EXHIBIT 10.53
UNIT PURCHASE AGREEMENT
This UNIT PURCHASE AGREEMENT (this "Agreement"), dated as of January
17, 2002, is made and entered into by and among CLASSIC VACATION GROUP, INC., a
New York corporation formerly known as Global Vacation Group, Inc. ("Seller"),
ALLIED TOURS, INC., a Delaware corporation ("Allied"), ALLIED TOURS, LLC, a
Delaware limited liability company (the "Company") and KUONI HOLDING DELAWARE,
INC., a Delaware corporation ("Buyer").
WHEREAS, on January 17, 2002, Seller transferred to Company all of the
assets and liabilities pertaining and related to its Allied Tours division (the
"Division"), pursuant to that certain Asset Exchange Agreement ("the Asset
Exchange Agreement") between the Seller and the Company made effective as of
January 17, 2002 (the "Transfer"), except for certain assets and liabilities
whose transfer has not yet been legally completed as of the date of this
Agreement.
WHEREAS, Seller owns all of the outstanding membership interests of the
Company (all such membership interests being referred to hereinafter as the
"Units"), as well as all issued and outstanding stock of Allied;
WHEREAS, Seller desires to sell the Division's business and for such
purpose, wishes to sell, and Buyer desires to purchase, the Units on the terms
and subject to the conditions set forth in this Agreement;
WHEREAS, Seller desires to cause Allied to sell to Buyer certain
intellectual property rights held by Allied through a transfer of such
intellectual property rights to Buyer simultaneously with the sale of the Units
by Seller to Buyer.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
(the "Parties") hereby agree as follows:
ARTICLE I.
SALE OF UNITS AND CLOSING
SECTION 1.1 PURCHASE AND SALE(a) Purchase and Sale of Units. Seller agrees to
sell to Buyer, and Buyer agrees to purchase from Seller, all of the rights,
title and interest of Seller in and to the Units on the terms and subject to the
conditions set forth in this Agreement.
(b) Purchase and Transfer of Trademarks. Allied agrees to sell and transfer
to Buyer, and Buyer agrees to purchase from Allied, all rights and interest in
the trademark application for "Allied Tours" (the "Application") and the common
law trademark "Allied Tours" and registered trademarks "Time2" and "Time Square"
(together with the Application, the "Trademarks"), free and clear of any Liens
(as defined below). The registration and/or ownership details of the Trademarks
are described in EXHIBIT 1.1 hereto.
SECTION 1.2 PURCHASE PRICE.
The aggregate purchase price (the "Purchase Price") for the Units and the
Trademarks is Three Million Five Hundred Thousand United States Dollars ($US
3,500,000).
SECTION 1.3 CLOSING.
Subject to the satisfaction of the conditions set forth in Sections 6.1 and 6.2
below, the closing of the transactions contemplated by this Agreement (the
"Closing") will take place at the offices of Classic Vacation Group, Xxx Xxxxx
Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, at 10 a.m. (Pacific
Standard time) on January 17, 2001 (the "Closing Date"), or at such other place
and on such other date as is mutually agreeable to Buyer and Seller. The Closing
will be effective as of the close of business on the Closing Date.
SECTION 1.4 CLOSING DELIVERIES
(a) Payment of the Purchase Price. Deliveries by Buyer.
At Closing, Buyer shall pay to the Seller (acting in its own name and behalf and
on Allied's behalf) the Purchase Price by wire transfer in immediately available
lawful U.S. funds to Seller's designated bank account and shall deliver to
Seller:
(1) copy of the text of the resolutions adopted
by the board of directors of Buyer authorizing the execution,
delivery and performance of this Agreement and the
consummation of all of the transactions contemplated by this
Agreement; along with a certificate executed on behalf of
Buyer by its corporate secretary certifying to Seller that
such copies are true, correct and complete copies of such
resolutions and that such resolutions were duly adopted and
have not been amended or rescinded which certificate shall be
in the forms of Exhibit 1.4(a)(l);
(2) certificate, dated as of the Closing Date
and executed by an officer of Buyer certifying to the
fulfillment of the conditions specified in Sections 6.2(a)
through 6.2(d), in the form of Exhibit 1.4(a)(2); and
(3) receipt signed by Xxxxx Xxxxxxxx
acknowledging payment of certain severance pursuant to the
Termination and Release Agreement referred to in Section
6.1(n).
(b) Deliveries by Seller or Company
At Closing, the Seller or the Company shall deliver to the Buyer the
following:
(1) certificate, dated as of the Closing Date
and executed by an officer of Seller, an officer of the
Company and an officer of Allied certifying to the fulfillment
of the conditions specified in Sections 6.1(a) through 6.1(d)
and stating that any and all agreements between the Company
and the Seller or between the Company and any Affiliate (as
defined in Section 6.1(l) below) of Seller are
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terminated as of the Closing Date, which certificate shall be
in the form of Exhibit 1.4(b)(1), provided however, that the
agreements under which the services described in Section 8.2
below are delivered need not be terminated until the provision
of such services has been completed;
(2) evidence of assignment satisfactory to Buyer
of the Domain Names (as hereinafter defined) and of the
Trademarks from the Seller and Allied, respectively, to the
Company;
(3) written consent to assignment and change of
control related to the Lease (as hereinafter defined), at the
Buyer's satisfaction;
(4) release from Allied Tours Holding Corp.
related to the Fishers' claim (the "Fishers' Claim") in the
form of Exhibit 1.4(b)(4);
(5) resignations (effective as of the Closing
Date) from all of the Company's officers in the form of
Exhibit 1.4(b)(5);
(6) copy of the Certificate of FORMATION of the
Company, certified by the Secretary of State of the State of
Delaware evidencing the good standing of the Company in such
jurisdiction;
(7) copy of the text of the resolutions adopted
by each of the board of directors of Seller and Allied, and
copy of the resolution of the sole member of the Company, each
authorizing the execution, delivery and performance of this
Agreement and the consummation of all of the transactions
contemplated by this Agreement;
(8) certificates executed on behalf of each of
Seller, Allied and Company by their corporate secretaries or
appropriate officer, certifying to Buyer that such copies are
true, correct and complete copies of such resolutions and that
such resolutions were duly adopted and have not been amended
or rescinded, in the form of Exhibit 1.4(b)(8);
(9) copy of a shareholders' resolution of Allied
Tours, Inc. changing the corporate name as required pursuant
to Section 6.1(l) below, as well as the amended certificate of
incorporation reflecting the name change to be filed with the
Secretary of State of Delaware as promptly as practicable
after Closing;
(10) executed copy of the Asset Exchange
Agreement;
(11) executed copy of Rekencentra Letter
Agreement (as defined below);
(12) Company's minute books, transfer records,
company's seal and other materials related to the Company's
legal administration, if existing.
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(13) executed Termination Agreement and
Release related to Xxxxx Xxxxxxxx in the form of Exhibit
1.4(a)(3).
(14) evidence of transfer to the Company
of all bank accounts, and of removal of the signatories of
such bank accounts, as provided in Section 6.1(m), in a form
satisfactory to Buyer.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF SELLER AND ALLIED
Section 2.1 Disclosure Schedule
Seller hereby represents and warrants to Buyer that the statements contained in
this Article II are correct and complete as of the Closing Date (unless other
date is specifically referenced), except as set forth in the corresponding
section of a disclosure schedule delivered by Seller to Buyer on the date hereof
and initialed by the Parties (the "Disclosure Schedule"). The Disclosure
Schedule will be arranged in sections corresponding to the lettered and numbered
sections contained in this Agreement
SECTION 2.2 INCORPORATION AND CORPORATE POWER.
Seller is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of New York, and has the requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder (including, without limitation, the corporate power and
authority to sell, transfer and convey the Units as provided by this Agreement).
Allied is a corporation duly incorporated, validly existing and in good standing
under the laws of the State of Delaware, and has the requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder (including, without limitation, the corporate power and
authority to sell, transfer and convey the Trademarks as provided by this
Agreement).
SECTION 2.3 EXECUTION, DELIVERY, VALID AND BINDING AGREEMENTS
The execution, delivery and performance of this Agreement by Seller and Allied
and the consummation of the transactions contemplated hereby, including the
Transfer, have been duly and validly authorized by all requisite corporate
action, and no other corporate proceedings on its part are necessary to
authorize the execution, delivery and performance of this Agreement and the
Transfer. This Agreement has been duly executed and delivered by each of Seller
and Allied and constitutes the valid and binding obligation of each of Seller
and Allied, enforceable in accordance with its terms, except as such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting enforcement of creditors' rights
or by general principles of equity.
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SECTION 2.4 NO BREACH
The execution, delivery and performance of this Agreement by Seller and the
consummation by Seller and Allied of the transactions contemplated hereby,
including the Transfer, do not (i) conflict with or result in any breach of any
of the provisions of the provisions of the Certificate of Incorporation or
Bylaws of Seller or Allied, or any law, statute, rule or regulation or order,
judgment or decree to which Seller is subject, or (ii) conflict with, result in
a breach of, constitute a default under, result in the acceleration of, create
in any party the right to accelerate, terminate, modify, or cancel, or require
any notice under any agreement, contract, lease, license, instrument, or any
other arrangement to which either Seller is a party or by which it is bound or
to which any of its assets is subject.
SECTION 2.5 OWNERSHIP OF UNITS
Seller owns, beneficially and of record, all right, title and interest in and to
the Units free and clear of any security interests, equities, claims, liens,
pledges, options, warrants, encumbrances, charges, agreements, commitments,
voting trusts, proxies or other arrangements, restrictions, other than
restrictions under the United States Securities Act of 1933, as amended (the
"Securities Act"), and state securities laws, or limitations of any kind,
purchase rights, subscription rights, conversion rights or exchange rights
(collectively, "Liens"), and the Closing will transfer good and valid title to
the Units to Buyer, free and clear of any Liens.
SECTION 2.6 TRADEMARKS
Allied owns the Trademarks free and clear of any Liens, provided, however, that
Allied owns the trademark "Allied Tours" as a matter of common law and the
Application has been filed to register such trademark.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER AND COMPANY
Except as specifically set forth in the Disclosure Schedule, Company and Seller
jointly and severally represent to Buyer as follows:
SECTION 3.1 ORGANIZATION AND STANDING
(I) Company is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has the full and
unrestricted limited liability company power and authority to own, operate and
lease its assets, to carry on its business as currently conducted, to execute
and deliver this Agreement and to carry out the transactions contemplated
hereby. Licensing or qualification as a foreign limited liability company has
been applied for in each state, country or territory wherein the absence of
licensing or qualification as a foreign limited liability company would have a
material adverse effect upon the business of Company as currently conducted.
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(II) Since the date of its formation, for U.S. federal income tax purposes, the
Company has been disregarded as an entity separate from the Seller and will not
elect prior to Closing to be taxed as a corporation.
SECTION 3.2 SUBSIDIARIES
Company has no subsidiaries and no equity investment or other interest in, nor
has Company made advances or loans to, any corporation, association,
partnership, joint venture or other entity.
SECTION 3.3 CERTIFICATE OF FORMATION
Company has furnished to Buyer a true and complete copy of the Certificate of
Formation of Company, as currently in effect, certified as of a recent date by
the Secretary of State of Delaware, and a true and complete copy of the limited
liability company agreement of Company, as currently in effect, certified by the
Company's secretary. Such certified copies are attached as exhibits to, and part
of, the Disclosure Schedule.
SECTION 3.4 CAPITALIZATION
The authorized capitalization of the Company consists of 1,000 membership
interests. As of the Closing Date, the Units are owned beneficially and of
record by Seller, free and clear of any Liens. No membership interests have been
reserved for any purpose.
SECTION 3.5 FINANCIAL STATEMENTS
As the Company was formed on January 14, 2002, no audited balance sheets and
statements of income, stockholders' equity and changes in financial position
exist. As such, Company has prepared and furnished to Buyer and there are
included as exhibits that are part of the Disclosure Schedule, the unaudited
balance sheet and statement of income of the Division as of December 31, 2001,
and for the 12 months ended December 31, 2001 (the "Financial Statements"). The
Financial Statements are: (i) in accordance with the books and records of the
Division; (ii) consistent with the books and records of the Seller on a
consolidated basis and; (iii) in accordance with Generally Accepted Accounting
Principles in the United States of America ("U.S. GAAP"), applied on a
consistent basis throughout the periods covered thereby, except for the
disclosures required by U.S. GAAP, including statements of cash flows,
statements of shareholders' equity and accompanying footnotes, which disclosures
exist on the consolidated financial statements of and as applied to Seller.
SECTION 3.6 CONDUCT OF BUSINESS; ABSENCE OF MATERIAL ADVERSE CHANGE
(I) Since January 1, 2002 (or in the case of the Company, since the date of its
formation), each of the Division and the Company: (a) has not suffered any
material adverse change, or no other change whether material, adverse or
otherwise (except in the Ordinary Course of Business (as defined below) or as a
direct result of the Transfer), in its business, operations, prospects,
condition (financial or otherwise), assets or liabilities; (b) has conducted its
business diligently
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and substantially in the manner heretofore conducted and only in the Ordinary
Course of Business other than the Transfer, (c) has not incurred loss of, or
significant injury to, any assets as the result of any fire, explosion, flood,
windstorm, earthquake, labor trouble, riot, accident, act of God or public enemy
or armed forces, or other casualty; (d) incurred, or become subject to, any
obligation or liability (absolute or contingent, matured or unmatured, known or
unknown), except current liabilities incurred in the Ordinary Course of Business
or except as a direct result of the Transfer; (e) discharged or satisfied any
encumbrance or paid any obligation or liability (absolute or contingent, matured
or unmatured, known or unknown) other than (A) current liabilities incurred
since December 31, 2001 or (B) liabilities received in the Transfer, both in the
Ordinary Course of Business; (f) declared or made payment of, or set aside for
payment, any profit distributions or distributions of any assets, (g) mortgaged,
pledged or subjected to any encumbrance any of its assets; (h) sold, exchanged,
transferred or otherwise disposed of any of its assets, or cancelled any debts
or claims, except in each case in the Ordinary Course of Business; (i) other
than the Transfer, entered into any transactions other than in the Ordinary
Course of Business; (j) made or permitted any amendment or termination of any
material agreement to which it is a party or which it owns; (k) through
negotiation or otherwise made any commitment or incurred any liability to any
labor organization; (l) made any accrual, other than as a direct result of the
Transfer, or arrangement for or payment of bonuses or special compensation of
any kind to any director, officer or employee; (m) directly or indirectly paid
any severance or termination pay to any officer or employee in excess of six (6)
months' salary; (n) other than as a direct result of the Transfer, made capital
expenditures, or entered into commitments therefor, aggregating more than
$200,000; (o) made any change in any method of accounting or accounting
practice; (p) made any charitable contributions or pledges; or (q) made an
agreement to do any of the foregoing.
(II) Since the date of its formation, the Company has not (a) issued any
membership interests other than as a direct result of the Transfer, bonds or
other corporate securities or debt instruments, granted any options, warrants or
other rights calling for the issuance thereof, or borrowed any funds or (b)
purchased, redeemed or otherwise acquired any membership interests, any
securities convertible into membership interests, or any other securities. For
the purposes of this Agreement, "Ordinary Course of Business" shall mean the
ordinary course of business of the Division consistent with past custom and
practice.
SECTION 3.7 ASSETS
The Transfer effectively transferred and assigned: (i) all of the assets owned
and used by the Division and which are necessary for the Division to conduct its
business in the Ordinary Course of Business, which assets are reflected on the
Financial Statements and/or in the Asset Exchange Agreement (the "Assets"); (ii)
all of the employees of the Division reflected on Exhibit 3.7 hereto and; (iii)
all and only the liabilities of the Division as shown on the Financial
Statements, except for liabilities incurred by the Division after January 1,
2002 in the Ordinary Course of Business or as a direct result of the Transfer.
The Company has no other assets and liabilities other than those related to the
Division. The Company has good, valid and marketable title to all assets owned
and used by it, free and clear of all encumbrances. The Assets are delivered on
an as-is, where-is basis including any and all faults except for the warranties
and representations
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expressly made under this Agreement, and with no representation or warranty as
to the collectibility of any receivable.
SECTION 3.8 RESTRICTIONS AND CONSENTS
There are no material agreements, laws or other restrictions of any kind to
which the Company (or any asset thereof) is party or subject that would prevent
or restrict the execution, delivery or performance of this Agreement or result
in any penalty, forfeiture, agreement termination, or restriction on business
operations of the Company as a result of the execution, delivery or performance
of this Agreement.
SECTION 3.9 EXECUTION, DELIVERY; VALID AND BINDING AGREEMENTS
The execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby (including the Transfer)
have been duly and validly authorized by all requisite company action, and no
other company proceedings on its part are necessary to authorize the execution,
delivery and performance of this Agreement. This Agreement has been duly
executed and delivered by the Company and constitutes the valid and binding
obligation of the Company, enforceable in accordance with its terms, except as
such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights or by general principles of equity.
SECTION 3.10 NO BREACH
The execution, delivery and performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby do not
conflict with or result in any breach of any of the provisions of the
Certificate of Formation or Limited Liability Company Agreement, or any law,
statute, rule or regulation or order, judgment or decree to which the Company is
subject.
SECTION 3.11 TAXES
Each of the Company and Seller has (or, in the case of returns becoming due
after the date hereof and on or before the Closing Date, will have prior to the
Closing Date) duly and timely filed all Tax Returns (as defined below) required
to be filed by the Company or the Seller, as the case may be, on or before the
Closing Date with respect to all applicable Taxes (as defined below). No
penalties or other charges are or will become due with respect to any Tax
Returns as the result of the late filing thereof. Each of the Company and the
Seller has not waived any statute of limitations in respect of any Taxes or
agreed to any extension of time with respect to a tax assessment or deficiency.
All of the Tax Returns are (or, in the case of returns becoming due after the
date hereof and on or before the Closing Date, will be) true and complete in all
respects. Each of the Company and Seller: (i) has paid all Taxes due or claimed
to be due by any Taxing authority in connection with any of the Tax Returns
(without regard to whether or not such Taxes are shown as due on such Tax
Returns); or (ii) has established (or, in the case of amounts becoming due after
the date hereof, prior to the Closing Date will have paid or established)
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adequate reserves for the payment of such Taxes. Each of the Company and Seller
is not responsible for any liability for any Taxes of any other person or entity
for which adequate reserves have not been established, whether by contract, by
operation of law or otherwise, including any potential tax liability arising
from the prior acquisition of the Division by the Seller (and/or any Affiliate
thereof), except for the Fishers' Claim (as defined below). The Company has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party. There are no liens as a result of
any unpaid taxes, or otherwise, upon any assets of the Company or Seller.
"Taxes" means all federal, state, local,foreign and other taxes (including,
without limitation, income, profit, franchise, sales, use, real property,
personal property (tangible and intangible), ad valorem, excise, employment,
social security and wage withholding taxes) and installments of estimated taxes,
assessments, deficiencies, levies, imports, duties, license fees, registration
fees, withholdings, or other similar charges of every kind, character or
description imposed by any governmental or quasi-governmental authorities, and
any interest, penalties or additions to tax imposed thereon or in connection
therewith. "Tax Returns" means all federal, state, local, foreign and other
applicable tax returns, declarations of estimated tax reports required to be
filed by the Company, the Seller or any of the Seller's subsidiaries (without
regard to extensions of time permitted by law or otherwise).
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SECTION 3.12 LITIGATION; CLAIMS
There are no actions, suits, claims, arbitrations, proceedings or investigations
pending or, to the Knowledge of the Company (as defined below), threatened
against, affecting or involving the Company or its business or assets or the
transactions contemplated by this Agreement, at law or in equity or admiralty,
or before or by any court, arbitrator or governmental authority, domestic or
foreign. "Knowledge of the Company" shall mean the actual knowledge of Xxxxxx X.
Xxxxxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxx, Xxxxxxx Xxxx
and Xxxx Xxxxxxxxx.
SECTION 3.13 CONTRACTS
The Company is not in default under any material contract except that defaults
may have resulted and may be continuing under any or all contracts between
vendors and the Company as a result of the Company's failure to make payments
required according to the terms of such contracts.
SECTION 3.14 INVENTORY
The Company holds no Inventory except for inventory acquired to service pending
groups for which the full liability for such inventory has been committed by a
specific customer. "Inventory" shall mean guaranteed hotel room reservations for
which the Company is obligated to pay a penalty on cancellation.
SECTION 3.15 COPIES OF DOCUMENTS
True and complete copies of all documents listed in the Disclosure Schedule have
been made available to Buyer prior to the execution of this Agreement.
SECTION 3.16 BROKERS' FEES
The Seller has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to this Agreement and the Transfer for
which Buyer shall become liable. Seller has engaged Dresdner Kleinwort
Xxxxxxxxxxx as a financial advisor on certain matters indirectly related to this
Agreement but neither Buyer nor Company shall incur any liability related to
such engagement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
SECTION 4.1 EXECUTION, DELIVERY, VALID AND BINDING AGREEMENT
This Agreement has been duly authorized, executed and delivered by Buyer and
constitutes the valid and binding obligation of Buyer, enforceable in accordance
with its terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or
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other laws of general application affecting enforcement of creditors' rights or
by general principles of equity.
SECTION 4.2 NO BREACH
The execution, delivery and performance of this Agreement by Buyer and the
consummation by Buyer of the transactions contemplated hereby do not conflict
with or result in any breach of any of the provisions of, constitute a default
under, result in a violation of, result in the creation of a right of
termination or acceleration or any Lien upon any assets of Buyer, or require any
authorization, consent, approval, exemption or other action by or notice to any
court or other governmental body, under any indenture, mortgage, lease, loan
agreement or other agreement or instrument by which Buyer is bound or affected,
or any law, statute, rule or regulation or order, judgment or decree to which
Buyer is subject.
SECTION 4.3 GOVERNMENTAL AUTHORITIES; CONSENTS
Buyer is not required to submit any notice, report or other filing, other than
the BE-13 form to be filed with the U.S. Department of Commerce, with any
governmental authority in connection with the execution or delivery by it of
this Agreement or the consummation of the transactions contemplated hereby. No
consent, approval or authorization of any governmental or regulatory authority
or any other party or person is required to be obtained by Buyer in connection
with his execution, delivery and performance of this Agreement or the
transactions contemplated hereby.
SECTION 4.4 INVESTMENT REPRESENTATIONS AND WARRANTIES
(a) Buyer is acquiring the Units pursuant to this Agreement for investment and
not with a view to the resale or distribution of such Units or any interest
therein other than in a transaction that is registered or exempt from
registration under the Securities Act or any applicable state "blue sky" law.
(b) Buyer has had the opportunity to consult with senior management of the
Company and to obtain such information as Buyer has considered necessary or
appropriate in order to evaluate this transaction.
ARTICLE V.
COVENANTS
SECTION 5.1 COVENANTS OF SELLER
(a) Conduct of the Business. From the date hereof until the Closing Date,
which shall be no more than three business days, unless otherwise consented to
by Buyer in writing, Seller agrees as follows:
(i) Seller shall not cause the business of the Company to
be conducted in any manner other than in the Ordinary Course of
Business.
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(ii) Seller shall not cause the Company to: (1) issue or
sell any additional Units of, or any options, warrants, conversion
privileges or rights of any kind to acquire any Units of, any of its
membership interests, (2) sell, pledge, dispose of or encumber any of
its assets, except in the Ordinary Course of Business; (3) amend or
propose to amend its Certificate of Formation or Limited Liability
Company Agreement; (4) split, combine or reclassify any outstanding
Units, or declare, set aside or pay any dividend or other distribution
payable in cash, membership interests, Units, property or otherwise
with respect to the Units; (5) redeem, purchase or acquire or offer to
acquire any Units or other securities of the Company; (6) acquire (by
merger, exchange, consolidation, acquisition of stock or assets or
otherwise) any corporation, partnership, joint venture or other
business organization or division or material assets thereof; (7) incur
any indebtedness for borrowed money or issue any debt securities except
the borrowing of working capital in the Ordinary Course of Business and
consistent with past practice; or (8) enter into or propose to enter
into, or modify or propose to modify, any agreement, arrangement or
understanding with respect to any of the matters set forth in this
Section 5.1(a)(ii).
(iii) Seller shall not cause the Company to cancel or
terminate its current insurance policies or cause any of the coverage
thereunder to lapse, unless simultaneously with such termination,
cancellation or lapse, replacement policies providing coverage equal to
or greater than the coverage under the canceled, terminated or lapsed
policies for substantially similar premiums are in full force and
effect.
(iv) To the extent Seller is made aware of such, Seller
shall notify Buyer of any emergency or other change in the Ordinary
Course of Business and of any governmental or third-party complaints,
investigations or hearings (or communications indicating that the same
may be contemplated) if such emergency, change, complaint,
investigation or hearing would be material, individually or in the
aggregate, to the business, operations or financial condition of the
Company.
(v) Seller shall cease to use, and shall cause any
Affiliates (other than the Company) to cease using, the name "Allied
Tours" as trademark, tradename or corporate name, and shall further
cause Allied (and Allied covenants) to change its corporate name to a
corporate name not including the name "Allied" as of Closing or as soon
as practicable thereafter.
(b) Conditions. Seller shall take all commercially reasonable actions
necessary to cause the conditions set forth in Section 6.1 to be satisfied and
to consummate the transactions (including the Transfer), as contemplated herein,
as soon as reasonably possible after the execution of this Agreement but in no
event later than the Closing Date. The Parties hereby acknowledge that the
Transfer is of the essence of this transaction and that the Buyer is entering
into this Agreement in reliance of the Transfer being completed on the terms and
conditions set forth in this Agreement.
SECTION 5.2 ACCESS; INVESTIGATIONS BY BUYER
(a) Seller shall and shall cause the Company to, and the Company shall,
through the Closing Date, provide to representatives of Buyer full access to the
offices, books, agreements, records
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(including, without limitation, tax returns and correspondence with
accountants), officers, directors, employees, consultants and contractors of
each of the Division and the Company and will furnish representatives of Buyer
such financial and operating data and other information with respect to the
businesses and assets of the Company as Buyer may request, including, without
limitation, Agreements with clients, customers, vendors, lessors, licensors and
suppliers of the Company. Buyer agrees at all times through Closing Date to use
reasonable efforts, at least as stringent as those employed by it with respect
to its own confidential information, (i) to keep confidential all such
information that is identified as being of a confidential nature, (ii) not to
use such confidential information on its own behalf, except in connection with
the transactions contemplated hereby, or on behalf of any other person, firm or
entity, and (iii) not to disclose such confidential information to any third
party (other than to Buyer's counsel, accountants and other consultants in
connection with the transactions contemplated hereby) without the Company's
advance written authorization; provided, however, that Buyer shall have no such
obligations with respect to confidential information that (A) was lawfully
obtained by it not subject to restrictions of confidentiality; (B) is a matter
of public knowledge; or (C) has been or is hereafter publicly disclosed other
than by or through Buyer. In the event this Agreement is terminated, Buyer will
return to the Company all documents, workpapers and other materials Furnished to
Buyer relating to the transactions contemplated hereunder, whether obtained
before or after the execution of this Agreement. In the event of a breach or
threatened breach by Buyer of the provisions of this Section, the Company shall
be entitled to an injunction restraining Buyer from disclosing, in whole or in
part, such information, as its exclusive remedy.
(b) Seller and the Company hereby acknowledge that they have obtained and
may continue to obtain knowledge of and access to confidential and valuable
business information relating to Buyer not generally known by or available to
the general public. Seller agrees at all times through the Closing Date to use
reasonable efforts, and agrees to cause the Company to use reasonable efforts,
at least as stringent as those employed by it with respect to its own
confidential information, (i) to keep confidential all such information that is
identified as being of a confidential nature, (ii) not to use such confidential
information on its own behalf, except in connection with the transactions
contemplated hereby, or on behalf of any other person, firm or entity, and (iii)
not to disclose such confidential information to any third party (other than to
Seller's or the Company's counsel, accountants and other consultants in
connection with the transactions contemplated hereby) without Buyer's advance
written authorization; provided, however, that Seller and the Company shall have
no such obligations with respect to confidential information that (A) was
lawfully obtained by it not subject to restrictions of confidentiality; (B) is a
matter of public knowledge; or (C) has been or is hereafter publicly disclosed
other than by or through the Company. In the event this Agreement is terminated,
Seller shall cause the Company to, and Seller, will return to Buyer all
documents, workpapers and other materials furnished to the Company and Seller
relating to the transactions contemplated hereunder, whether obtained before or
after the execution of this Agreement. In the event of a breach or threatened
breach by the Company or Seller of the provisions of this Section, Buyer shall
be entitled to an injunction restraining the Company or Seller, as the case may
be, from disclosing, in whole or in part, such information, as its exclusive
remedy.
SECTION 5.3 COVENANTS OF BUYER.
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(a) Satisfaction of Conditions Precedent. Buyer shall take all commercially
reasonable actions necessary to cause the conditions set forth in Section 6.2 to
be satisfied and to consummate the transactions contemplated herein as soon as
reasonably possible after the date of execution of this Agreement but in no
event later than the Closing Date.
(b) Letter of Credit. On or before February 1, 2002, Buyer or an Affiliate
of Buyer shall issue a letter of credit in the amount of US$1,000,000, to secure
the Company's obligations in regard to its vendors, substantially in the form of
Exhibit 5.3(b).
(c) Promissory Note. As a guarantee for Buyer's fulfillment of the
obligation stated in the preceding paragraph, on the Closing Date, Kuoni Travel
Holding Ltd. shall deliver to Seller a promissory note in the amount of
US$1,000,000, in the form of Exhibit 5.3(c).
ARTICLE VI.
CONDITIONS TO CLOSING
SECTION 6.1 CONDITIONS TO BUYER'S OBLIGATIONS
The obligation of Buyer to consummate the transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions on or
before the Closing Date:
(a) The representations and warranties set forth in Article II and Article
III hereof shall be true and correct in all material respects at and as of the
Closing Date as though then made, except that any such representation or
warranty made as of a specified date (other than the date hereof) shall only
need to have been true on and as of such date;
(b) Seller and the Company shall have performed in all material respects
all of the covenants and agreements required to be performed and complied with
by it under this Agreement prior to the Closing;
(c) There shall not be threatened, instituted or pending any action or
proceeding, before any court or governmental authority or agency, domestic or
foreign, challenging or seeking to make illegal, or to delay or otherwise
directly or indirectly restrain or prohibit, the consummation of the
transactions contemplated hereby or seeking to obtain material damages in
connection with such transactions;
(d) There shall not be any action taken, or any statute, rule, regulation,
judgment, order or injunction enacted, entered, enforced, promulgated, issued or
deemed applicable to the transactions contemplated hereby by any federal, state
or foreign court, government or governmental authority or agency, which would
reasonably be expected to result, directly or indirectly, in any of the
consequences referred to in Section 6.1(c) hereof
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(e) The Company and B. Rekencentra NV ("Rekencentra") shall have executed
that certain Letter Agreement dated as of January 15, 2002 by and between the
Company and Rekencentra (the "Rekencentra Letter Agreement") in the form of
Exhibit 6.1(e);
(f) All receivables of the Division as reflected on the Financial
Statements (except for those receivables collected after January 1, 2002) shall
have been properly assigned to the Company by the Seller, at the Buyer's
judgment;
(g) All material business contracts of the Division shall have been
properly assigned to the Company by the Seller, at the Buyer's satisfaction,
except for those contracts referred to in the Disclosure Schedule;
(h) All employees of the Division reflected on Exhibit 3.7 attached hereto
(except for those employees who may have voluntarily terminated employment after
the date of execution of this Agreement) shall have been effectively conveyed
and transferred to the Company;
(i) The domain names "XXXXXXXXXXXX0.XXX", "XXXXXXXXXXXXXXXXXXXXX.XXX",
"XXXX0.XXX", "XXXXXXXXXXXX0.XXX", "XXXXXXXXXXX.XXX", "XXXXXXXXXXXXXX.XXX" and
"XXXXXXXXXXXXXX.XXX" (collectively, the "Domain Names") shall have been
transferred and assigned from the Seller to the Company, at Buyer's
satisfaction.
(j) That certain Agreement of Lease, dated October 15, 1992, by and between
0000 Xxxxxxxx Company, c/o Newmark & Company Real Estate, Inc., and Allied Bus
Corp. shall have been properly assigned by the Seller to the Company, to the
Buyer's satisfaction (the "Lease");
(k) The Company shall have obtained a release from Allied Tours Holding
Corp. in the form of Exhibit 1.4(b)(4);
(l) The Seller shall have terminated, or caused the termination of, any
agreements between the Company (or the Division, if applicable) and the Seller
or any Affiliates of the Seller, including the factoring agreement with CVG
Finance Company, and the management agreement of the Seller's group.
(m) The Seller shall have caused the transfer and assignment to Company of
all bank accounts used by the Division and/or Allied, and shall have further
caused the removal of all signatories for such bank accounts, except for Xxx
Xxxxxx.
(n) The Seller shall have delivered the Termination and Release Agreement
related to Xxxxx Xxxxxxxx in the form of Exhibit 1.4(a)(3) executed by all
parties thereto other than the Seller and the Company.
(o) Since the date of Financial Statements, the accounts receivable of the
Company, as well as the available cash and cash related assets have been
managed, maintained and operated in the Ordinary Course of Business.
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For the purposes of this Agreement, "Affiliate" shall mean (a) with respect to a
person, any member of such person's family; (b) with respect to an entity, any
officer, director, stockholder, partner or investor of or in such entity or of
or in any Affiliate of such entity; and (c) with respect to a person or entity,
any person or entity which directly or indirectly, through one or more
intermediaries, Controls (as defined below), is Controlled by, or is under
common Control with such person or entity. "Control" shall mean possession,
directly or indirectly, or power to direct or cause the direction of management
or policies (whether through ownership of voting securities, by agreement or
otherwise).
SECTION 6.2 CONDITIONS TO SELLER'S AND COMPANY'S OBLIGATIONS
The obligations of Seller and Company to consummate the transactions
contemplated by this Agreement are subject to the satisfaction of the following
conditions on or before the Closing Date:
(a) The representations and warranties set forth in Article IV hereof will
be true and correct in all material respects at and as of the Closing as though
then made;
(b) Buyer shall have performed in all material respects all the covenants
and agreements required to be performed by it under this Agreement prior to the
Closing;
(c) There shall not be threatened, instituted or pending any action or
proceeding, before any court or governmental authority or agency, domestic or
foreign, challenging or seeking to make illegal, or to delay or otherwise
directly or indirectly restrain or prohibit, the consummation of the
transactions contemplated hereby or seeking to obtain material damages in
connection with such transactions;
(d) There shall not be any action taken, or any statute, rule, regulation,
judgment, order or injunction, enacted, entered, enforced, promulgated, issued
or deemed applicable to the transactions contemplated hereby by any federal,
state or foreign court, government or governmental authority or agency, which
would reasonably be expected to result, directly or indirectly, in any of the
consequences referred to in Section 6.2(c) hereof;
(e) Buyer or an Affiliate of Buyer shall have replaced the Seller as issuer
of the letters of credit listed on Exhibit 6.2(e) or shall have otherwise
replaced the Seller as guarantor of the Company's obligations to the hotels
listed on such exhibit, at Seller's satisfaction.
ARTICLE VII.
TERMINATION
SECTION 7.1 TERMINATION
This Agreement may be terminated at any time prior to the Closing:
(a) by the mutual consent of Buyer and Seller;
16
(b) by either Buyer or Seller if there has been a material
misrepresentation, breach of warranty or breach of covenant on the part of the
other in the representations, warranties and covenants set forth in this
Agreement;
(c) by either Buyer or Seller if the transactions contemplated hereby have
not been consummated within three business days of the date hereof; provided
that, neither Buyer nor Seller will be entitled to terminate this Agreement
pursuant to this Section 6.1(c) if such party's willful breach of this Agreement
has prevented the consummation of the transactions contemplated hereby; or
(d) by either Buyer or Seller if the transactions contemplated hereby have
not been consummated by January 18, 2001 (except for those actions which must be
taken completed after the Closing Date pursuant to this Agreement); provided
that, neither Buyer nor Seller will be entitled to terminate this Agreement
pursuant to this Section 7.1(c) if such party's willful breach of this Agreement
has prevented the consummation of the transactions contemplated hereby.
SECTION 7.2 EFFECT OF TERMINATION
In the event of termination of this Agreement by either Buyer or Seller as
provided in Section 7.1, this Agreement shall become void and there shall be no
liability on the part of either Buyer or Seller, or their respective
shareholders, officers, or directors, except that the confidentiality
obligations of Sections 5.2, and Sections 5.1(a)(v), 10.3, 10.4, 10.12 and 10.13
hereof shall survive indefinitely.
ARTICLE VIII.
TRANSITION PERIOD
SECTION 8.1 INSURANCE; MEMBERSHIPS
Effective at Closing, Seller shall terminate (a) all insurance coverage for the
Company including, but not limited to, auto insurance, travel agent errors and
omissions insurance and all property and casualty insurance coverage, and (b)
all professional memberships of the Company (except to the extent such
memberships are assumed by Buyer on or prior to the Closing Date), including,
but not limited to, membership in the United States Tour Operators Association.
SECTION 8.2 TRANSITION PERIOD
Notwithstanding the foregoing and in order to provide an orderly transition
following the Closing, for a period through and including January 31, 2002 (the
"Transition Period") Seller agrees to continue medical and dental coverage for
the employees of the Company at Closing under premiums previously paid. Buyer
agrees to cause the Company to reimburse Seller for the administrative fees
related to such medical and dental insurance plan including the administrative
costs related to the claims run-off during the 90-day run-off period, upon
presentment of invoices therefor. The participation of the employees of the
Company in the Classic Vacation Group, Inc.
17
401(k) plan ceases at Closing. During the Transition Period, the Buyer will set
up a replacement 401(k) plan and transfer accounts of such employees from the
Classic Vacation Group, Inc. 401(k) plan into such new plan. Buyer agrees to
cause the Company to reimburse Seller for any administrative fees related to
employees remaining under the Classic Vacation Group, Inc. 401(k) plan,
including the cost of transferring such employees to such new plan, upon
presentment of an invoice therefor. During the Transition Period, Seller shall
not charge the Company for corporate overhead expenses associated with the
provision of the foregoing. Seller shall not renew the letters of credit
benefiting the Company, which may be outstanding as of the Closing Date.
ARTICLE IX
SURVIVAL
Notwithstanding any investigation made by or on behalf of any of the Parties or
the results of any such investigation and notwithstanding the participation of
such party in the Closing, the representations and warranties contained in
Article II (except for Section 2.5), Article III and Article IV and the
covenants contained in Article V shall terminate on the Closing Date and be
expressly extinguished and neither the Seller nor the Company nor any of their
respective Affiliates, officers, employees, agents or advisers shall be liable
for any alleged breach of the same. In addition, prior to Closing, the Buyer's
sole and absolute remedy for a breach of any representation, warranty or
covenant contained in the above-referenced Articles (including Section 2.5)
shall be to terminate this Agreement pursuant to Section 7.1 above and neither
the Seller nor the Company nor any of their respective Affiliates, officers,
employees, agents or advisors shall incur any liability for any alleged breach
of the same.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 NON-COMPETITION
For a period of one (1) year from and after the Closing Date, the Seller and its
Affiliates shall not enter into competition with the Company by offering to,
soliciting, or marketing to travelers from outside the United States, the sale
of tour packages for travel to the United States from departure points outside
of the United States, provided, however, that this non-competition obligation of
the Seller and its Affiliates will terminate upon consummation of a sale of
substantially all of the stock or assets of the Seller or, as to any Affiliate,
the sale of substantially all of the stock or assets of such Affiliate.
SECTION 10.2 TAX AND AUDIT MATTERS
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The Buyer shall prepare and file all Tax Returns of the Company becoming due
after Closing. Seller, Company and Buyer, individually and on behalf of each of
their Affiliates, hereby agree to use all commercially reasonable efforts to
cooperate and assist one another as necessary for the filing of any tax return
related to the Company or the Division, the completion of any audit related to
the Company or the Division or the resolution of any other Tax-related issue.
Buyer agrees to cause Company to maintain accurate and complete accounting and
personnel books and records for a period of time not shorter than the statute of
limitations applicable to tax or employee-related actions.
SECTION 10.3 PRESS RELEASES AND ANNOUNCEMENTS
Prior to the Closing Date, neither Party nor any of their Affiliates shall issue
any press release (or make any other public announcement) related to this
Agreement or the transactions contemplated hereby or make any announcement to
the employees, customers or suppliers of Seller without prior written or
electronically transmitted approval of the other Parties, except as may be
necessary, in the opinion of counsel to the party seeking to make disclosure, to
comply with the requirements of this Agreement or applicable law. If any such
press release or public announcement is so required, the party making such
disclosure shall consult with the other party prior to making such disclosure,
and the Parties shall use all reasonable efforts, acting in good faith, to agree
upon a text for such disclosure which is satisfactory to the Parties.
SECTION 10.4 EXPENSES
Except as otherwise expressly provided for herein, Seller and Buyer will pay all
of their own expenses (including attorneys' and accountants' fees) in connection
with the negotiation of this Agreement, the performance of their respective
obligations hereunder and the consummation of the transactions contemplated by
this Agreement (whether consummated or not). All transfer, documentary, sales,
use, stamp, registration and other such Taxes, and all conveyance fees,
recording charges and other fees and charges, including penalties and interest,
incurred in connection with this Agreement shall be for the account of the
Seller and paid by Seller when due. The Seller, at its own expense, will file
all necessary Tax Returns related to any tax described in this section 10.4 or
as required to be filed by Seller under this Agreement.
SECTION 10.5 FURTHER ASSURANCES
Seller and Buyer agree that, on and after the Closing Date, each shall take all
appropriate action (without incurring any out-of-pocket expenses) and execute
any documents, instruments or conveyances of any kind which may be reasonably
necessary or advisable to carry out any of the provisions hereof.
SECTION 10.6 AMENDMENT AND WAIVER
This Agreement may not be amended or waived except in a writing executed by the
party against which such amendment or waiver is sought to be enforced. No course
of dealing between or among any persons having any interest in this Agreement
will be deemed effective to modify or
19
amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
SECTION 10.7 NOTICES; SELLER'S AGENT
(a) All notices, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement will be in writing and
will be deemed to have been given when personally delivered or mailed by first
class mail, return receipt requested, or when receipt is acknowledged, if sent
by facsimile, telecopy or other electronic transmission device. Notices, demands
and communications to Buyer and Seller will, unless another address is specified
in writing, be sent to the address indicated below:
Notices to Seller and/or Allied:
Classic Vacation Group, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Executive Vice President & Chief Financial
Officer
Facsimile: 000-000-0000
Notices to Buyer:
Kuoni Holding Delaware Inc.
c/o Kuoni Reisen Holding AG
Attn: Xxx Xxxx
Xxxx Xxxx 0
XX-0000 Xxxxxx
Xxxxxxxxxxx
(b) Allied hereby appoints Seller as its agent and attorney-in-fact to act
for and represent Allied in regard to any matters related to this Agreement and
related transactions.
SECTION 10.8 ASSIGNMENT
This Agreement and all of the provisions hereof will be binding upon and inure
to the benefit of the Parties and their respective successors and permitted
assigns, except that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any Party without the prior written
consent of the other Parties.
SECTION 10.9 SEVERABILITY
Whenever possible, each provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
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SECTION 10.10 COMPLETE AGREEMENT
This Agreement and the other documents referred to herein contain the complete
agreement among the Parties and supersede any prior understandings, agreements
or representations by or among the Parties, written or oral, which may have
related to the subject matter hereof in any way.
SECTION 10.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, any one of which
need not contain the signatures of more than one Party, but all such
counterparts taken together will constitute one and the same instrument. With
regard to this Agreement and any and all documents related thereto, the Parties
agree that facsimile copies shall be binding as originally executed copies.
SECTION 10.12 GOVERNING LAW
The internal law, without regard to conflicts of laws principles, of the State
of New York will govern all questions concerning the construction, validity and
interpretation of this Agreement and the performance of the obligations imposed
by this Agreement.
SECTION 10.13 CONSENT TO JURISDICTION
This Agreement and the duties and obligations of the Parties hereunder and under
each of the documents referred to herein shall be enforceable against any of
Buyer, Allied, Company or Seller in the courts of the State of New York in the
United States of America. For such purpose, Buyer, Allied, Company and Seller
hereby irrevocably submit to the non-exclusive jurisdiction of such courts, and
agrees that all claims in respect of this Agreement and such other documents may
be heard and determined in any of such courts.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
CLASSIC VACATION GROUP, INC.
By: /S/ XXXXXX X. XXXXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and CEO
ALLIED TOURS, LLC
By: /S/ XXXXXX X. XXXXXXXXX
---------------------------
Name: Executive Vice President
Title: Xxxxxx X. Xxxxxxxxx
ALLIED TOURS, INC.
By: /S/ XXXXXX X. XXXXXXXXX
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
KUONI HOLDING DELAWARE, INC.
By: /S/ XXX X. XXXX
---------------------------
Name: Xxx X. Xxxx
Title: President
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