EXHIBIT 99.1
SHARE EXCHANGE AGREEMENT
by and among
ATLANTIC WINE AGENCIES, INC.
a Florida Corporation
and
DOMINION WINES LTD
an Australian Corporation
and
DOMINION ESTATES PTY LTD
an Australian Corporation
effective as of September 14, 2004
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT, made and entered into this 14th day of
September, 2004 by and among Atlantic Wine Agencies, Inc., a Florida corporation
with its principal place of business located at 64 Knightsbridge, London, UK
SW1X ("Atlantic"); Dominion Wines Ltd, ACN 087183739 an Australian corporation
with its principal place of business at 13 Malcolm Court, Mt. Waverley,
Victoria, Australia ("Dominion"); Dominion Estates Pty Ltd, ACN 072221375 an
Australian corporation with its principal place of business at 13 Malcolm Court,
Mt. Waverly, Victoria, Australia ("Estates"). Collectively, Dominion and Estates
shall sometimes be referred to as the "Dominion Estates Group".
PREMISES
A. This Agreement provides for the acquisition of the Dominion Estates
Group by Atlantic whereby each of Dominion and Estates shall become wholly owned
subsidiaries of Atlantic and in connection therewith, Atlantic shall (i) issue
20,000,000 restricted shares of Atlantic common stock, $0.001 par value per
share ("Shares"), to the shareholders of Dominion and Estates, respectively,
(ii) retire in full the National Australia Bank loan in the amount of Three
Million One Hundred Thirty-Six Thousand Two Hundred Two Australian Dollars and
Eighty-Seven Cents ($3,136,202.87) Australian Dollars, (iii) arrange for an
additional investment of Two Hundred Twenty-Three Thousand Seven Hundred
Ninety-Seven Australian Dollars and Thirteen Cents ($223,797.13) to Atlantic;
(iv) assume the Commonwealth Bank of Australia loan in the amount of Four
Million Eighty-One Thousand Three Hundred Eighty-Seven Australian Dollars and
Eleven Cents ($4,081,387.11) Australian Dollars, and (iv) grant the Dominion
Estates Group shareholders representation on the Atlantic Board of Directors of
20% for a period of 3 years. The above transaction shall be referred to as the
"Share Exchange".
B. The boards of directors of Atlantic, Dominion and Estates have each
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
THE SHARE EXCHANGE
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SECTION 1.1 SHARE EXCHANGE/DELIVERY OF THE DOMINION ESTATES GROUP
ORDINARY SHARES. Upon satisfaction of the conditions set forth in Article VI of
this Agreement, the shareholders as listed in EXHIBIT 1.1 (collectively, the
"Dominion Estates Group Shareholders"), shall transfer all rights, title and
interest to and in the Dominion Estates Group Ordinary Shares held by them which
constitutes one hundred percent of the issued and outstanding shares of the
Dominion Estates Group.
SECTION 1.2 TRANSFER OF ATLANTIC COMMON SHARES.In exchange for all of
the Dominion Estates Group Ordinary Shares tendered pursuant to Section 1.1,
Atlantic shall issue to the Dominion Estates Group Shareholders an aggregate of
20,000,000 Atlantic shares of common stock upon the completion of the actions
referred to in Article V of this Agreement ("Atlantic Shares"). Such shares
shall be "restricted securities", (as such term is defined in Rule 144 under the
U.S. Securities Act of 1933, as amended (the "Securities Act").
SECTION 1.3 ADDITIONAL CONSIDERATION BY ATLANTIC. Atlantic shall make
further consideration to the Dominion Estates Group:
(i) Atlantic shall transfer Three Million One Hundred Thirty-Six
Thousand Two Hundred Two Australian Dollars and Eighty-Seven
Cents ($3,136,202.87) Australian Dollars to the National
Australia Bank as full and final settlement to enable the
discharge of loans #47-594-1015, 53-867-1949, 57-189-2428,
48-220-4777, 52-679-1775, 53-363-8795, 53-650-7141 held in the
name of Dominion;
(ii) Atlantic shall assume without further guarantee from Voss the
loan from Commonwealth Bank of Australia loan #06311910195270
in the amount of Four Million Eighty-One Thousand Three
Hundred Eighty-Seven Australian Dollars and Eleven Cents
($4,081,387.11) ("Commonwealth Loan"); and
(iii) Atlantic shall transfer Two Hundred Twenty-Three Thousand
Seven Hundred Ninety-Seven Australian Dollars and Thirteen
Cents ($223,797.13) to its accounts as assurance of its good
faith in servicing the Commonwealth Loan.
SECTION 1.4 EVENTS PRIOR TO CLOSING. Upon execution hereof or as soon
thereafter as practicable, management of the Dominion Estates Group and Atlantic
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 1.5 CLOSING. The closing ("Closing") of the transactions
contemplated by this Agreement shall be upon satisfaction of the conditions set
forth in Articles V and VI of this Agreement, which the parties expect to occur
no event later than forty-five (45) days after the date hereof.
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SECTION 1.6 REPRESENTATION ON ATLANTIC'S BOARD OF 20% FOR A PERIOD OF
THREE YEARS. Unless waived by a majority of the Dominion Estates Group
Shareholders in writing, Atlantic shall grant such shareholders the right to
nominate and appoint that number of directors to Atlantic's Board which is equal
to 20% of such Board for a period of three years.
SECTION 1.7 SUBSEQUENT MERGER TRANSACTION. With the exception of the
proposed transaction with Uvine.com Ltd which has been fully disclosed to both
Dominion and Estates whereby approximately Ten Million (10,000,000) shares of
Atlantic common stock will be issued for certain assets, for a period of twelve
months following the date of Closing of this Agreement, the shareholders of
Dominion and Estates shall have customary anti-dilution rights to the extent
Atlantic sells or issues shares of common stock for per share value less than
the per share value of the transaction contemplated in this Agreement between
Atlantic, Dominion and Estates. Such "per share value" shall be determined
solely by using the financial statements found in Exhibit 3.16 to this
Agreement.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
ATLANTIC
As an inducement to and to obtain the reliance of the Dominion Estates
Group, Atlantic represents and warrants as follows:
SECTION 2.1 ORGANIZATION. Atlantic 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. Complete and correct copies of the articles of
incorporation, bylaws and amendments thereto of Atlantic as in effect on the
date hereof are available on the United States Securities and Exchange
Commission's Website (www.sec.gov) as filed by Atlantic. 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 Atlantic's articles of incorporation or bylaws.
Atlantic 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 2.2 CAPITALIZATION. The authorized capitalization of Atlantic
consists of 150,000,000 common shares, $0.00001 par value per share, and no
shares of preferred stock. As of the date hereof, Atlantic has 104,063,027
common shares issued and outstanding. However, subject to Section 6.8 of this
Agreement, Atlantic shall reduce the number of its outstanding common shares by
20,000,000 prior to Closing. Atlantic is 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 pre-emptive or other rights of any person. Atlantic has no other
securities, warrants or options authorized or issued.
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SECTION 2.3 OPTIONS AND WARRANTS. There are no existing options,
warrants, calls or commitments of any character to which Atlantic is a party and
by which it is bound. However, Atlantic's Board shall have the right to issue
such based on the Board's good faith analysis of an employee's individual or
group performance as determined as determined by a properly constituted
compensation committee to be formed as soon as practicable but no longer than 60
days from the date of Closing.
SECTION 2.4 CLAIMS, LITIGATION AND PROCEEDINGS.There are no actions,
suits, proceedings or investigations pending or threatened by or against
Atlantic, affecting Atlantic 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 Atlantic. Atlantic
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 2.5 MATERIAL CONTRACT DEFAULTS. Atlantic 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 Atlantic, and there is no event of default in
any material respect under any such contract, agreement, lease or other
commitment in respect of which Atlantic has not taken adequate steps to prevent
such a default from occurring.
SECTION 2.6 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 Atlantic is a
party or to which any of its properties or operations are subject.
SECTION 2.7 GOVERNMENTAL AUTHORIZATIONS. Atlantic has all licenses,
franchises, permits or other governmental authorizations legally required to
enable Atlantic 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
Atlantic of this Agreement and the consummation of Atlantic of the transactions
contemplated hereby.
SECTION 2.8 TAX MATTERS; BOOKS & RECORDS
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(a) The books and records, financial and others, of Atlantic are in all
material respects complete and correct and have been maintained in
accordance with good business accounting practices; and
(b) Atlantic 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 2.9 INFORMATION. The information concerning Atlantic as set
forth in this Agreement and in the documents filed with the U.S. Securities and
Exchange Commission in the last 12 months 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 2.10 TITLE AND RELATED MATTERS.Atlantic owns free and clear of
any liens, claims, encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever all its assets and all procedures,
techniques, marketing plans, business plans, methods of management or other
information utilized in connection with Atlantic's business. No third party has
any right to, and Atlantic 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
Atlantic or any material portion of its properties, assets or rights.
SECTION 2.11 APPROVAL OF AGREEMENT. Atlantic has all requisite power
and authority to enter into this Agreement, including approval of its board of
directors. The holders of a majority of the common voting shares outstanding of
Atlantic have authorized the execution and delivery of the Agreement by Atlantic
and have approved the transactions contemplated hereby.
SECTION 2.12 COMPLIANCE WITH LAWS AND REGULATIONS. Atlantic 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, or financial condition of Atlantic.
ARTICLE III
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF DOMINION AND ESTATES
As an inducement to, and to obtain the reliance of Atlantic, each of
Dominion and Estates represents and warrants as follows:
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SECTION 3.1 ORGANIZATION. Each of Dominion and Estates is a corporation
duly organized, validly existing and in good standing under the laws of
Australia 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. Included in
EXHIBIT 3.1 are complete and correct copies of the constitution and amendments
thereto of each of Dominion and Estates 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 either Dominion's or Estates' constitution.
Each company has full power, authority and legal right and has taken all action
required by law, their respective constitutions or otherwise to authorize the
execution and delivery of this Agreement.
SECTION 3.2 CAPITALIZATION OF DOMINION. As of the date hereof and the
Closing date, 8,252,666 shares have been issued ("Dominion Shares") and those
individuals indicated on EXHIBIT 1.1 are the only shareholders of Dominion. All
issued and outstanding Dominion Shares have been legally issued and are
nonassessable as of the Closing date. There exists no unexercised right to
purchase shares in Dominion in any form whatsoever including, but not limited
to, options, warrants or convertible debt instruments. Such shareholders own and
are conveying to Atlantic all of their rights, title and interests to the
Dominion Shares, free and clear of all liens, mortgages, pledges, security
interests, encumbrances or charges of any kind or description and upon
consummation of the transaction contemplated herein good title in the Dominion
Shares shall vest in Atlantic free of all liens and other charges.
SECTION 3.3 CAPITALIZATION OF ESTATES.As of the date hereof and the
Closing date, 2 shares have been issued ("Estates Shares") and that entity
indicated on EXHIBIT 1.1 is the sole shareholder of Estates. All issued and
outstanding Estates Shares have been legally issued and are nonassessable as of
the Closing date. There exists no unexercised right to purchase shares in
Estates in any form whatsoever including, but not limited to, options, warrants
or convertible debt instruments. Such shareholders own and are conveying to
Atlantic all of their rights, title and interests to the Estates Shares, free
and clear of all liens, mortgages, pledges, security interests, encumbrances or
charges of any kind or description and upon consummation of the transaction
contemplated herein good title in the Estates Shares shall vest in Atlantic free
of all liens and other charges.
SECTION 3.4 SUBSIDIARIES. Neither Dominion nor Estates owns,
beneficially or of record, any shares of any other corporation.
SECTION 3.5 TAX MATTERS; BOOKS & RECORDS
(a) The books and records, financial and others, of each of Dominion
and Estates are in all material respects complete and correct and have
been maintained in accordance with good business accounting practices;
and
(b) Other than taxes due on a monthly basis, neither Dominion nor
Estates has any liabilities with respect to the payment of any country,
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties) other than disclosed in the
Financial Statements attached hereto as Exhibit 3.16.
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SECTION 3.6 INFORMATION. The information concerning the Dominion
Estates Group as set forth in this Agreement 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 3.7 TITLE AND RELATED MATTERS.Dominion and Estates each 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
including those assets described in the written due diligence materials provided
to Atlantic prior to Closing (collectively, "Assets") and such Assets are free
and clear of all liens, pledges, charges or encumbrances other than those found
in EXHIBIT 3.7. Neither Dominion nor Estates has received any notice of any
party asserting an ancestral rights to any of the real estate own by either
Dominion or Estates and so similar disputes have arisen from any similar claim.
Dominion and Estates each 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
their respective businesses. No third party has any right to, and neither
Dominion nor Estates had 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 either Dominion
or Estates or any material portion of their respective properties, assets or
rights.
SECTION 3.8 CLAIMS, LITIGATION AND PROCEEDINGS.There are no actions,
suits, proceedings or investigations pending or threatened by or against either
Dominion or Estates, affecting either or their respective 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 their respective businessed, operations, financial
conditions or income of either company. Neither Dominion nor Estates 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 3.9 NO CONFLICT WITH OTHER INSTRUMENTS.With the exception of
the Commonwealth Loan documents, 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 neither Dominion nor Estates is a
party or to which any of their respective properties or operations are subject.
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SECTION 3.10 MATERIAL CONTRACT DEFAULTS. To the best of each of
Dominion's and Estates' knowledge and belief, neither is 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 either company, and there is no event of default in any
material respect under any such contract, agreement, lease or other commitment
in respect of which either Dominion or Estates has not taken adequate steps to
prevent such a default from occurring.
SECTION 3.11 GOVERNMENTAL AUTHORIZATIONS. To the best of each of
Dominion's and Estates' knowledge, each 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. 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 either Dominion or Estates of the
transactions contemplated hereby.
SECTION 3.12 COMPLIANCE WITH LAWS AND REGULATIONS. Each of Dominion and
Estates 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, or financial condition of either company.
SECTION 3.13 MATERIAL TRANSACTIONS OR AFFILIATIONS. Each of Dominion
and Estates has provided Atlantic with copies of all material contracts to which
either company is a party and which are to be performed in whole or in part
after the date hereof. Neither Dominion nor Estates has any 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 either company to own beneficially, ten percent (10%) or
more the issued and outstanding ordinary shares of either company and which is
to be performed in whole or in part after the date hereof. Neither Dominion nor
Estates has any 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 3.14 LABOR RELATIONS. Neither Dominion nor Estates has ever had
a work stoppage resulting from labor problems and there are no pending
litigation or legal claims against either company from any past employees,
officers or directors. All payroll matters are in accordance with Australian
labor laws and there are no taxes or duties outstanding or payable to the
Australian tax authorities with referenced to employment taxed or social
payments other than those disclosed in the financial statements attached hereto
as Exhibit 3.16.
SECTION 3.15 NATURE OF BOOKS AND RECORDS. It is acknowledged that both
Dominion's and Estates' books and records must be in auditable condition and
that such audit must be completed within sixty days (60) of this Agreement. The
books and records of each Dominion and Estates are in such auditable condition.
SECTION 3.16 NET ASSET VALUE AND AUDITED FINANCIAL STATEMENTS. Atlantic
has been provided with unaudited financial statements of each of Dominion and
Estates dated as of June 30, 2004 and which are attached hereto as EXHIBIT 3.16
and Dominion has agreed to provide audited financial statements to Atlantic
within 45 days of Closing (collectively, "Financial Statements"). Such financial
statements reflect the assets, liabilities, net worth, profit and loss, and cash
flow of each of Dominion and Estates with respect to their businesses. All
financial statements referred to herein are complete and correct in all material
respects, present fairly the financial condition and results of operations of
each company as at the dates of such statements and have been prepared in
accordance with generally accepted accounting principles. The books of account
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and records have been maintained in accordance with good business practice and
reflect fairly all properties, assets, liabilities and transactions of each
company. Neither Dominion nor Estates has material liabilities or obligations of
any kind (whether accrued, absolute, direct, indirect, contingent or otherwise)
which are not fully disclosed, accrued or reserved against in its financial
statements. Since the last day of the Financial Statements, each has conducted
its business only in the ordinary and usual course and have not experienced any
material adverse changes in its business or its financial condition. Without
limiting the foregoing, neither Dominion nor Estates has:
(i) permitted or allowed any of its assets or properties to be
subjected to any lien or encumbrance;
(ii) amended, terminated, cancelled or compromised any material
claim;
(iii) sold, transferred, leased, subleased, licensed or otherwise
disposed of any properties or assets, real, personal or mixed
including, without limitation, leasehold interests and
intangible property of or relating to the businesses in excess
of Twenty-Five Thousand and No/100 ($25,000.00) Dollars other
than in the ordinary course of business and consistent with
past practices;
(iv) granted or proposed any increase or announce any increase in
compensation or benefits payable to its employees or
consultants other than as has been disclosed in writing to
Atlantic;
(v) made any material change in its method of accounting other
than as required by generally acceptable accounting
principles; and
(vi) entered into any agreement with any of its directors,
officers, or shareholders (or any family member thereof)
except as has been disclosed in writing to Atlantic.
Since June 30, 2004, no funds have been withdrawn or expended nor have any cash
or other assets been applied, except in the ordinary course of operations of its
business in accordance with past practices of each company, and that no amounts
have been paid to any of its shareholders.
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ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. It is acknowledged by
each of Atlantic, Dominion and Estates, that its officers and authorized
representatives, as the case may be, have been afforded full access to the
other's properties, books and records, 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 Dominion,
Estates and Atlantic as the case may be, as the other shall from time to time
reasonably request. Should either party require further opportunity to conduct
any further investigation into the affairs of the other, it shall be allowed to
do so prior to closing as long as this investigation is completed prior to
Closing.
SECTION 4.2 AVAILABILITY OF RULE 144. Each of the parties acknowledge
that the stock of Atlantic to be issued pursuant to this Agreement have not been
registered under the Securities Act and will be "restricted securities" as that
term is defined in Rule 144 promulgated pursuant to the Securities Act. Such
"restricted securities" may not be sold, transferred or encumbered except in a
transaction registered under the Securities Act or in a transaction exempt from
or not subject to the registration requirements. Atlantic shall not at any time
now or in the future prohibit, prevent, delay, obstruct and/or unnecessarily
delay the sale of the "restricted securities" in accordance with Rule 144.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE
ATLANTIC COMMON SHARES TO BE ISSUED IN THE EXCHANGE. The consummation of this
Agreement, including the issuance of the Atlantic Shares to the Dominion Estates
Group Shareholders and the resulting issuance of common shares 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
Dominion Estates Group Shareholders acquire the Atlantic Shares.
SECTION 4.4 THIRD PARTY CONSENTS. Dominion, Estates and Atlantic 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) Dominion and Estates jointly and severally agree to
indemnify Atlantic and each of the officers, agents and
directors of Atlantic 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 Atlantic 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
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(b) Atlantic and its officers and directors hereby
agrees to indemnify Dominion and Estates and each of the
officers, agents, directors and current shareholders of such
entities 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. 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 ATLANTIC
Atlantic shall not be obligated to perform under this Agreement until ,
at or before the Closing date, both Dominion and Estates have satisfied the
following conditions:
SECTION 5.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by each of Dominion and Estates 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 Dominion and Estates shall
have performed or complied with all covenants and conditions required by this
Agreement to be performed or complied with by Dominion and Estates prior to or
at the Closing.
SECTION 5.2 SHAREHOLDER APPROVAL. The shareholders of each of Dominion
and Estates have approved this Agreement and the transactions contemplated
herein.
SECTION 5.3 NO MATERIAL ADVERSE CHANGE. Subject to any material adverse
changes disclosed in writing to and acknowledged by Atlantic, 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
either Dominion or Estates.
SECTION 5.4 OTHER ITEMS. Atlantic shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Atlantic may reasonably request.
SECTION 5.5 SECRETARY'S CERTIFICATE. Each of Dominion and Estates shall
have delivered to Atlantic a certificate, dated the Closing date, executed by
the Secretary of each company in substantially the form attached hereto as
EXHIBIT 5.5, which shall include confirmation that all requisite board and
stockholder approvals have been obtained and remain in force.
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SECTION 5.6 OPINIONS OF COUNSEL. Dominion and Estates shall have
delivered to Atlantic opinions, dated the Closing date, from counsel for each,
in substantially the form attached hereto as EXHIBIT 5.6.
SECTION 5.7 RESIGNATION OF DIRECTORS. At or prior to Closing, the
boards of directors of Dominion and Estates shall take all necessary actions to
appoint Atlantic's nominees as found on EXHIBIT 5.7 attached hereto to their
respective boards and in the officer capacities indicated on such exhibit and
immediately thereafter resign in all capacities from such boards and in any
other capacities they may hold in either Dominion or Estates.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF DOMINION AND ESTATES
Each of Dominion and Estates shall not be obligated to perform under
this Agreement until at or before the Closing date (unless otherwise indicated
herein), Atlantic has satisfied the following conditions:
SECTION 6.1 ACCURACY OF REPRESENTATIONS. The representations and
warranties made by Atlantic in this Agreement were true when made and shall be
true as of the Closing date (except for changes therein permitted by this
Agreement) with the same force and effect as if such representations and
warranties were made at and as of the Closing date, and Atlantic shall have
performed and complied with all covenants and conditions required by this
Agreement to be performed or complied with by Atlantic prior to or at the
Closing.
SECTION 6.2 NO MATERIAL ADVERSE CHANGE. Subject to any material adverse
changes disclosed in writing and acknowledged by either Dominion or Estates,
prior to the Closing date, there shall not have occurred any material adverse
change in the financial condition, business or operations 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 Atlantic.
SECTION 6.3 ATLANTIC ADDITIONAL CONSIDERATION. Prior to Closing,
Atlantic shall place Two Hundred Twenty-Three Thousand Seven Hundred
Ninety-Seven Australian Dollars and Thirteen Cents ($223,797.13) with its local
counsel, Oakley Thompson & Co. as additional consideration to be used for the
servicing of the Commonwealth Loan or such loan in substitution of that.
SECTION 6.4 STOCK CERTIFICATE. Atlantic shall have tendered to the
Dominion Estates Group a certificate representing the Atlantic Shares, duly
endorsed to the Dominion Estates Group Shareholders in the dominations indicated
in EXHIBIT 1.1, and such endorsement shall have been witnessed by an officer or
Atlantic.
SECTION 6.5 SECRETARY'S CERTIFICATE. Atlantic shall have delivered to
Dominion and Estates a certificate, dated the Closing date, executed by the
Secretary of Atlantic in substantially the form attached hereto as Exhibit 6.5,
which shall include confirmation that all requisite board and stockholder
approvals have been obtained and remain in force.
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SECTION 6.6 OPINION OF COUNSEL. Atlantic shall have delivered to the
Dominion Estates Group an opinion, dated the Closing date, from counsel for
Atlantic, in substantially the form attached hereto as Exhibit 6.6.
SECTION 6.7 PROCEEDINGS. All proceedings to be taken on the part of
Atlantic in connection with the transactions contemplated by this Agreement and
all documents delivered by Atlantic incidental thereto shall be reasonably
satisfactory in form and substance to Dominion and Estatesand each shall have
received copies of all documents as it may reasonably request in order to
establish the consummation of such transactions.
SECTION 6.8 CAPITALIZATION OF ATLANTIC. Atlantic shall have reduced its
total number of shares of common stock issued and outstanding to 84,063,027
prior to Closing by canceling 20,000,000 shares of outstanding common stock.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 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 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.
SECTION 7.2 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 7.3 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 Atlantic: c/o Rubin, Bailin, Ortoli LLP
405 Park Avenue
New York, NY 10022
Attn: William S. Rosenstadt, Esq.
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If to Dominion or Estates: 13 Malcolm Court
Mt. Waverley, Victoria
Australia
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 7.4 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 7.5 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 7.6 EXHIBITS; KNOWLEDGE. Each party is presumed to have full
knowledge of all information set forth in the other party's exhibits delivered
pursuant to this Agreement.
SECTION 7.7 THIRD PARTY BENEFICIARIES.This contract is solely among
Dominion, Estates and Atlantic 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.
SECTION 7.8 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 as set forth herein. This Agreement may not be amended or modified,
except by a written agreement signed by all parties hereto.
SECTION 7.9 SURVIVAL; TERMINATION. The representations, warranties and
covenants of the respective parties shall survive the Closing date and the
consummation of the transactions herein contemplated.
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SECTION 7.10 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 7.11 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 7.12 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 7.13 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 7.14 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 7.15 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 7.16 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.
SECTION 7.17 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 7.18 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.
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SECTION 7.19 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 apprised 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.
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.
ATLANTIC WINE AGENCIES, INC.
BY: /S/ HARRY CHAUHAN
---------------------
HARRY CHAUHAN
PRESIDENT
DOMINION WINES LTD
BY: /S/ PETER VOSS
------------------
NAME: PETER VOSS
TITLE: PRESIDENT
DOMINION ESTATES PTY LTD
BY: /S/ PETER VOSS
------------------
NAME: PETER VOSS
TITLE: PRESIDENT
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