EXHIBIT 99.01
SHARE EXCHANGE AGREEMENT
by and among
ATLANTIC WINE AGENCIES, INC.
a Florida Corporation
and
NEW HEIGHTS 560 HOLDINGS LLC
a Cayman Islands Limited Liability Corporation
effective as of April 28, 2004
1
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, made and entered into this 28th day of
April, 2004 by and among Atlantic Wine Agencies, Inc., a Florida Corporation
with its principal place of business located at 64 Knightsbridge, London UK SW1X
("AWA") and New Heights 560 Holdings LLC, a Cayman Islands Limited Liability
Corporation with its principal place of business at One Regis Place, 90 Fort
Street, P.O. Box 472, George Town, Grand Cayman, Cayman Islands R.W.I. ("New
Heights").
PREMISES
A. This Agreement provides for the acquisition of New Heights by AWA
whereby New Heights shall become a wholly owned subsidiary of AWA and in
connection therewith, the issuance of 100,000,000 ($0.001 par value per share)
shares of restricted common stock of AWA to the sole shareholder of New Heights.
B. The boards of directors of New Heights and AWA have determined,
subject to the terms and conditions set forth in this Agreement, that the
transaction contemplated hereby is desirable and in the best interests of their
stockholders, respectively. This Agreement is being entered into for the purpose
of setting forth the terms and conditions of the proposed acquisition.
AGREEMENT
NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual covenants and agreements hereinafter set forth and the mutual
benefits to the parties to be derived herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
AWA
As an inducement to and to obtain the reliance of New Heights, AWA
represents and warrants as follows:
SECTION 1.1 ORGANIZATION. AWA is a corporation duly organized, validly
existing, and in good standing under the laws of Florida and has the corporate
power and is duly authorized, qualified, franchised and licensed under all
applicable laws, regulations, ordinances and orders of public authorities to own
all of its properties and assets and to carry on its business in all material
respects as it is now being conducted, including qualification to do business as
a foreign corporation in the jurisdiction in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
qualification. Included in the AWA Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation, bylaws and
amendments thereto of AWA as in effect on the date hereof. The execution and
2
delivery of this Agreement does not and the consummation of the transactions
contemplated by this Agreement in accordance with the terms hereof will not
violate any provision of AWA's articles of incorporation or bylaws. AWA has full
power, authority and legal right and has taken all action required by law, its
articles of incorporation, its bylaws or otherwise to authorize the execution
and delivery of this Agreement.
SECTION 1.2 CAPITALIZATION. The authorized capitalization of AWA
consists of 150,000,000 Common Shares, $0.001 par value per share, and no
Preferred Shares. As of the date hereof, AWA has 63,027 common shares issued and
outstanding. AWA is presently a public company listed on the NASDAQ OTC Bulletin
Board under the symbol "AWNA".
All issued and outstanding shares are legally issued, fully paid and
nonassessable and are not issued in violation of the preemptive or other rights
of any person. AWA has no other securities, warrants or options authorized or
issued.
SECTION 1.3 SUBSIDIARIES AND PREDECESSOR CORPORATIONS. AWA does not
have any other subsidiaries and does not own, beneficially or of record, any
shares of any other corporation.
SECTION 1.4 OPTIONS AND WARRANTS. There are no existing options,
warrants, calls or commitments of any character to which AWA is a party and by
which it is bound.
SECTION 1.5 CLAIMS, LITIGATION AND PROCEEDINGS.To the best of AWA's
knowledge and belief, there are no actions, suits, proceedings or investigations
pending or threatened by or against AWA, affecting AWA or its properties, at law
or in equity, before any court or other governmental agency or instrumentality,
domestic or foreign or before any arbitrator of any kind that would have a
material adverse affect on the business, operations, financial condition or
income of AWA. AWA does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or instrumentality or
of any circumstances which, after reasonable investigation, would result in the
discovery of such a default.
SECTION 1.6 MATERIAL CONTRACT DEFAULTS. To the best of AWA's knowledge
and belief, AWA is not in default in any material respect under the terms of any
outstanding contract, agreement, lease or other commitment which is material to
the business, operations, properties, assets or condition of AWA, and there is
no event of default in any material respect under any such contract, agreement,
lease or other commitment in respect of which AWA has not taken adequate steps
to prevent such a default from occurring.
SECTION 1.7 NO CONFLICT WITH OTHER INSTRUMENTS.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which AWA is a
party or to which any of its properties or operations are subject.
3
SECTION 1.8 GOVERNMENTAL AUTHORIZATIONS. To the best of AWA's
knowledge, AWA has all licenses, franchises, permits or other governmental
authorizations legally required to enable AWA to conduct its business in all
material respects as conducted on the date hereof. Except for compliance with
federal and state securities and corporation laws, as hereinafter provided, no
authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required in connection with
the execution and delivery by AWA of this Agreement and the consummation of AWA
of the transactions contemplated hereby.
SECTION 1.9 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of AWA are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) AWA has no liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
SECTION 1.10 INFORMATION. The information concerning AWA as set forth
in this Agreement and in the AWA Schedules is complete and accurate in all
material respects and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the statements made, in light
of the circumstances under which they were made, not misleading.
SECTION 1.11 TITLE AND RELATED MATTERS.AWA owns free and clear of any
liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures, techniques, marketing
plans, business plans, methods of management or other information utilized in
connection with AWA's business. No third party has any right to, and AWA had not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of AWA or any material portion of its
properties, assets or rights.
SECTION 1.12 APPROVAL OF AGREEMENT. The holders of a majority of the
Common Voting Shares outstanding of AWA have authorized the execution and
delivery of the Agreement by AWA and have approved the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF NEW HEIGHTS
As an inducement to, and to obtain the reliance of AWA, New Heights
represents and warrants as follows:
4
SECTION 2.1 ORGANIZATION. New Heights is a corporation duly organized,
validly existing and in good standing under the laws of the Cayman Islands and
has the corporate power and is duly authorized, qualified, franchised and
licensed under all applicable laws, regulations, ordinances and orders of public
authorities to own all of its properties and assets and to carry on its business
in all material respects as it is now being conducted, including qualification
to do business as a foreign entity in the country or states in which the
character and location of the assets owned by it or the nature of the business
transacted by it requires qualification. The set of corporate formation
documents previously provided to AWA are complete and correct copies of the
Articles of Association of New Heights as in effect on the date hereof. The
execution and delivery of this Agreement does not and the consummation of the
transactions contemplated by this Agreement in accordance with the terms hereof
will not, violate any provision of New Heights's Articles of Association. New
Heights has full power, authority and legal right and has taken all action
required by law, its Articles of Incorporation or otherwise to authorize the
execution and delivery of this Agreement.
SECTION 2.2 CAPITALIZATION. The authorized capitalization of New
Heights consists of 50,000 shares of Common Stock and no shares of Preferred
Stock. As of the date hereof, one share has been issued and Mr. Jeffrey
Revell-Reade is the shareholder of such share. All issued and outstanding New
Heights shares have been legally issued and are nonassessable as of April 28,
2004.
SECTION 2.3 SUBSIDIARIES. Other than Mount Rozier Properties and Mount
Rozier Estates (Pty) Ltd., both of which are incorporated pursuant to the laws
of South Africa, New Heights does not own, beneficially or of record, any shares
of any other corporation.
SECTION 2.4 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of New Heights are in
all material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) New Heights has no liabilities with respect to the payment of any
country, federal, state, county, local or other taxes (including any
deficiencies, interest or penalties).
SECTION 2.5 INFORMATION. The information concerning New Heights as set
forth in this Agreement and in the New Heights Schedules is complete and
accurate in all material respects and does not contain any untrue statement of a
material fact or omit to state a material fact required to make the statements
made, in light of the circumstances under which they were made, not misleading.
SECTION 2.6 TITLE AND RELATED MATTERS.New Heights has good and
marketable title to and is the sole and exclusive owner of all of its
properties, inventory, interests in properties and assets, real and personal
(collectively, the "Assets"), free and clear of all liens, pledges, charges or
encumbrances. New Heights owns free and clear of any liens, claims,
encumbrances, royalty interests or other restrictions or limitations of any
5
nature whatsoever and all procedures, techniques, marketing plans, business
plans, methods of management or other information utilized in connection with
New Heights's business. No third party has any right to, and New Heights had not
received any notice of infringement of or conflict with asserted rights of
others with respect to any product, technology, data, trade secrets, know-how,
proprietary techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse affect on the business,
operations, financial conditions or income of New Heights or any material
portion of its properties, assets or rights.
SECTION 2.7 LITIGATION AND PROCEEDINGS. There are no actions, suits or
proceedings pending or, to the best of New Heights's knowledge and belief,
threatened by or against or affecting New Heights, at law or in equity, before
any court or other governmental agency or instrumentality, domestic or foreign
or before any arbitrator of any kind that would have a material adverse effect
on the business, operations, financial condition, income or business prospects
of New Heights. New Heights does not have any knowledge of any default on its
part with respect to any judgment, order, writ, injunction, decree, award, rule
or regulation of any court, arbitrator or governmental agency or
instrumentality.
SECTION 2.8 CONTRACTS. On the Closing Date:
(a) New Heights is not a party to any contract,
agreement, commitment or instrument or subject to any charter
or other corporate restriction or any judgment, order, writ,
injunction, decree or award which materially and adversely
affects, or in the future may (as far as New Heights can now
foresee) materially and adversely affect, the business,
operations, properties, assets or conditions of New Heights;
and
(b) New Heights is not a party to any material oral
or written: (i) contract for the employment of any officer or
employee; (ii) profit sharing, bonus, deferred compensation,
stock option, severance pay, pension, benefit or retirement
plan, agreement or arrangement covered by Title IV of the
Employee Retirement Income Security Act, as amended; (iii)
agreement, contract or indenture relating to the borrowing of
money; (iv) guaranty of any obligation for the borrowing of
money or otherwise, excluding endorsements made for collection
and other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other similar contract with
an unexpired term of more than one year or providing for
payments in excess of $10,000 in the aggregate; (vi)
collective bargaining agreement; (vii) contract, agreement, or
other commitment involving payments by it for more than
$10,000 in the aggregate.
SECTION 2.9 NO CONFLICT WITH OTHER INSTRUMENTS.The execution of this
Agreement and the consummation of the transactions contemplated by this
Agreement will not result in the breach of any term or provision of, or
constitute an event of default under, any material indenture, mortgage, deed of
trust or other material contract, agreement or instrument to which New Heights
is a party or to which any of its properties or operations are subject.
6
SECTION 2.10 MATERIAL CONTRACT DEFAULTS. To the best of New Heights's
knowledge and belief, New Heights is not in default in any material respect
under the terms of any outstanding contract, agreement, lease or other
commitment which is material to the business, operations, properties, assets or
condition of New Heights, and there is no event of default in any material
respect under any such contract, agreement, lease or other commitment in respect
of which New Heights has not taken adequate steps to prevent such a default from
occurring.
SECTION 2.11 GOVERNMENTAL AUTHORIZATIONS. To the best of New Heights's
knowledge, New Heights has all licenses, franchises, permits and other
governmental authorizations that are legally required to enable it to conduct
its business operations in all material respects as conducted on the date
hereof. Except for compliance with federal and state securities or corporation
laws, no authorization, approval, consent or order of, or registration,
declaration or filing with, any court or other governmental body is required in
connection with the execution and delivery by New Heights of the transactions
contemplated hereby.
SECTION 2.12 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of New
Heights's knowledge and belief, New Heights has complied with all applicable
statutes and regulations of any federal, state or other governmental entity or
agency thereof, except to the extent that noncompliance would not materially and
adversely affect the business; operations, properties, assets or condition of
New Heights or would not result in New Heights's incurring any material
liability.
SECTION 2.13 INSURANCE. To the best of our knowledge we do not possess
any insurable properties. As a result, we do not maintain any insurance policies
on any person or property.
SECTION 2.14 APPROVAL OF AGREEMENT. The holders of the majority of the
Common Voting Shares of New Heights shall, in accordance with Section 7.2 of
this Agreement, authorize the execution and delivery of the Agreement by New
Heights and have approved the transactions contemplated hereby.
SECTION 2.15 MATERIAL TRANSACTIONS OR AFFILIATIONS. New Heights has
provided AWA with copies of all material contracts to which New Heights is a
party and which are to be performed in whole or in part after the date hereof.
New Heights has no commitment, whether written or oral, to lend any funds to,
borrow any money from or enter into any other material transactions with, any of
its directors or person owning of record, or known by New Heights to own
beneficially, ten percent (10%) or more the issued and outstanding Common Stock
of New Heights and which is to be performed in whole or in part after the date
hereof. New Heights has no commitment, whether written or oral, to lend and
funds to, borrow and money from or enter into any other material transactions
with, any such affiliated person.
SECTION 2.16 LABOR RELATIONS. New Heights has never had a work stoppage
resulting from labor problems.
SECTION 2.17 NATURE OF BOOKS AND RECORDS. It is acknowledged that New
Heights books and records must be in auditable condition and that such audit
must be completed within seventy-five (75) of this Agreement. The books and
records of New Heights are in such auditable condition.
7
ARTICLE III
EXCHANGE PROCEDURE AND OTHER CONSIDERATION
SECTION 3.1 SHARE EXCHANGE/DELIVERY OF NEW HEIGHTS SECURITIES. Upon due
and complete execution of the shareholder's consent referenced in Section 7.2 of
this Agreement, the New Heights shareholders, relinquish all rights, title and
interest to and in the New Heights Common Shares held by them and authorize the
cancellation of such shares by AWA.
SECTION 3.2 TRANSFER OF NEW HEIGHTS COMMON SHARES. In exchange for all
of the New Heights Common Shares tendered pursuant to Section 3.1, AWA
Shareholders shall issue an aggregate of 100,000,000 "restricted" AWA Common
Shares to the sole shareholder of New Heights. Such shares shall be "restricted"
in accordance with Rule 144 of the Securities Act of 1933, as amended.
SECTION 3.3 EVENTS PRIOR TO CLOSING. Upon execution hereof or as soon
thereafter as practicable, management of New Heights and AWA shall execute,
acknowledge and deliver (or shall cause to be executed, acknowledged and
delivered) any and all certificates, opinions, financial statements, schedules,
agreements, resolutions rulings or other instruments required by this Agreement
to be so delivered, together with such other items as may be reasonably
requested by the parties hereto and their respective legal counsel in order to
effectuate or evidence the transactions contemplated hereby, subject only to the
conditions to Closing referenced herein below.
SECTION 3.4 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be upon due execution of this Agreement.
SECTION 3.5 DIRECTORS OF NEW HEIGHTS AFTER ACQUISITION. The Board of
directors of AWA will not change as a result of the Exchange.
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. It is acknowledged by
each of AWA and New Heights, that its officers and authorized representatives
have been afforded full access to the other's properties, books and records of
New Heights and AWA as the case may be, so that each had full opportunity to
make such reasonable investigation as it desired to make of the affairs of the
other and each has furnished the other with such additional financial and
operating data and other information as to the business and properties of New
Heights and AWA as the case may be, as the other shall from time to time
reasonably request.
8
SECTION 4.2 AVAILABILITY OF RULE 144. Each of the parties acknowledge
that the stock of AWA to be issued pursuant to this Agreement will be
"restricted securities, " as that term is defined in Rule 144 promulgated
pursuant to the Securities Act. AWA is under no obligation to register such
shares under the Securities Act, or otherwise. The stockholders of AWA holding
restricted securities of AWA as of the date of this Agreement and their
respective heirs, administrators, personal representatives, successors and
assigns, are intended third party beneficiaries of the provisions set forth
herein. The covenants set forth in this Section 4.2 shall survive the Closing
and the consummation of the transactions herein contemplated.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE NEW
HEIGHTS COMMON SHARES TO BE ISSUED IN THE EXCHANGE. The consummation of this
Agreement, including the issuance of the AWA Common Shares to the Shareholders
of New Heights as contemplated hereby, constitutes the offer and sale of
securities under the Securities Act, and applicable state statutes. Such
transaction shall be consummated in reliance on exemptions from the registration
and prospectus delivery requirements of such statutes which depend, inter alia,
upon the circumstances under which the New Heights Shareholders acquire such
securities.
SECTION 4.4 THIRD PARTY CONSENTS. New Heights and AWA agree to
cooperate with each other in order to obtain any required third party consents
to this Agreement and the transactions herein contemplated.
SECTION 4.5 INDEMNIFICATION.
(a) New Heights hereby agrees to indemnify AWA and
each of the officers, agents and directors of AWA as of the
date of execution of this Agreement against any loss,
liability, claim, damage or expense (including, but not
limited to, any and all expense whatsoever reasonably incurred
in investigating, preparing or defending against and
litigation, commenced or threatened or any claim whatsoever),
to which it or they may become subject to arising out of or
based on any inaccuracy appearing in or misrepresentation made
in this Agreement in addition to any shareholder action filed
against AWA officers or directors based on this Agreement. The
indemnification provided for in this paragraph shall survive
the Closing and consummation of the transactions contemplated
hereby and termination of this Agreement; and
(b) AWA and its officers and directors hereby agrees
to indemnify New Heights and each of the officers, agents,
directors and current shareholders of New Heights as of the
Closing Date against any loss, liability, claim, damage or
expense (including, but not limited to, any and all expense
whatsoever reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened or
any claim whatsoever), to which it or they may become subject
arising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement and particularly the
9
representation regarding no liabilities referred to in Section
2.4 (b). The indemnification provided for in this Section
shall survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF AWA
The obligations of AWA under this Agreement are subject to the
satisfaction, at or before the Closing Date, of the following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by New Heights in this Agreement were true when made and shall
be true at the Closing Date with the same force and effect as if such
representations and warranties were made at the Closing Date (except for changes
therein permitted by this Agreement), and New Heights shall have performed or
compiled with all covenants and conditions required by this Agreement to be
performed or complied with by New Heights prior to or at the Closing.
SECTION 5.2 SHAREHOLDER APPROVAL. All of the Shareholders of New
Heights shall have approved this Agreement and the transactions contemplated
herein.
SECTION 5.3 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations of nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations or New
Heights.
SECTION 5.4 1934 SECURITIES ACT FILINGS. New Heights will be required
to keep the Company current in its filing pursuant to the Securities Exchange
Act of 1934, including the filing of an 8-K within fifteen (15) days after the
Closing and amended 8-K with two years audited financial statements within sixty
days after filing of the initial 8-K.
SECTION 5.5 OTHER ITEMS. AWA shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as AWA may reasonably request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF NEW HEIGHTS
The obligations of New Heights under this Agreement are subject to the
satisfaction, at or before the Closing date (unless otherwise indicated herein),
of the following conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by AWA in this Agreement were true when made and shall be true
as of the Closing Date (except for changes therein permitted by this Agreement)
10
with the same force and effect as if such representations and warranties were
made at and as of the Closing Date, and AWA shall have performed and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by AWA prior to or at the Closing.
SECTION 6.2 NO MATERIAL ADVERSE CHANGE. Prior to the Closing Date,
there shall not have occurred any material adverse change in the financial
condition, business or operations or nor shall any event have occurred which,
with the lapse of time or the giving of notice, may cause or create any material
adverse change in the financial condition, business or operations of AWA.
ARTICLE VII
CONDITIONS SUBSEQUENT TO OBLIGATIONS OF AWA
SECTION 7.1 NEW HEIGHTS AUDITED FINANCIAL STATEMENTS. As soon as
practicable, but in no event more than seventy-five calendar days from the
Closing, New Heights shall deliver to AWA's counsel audited financial statements
prepared in accordance with U.S. generally accepted accounting principles.
SECTION 7.2 UNANIMOUS SHAREHOLDER APPROVAL. New Heights has received
consent of its sole shareholder to enter into this Agreement and shall deliver
to AWA's counsel within 5 business days after the execution of this Agreement
copies of such consent in a form acceptable to AWA's counsel. A facsimile copy
of such shareholders' consent shall suffice for the purposes of satisfying the
time requirement under this Section 7.2.
SECTION 7.3 AWA FINANCIAL STATEMENTS. As soon as practicable, but in no
event more than forty-five (45) calendar days from the Closing Date, AWA shall
deliver to New Heights's counsel financial statements including balance sheet,
income statement, statement of cash flows and statement of stockholders' equity
prepared in accordance with generally accepted accounting principals.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 BROKERS AND FINDERS. Each party hereto hereby represents
and warrants that it is under no obligation, express or implied, to pay certain
finders in connection with the bringing of the parties together in the
negotiation, execution, or consummation of this Agreement. The parties each
agree to indemnify the other against any claim by any third person not listed in
Schedule 8.1 for any commission, brokerage or finder's fee or other payment with
respect to this Agreement or the transactions contemplated hereby based on any
alleged agreement or understanding between the indemnifying party and such third
person, whether express or implied from the actions of the indemnifying party.
11
SECTION 8.2 LAW, FORUM AND JURISDICTION. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Florida,
United States of America.
SECTION 8.3 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if personally delivered to it or
sent by registered mail or certified mail, postage prepaid, or by prepaid
telegram addressed as follows:
If to AWA: 64 Knightsbridge
London, UK SW1X
If to New Heights: One Regis Place, 90 Fort Street
P.O. Box 472
George Town, Grand Cayman
Cayman Islands R.W.I.
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have given as of the date so delivered, mailed or telegraphed.
SECTION 8.4 ATTORNEYS' FEES. In the event that any party institutes any
action or suit to enforce this Agreement or to secure relief from any default
hereunder or breach hereof, the breaching party or parities shall reimburse the
non-breaching party or parties for all costs, including reasonable attorneys'
fee, incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
SECTION 8.5 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until the reorganization contemplated by this Agreement
has been consummated, they and their representatives will hold in strict
confidence all data and information obtained with respect to another party or
any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other party,
and shall not used such data or information or disclose the same to others,
except: (i) to the extent such data is a matter of public knowledge or is
required by law to be published; and (ii) to the extent that such data or
information must be used or disclosed in order to consummate the transactions
contemplated by this Agreement.
SECTION 8.6 SCHEDULES; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's schedules delivered
pursuant to this Agreement.
SECTION 8.7 THIRD PARTY BENEFICIARIES.This contract is solely among New
Heights, New Heights Shareholders, AWA and except as specifically provided, no
director, officer, stockholder, employee, agent, independent contractor or any
other person or entity shall be deemed to be a third party beneficiary of this
Agreement.
12
SECTION 8.8 ENTIRE AGREEMENT.This Agreement represents the entire
agreement between the parties relating to the subject matter hereof. This
Agreement alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understanding, agreements, representations or warranties, written or oral,
except a set forth herein. This Agreement may not be amended or modified, except
by a written agreement signed by all parties hereto.
SECTION 8.9 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing Date and the
consummation of the transactions herein contemplated for 12 months.
SECTION 8.10 COUNTERPARTS. This Agreements may be executed in multiple
counterparts, each of which shall be deemed an original and all of which taken
together shall be but a single instrument.
SECTION 8.11 AMENDMENT OR WAIVER. Every right and remedy provided
herein shall be cumulative with every other right and remedy, whether conferred
herein, at law, or in equity, and may be enforced concurrently herewith, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, theretofore, or
thereafter occurring or existing. At any time prior to the Closing Date, this
Agreement may be amended by a writing signed by all parties hereto, with respect
to any of the terms contained herein, and any term or condition of this
Agreement may be waived or the time for performance hereof may be extended by a
writing signed by the party or parties for whose benefit the provision is
intended.
SECTION 8.12 INCORPORATION OF RECITALS.All of the recitals hereof are
incorporated by this reference and are made a part hereof as though set forth at
length herein.
SECTION 8.13 EXPENSES. Each party herein shall bear all of their
respective costs and expenses incurred in connection with the negotiation of
this Agreement and in the consummation of the transactions provided for herein
and the preparation thereof.
SECTION 8.14 HEADINGS; CONTEXT. The headings of the sections and
paragraphs contained in this Agreement are for convenience of reference only and
do not form a part hereof and in no way modify, interpret or construe the
meaning of this Agreement.
SECTION 8.15 BENEFIT. This Agreement shall be binding upon and shall
insure only to the benefit of the parties hereto, and their permitted assigns
hereunder. This Agreement shall not be assigned by any party without the prior
written consent of the other party.
SECTION 8.16 SEVERABILITY. In the event that any particular provision
or provisions of this Agreement or the other agreements contained herein shall
for any reason hereafter be determined to be unenforceable, or in violation of
any law, governmental order or regulation, such unenforceability or violation
shall not affect the remaining provisions of such agreements, which shall
continue in full force and effect and be binding upon the respective parties
hereto.
13
SECTION 8.17 FAILURE OF CONDITIONS; TERMINATION.In the event of any of
the conditions specified in this Agreement shall not be fulfilled on or before
the Closing Date, either of the parties have the right either to proceed or,
upon prompt written notice to the other, to terminate and rescind this Agreement
without liability to any other party. The election to proceed shall not affect
the right of such electing party reasonably to require the other party to
continue to use its efforts to fulfill the unmet conditions.
SECTION 8.18 NO STRICT CONSTRUCTION. The language of this Agreement
shall be construed as a whole, according to its fair meaning and intendment, and
not strictly for or against wither party hereto, regardless of who drafted or
was principally responsible for drafting the Agreement or terms or conditions
hereof.
SECTION 8.19 EXECUTION KNOWING AND VOLUNTARY. In executing this
Agreement, the parties severally acknowledge and represent that each: (a) has
fully and carefully read and considered this Agreement; (b) has been or has had
the opportunity to be fully apprized of its attorneys of the legal effect and
meaning of this document and all terms and conditions hereof; and (c) is
executing this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
14
IN WITNESS WHEREOF, the corporate parties hereto have caused this
Agreement to be executed by their respective officers, hereunto duly authorized,
and entered into as of the date first above written.
ATTEST: ATLANTIC WINE AGENCIES, INC.
/s/ Alastair McCrae By: /s/ Harry Chauhan
HARRY CHAUHAN
PRESIDENT
MAJORITY SHAREHOLDER OF
ATLANTIC WINE AGENCIES, INC.
ROSEHILL INVESTMENTS LTD.
BY: /s/ (UNREADABLE)
NAME:
(59,861 SHARES)
ATTEST: NEW HEIGHTS 560 HOLDINGS LLC
By: Jeffrey Revell Reade
- --------------------------------- --------------------------
NAME: JEFFREY REVELL READE
PRESIDENT AND CHAIRMAN
MAJORITY SHAREHOLDER OF NEW HEIGHTS
/s/ JEFFREY REVELL READE
JEFFERY REVELL-READE (1 SHARE)
15