Exhibit 2.1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") shall be effective as
of the 14th day of June, 2002, by and between those persons listed on Exhibit
"A" (each a "Seller" and collectively "Sellers"), and XxxxxxxxXX.xxx, Inc., a
Nevada corporation, having an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Buyer").
WHEREAS, Sellers are, in the aggregate, the owner substantially all of
the issued and outstanding capital stock of American Leisure Holdings, Inc., a
Nevada corporation, (the "Company") which is a conglomerate of companies
comprised of subsidiary and associated entities, as further described in Section
2.2 herein (each subsidiary and each associated company is referred to herein as
a "Subsidiary" and collectively "Subsidiaries"; the Company with the
Subsidiaries are collectively referred to herein as the "ALH Group");
WHEREAS, pursuant to the terms and conditions set forth herein, Buyer
desires to purchase from Sellers, and Sellers desire to sell to Buyer, all of
the issued and outstanding capital stock of the Company.
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
agree as follows:
ARTICLE I
SALE AND TRANSFER OF SHARES; CLOSING
1.1 Sale and Purchase of Company Common Shares. Upon the terms and
subject to the conditions of this Agreement and on the basis of the
representations, warranties and covenants contained herein, at the Closing, each
Seller shall sell to Buyer the number of shares (the "Company Common Shares") of
the Company common stock, par value $0.001 per share, (the "Company Common
Stock") and the number of shares (the "Company Preferred Shares") of the Company
Series A Preferred Stock, par value $0.01 per share, (the "Company Preferred
Stock") set forth next to such Seller's name on Exhibit "A" annexed hereto,
which Company Common Shares and Company Preferred Shares in the aggregate
represent substantially all of the issued and outstanding shares of capital
stock of the Company, free and clear of all Liens, and Buyer shall purchase all
such Company Shares.
1.2 Payment of Purchase Price for Company Common Shares and Company
Preferred Shares. Subject to the terms and conditions of this Agreement, and in
reliance upon the representations and warranties and covenants contained herein,
at the Closing, in consideration for the Company Shares, Buyer shall issue to
Sellers such number of shares (the "Buyer Common Shares") of Buyer's common
stock, $0.001 par value per share (the "Buyer Common Stock") as set forth on
Exhibit "A", which Buyer Common Shares shall be allocated among each Seller as
set forth on Exhibit "A" annexed hereto, and, in consideration for the Company
Preferred Shares, Buyer shall issue to each Seller identified on Exhibit "A"
annexed hereto as the holder of Company Preferred Shares such number of shares
(the "Buyer Preferred Shares") of Buyer's Series A Preferred Stock, $0.01 par
value per share (the "Buyer Preferred Stock"), which designations are set forth
in the Certificate of Designations annexed hereto as Exhibit "B", which Buyer
Preferred Shares shall be allocated among each such Seller as set forth on
Exhibit "A" annexed hereto.
1.3 Closing. The closing (the "Closing") shall take place at the
offices of Xxxxx Xxxxxx & Xxxxx, LLP, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx at 10:00 a.m. local time, on a date, not more than ten (10) business
days after all conditions to Closing have been satisfied or waived. The Closing,
and all transactions to occur at the Closing, shall be deemed to have taken
place at, and shall be effective as of, the close of business on the "Closing
Date".
ARTICLE II
REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY
Each Seller, severally, makes the following representations and
warranties to Buyer as of the date hereof and as of the Closing Date, unless a
different date is specifically provided herein.
2.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada with full
corporate power and authority to carry on its business as it is now being
conducted and proposed to be conducted, and to own, and operate its business and
assets. The Company is duly qualified, licensed or admitted to do business and
in good standing in the jurisdictions in which the conduct of its business, the
ownership, operation of its properties and assets, or the transactions
contemplated by this Agreement, require it to be so qualified, licensed or
admitted.
2.2 Subsidiaries. Each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has full corporate power and authority to carry on its
business as it is now being conducted and to own, operate and lease its
businesses and assets. Each Subsidiary is duly qualified, licensed or admitted
to do business and is in good standing in those jurisdictions in which the
ownership, operation of such Subsidiary's businesses and assets, the conduct or
nature of its business, or the consummation of the transactions contemplated
herein makes such qualification, licensing or admission necessary. All of the
outstanding shares of capital stock of each Subsidiary have been duly authorized
and validly issued, are fully paid and non-assessable, and are owned,
beneficially and of record, by the Company or a Subsidiary owned by the Company
free and clear of all Liens and there are no outstanding Options with respect to
any Subsidiary.
The Company has four subsidiaries as follows:
o American Leisure, Inc., a Florida corporation;
o American Professional Management Group, Inc., a Florida corporation;
o Sunstone Golf Resort, Inc., a Florida corporation;
o Leisureshare International PLC, an English corporation
American Leisure, Inc., has three subsidiaries as follows:
o WestAmerica Land Co., Inc. (100% interest);
o I-Drive Limo's, Inc. (100% interest)(A limousine owner);
o American Leisure Homes, Inc. (100% interest) (Offering vacation
ownership and wholesale properties for sale through a joint venture
with a ERA franchise holder).
American Leisure, Inc. has one associated company -- American Vacation Resorts,
Inc. (41.25% interest) (A vacation club, subject to the terms of a Voting Trust,
Bylaws and Articles of Incorporation attached hereto as Exhibit "C").
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2.3 Capitalization. The total authorized capital stock of the Company
consists of 100,000,000 shares of common stock, par value $0.001 per share, of
which up to 5,016,665 shares are due to be issued and outstanding, and
10,000,000 shares of preferred stock, par value $0.01 per share, of which
1,000,000 shares of preferred stock have been designated Series A Preferred
Stock, of which up to 880,000 shares are due to be issued and outstanding.
2.4 Options and Rights. There are no outstanding subscriptions,
options, warrants, rights, securities, contracts, commitments, understandings or
arrangements under which the Company is bound or obligated to issue any
additional shares of its capital stock or rights to purchase shares of its
capital stock (collectively, "Options"). Except for the Company's option to
acquire,
i) The majority of the capital stock of Hickory Travel Systems, Inc.,
ii) To acquire 41.25% of American Vacation Resorts, Inc. from Xxxxxxx
and Xxxxxxx Xxxxxx,
iii) The Company's agreement to issue 200,000 warrants to Investor
Relations Group, Inc dated June 11, 2002 at $5 a share
there are no agreements, arrangements or understandings between any Seller,
the Company and any other Person regarding the Company Shares (or the transfer,
disposition, holding or voting thereof).
2.5 Financial Statements. The unaudited balance sheets as of December
31, 2001 and related statements of profit and loss for the year ended December
31, 2001 (the "Financial Statements") of each of the Subsidiaries of the Company
fairly present the financial position of such Subsidiaries as at the dates and
for the periods indicated.
2.6 Absence of Changes. Since December 31, 2001, the ALH Group has
conducted its business only in the Ordinary Course of Business and there has not
been: (a) any Material Adverse Change; (b) any material damage, destruction or
loss, whether covered by insurance or not, with regard to the ALH Group's
properties and business save as provided for in the American Vacation Resorts,
Inc Bylaws, Articles of Incorporation and Voting Trust; (c) any amendment or
change in the ALH Group's authorized or issued capital stock, or Charter
Documents; (d) any declaration, setting aside or payment of any dividend or
distribution (whether in cash, stock or property) in respect of, the capital
stock of the ALH Group, any purchase, retirement, redemption or other
acquisition of, any grant of any stock option, warrant or other right to
purchase shares of, or the grant of any registration rights with respect to, the
capital stock of the ALH Group; (e) any cancellation of, or agreement to cancel
any indebtedness or obligation owing to the ALH Group; (f) any amendment,
modification or termination of any existing Permits or Contracts, or entering
into any new Contract or plan relating to any salary, bonus, insurance, pension,
health or other employee welfare or benefit plan for or with any directors,
officers, employees or consultants of the ALH Group; (g) any entry into any
material Contract by the ALH Group not in the Ordinary Course of Business,
including, without limitation, relating to any borrowing, capital expenditure or
the sale or purchase of any property, rights, or assets or any options or
similar agreements with respect to the foregoing; (h) any disposition by the ALH
Group of any material asset; (i) any adverse change in any Contract or
relationship with any customer or supplier the sales patterns, pricing policies,
accounts receivable or accounts payable relating to the ALH Group; (j) any
write-down of the value of any inventory of the ALH Group, or write-off, as
uncollectible, of any notes, trade accounts or other receivables; or (k) any
change by the ALH Group in accounting methods or principles.
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2.7 Consents; Contracts. No consent of any party to any Contract or
from any Authority is required in connection with the execution, delivery or
performance of this Agreement, or the consummation of the transactions
contemplated hereby, except for such consents that are obtained, in form and
substance reasonably acceptable to Buyer, and delivered to Buyer at the Closing.
Each material Contract to which any member of the ALH Group is a party is in
full force and effect and is valid and enforceable in accordance with its terms.
Each member of the ALH Group has performed in all material respects all
obligations required to be performed by it and (i) is not in default in any
respect under or in breach of, and (ii) is not in receipt of any claim of
default or breach under any material Contract. No event has occurred which with
the passage of time or the giving of notice or both would result in a default,
breach or event of non-compliance under any material Contract to which any
member of the ALH Group is subject (including without limitation all performance
bonds, warranty obligations or otherwise). No member of the ALH Group has any
present expectation or intention of not fully performing all such obligations.
2.8 Litigation. Except for the lawsuits concerning Rock Investment
Trust, Xx Xxxxxxx and the Litigation concerning Leisureshare's subsidiaries
disclosed in its accounts, copies of relevant court filings of which have been
provided to Buyer, there is no Claim pending or, except for possible litigation
against American Vacation Resorts, Inc. and American Leisure, Inc by TravelByUs,
Inc and J Xxxxxx Xxxxxxx., threatened against, relating to or affecting the ALH
Group or any of the assets or businesses of the ALH Group nor is there any Order
outstanding against the ALH Group or any of the assets or properties of the ALH
Group.
2.9 Compliance with Regulations and Orders; Permits; Affiliations. The
ALH Group is presently complying with all applicable Regulations and Orders of
Authorities in respect of its operations, businesses, equipment, practices, real
property, plants, structures and other properties, and all other aspects of its
business and operations. The ALH Group has all permits, licenses, provider
numbers, orders, franchises, registrations and approvals (collectively,
"Permits") required for the ALH Group to conduct its business as presently
conducted. Each such Permit is valid and in full force and effect and there is
no basis for believing that such Permit will not be renewable upon expiration.
2.10 No Violation; Consents and Approvals. The execution and delivery
by any Seller of this Agreement, the Ancillary Documents and the fulfillment of
and compliance with the respective terms hereof and thereof do not and will not,
(a) conflict with or result in a breach of the terms, conditions or provisions
of, (b) constitute a default or event of default under (with due notice, lapse
of time or both), (c) result in the creation of any Lien upon the capital stock
or assets of the ALH Group pursuant to, (d) give any third party the right to
accelerate any obligation under, (e) result in a violation of, or (f) require
any authorization, consent, approval, exemption or other action by or notice to
any Authority or other third party (including, without limitation, any creditor,
customer or supplier) pursuant to, the Charter Documents of the ALH Group or any
Regulation, Order or Contract to which the ALH Group is subject.
2.11 Disclosure. Neither this Agreement nor any of the exhibits,
attachments, written statements, documents, certificates or other items prepared
by or at the instructions of Sellers, for or supplied to Buyer by or on behalf
of Sellers or the ALH Group with respect to the transactions contemplated hereby
contains any untrue statement of a material fact or omits a material fact
necessary to make each statement contained herein or therein not misleading.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING EACH SELLER
Each Seller, individually, and not jointly and severally, makes the
following representations and warranties to Buyer as of the date hereof and as
of the Closing Date, unless a different date is specifically provided herein.
3.1 Authorization. Such Seller that is a natural person has full legal
right, power and capacity to enter into this Agreement and all other agreements,
documents, instruments and certificates contemplated herein or related hereto
(the "Ancillary Documents") and perform his or her obligations hereunder and
thereunder. Such Seller that is not a natural person is duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
organization and has all requisite power and authority to execute and deliver
this Agreement and the Ancillary Documents and perform its obligations hereunder
and thereunder. Upon execution and delivery of this Agreement and the Ancillary
Documents by the parties hereto and thereto, this Agreement and each of the
Ancillary Documents shall constitute the legal, valid and binding obligation of
such Seller, enforceable against him, her or it in accordance with their
respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditor rights generally and by general equitable principles.
3.2 Title. Such Seller (a) is the sole record and beneficial owner of
the Company Common Shares and Company Preferred Shares set forth next to such
Seller on Exhibit "A" annexed hereto, free and clear of all Liens, save as
disclosed in this Agreement and (b) has sole managerial and dispositive
authority with respect to such Company Common Shares and Company Preferred
Shares. All proxies granted with respect to such Seller's Company Common Shares
and Company Preferred Shares have been validly revoked. Upon delivery to such
Seller by Buyer of the Purchase Price at the Closing, such Seller will convey,
and Buyer will own and hold, good and marketable title to the Company Common
Shares and Company Preferred Shares, free and clear of any and all Liens or
contractual restrictions or limitations whatsoever.
3.3 Authorization. Such Seller has complied with all applicable
Regulations and Orders in connection with the execution, delivery and
performance of this Agreement, the Ancillary Documents and the transactions
contemplated hereby and thereby. Such Seller is not required to submit any
notice, report, or other filing with any governmental authority in connection
with such Seller's execution or delivery of this Agreement, the Ancillary
Documents or the consummation of the transactions contemplated hereby and
thereby. No authorization, consent, approval, exemption or notice is required to
be obtained by such Seller in connection with the execution, delivery, and
performance of this Agreement, the Ancillary Documents and the transactions
contemplated hereby and thereby.
3.4 Brokerage. Such Seller has not employed any broker, finder,
advisor, consultant or other intermediary in connection with this Agreement or
the transactions contemplated by this Agreement who is or might be entitled to
any fee, commission or other compensation from the ALH Group or from Buyer or
its Affiliates, except for the provisions contained in agreements entered into
with OTC Derivatives, S.A., Investor Relations Group, Inc and US Funding Corp.
upon or as a result of the execution of this Agreement or the consummation of
the transactions contemplated hereby.
3.5 Purchase Entirely for Own Account. The Buyer Common Shares and/or
the Buyer Preferred Shares (and the Buyer Common Stock issuable upon conversion
of the Buyer Preferred Shares) to be issued to such Seller in accordance with
this Agreement will be acquired for investment for such Seller's own account,
not as a nominee or agent, and not with a view to
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the resale or distribution of any part thereof, and that such Seller has no
present intention of selling, granting any participation in, or otherwise
distributing the same.
3.6 Disclosure of Information. Such Seller believes he, she or it has
received all the information such Seller considers necessary or appropriate for
deciding whether to purchase the Buyer Common Shares and/or the Buyer Preferred
Shares. Such Seller further represents that he, she or it has had an opportunity
to ask questions of and receive answers from Buyer regarding the terms and
conditions of the transactions contemplated by this Agreement.
3.7 Restricted Securities. Such Seller understands that the Buyer
Common Shares and/or the Buyer Preferred Shares (and the Buyer Common Stock
issuable upon conversion of the Buyer Preferred Shares) such Seller is
purchasing constitutes "restricted securities" under the federal securities laws
inasmuch as they are being acquired from Buyer in a transaction not involving a
public offering and that under such laws and applicable regulations such
securities may not be resold without registration under the Securities Act of
1933, as amended (the "Act"), except in certain limited circumstances. Such
Seller understands that the certificates evidencing the Buyer Common Shares
and/or the Buyer Preferred Shares (and the Buyer Common Stock issuable upon
conversion of the Buyer Preferred Shares) shall bear an appropriate restrictive
legend. With respect to Buyer Common Shares and/or the Buyer Preferred Shares
(and the Buyer Common Stock issuable upon conversion of the Buyer Preferred
Shares) issued in reliance on the exemption from registration under Regulation S
promulgated under the Act, Buyer shall refuse to register any transfer of the
Buyer Common Shares and/or the Buyer Preferred Shares (and the Buyer Common
Stock issuable upon conversion of the Buyer Preferred Shares) not made in
accordance with the provisions of Regulation S, pursuant to registration under
the Act, or pursuant to an available exemption from registration; unless foreign
law prevents Buyer from refusing to register securities transfers, which Buyer
shall implement other reasonable procedures to prevent any transfer not made in
accordance with the provisions of Regulation S.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to each Seller as of the date hereof and
as of the Closing Date, unless a different date is specifically provided herein
as follows:
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada with full
corporate power and authority to carry on its business as it is now being
conducted and to own, operate and lease its properties and assets.
4.2 Authorization. Buyer has full corporate power and authority to
enter into this Agreement and the Ancillary Documents to which it is a party and
to carry out the transactions contemplated hereby and thereby. The Board of
Directors of Buyer has duly authorized the execution, delivery and performance
of this Agreement, the Ancillary Documents to which it is a party and the
transactions contemplated hereby and thereby, and no other corporate proceedings
on its part are necessary to authorize this Agreement, such Ancillary Documents
and the transactions contemplated hereby and thereby. Upon execution and
delivery of this Agreement and the Ancillary Documents by the parties hereto and
thereto, this Agreement and the Ancillary Documents to which Buyer is a party
shall constitute the legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors rights
generally and by general equitable principles.
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4.3 No Violation. The execution, delivery and performance by Buyer of
this Agreement and the Ancillary Documents to which it is a party, and the
fulfillment of and compliance with the respective terms hereof and thereof by
Buyer, do not and will not (a) conflict with or result in a material breach of
the terms, conditions or provisions of, (b) result in a violation of, or (c)
require any authorization, consent, approval, exemption or other action by or
notice to any Authority pursuant to, the certificate of incorporation or by-laws
of Buyer, or any Regulation to which Buyer is subject, or any material Contract
or Order to which Buyer or its properties are subject. Buyer will comply with
all applicable Regulations and Orders in connection with its execution, delivery
and performance of this Agreement and the transactions contemplated hereby.
4.4 Governmental Authorities. Buyer has complied in all material
respects with all applicable Regulations in connection with its execution,
delivery and performance of this Agreement, the Ancillary Documents to which it
is a party and the transactions contemplated hereby and thereby. Buyer is not
required to submit any notice, report, or other filing with any governmental
authority in connection with its execution or delivery of this Agreement, the
Ancillary Documents to which it is a party or the consummation of the
transactions contemplated hereby and thereby. No authorization, consent,
approval, exemption or notice is required to be obtained by Buyer in connection
with the execution, delivery, and performance of this Agreement, the Ancillary
Documents to which it is a party and the transactions contemplated hereby and
thereby.
4.5 Brokerage. Buyer has not employed any broker, finder, advisor,
consultant or other intermediary in connection with this Agreement or the
transactions contemplated by this Agreement who is or might be entitled to any
fee, commission or other compensation from Buyer, upon or as a result of the
execution of this Agreement or the consummation of the transactions contemplated
hereby. Buyer shall be solely responsible for any and all fees, commissions or
other compensation to any such broker employed by Buyer.
4.6 Capitalization. The total authorized capital stock of Buyer
consists of 100,000,000 shares of common stock, par value $0.001 per share, of
which 5,400,000 shares are issued and outstanding, and 10,000,000 shares of
preferred stock, par value $0.01 per share, of which none have been designated
or are issued and outstanding. In addition, Buyer has authorized (i) the
issuance of up to 3,000,000 shares of Buyer Common Stock in a private placement
at a price of not less than $1.50 per share, (ii) the grant of 5,000 shares of
Buyer Common Stock to its President and Chief Executive Officer, Xxxxx Xxxxxxxx,
(iii) the issuance of 20,000 shares of Buyer Common Stock to Tripoint Capital.
4.7 Options and Rights. There are no outstanding subscriptions,
options, warrants, rights, securities, contracts, commitments, understandings or
arrangements under which the Company is bound or obligated to issue any
additional shares of its capital stock or rights to purchase shares of its
capital stock.
4.8 Litigation. There is no Claim pending or, except for a verbal claim
for additional shares of Buyer Common Stock by Tripoint Capital, Inc.,
threatened against, relating to or affecting Buyer or any of the assets or
businesses of Buyer nor is there any Order outstanding against Buyer or any of
the assets or properties of Buyer.
4.9 Disclosure. Neither this Agreement or any of the Ancillary
Documents to which Buyer is a party nor any exhibits, attachments, written
statements, documents, certificates or other
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items prepared for or supplied to Sellers by Buyer with respect to the
transactions contemplated hereby contains any untrue statement of a material
fact or omits a material fact necessary to make each statement contained herein
or therein not misleading.
ARTICLE V
COVENANTS OF SELLER
From the date hereof until the Closing Date, except as otherwise
consented to or approved by Buyer in writing, Sellers shall cause the Company
and each other member of the ALH Group to:
5.1 Regular Course of Business. Operate its business diligently and in
good faith and in the Ordinary Course of Business, including, without
limitation: (i) maintaining all of its respective properties in good order and
condition; (ii) maintaining (except for expiration due to lapse of time) all
Contracts in effect without change except as expressly provided herein; (iii)
complying with the provisions of all Regulations and Orders applicable to the
ALH Group and the conduct of its respective business; (iv) maintaining insurance
and reinsurance coverage as in effect on the date hereof up to the Closing Date;
(v) preserving the business of the ALH Group intact; (vi) using its best efforts
to keep available for the ALH Group and Buyer, the services of the employees of
the ALH Group; and (vii) preserving the good will of clients, suppliers and
others having business relations with the ALH Group.
5.2 Certain Restrictions. Refrain from: (i) changing or amending the
Charter Documents of the Company or any other member of the ALH Group; (ii)
merging with or into or consolidating with any other Person; (iii) acquiring all
or substantially all of the stock or the assets of any Person or changing the
character of its business; (iv) issuing or selling any shares of the Company's
or any other member of the ALH Group's capital stock of any class or any
securities convertible into, or options, warrants to purchase or rights to
subscribe to, any shares of such capital stock; (v) permitting any liens upon,
pledging or otherwise encumbering any shares of such capital stock or any of
their respective assets or properties; (vi) declaring, paying or setting aside
for payment any dividend or other distribution to any of the stockholders of the
Company or any other member of the ALH Group, in respect of their respective
capital stock or otherwise; (vii) directly or indirectly, redeeming, retiring,
purchasing or otherwise acquiring any shares of their respective capital stock
or any of their respective indebtedness for money borrowed in advance of any
scheduled repayment date; (viii) making any capital expenditures, or commitments
with respect thereto; (ix) incurring, assuming or guaranteeing any indebtedness,
obligations or liabilities or entering into any transactions or making any
commitment to do any of the foregoing except in the Ordinary Course of Business
or for purposes of consummation of the transactions contemplated by this
Agreement and in any case only after consultation with Buyer; (x) canceling,
releasing, waiving or compromising any debt, Claim or right in their respective
favor; (xi) altering the rate or basis of compensation of any of their
respective officers, directors, employees or consultants; and (xii) taking any
action or failing to take any action as a result of which any of the other
changes or events listed in Section 2.6 hereof is likely to occur.
5.3 Full Access and Disclosure.
(a) Afford to Buyer and its counsel, accountants and other
authorized representatives reasonable access during business hours to the ALH
Group's facilities, properties, books and records in order that Buyer may have
full opportunity to make such reasonable investigations as it shall desire to
make of the affairs of the ALH Group's, including financial statement and other
audits at the sole cost and expense of Buyer; and each Seller shall cause the
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ALH Group's officers, employees and auditors to furnish on a timely basis such
additional financial and operating data and other information as Buyer shall
from time to time reasonably request including, without limitation, any internal
control recommendations applicable to the ALH Group made by the ALH Group's
independent auditors in connection with any examination of the ALH Group's
financial statements and books and records.
(b) Promptly notify Buyer in writing if any Seller becomes
aware of any fact or condition that causes or constitutes a breach of any
representation or warranty of any Seller as of the date of this Agreement, or if
any Seller becomes aware of the occurrence after the date of this Agreement of
any fact or condition that would (except as expressly contemplated by this
Agreement) cause or constitute a breach of any such representation or warranty
had such representation or warranty been made as of the time of occurrence or
discovery of such fact or condition.
5.4 Fulfillment of Conditions Precedent. Refrain from taking any action
which, if taken on or prior to the Closing Date, would constitute a breach of
this Agreement. Each Seller shall use his, her or its best efforts to obtain at
such Seller's expense, on or prior to the Closing Date, all such waivers,
permits, consents, approvals or other authorizations from third parties and
Authorities, and to do all things as may be necessary or desirable in connection
with the transactions contemplated by this Agreement in order to fully and
expeditiously consummate the transactions contemplated by this Agreement.
5.5 Tax Returns. File all Tax Returns and reports with respect to Taxes
which are required to be filed for Tax periods ending on or before the Closing
Date (a "Pre-Closing Tax Return"), and the ALH Group shall pay all Taxes due in
respect of such Pre-Closing Tax Returns to the appropriate Taxing Authority; and
the ALH Group shall pay all costs associated with the preparation thereof.
5.6 Public Announcements. Refrain from disclosing any of the terms of
this Agreement to any third party (other than Buyer's advisors and the Sellers'
advisors) without the other party's prior written consent unless required by any
applicable law. The form, content and timing of any and all press releases,
public announcements or publicity statements (except for any disclosures under
or pursuant to Federal or State securities laws in connection with the
registration of Buyer's securities or otherwise) with respect to this Agreement
or the transactions contemplated hereby shall be subject to the prior approval
of the Buyer and the Sellers' representative.
5.7 Termination of Agreements. Terminate or cause to be terminated, on
or prior to the Closing Date, any stockholders' agreements, voting agreements or
voting trusts to which any Seller or the Company is a party.
ARTICLE VI
COVENANTS OF BUYER
6.1 Certain Restrictions. From the date hereof until the Closing Date,
except as otherwise consented to or approved in writing by Sellers owning a
majority of the Company Common Shares and a majority of the Company Preferred
Shares, Buyer shall not issue or sell any shares of the Buyer of any class or
any securities convertible into, or options, warrants to purchase or rights to
subscribe to, any shares of such capital stock.
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6.2 Full Access and Disclosure. Buyer hereby covenants and agrees with
Sellers that prior to the Closing or the termination of this Agreement, Buyer
shall afford to Sellers, and their counsel, accountants and other authorized
representatives an opportunity to make such reasonable investigations as they
shall desire to make of the business of Buyer; and Buyer shall cause its
officers, employees and auditors to furnish such additional financial and
operating data and other information as Sellers shall from time to time
reasonably request. From time to time prior to the Closing Date, Buyer shall
promptly supplement or amend information previously delivered to Sellers with
respect to any matter hereafter arising which, if existing or occurring at the
date of this Agreement, would have been required to be set forth herein or
disclosed.
ARTICLE VII
PRE-CLOSING COVENANTS
7.1 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto shall use his, her or its best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Regulations to consummate
and make effective the transactions contemplated by this Agreement.
7.2 Consents. Without limiting the generality of Section 7.1, each of
the parties hereto shall use his or its best efforts to obtain all Permits of
all Persons and Authorities necessary, proper or advisable in connection with
the consummation of the transactions contemplated by this Agreement prior to the
Closing Date.
7.3 No Termination of Any Seller's Obligations by Subsequent
Incapacity. Each Seller specifically agrees that the obligations of such Seller
hereunder shall not be terminated by the death or incapacity of such Seller.
7.4 Confidentiality. From the date hereof to and including the Closing
Date, Buyer, on the one hand, and each Seller, on behalf of himself, herself or
itself and the ALH Group, on the other hand, shall cause its principals,
officers and other personnel and authorized representatives to hold in
confidence, and not disclose to any other Person without the other party's prior
consent, all written and oral information furnished or disclosed by or received
from such party or its officers, directors, employees, agents, counsel and
auditors in connection with the transactions contemplated hereby except as may
be contemplated therein.
ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF BUYER
Each and every obligation of Buyer under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions, unless waived in writing by Buyer:
8.1 Representations and Warranties; Covenants and Agreements. The
representations and warranties of each Seller contained in Article II and
Article III and elsewhere in this Agreement and all information contained in any
exhibit, certificate, schedule or attachment hereto or in any writing delivered
by, or on behalf of, each Seller to Buyer, shall be true and correct when made
and shall be true and correct in all material respects on the Closing Date as
though then made, except as expressly provided herein. Each Seller shall have
performed and complied with all agreements, covenants and conditions and shall
have made all deliveries required by this Agreement to be performed, delivered
and complied with by him, her or it prior to the Closing Date or at the Closing.
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8.2 No Injunction. No preliminary or permanent injunction or other
Order, decree or ruling issued by any Authority, or any Regulation promulgated
or enacted by any Authority shall be in effect, which would prevent the
consummation of the transactions contemplated hereby.
8.3 Third Party Consents. Sellers shall have delivered to Buyer, in
form and substance reasonably acceptable to Buyer, all consents, approvals,
waivers or other authorizations reasonably requested by Buyer with respect to
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby.
8.4 No Material Adverse Change. There shall have been no Material
Adverse Change since the date of this Agreement. Buyer shall have received a
certificate (which shall be addressed to Buyer), dated the Closing Date, from a
representative of Sellers certifying to the foregoing.
8.5 Due Diligence. Buyer shall have completed its due diligence
investigation with respect to the ALH Group including, but not limited to,
business, financial, legal, operational, customer, worker's compensation,
employee (both internal and external) and real estate due diligence, with
results satisfactory to Buyer in its sole discretion.
8.6 Seller's Closing Documents. Seller shall have delivered to Buyer
executed originals of each of the Sellers' closing documents.
ARTICLE IX
CONDITIONS TO THE OBLIGATIONS OF SELLERS
Each and every obligation of each Seller under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by Sellers:
9.1 Representations and Warranties; Performance. The representations
and warranties of Buyer contained in Article IV and elsewhere in this Agreement
and all information contained in any exhibit, schedule or attachment hereto, or
in any writing delivered by Buyer to Sellers, shall be true and correct in all
material respects when made and shall be true and correct in all material
respects on the Closing Date as though then made, except as expressly provided
herein. Buyer shall have performed and complied in all material respects with
all agreements, covenants and conditions required by this Agreement to be
performed and complied with by them prior to the Closing Date.
9.2 No Injunction. No preliminary or permanent injunction or other
Order, decree or ruling issued by any Authority, or any Regulation promulgated
or enacted by any Authority shall be in effect, which would prevent the
consummation of the transactions contemplated hereby.
9.3 Purchase Price. Each Seller shall have received the purchase price
required to be delivered at Closing and to which such Seller is entitled
pursuant to Section 1.2 hereof.
9.4 Buyer's Closing Documents. Buyer shall have delivered to Sellers
executed originals of each of the other Buyer's Closing Documents.
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9.5 Directors and Officers. Seller shall have received the resignations
of the Directors and Officers of the Company, which resignations shall be
effective as of 90 days from the Closing Date.
ARTICLE X
TERMINATION OF AGREEMENT
10.1 Methods of Termination. This Agreement shall terminate:
(a) by mutual consent of Buyer and Sellers holding a majority of
the Company Common Shares and a majority of the Company Preferred Shares; or
(b) on July 31, 2002.
10.2 Procedure Upon Termination. In the event this Agreement is
terminated as provided in Section 10.1:
(a) each party shall redeliver all documents and other
material of any other party relating to the transactions contemplated hereby,
whether obtained before or after the execution hereof, to the party furnishing
the same;
(b) all information received by any party hereto of the other
party or the ALH Group (other than information which is a matter of public
knowledge or which has heretofore been or is hereafter published in any
publication for public distribution or filed as public information with any
governmental authority) shall not at any time be used for the advantage of, or
disclosed to third parties by, such party to the detriment of the party
furnishing such information; and
(c) no party hereto shall have any further liability or
obligation to any other party under or in connection with this Agreement.
ARTICLE XI
CLOSING DELIVERIES
11.1 Deliveries by Sellers. At the Closing, in addition to any other
documents or agreements required under this Agreement, Sellers shall deliver to
Buyer the following:
(a) Certificates, in genuine and unaltered form, representing
at least 51% of the Company Common Shares and Company Preferred Shares, free and
clear of all Liens, duly endorsed in blank or accompanied by duly executed stock
powers endorsed in blank, for transfer to Buyer;
(b) Evidence, in form satisfactory to Buyer, that all consents
and approvals referred in Section 8.3 have been obtained;
(c) A letter from the President confirming that The Articles
of Incorporation of the Company, as amended and restated are up-to-date and
correct and that he has applied for a Certificate from the Nevada Secretary of
State;
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(d) A letter from the President confirming that the Company is
in good standing and that he has applied for a Certificate of good standing from
the Nevada Secretary of State;
(e) Such other agreements, documents and instruments
reasonably requested by Buyer to effectuate the transactions contemplated in
this Agreement.
11.2 Deliveries by Buyer. At the Closing, Buyer shall deliver to each
Seller in accordance with Exhibit "A" annexed hereto, the following:
(a) Certificates evidencing the Buyer Common Shares and Buyer
Preferred Shares to each Seller in accordance with Exhibit "A" annexed hereto;
(b) A letter from the President confirming that The Articles
of Incorporation of Buyer, as amended and restated, and Certificate of
Designations of Series A Preferred Stock, are up-to-date and correct and that he
has applied for each to be certified by the Nevada Secretary of State;
(c) A letter from the President confirming that the Buyer is
in good standing and that he has applied for a Certificate of Good Standing for
Buyer from the State of Nevada; and
(d) Such other agreements, documents and instruments
reasonably requested by Sellers to effectuate the transactions contemplated in
this Agreement.
ARTICLE XII
POST-CLOSING COVENANTS
12.1 Further Assurances. If at any time after the Closing Date, Buyer,
on the one hand, or any Seller, on the other hand, shall consider or be advised
that any further agreements, instruments, documents, deeds, papers, assignments
or assurances in law or in any other things are necessary, desirable or proper
to vest, perfect or confirm, of record or otherwise, in such party, the title to
any property or rights of the other acquired or to be acquired by reason of, or
as a result of, this Agreement or any of the transactions contemplated herein,
the other party agrees that it or they shall execute and deliver all such proper
agreements, instruments, documents, deeds, papers, assignments and assurances in
law and do all things necessary, desirable or proper to vest, perfect or confirm
title to such property or rights in such party and otherwise to carry out the
purpose of this Agreement.
12.2 Audited Financial Statements. Each Seller shall use his, her or
its best efforts to cause to be completed and delivered to Buyer audited
financial statements of the Company and each of the Company's Subsidiaries,
reasonably necessary for Buyer to meet its reporting obligations under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
12.3 Vyrtex Shares. Vyrtex Limited, which owns 3,830,000 shares of
Buyer Common Stock shall surrender to Buyer for cancellation not less than
3,791,700 shares (or 99%) of such Buyer Common Stock.
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ARTICLE XIII
SURVIVAL OF TERMS; INDEMNIFICATION
13.1 Survival; Knowledge. All of the terms and conditions of this
Agreement, together with the representations, warranties and covenants contained
herein or in any instrument or document delivered or to be delivered pursuant to
this Agreement, shall survive the execution of this Agreement and the Closing
notwithstanding any investigation heretofore or hereafter made by or on behalf
of any party hereto; provided, however, that (i) the agreements and covenants
set forth in this Agreement shall survive and continue until all obligations set
forth therein shall have been performed and satisfied; and (ii) all
representations and warranties shall survive and continue until eighteen (18)
months from the Closing Date (the "Anniversary Date"), except for
representations and warranties for which a claim for indemnification hereunder
(an "Indemnification Claim") shall be pending as of the Anniversary Date, in
which event such representations and warranties shall survive with respect to
such Indemnification Claim until the final disposition thereof.
13.2 Indemnification by Seller. Each Seller shall, severally,
indemnify, defend and hold harmless Buyer and each of the officers, directors,
employees, shareholders, attorneys, accountants, partners, representatives,
agents, successors and assigns of each of the foregoing (each an "Buyer
Indemnified Party" and collectively, the "Buyer Indemnified Parties"), at all
times after the date of this Agreement, against and in respect of any and all
Claims (including, without limitation, the fees and expenses of counsel)
resulting from, or in respect of any misrepresentation, breach of warranty, or
nonfulfillment of any covenant or other obligation on the part of such Seller
under this Agreement, any document relating thereto or contained in any schedule
(without giving effect to any amendment or supplement thereto) or exhibit to
this Agreement or from any misrepresentation in or omission from any
certificate, schedule, other agreement or instrument by Sellers hereunder.
13.3 Indemnification by Buyer. Buyer shall indemnify, defend and hold
harmless each Seller and each of the representatives, agents, successors and
assigns of such Seller (each a "Seller Indemnified Party" and collectively, the
"Seller Indemnified Parties"), at all times after the date of this Agreement,
against and in respect of any and all Claims (including, without limitation, the
fees and expenses of counsel) resulting from, or in respect of, any
misrepresentation, breach of warranty, or nonfulfillment of any covenant or
other obligation on the part of Buyer under this Agreement, any document
relating thereto or contained in any schedule (without giving effect to any
amendment or supplement thereto) or exhibit to this Agreement or from any
misrepresentation in or omission from any certificate, schedule, other agreement
or instrument by Buyer hereunder.
13.4 Third Party Claims.
(a) Except as otherwise provided in this Agreement, the
following procedures shall be applicable with respect to indemnification for
third party Claims. Promptly after receipt by the party seeking indemnification
hereunder (hereinafter referred to as the "Indemnitee") of notice of the
commencement of any (a) Tax audit or proceeding for the assessment of Tax by any
taxing authority or any other proceeding likely to result in the imposition of a
Tax liability or obligation, or (b) any action or the assertion of any Claim,
liability or obligation by a third party (whether by legal process or
otherwise), against which Claim, liability or obligation the other party to this
Agreement (hereinafter the "Indemnitor") is, or may be, required under this
Agreement to indemnify such Indemnitee, the Indemnitee will, if a Claim thereon
is to be, or may be, made against the Indemnitor, notify the Indemnitor in
writing of the commencement or assertion thereof and give the Indemnitor a copy
of such Claim, process and all legal pleadings. The Indemnitor shall have the
right to participate in the defense of such action
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with counsel of reputable standing. The Indemnitor shall have the right to
assume the defense of such action unless such action (i) may result in
injunctions or other equitable remedies in respect of the Indemnitee or its
business; (ii) may result in liabilities which, taken with other then existing
Claims under this Article XIII, would not be fully indemnified hereunder; or
(iii) may have an adverse impact on the business or financial condition of the
Indemnitee after the Closing Date (including an effect on the Tax liabilities,
earnings or ongoing business relationships of the Indemnitee). The Indemnitor
and the Indemnitee shall cooperate in the defense of such Claims. In the case
that the Indemnitor shall assume or participate in the defense of such audit,
assessment or other proceeding as provided herein, the Indemnitee shall make
available to the Indemnitor all relevant records and take such other action and
sign such documents as are necessary to defend such audit, assessment or other
proceeding in a timely manner.
(b) Upon judgment, determination, settlement or compromise of
any third party Claim, the Indemnitor shall pay promptly on behalf of the
Indemnitee, and/or to the Indemnitee in reimbursement of any amount theretofore
required to be paid by it, the amount so determined by judgment, determination,
settlement or compromise, unless in the case of a judgment an appeal is made
from the judgment, plus all other Claims of the Indemnitee with respect thereto
(including legal fees and expenses). If the Indemnitor desires to appeal from an
adverse judgment, then the Indemnitor shall post and pay the cost of the
security or bond to stay execution of the judgment pending appeal. Upon the
payment in full by the Indemnitor of such amounts, the Indemnitor shall succeed
to the rights of such Indemnitee, to the extent not waived in settlement,
against the third party who made such third party Claim.
(c) Prior to paying or settling any Claim against which an
Indemnitor is, or may be, obligated under this Agreement to indemnify an
Indemnitee, the Indemnitee must first supply the Indemnitor with a copy of a
final court judgment or decree holding the Indemnitee liable on such claim or
failing such judgment or decree, and must first receive the written approval of
the terms and conditions of such settlement from the Indemnitor. An Indemnitor
shall have the right to settle any Claim against it or as to which it has
assumed the defense, subject to the prior written approval of the Indemnitee,
which approval shall not be unreasonably withheld provided that such settlement
involves only the payment of a fixed sum which the Indemnitor is obligated to
pay and does not include any admission of liability or other such similar
admissions by or related to Indemnitee with respect to such Claim.
(d) An Indemnitee shall have the right to employ its own
counsel in any case, but the fees and expenses of such counsel shall be at the
expense of the Indemnitee unless: (i) the employment of such counsel shall have
been authorized in writing by the Indemnitor in connection with the defense of
such action or Claim; (ii) the Indemnitor shall not have employed, or is
prohibited under this Section 13.4 from employing, counsel in the defense of
such action or Claim; or (iii) such Indemnitee shall have reasonably concluded
that there may be defenses available to it which are contrary to, or
inconsistent with, those available to the Indemnitor, in any of which events
such fees and expenses of not more than one additional counsel for the
indemnified parties shall be borne by the Indemnitor.
13.5 Limitation on Indemnification.
(a) None of the Buyer Indemnified Parties shall assert any
Indemnification Claim hereunder against any Seller until such time as, and
solely to the extent that, the aggregate of all such claims which the Buyer
Indemnified Parties may have against Sellers shall exceed One Hundred Thousand
Dollars ($100,000) (the "Seller's Indemnification Threshold"), and the maximum
amount that each Seller shall be liable under this Article XIII shall be limited
to the
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value of the purchase price such Seller received pursuant to Section 1.2.
As to each Seller, the aggregate of all Claims against such Seller shall be
limited to recourse against the Buyer Common Shares and the Buyer Preferred
Shares (and any securities issued in conversion thereof) issued to such Seller
pursuant to Section 1.2, and the proceeds from the sale, transfer or
hypothecation of such Buyer Common Shares and the Buyer Preferred Shares (and
any securities issued in conversion thereof).
(b) None of the Seller Indemnified Parties shall assert any
Indemnification Claim hereunder against Buyer until such time as, and solely to
the extent that, the aggregate of all such claims which the Seller Indemnified
Parties may have against Buyer shall exceed One Hundred Thousand Dollars
($100,000) (the "Buyer Indemnification Threshold").
ARTICLE XIV
DEFINITIONS; INTERPRETATIONS
14.1 Headings. The article, section and other headings contained in
this Agreement are for reference purposes only and do not affect in any way the
meaning or interpretation of this Agreement (or any provision hereof).
14.2 Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular forms of nouns, pronouns, and verbs
include the plural and vice versa.
14.3 Construction. The parties acknowledge that each party has reviewed
and revised this Agreement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
14.4 Certain Definitions. Capitalized terms not defined in this
Agreement, shall have the following respective meanings:
"Affiliate" means, with regard to any Person, (a) any Person,
directly or indirectly, controlled by, under common control of, or controlling
such Person, (b) any Person, directly or indirectly, in which such Person holds,
of record or beneficially, five percent or more of the equity or voting
securities, (c) any Person that holds, of record or beneficially, five percent
or more of the equity or voting securities of such Person, (d) any Person that,
through Contract, relationship or otherwise, exerts a substantial influence on
the management of such Person's affairs, (e) any Person that, through Contract,
relationship or otherwise, is influenced substantially in the management of
their affairs by such Person, or (f) any director, officer, partner or
individual holding a similar position in respect of such Person.
"Authority" means any international, federal, state local or
municipal governmental, regulatory or administrative body, agency, department,
division, subdivision, office, arbitrator or other authority, any court or
judicial authority, or any public, private or industry regulatory agency or
authority.
"Claim" means any action, claim, obligation, liability,
damage, loss, deficiency, cost, expense, commitment, lawsuit, demand, suit,
inquiry, hearing, investigation, notice of a violation, litigation, proceeding,
arbitration, or other dispute, whether civil, criminal, administrative or
otherwise, whether pursuant to contractual obligations or otherwise.
16
"Contract" means any agreement, contract, commitment,
instrument or other binding arrangement or understanding, whether written or
oral.
"Debt" means, for any Person as of any date, the aggregate
outstanding and unpaid balance (including but not limited to unpaid principal,
accrued interest, costs and expenses) of all indebtedness of such Person which
bears interest that would be included in Interest Expense of such Person for a
fiscal period that includes such date.
"GAAP" means United States generally accepted accounting
principles, applied on a consistent basis.
"Lien" means any security interest, lien, mortgage, pledge,
hypothecation, encumbrance, Claim, easement, restriction or interest of another
Person of any kind or nature.
"Material Adverse Change" means any development or change
which has, had or would have a Material Adverse Effect.
"Material Adverse Effect" means, as to any Person, any
circumstances, events, state of facts or matters which has had, or might
reasonably be expected to have, a material adverse effect on (i) such Person's
business, operations, properties, assets, condition (financial or otherwise),
results, plans, strategies or prospects, or (ii) the ability of such Person to
consummate any of the transactions contemplated by this Agreement or any of the
related agreements, instruments or documents or (iii) the benefits contemplated
to be conferred on such Person by this Agreement or any of the related
agreements, instruments or documents.
"Order" means any decree, consent decree, judgment, award,
order, injunction or consent of or by an Authority.
"Ordinary Course of Business" shall mean an action taken by a
Person only if (i) such action is consistent with the past practices of such
Person and is taken in the ordinary course of the normal day-to-day operations
of such Person, (ii) such action is not required to be authorized by the board
of directors of such Person (or by any Person or group of Persons exercising
similar authority), and (iii) such action is similar in nature and magnitude to
actions customarily taken, without any authorization by the board of directors
(or by any Person or group of Persons exercising similar authority), in the
ordinary course of the normal day-to-day operations of other Persons that are in
the same line of business as such Person.
"Person" means any individual, corporation, partnership,
limited partnership, limited liability partnership or company, joint venture,
company, syndicate, union, unincorporated organization, association, trust,
entity, Authority or natural person.
"Regulation" means any law, statute, rule, regulation,
ordinance, requirement, announcement or other binding action of or by an
Authority.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented only by a written agreement
signed by the Companies, Buyer and Seller.
15.2 Entire Agreement. This Agreement, including the schedules and
exhibits hereto and the documents, annexes, attachments, certificates and
instruments referred to herein and therein, embodies the entire agreement and
understanding of the parties hereto in respect of the agreements and
transactions contemplated by this Agreement and supersedes all prior agreements,
representations, warranties, promises, covenants, arrangements, communications
and understandings, oral or written, express or implied, between the parties
with respect to such transactions. There are no agreements, representations,
warranties, promises, covenants, arrangements or understandings between the
parties with respect to such transactions, other than those expressly set forth
or referred to herein.
15.3 Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand or mailed, first class certified mail
with postage paid or by overnight receipted courier service:
If to any Seller: The address as set forth on Exhibit "A"
With a copy to: Xxxxxxx X Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
If to Buyer: XxxxxxxxXX.xxx, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: President
or to such other person or address as such party shall furnish by notice to all
other parties in writing.
15.4 Exhibits and Schedules. The Exhibits and Schedules referred to in
this Agreement are attached hereto and incorporated herein by this reference.
Disclosure of a specific item in any one Schedule shall be deemed restricted
only to the Section of this Agreement to which such disclosure relates, except
where, and to the extent that, there is an explicit cross-reference in such
Schedule to another Schedule.
15.5 Waiver of Compliance; Consents. Any failure of any party hereto to
comply with any obligation, covenant, agreement or condition herein may be
waived in writing by the other parties hereto, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure. Whenever this Agreement requires or permits consent
by or on behalf of any party hereto, such consent shall be given in writing.
15.6 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties.
15.7 Governing Law. The Agreement shall be governed by the internal
laws of the State of New York as to all matters, including but not limited to
matters of validity, construction, effect and performance.
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15.8 Jurisdiction of Disputes; Waiver of Jury Trial. In the event any
party to this Agreement commences any litigation, proceeding or other legal
action in connection with or relating to this Agreement or any matters described
or contemplated herein, with respect to any of the matters described or
contemplated herein or therein, the parties to this Agreement hereby (a) agree
under all circumstances absolutely and irrevocably to institute any litigation,
proceeding or other legal action in a court of competent jurisdiction located
within the City and County of New York, State of New York, whether a state or
federal court; (b) agree that in the event of any such litigation, proceeding or
action, such parties will consent and submit to personal jurisdiction in any
such court described in clause (a) of this Section and to service of process
upon them in accordance with the rules and statutes governing service of process
(it being understood that nothing in this Section shall be deemed to prevent any
party from seeking to remove any action to a federal court in New York, New
York); (c) agree to waive to the full extent permitted by law any objection that
they may now or hereafter have to the venue of any such litigation, proceeding
or action in any such court or that any such litigation, proceeding or action
was brought in an inconvenient forum; (d) agree as an alternative method of
service to service of process in any legal proceeding by mailing of copies
thereof to such party at its address set forth here in for communications to
such party; (e) agree that any service made as provided herein shall be
effective and binding service in every respect; and (f) agree that nothing
herein shall affect the rights of any party to effect service of process in any
other manner permitted by Law. EACH PARTY HERETO WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY AND
ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
15.9 Injunctive Relief. The parties hereto agree that in the event of a
breach of any provision of this Agreement, the aggrieved party or parties may be
without an adequate remedy at law. The parties therefore agree that in the event
of a breach of any provision of this Agreement, the aggrieved party or parties
may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing breach
of such provision, as well as to obtain damages for breach of this Agreement. By
seeking or obtaining any such relief, the aggrieved party shall not be precluded
from seeking or obtaining any other relief to which it may be entitled.
15.10 Dealings in Good Faith; Best Efforts. Each party hereto agrees to
act in good faith with respect to the other party in exercising its rights and
discharging its obligations under this Agreement. Each party further agrees to
use its best efforts to ensure that the purposes of this Agreement are realized
and to take all further steps as are reasonably necessary to implement the
provisions of this Agreement. Each party agrees to execute, deliver and file any
document or instrument necessary or advisable to implement or satisfy the
express provisions of this Agreement.
15.11 Binding Effect. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the signatories to this
Agreement and each of their respective successors and permitted assigns.
15.12 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party hereto, upon any breach or default of any
other party under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
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deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach or default under this Agreement, or
any waiver on the part of any party of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
15.13 Severability. Unless otherwise provided herein, if any provision
of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
15.14 Expenses. All fees, costs and expenses (including, without
limitation, legal, auditing and accounting fees, costs and expenses) incurred in
connection with considering, pursuing, negotiating, documenting or consummating
this Agreement and the transactions contemplated hereby shall be borne and paid
solely by the party incurring such fees, costs and expenses.
15.15 Attorneys' Fees. If any party to this Agreement seeks to enforce
the terms and provisions of this Agreement, then the prevailing party in such
action shall be entitled to recover from the losing party all costs in
connection with such action, including without limitation reasonable attorneys'
fees, expenses and costs incurred with respect to trials, appeals and
collection.
15.16 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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20
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement the date first hereinabove set forth.
SELLERS:
/s/
__________________________________________
Xxxxxxx Xxxx Xxxxxx
/s/
__________________________________________
Xxxxxxx Xxxxx Xxxxxx
/s/
__________________________________________
Xxxxx Xxxxxxx Xxxxxxx
/s/
__________________________________________
Xxxxx Xxxxxxx Xxxx
/s/
__________________________________________
X. Xxxxxx
/s/
__________________________________________
X. Xxxxxxxx
/s/
__________________________________________
X. Xxxxxxx
/s/
__________________________________________
X. Xxxxx
/s/
__________________________________________
X. Xxx
/s/
__________________________________________
X. Xxxx
21
SELLERS (continued):
/s/
__________________________________________
Stuart Xxxxxx Xxxxxx
/s/
__________________________________________
Claire Xxxxxx Xxxxxx & Xxxxxx Xxxxxx Xxxxxx
Group One Productions, Inc.
By: /s/
_______________________________________
Authorized Signatory
Arvimex Inc.
By: /s/
_______________________________________
Authorized Signatory
Xpres Ltd
By: /s/
_______________________________________
Authorized Signatory
Xxxx Hop Warehousing Ltd.
By: /s/
_______________________________________
Authorized Signatory
Raster Investments, Inc
By:
_______________________________________
Authorized Signatory
22
BUYER:
XxxxxxxxXX.Xxx, Inc, Inc.
By: /s/
_______________________________________
Authorized Signatory
23
EXHIBIT "A"
-------------------------------------------------------------------------------------------------------------
Name and Address Company Buyer Company Buyer
Common Common Preferred Common
Shares Shares Shares Shares
-------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxx Xxxxxx 845,733 845,733 55,000 55,000
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Xxxxxx 230,000 230,000 0 0
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx Xxxxxxx 345,348 345,348 30,000 30,000
Roseville, La Route Neuve,
St. Brelard, Jersey, C1
-------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx Xxxx 256,909 256,909 5,000 5,000
00 Xxxxx Xxxxxxxx, Xxxxxxxx,
Xxxxxx XX0 0XX
-------------------------------------------------------------------------------------------------------------
Group One Productions, Inc. 230,000 230,000 0 0
0000 Xxxxxx Xxxxx, Xxxxxx Xxxx
Xxxxxxx, XX 00000
-------------------------------------------------------------------------------------------------------------
Arvimex Inc. 1,942,268 1,942,268 475,000 475,000
AIB House, Grenville Street,
St. Helier, Jersey, CI
-------------------------------------------------------------------------------------------------------------
Xpres Ltd 403,942 403,942 215,000 215,000
AIB House, Grenville Street,
St. Helier, Jersey, CI
-------------------------------------------------------------------------------------------------------------
X. Xxxxxx 27,306 27,306 10,000 10,000
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
X. Xxxxxxxx 5,950 5,950 0 0
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
X. Xxxxxxx 27,171 27,171 10,000 10,000
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
H Xxxxx 17,387 17,387 0 0
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
X. Xxx 12,872 12,872 0 0
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
24
-------------------------------------------------------------------------------------------------------------
X. Xxxx 8,694 8,694 0 0
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxx 133,916 133,916 40,000 40,000
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
Claire Xxxxxx Xxxxxx & Xxxxxx Xxxxxx Xxxxxx 133,916 133,916 40,000 40,000
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
Xxxx Hop Warehousing Ltd. 2,253 2,253 0 0
c/o Messrs Downs
Attention Xxxxx Xxxxxxx
000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxx, Xxxxxxx
-------------------------------------------------------------------------------------------------------------
Raster Investments, Inc 197,000 197,000 0 0
P.O. Box 31367
Seven Mile Beach, Grand Cayman Islands
British West Indies
-------------------------------------------------------------------------------------------------------------
TOTAL 5,016,665 5,016,665 880,000 880,000
-------------------------------------------------------------------------------------------------------------
25
EXHIBIT "B"
CERTIFICATE OF DESIGNATIONS OF SERIES A PREFERRED STOCK
[omitted]
26
EXHIBIT "C"
AMERICAN VACATION RESORTS, INC. VOTING TRUST
BYLAWS AND ARTICLES OF INCORPORATION.
[omitted]
27
