b) BUYER WAIVES ITS RIGHTS, IF ANY, UNDER THE TEXAS
DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, TEXAS BUSINESS AND
COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION,
BUYER VOLUNTARILY CONSENTS TO THIS WAIVER.
ARTICLE I V
THE TRANSACTION
4.1 Contemporaneously with the execution of this Agreement, Seller
and Buyer shall take the following actions for the closing of
the Purchase and Sale of the Shares:
(a) Purchaser shall pay to Seller the Purchase Price.
(b) Seller shall transfer and deliver to Buyer the original
share certificate certifying that Seller is the
registered holder of the Shares and a share transfer
upon its delivery the ownership in the Shares is
transferred to the Buyer.
(c) Seller shall provide the Buyer with the original
Certificate of Incorporation, Memorandum and Articles of
association of the Company as well as all other
documents, books, records belonging etc. relating to the
Company and the Vessel.
(d) The director of the Company and the Company's
signatories shall be replaced in accordance with Buyer's
instruction (including in respect to the bank accounts
of the Company).
(e) Seller assigns to Buyer the shareholder loan granted by
Seller to the Company (as recorded in Company's books).
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ARTICLE V
5. 5.1 ASSUMPTION OF OBLIGATIONS. Upon the execution of this
Agreement and as of the effective date, Buyer assumes all
obligations and liabilities in respect of the Shares, the
Company and the Vessel.
5.2 INDEMNIFICATION BY BUYER. Buyer assumes, be responsible for,
shall pay on a current basis, and shall indemnify, save, hold
harmless, discharge and release Seller, its respective
affiliates, its and their successors and permitted assigns, and
all of their respective stockholders, directors, officers,
employees, agents, representatives (collectively, "Buyer
Indemnified Parties") from and against any and all claims,
costs, expenses and liabilities arising from, based upon,
related to or associated with the Company and the Vessel.
5.3 FURTHER ASSURANCES. Seller and Buyer shall execute, acknowledge
and deliver or cause to be executed, acknowledged and delivered
such instruments and take such other action as may be necessary
or advisable to carry out their obligations under this
Agreement.
ARTICLE VI
MISCELLANEOUS
6. NOTICES. All notices and other communications which are required or
which may be given under the provisions of this Agreement shall be in
writing and the same shall be deemed to have been given on the same day
if delivered in person, by overnight courier or by facsimile to the
facsimile number herein below for the party to whom the notice is given,
or on the third day thereafter if placed in the United States mails,
registered or certified mail with postage prepaid and addressed to the
party at the address hereinafter specified. The addresses and facsimile
numbers of the Parties for all purposes under this Agreement and for all
notices hereunder shall be:
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If to Seller:
Isramco, Inc.
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone. no. 000 000-0000
Fax No. 000 000-0000
If to Buyer:
Chesny Estates Ltd.
Xxxxxxxxxxxxx 00, 0000 XX Xxxxxxx, Xxxxxxx
Telephone: x00-00-0000000
Telecopier: x00-00-0000000
All such notices and communications shall be deemed to have been
received on the date of delivery or on the third Business Day after the
registered or certified mailing thereof.
From time to time any party may designate another address or facsimile
number or telephone number for all purposes of this Agreement by
notifying the other party of such change in accordance with the
provisions hereof.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreements
between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, written and oral. No
supplement, amendment, alteration, modification, waiver or termination
of this Agreement shall be binding unless executed in writing by the
parties hereto.
8. BINDING EFFECT; BENEFITS. This Agreement shall be binding upon and inure
to the benefit of the parties to this Agreement and their respective
successors and permitted assigns. Nothing expressed or implied in this
Agreement is intended to or shall be construed to give any person other
than the parties to this Agreement or their respective successors or
permitted assigns any legal or equitable right, remedy or claim under or
in respect of this Agreement, it being the intention of the parties to
this Agreement that this Agreement shall be for the sole
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and exclusive benefit of such parties or such successor or assigns and
for the benefit of no other person.
9. ARTICLE AND SECTION HEADINGS. The article, section and other headings
contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
10. EXPENSES. Except as otherwise specifically provided in this Agreement,
all fees, costs and expenses incurred by Buyer or Seller in negotiating
this Agreement or in consummating the transactions contemplated by this
Agreement shall be paid by the party incurring the same, including with
limitation, legal and accounting fees, costs and expenses.
11. GOVERNING LAW; VENUE. This Agreement and the transactions contemplated
hereby shall be construed in accordance with, and governed by, the laws
of the State of Texas. This Agreement is made and executed in Houston,
Xxxxxx County, Texas and it is agreed that the courts of appropriate
jurisdiction sitting in Houston, Xxxxxx County, Texas, shall have venue
over any dispute arising hereunder.
12. BINDING ARBITRATION.
(a) All disputes arising under this Agreement, ("Disputes") will be
resolved as follows: first, senior management of Buyer and
Seller will meet to attempt to resolve such Dispute. If the
Dispute cannot be resolved by agreement of the Parties, any
Party may at any time make a written demand for binding
arbitration of the Dispute; provided that the foregoing shall
not preclude equitable or other judicial relief to enforce the
provisions hereof or to preserve the status quo pending
resolution of Disputes; and provided further that resolution of
Disputes with respect to claims by third Persons will be
deferred until any judicial proceedings with respect thereto are
concluded. The Commercial Arbitration Rules of the American
Arbitration Association in effect on the date hereof will apply,
and except as the applicable rules are modified by this
Agreement, will apply. As a minimum set of rules in the
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arbitration the Parties agree as follows:
(b) The arbitration will be held before a panel of three arbitrators
consisting of one arbitrator selected by Buyer, the other
selected by a Seller, and the third then selected by those two
arbitrators. If the appointed arbitrators cannot agree on a
third arbitrator within thirty (30) days of their appointment,
the American Arbitration Association ("AAA") will appoint one.
(c) The Party initiating arbitration (the "Claimant") will give
simultaneous notice (the "Demand") of its intent to arbitrate to
the AAA and to each other Party (the "Respondent"). The Demand
will contain a statement setting forth in reasonable detail the
nature of the Claimant's claim, the names and addresses of all
other Parties, the amount involved, if any, and the remedy
sought. The Respondent will file an answering statement (the
"Answer") within fifteen (15) days of the Demand. The Answer
will contain a statement setting forth in reasonable detail the
Respondent's responses and defenses to the claim. If a
counterclaim is asserted, it will be sent with the Answer and
will contain a statement setting forth in reasonable detail the
nature of the counterclaim, the amount involved, if any, and the
remedy sought. The Claimant will file a reply statement (the
"Reply") within fifteen (15) days of the counterclaim. The Reply
will contain a statement setting forth in reasonable detail the
Claimant's responses and defenses to the counterclaim. If no
Answer or Reply is given within the stated time, the claim or
the counterclaim will be assumed to be denied. Failure to file
an Answer or Reply will not operate to delay the arbitration.
(d) Unless the parties to the arbitration agree otherwise, no
discovery will take place except as provided in this subsection.
Not less than sixty (60) days before the date of the hearing,
each Party shall provide to each other Party copies of all
exhibits, affidavits and other evidence it intends to submit at
the hearing, along with the identification of any witnesses to
be called and a summary of anticipated testimony. Based on a
review of the information provided, and not less than thirty
(30) days before the date of the hearing, each Party will
provide to each other Party copies of any additional exhibits,
affidavits and other evidence it intends to submit at the
hearing, along with the identification of any additional
witnesses to be called and a summary of anticipated testimony.
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The arbitrators will be authorized to resolve (in a manner
consistent with this clause (3)) any disputes concerning the
exchange of information.
(e) The arbitration hearing will take place no more than one hundred
and eighty (180) days after the date of the Demand, if any.
(f) The arHbitrators will deliver their decision in writing within
ten (10) days after the termination of the arbitration hearings.
(g) Buyer and Seller will equally bear the costs and fees of the
arbitration. The Parties agree that a court reporter will record
the arbitration proceedings and that the reporter's record will
be the agreed to transcript of the proceedings. Buyer and Seller
will share the expenses of this recorder equally.
(h) The arbitrators will issue a written opinion and specify the
basis for their decision, the basis for the Damages award and a
breakdown of the Damages awarded, and the basis of any other
remedy. The arbitrators' decision will be considered as a final
and binding resolution of the disagreement, will not be subject
to appeal and may be entered as an Order in any court of
competent jurisdiction in the United States; provided that this
Agreement confers no power or authority upon the arbitrators to
render any decision that is based on clearly erroneously
findings of fact, that manifestly disregards the law, or exceeds
of the powers of the arbitrator, and no such decision will be
eligible for confirmation. Each Party agrees to submit to the
jurisdiction of any such court for purposes of the enforcement
of any such Order. No Party will xxx any other Party except for
enforcement of the arbitrator's decision if such other Party is
not performing in accordance with the arbitrator's decision. The
provisions of this Agreement will be binding on the arbitrators.
(i) Any arbitration proceeding will be conducted on a confidential
basis.
(j) The arbitrators' discretion to fashion remedies hereunder will
be no broader or narrower than the legal and equitable remedies
available to a court, unless the Parties expressly state
elsewhere in this Agreement that Parties will be subject to
broader or narrower legal and equitable remedies than would be
available under the law governing this Agreement.
(k) the arbitration will be conducted in Houston, Texas.
11. SEVERABILITY. Each section, subsection and lesser section of this
Agreement constitutes a
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separate and distinct undertaking, covenant or provision hereof. In the
event that any provision of this Agreement shall be determined to be
invalid or unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary to
render the same valid and enforceable, and, in the event such a limiting
construction is impossible, such invalid or unenforceable provision
shall be deemed severed from this Agreement, but every other provision
of this Agreement shall remain in full force and effect.
12. GENDER AND NUMBER. Whenever the context requires herein, the gender and
all words used herein shall include the masculine, feminine, and neuter,
and the number of all words shall include the singular and the plural.
13. PRESUMPTION CONCERNING INTERPRETATION AND CONSTRUCTION. Notwithstanding
the fact that preliminary drafts of this Agreement were prepared by
counsel for Seller, the parties hereto and their respective counsel have
had opportunity to review and participate in the drafting of the final
form of this Agreement. Accordingly, in the event of any ambiguity in
the provisions of this Agreement, there shall be no presumption in favor
of any party hereto with respect to the interpretation or construction
thereof.
14. CONSPICUOUSNESS. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS
AGREEMENT THAT ARE SET OUT IN BOLD TYPE ARE CONSPICUOUS, UNDER THE LAWS
OF THE STATE OF TEXAS, AND THE INDEMNITY PROVISIONS HEREOF COMPLY WITH
THE EXPRESS NEGLIGENCE RULE.
15. SURVIVAL. Except as specifically set forth herein, the representations,
warranties, covenants, and agreements of the parties hereto shall
survive the execution of this Agreement.
16. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same agreement. Furthermore,
this Agreement may be executed by the facsimile signature of any party
hereto, it being agreed that the facsimile signature of any party hereto
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shall be deemed an original for all purposes.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the date set forth above.
SELLER: ISRAMCO, INC.
By: /s/ Haim Tsuff
Name: Haim Tsuff
Title: Chairman of the Board & CEU
BUYER: CHESNY ESTATES LTD.
By: /s/ Gil Hod
Name: Gil Hod
Title: Director
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