AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this "AGREEMENT"),
dated as of March 9, 2006, is by and among OneTravel Holdings, Inc., a Delaware
corporation ("OTV"), FS SunTours, Inc., a Delaware corporation ("SELLER"), and
CRYSTAL HOSPITALITY HOLDINGS, INC., a Delaware corporation ("BUYER").
RECITALS
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A. OTV, Seller and Buyer entered into that certain Asset Purchase
Agreement dated as of January 28, 2006 (the "ORIGINAL AGREEMENT") whereby Seller
agreed to sell to Buyer, and Buyer agreed to purchase from Seller, upon the
terms and conditions set forth in the Original Agreement, substantially all of
the assets of Seller.
B. Pursuant to the Original Agreement, Seller agreed to assign to Buyer,
and Buyer agreed to assume from Seller, upon the terms and conditions of the
Original Agreement, certain specified liabilities of Seller.
C. Pursuant to the Original Agreement, Seller, a wholly-owned subsidiary
of OTV, and OTV made certain agreements in order to facilitate the transactions
contemplated in the Original Agreement.
D. OTV, Seller and Buyer now desire to amend and restate the Original
Agreement as set forth herein.
AGREEMENT
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In consideration of the premises and mutual covenants, agreements and
provisions of the parties set forth in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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1.1 For purposes of this Agreement, the following terms have the meaning
set forth below:
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"AFFILIATE" means, with respect to any Person: (i) any other Person
directly or indirectly controlling, controlled by or under common control with
the subject Person (including any partnership in which the subject Person serves
as a general partner, any corporation in which the subject Person owns greater
than 10% of the issued and outstanding voting capital stock or any limited
liability company or joint venture in which the subject Person owns greater than
10% of the equity interests of such limited liability company or joint venture);
(ii) any officer, director, trustee or general partner of the subject Person;
(iii) any individual which is a spouse, descendant (natural and adopted) or
ancestor (natural and adopted) of the subject Person, or (iv) any Person in
which more than 10% of the voting or beneficial interests are owned by a Person
who has a relationship with the subject Person described in clause (i), (ii) or
(iii) above; provided that, for the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by Contract or otherwise.
"BUSINESS" means the business of Seller, namely the design, advertisement,
sale and distribution of leisure travel products and services, including,
without limitation, charter and tour packages including transportation and/or
lodging.
"BUYER INDEMNIFIED PARTIES" means Buyer and its Affiliates and
Subsidiaries, and the officers, directors, shareholders, members, employees,
attorneys, agents and fiduciaries of any of the foregoing.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSENT" means any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of,
registration, certificate, declaration or filing with, or report or notice to,
any Person, including any Governmental Body.
"CONTRACT" means any agreement, contract, license, lease, obligation,
promise, or undertaking (whether written or oral and whether express or implied)
that is legally binding.
"GAAP" means United States generally accepted accounting principles.
"GOVERNMENTAL AUTHORIZATION" means any approval, consent, license, Permit,
waiver, or other authorization issued, granted, given, or otherwise made
available by or under the authority of any Governmental Body or pursuant to any
Legal Requirement.
"GOVERNMENTAL BODY" means any:
(a) federal, state, county, municipal, city, town, village,
district, or other jurisdiction or government of any nature;
(b) governmental or quasi-governmental authority or any nature
(including any governmental agency, branch, department, official, or other
entity and any court or other tribunal); or
(c) body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing
authority or power of any nature.
"LEGAL REQUIREMENT" means any federal, state, local, municipal or other
constitution, ordinance, regulation, statute, rule or other law adopted,
enacted, implemented, or promulgated by or under the authority of any
Governmental Body or by the eligible voters of any jurisdiction, and any
agreement, approval, consent, injunction, judgment, license, Order, or Permit by
or with any Governmental Body or to which Seller is a party or by which any of
Seller or the Purchased Assets are bound.
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"LIEN" means any mortgage, pledge, hypothecation, claim, security
interest, encumbrance, lease, sublease, license, occupancy agreement, adverse
claim or interest, easement, encroachment, burden, title defect, title retention
agreement, voting trust agreement, interest, equity, option, lien or right of
first refusal.
"ORDER" means any award, injunction, judgment, order, ruling, subpoena, or
verdict or other decision entered, issued, made, or rendered by any court,
administrative agency, or other Governmental Body or by any arbitrator.
"ORGANIZATIONAL DOCUMENTS" means (a) the articles or certificate of
incorporation and the bylaws of a corporation; (b) any charter or similar
document adopted or filed in connection with the creation, formation, or
organization of a Person (e.g., a certificate of formation, articles of
organization or certificate of limited partnership) and any agreement governing
such Person (e.g., a limited liability company agreement, operating agreement or
partnership agreement); and (c) any amendment to any of the foregoing.
"PERMITS" means all permits, licenses, approvals and authorizations by or
of any Governmental Body or any other party.
"PERSON" means any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, unincorporated association,
corporation, other entity or government (whether federal, provincial, state,
county, city or otherwise, including, but not limited to, any instrumentality,
division, agency or department thereof).
"PROCEEDING" means any claim, suit, litigation, arbitration, hearing,
audit, charge, investigation, or other action (whether civil, criminal,
administrative, investigative, or informal) commenced, brought, conducted, or
heard by or before, or otherwise involving, any Governmental Body, judge,
arbitrator or mediator.
"PROPRIETARY RIGHTS" means all intellectual property, confidential
information, and proprietary information owned by or licensed to Seller,
including, without limitation, registered company names and assumed names;
patents and patent applications (including all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof) and
patent disclosures and inventions (whether or not patentable and whether or not
reduced to practice); trademarks, service marks, trade dress, trade names and
company names, together with the goodwill of Seller associated with and
symbolized by such trademarks, service marks, trade dress, trade names and
company names, in each case whether or not registered; registered and
unregistered statutory and common law copyrights; domain names; all
registrations, applications, extensions and renewals for any of the foregoing;
trade secrets; lists of customers and potential customers; marketing and sales
data and research; computer software; business plans, ideas, formulae,
compositions, know-how, inventions, manufacturing and production processes and
techniques, research and development information, drawings, specifications, list
of suppliers, pricing and cost-information and records, blueprints, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, production methods, business and
marketing proposals, plans, improvements, works of authorship, proposals,
technical and computer data, databases, domain names, documentation and
software, financial, business and marketing plans, and related information and
other intellectual property, confidential information and proprietary rights.
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"SELLER INDEMNIFIED PARTIES" means Seller, OTV and their respective
Affiliates and Subsidiaries, and the officers, directors, shareholders,
employees, attorneys, agents and fiduciaries of any of the foregoing.
"STATEMENT OF FIXED ASSETS" [Omitted].
"TAX" means any and all federal, provincial, state, local or foreign
taxes, assessments and other governmental charges, duties, impositions and
liabilities relating to taxes, including taxes, assessments and other
governmental charges based on or measured by gross receipts, income, profits,
sales, use and occupation, and franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, registration, value added, place of business,
excise, natural resources, capital, severance, stamp, occupation, premium,
windfall profit, environmental, customs, (or similar) duties, real or immovable
property, personal or movable property, intangible property, capital stock,
social security, employment, unemployment, disability, payroll, license,
deductions at source employee or other withholding, or other tax, of any kind
whatsoever, including any interest, penalties or additions to tax or additional
amounts in respect of the foregoing; whether disputed or not, and including any
transferee or secondary liability in respect of any tax (whether by law,
contractual agreement, or otherwise) and any liability in respect of any tax as
a result of being a member of any affiliated, consolidated, combined, unitary,
or similar group.
"TAX RETURNS" means returns, declarations, reports, claims for refund,
information returns or other documents (including any related or supporting
schedules, statements or information and any amendment thereof) filed or
required to be filed in connection with the determination, assessment or
collection of any Taxes of any party or the administration of any laws,
regulations or administrative requirements relating to any Taxes.
"TRANSACTION DOCUMENTS" means each agreement being executed and delivered
by a party to this Agreement pursuant hereto.
ARTICLE II
PURCHASE AND SALE OF ASSETS
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2.1 PURCHASED ASSETS.
(a) Purchased Assets. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, Seller shall sell, transfer, convey,
assign and deliver to Buyer, and Buyer shall purchase from Seller, all of
Seller's right, title and interest in and to all Proprietary Rights of Seller
(collectively, the "PURCHASED ASSETS").
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(b) Excluded Assets. All assets of Seller other than the Proprietary
Rights of Seller are retained by Seller and are expressly excluded from the
purchase and sale contemplated by this Agreement (collectively, the "EXCLUDED
ASSETS").
2.2 LIABILITIES.
(a) Assumed Liabilities. On the terms and subject to the
conditions set forth in this Agreement, at the Closing, Buyer shall assume and
agree to fully and timely perform, pay, satisfy and discharge all the
liabilities and obligations arising under the Purchased Assets solely relating
to Buyer's use of the Purchased Assets subsequent to Closing (collectively, the
obligations and liabilities assumed under this Section 2.2, the "ASSUMED
LIABILITIES").
(b) Excluded Liabilities. Notwithstanding Section 2.2, Buyer shall
not assume, be or become liable for any claims, demands, liabilities or
obligations of Seller other than the Assumed Liabilities (the "EXCLUDED
LIABILITIES"), including, without limitation, any liability or obligation
whether arising prior to or subsequent to the Closing, arising out of the
Seller's operation of the Business prior to or subsequent to the Closing,
including, without limitation, any liability or obligation under any litigation
relating to or arising out of Seller's operation of the Business, relating to or
arising out of Seller's employment of persons prior to Closing (including under
the Federal Worker Adjustment and Retraining Notification Act of 1988, as
amended, and any successor law (the "WARN ACT"), or for any Taxes of Seller
arising out of the transactions contemplated by this Agreement.
2.3 CONVEYANCE AND ASSUMPTION. At the Closing, Seller and Buyer shall
execute and deliver a Bill of Sale, Assignment and Assumption Agreement in the
form reasonably acceptable to Buyer and Seller (the "BILL OF SALE"), pursuant to
which Seller shall convey to Buyer the Purchased Assets and Buyer shall assume
from Seller the Assumed Liabilities.
2.4 CONSIDERATION AND ALLOCATION.
(a) In consideration for the transfer and assignment of the
Purchased Assets, on an annual basis until the earlier of the seven (7) year
anniversary of the Closing or the termination of this Agreement, Buyer shall
assume, pay or otherwise cause the discharge, waiver, forgiveness or release of
an amount, measured at the full face amount, of Excluded Liabilities set forth
on Schedule 2.4(a) (the "BUYER CREDIT") equal to or greater than $1,200,000.
Buyer and Seller agree that the Buyer Credit shall be cumulative and shall be
carried forward to all future annual obligations until such Buyer Credit is
exhausted. In the event that during any annual period, the cumulative Buyer
Credit is less than $1,200,000, Buyer shall pay Seller the difference in cash.
Buyer shall pay each installment, if any, no later than ten days following the
yearly anniversary of the Closing. Notwithstanding anything to the contrary
contained in this Agreement, Buyer shall have no obligation to take any action
relating to any Excluded Liability at any time.
(b) All consideration paid pursuant to Section 2.4(a) shall be
allocated for tax purposes among the Purchased Assets and the other
consideration provided by Seller in accordance with the allocation as is
reasonably acceptable to Seller, which acceptance shall not be unreasonably
withheld. OTV, Buyer and Seller (a) agree to be bound, and to cause their
respective Affiliates to be bound, by such allocation, (b) shall act, and cause
their respective Affiliates to act, in accordance with such allocation in the
preparation, filing and audit of any Tax Return and for all other tax and
accounting purposes, and (c) shall not take any position or action inconsistent
with such allocation.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
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As a material inducement to Buyer to enter into this Agreement, Seller
represents and warrants to Buyer with respect to Seller, the Business, the
Purchased Assets, the Excluded Assets, the Assumed Liabilities and the Excluded
Liabilities, as applicable, and OTV represents and warrants to Buyer solely with
respect to the representations and warranties contained in Sections 3.1(c),
3.1(d), 3.2, 3.3(b), 3.5(b), 3.6(c), 3.7(b), and 3.8(b) (the representations and
warranties of Seller and OTV being several and not joint and not joint and
several), as follows:
3.1 AUTHORITY.
(a) Seller has the absolute and unrestricted right, power, authority
and capacity to execute and deliver, and to enter into and perform its
obligations under, this Agreement and each of the Transaction Documents to which
it is a party. The execution, delivery and performance of this Agreement and
each of the Transaction Documents by Seller and the consummation of the
transactions contemplated hereby by Seller have been duly and validly authorized
by all requisite corporate action, and no other proceedings on the part of
Seller are necessary to authorize the execution, delivery and performance of
this Agreement and each of the Transaction Documents to which it is a party.
This Agreement has been duly executed and delivered by Seller. Each of the
Transaction Documents to which Seller is a party will, at Closing, be duly
executed and delivered by Seller.
(b) Upon due execution and delivery, this Agreement and each of the
Transaction Documents to which Seller is a party will constitute the valid and
binding obligation of Seller, enforceable against Seller in accordance with
their respective terms, except (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors' rights generally,
(ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
(c) OTV has the absolute and unrestricted right, power, authority
and capacity to execute and deliver, and to enter into and perform its
obligations under, this Agreement and each of the Transaction Documents to which
it is a party. The execution, delivery and performance of this Agreement and
each of the Transaction Documents by OTV and the consummation of the
transactions contemplated hereby by OTV have been duly and validly authorized by
all requisite corporate action, and no other proceedings on the part of OTV are
necessary to authorize the execution, delivery and performance of this Agreement
and each of the Transaction Documents to which it is a party. This Agreement has
been duly executed and delivered by OTV. Each of the Transaction Documents to
which OTV is a party will, at Closing, be duly executed and delivered by OTV.
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(d) Upon due execution and delivery, this Agreement and each of the
Transaction Documents to which OTV is a party will constitute the valid and
binding obligation of OTV, enforceable against OTV in accordance with their
respective terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
3.2 OTV SHAREHOLDER AUTHORIZATION. The sale of the Purchased Assets
pursuant to this Agreement does not constitute all or substantially all of the
property and assets of OTV as such concept is defined under Delaware General
Corporation Law Section 271 and does not require the approval or consent of the
stockholders of OTV.
3.3 NO CONFLICT.
(a) Neither the execution and delivery of this Agreement or any
Transaction Document by Seller nor the performance by Seller of the transactions
contemplated hereby or thereby will conflict with or result in (with or without
notice or lapse of time or both) a violation, breach, or default under, or
result in the acceleration of or give rise to any party the right to terminate,
modify or cancel under, or result in the loss of any rights, privileges, options
or alternatives under, or result in the creation of any Lien on any of the
Purchased Assets as the case may be, of (i) any provision of Seller's
Organizational Documents, (ii) any resolution adopted by Seller's directors,
(iii) any Legal Requirement or any Order to which Seller or any of the Purchased
Assets may be subject, or (iv) any Contract or other agreement or instrument to
which Seller is a party or by which Seller or any of its properties or assets
are bound, other than in the case of this clause (iv) any such conflicts,
violations or defaults that, individually or in the aggregate, (A) have not had
and could not reasonably be expected to have a material adverse effect, and (B)
have not impaired and could not reasonably be expected to impair Seller's
ability to perform its obligations hereunder. No Governmental Authorization is
required to be obtained or made by Seller in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby by Seller, other than any required Consent in connection with the
transfer of any Permit.
(b) Neither the execution and delivery of this Agreement or any
Transaction Document by OTV or Seller nor the performance by OTV or Seller of
the transactions contemplated hereby or thereby to be performed by OTV or
Seller, respectively, will conflict with or result in (with or without notice or
lapse of time or both) a violation, breach, or default under, or result in the
acceleration of or give rise to any party the right to terminate, modify or
cancel under, or result in the loss of any rights, privileges, options or
alternatives under, or result in the creation of any Lien on any of the
Purchased Assets as the case may be, of (i) any Legal Requirement or any Order
to which OTV may be subject, or (ii) any Contract or other agreement or
instrument to which OTV is a party or by which OTV, or any of its properties or
assets other than the Seller or the properties or assets of the Seller, are
bound, other than in the case of this clause (ii) any such conflicts, violations
or defaults that, individually or in the aggregate, (A) have not had and could
not reasonably be expected to have a material adverse effect, and (B) have not
impaired and could not reasonably be expected to impair OTV's ability to perform
their respective obligations hereunder. No Governmental Authorization is
required to be obtained or made by OTV in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby by OTV. OTV is an "ultimate parent entity" within the meaning of Section
801.1(a)(3) of the rules of the Federal Trade Commission promulgated under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
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3.4 [OMITTED] .
3.5 LITIGATION.
(a) Except as set forth on Schedule 3.5(a) hereto, there is no
pending Proceeding that has been commenced or threatened in writing by or
against Seller that (i) challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the transactions
contemplated by this Agreement, or (ii) is by or against or relating to Seller
in connection with the Purchased Assets or the Business seeking unspecified
damages, damages in excess of $10,000 or any injunctive or other equitable
relief. There are no judgments unsatisfied against Seller or consent decrees or
injunctions to which Seller or the Purchased Assets are subject.
(b) Except as set forth on Schedule 3.5(b) hereto, there is no
pending Proceeding that has been commenced or threatened in writing by or
against OTV that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with, any of the transactions
contemplated by this Agreement.
3.6 TITLE.
(a) Seller is the sole and exclusive owner of and has good title to
the Purchased Assets, has not granted any option, right, privileges or license
to any third party that interferes or conflicts with the rights and privileges
granted to Buyer hereunder, and has the full and sufficient right and authority
to possess and convey, and, subject to the terms hereof, upon the consummation
of the transactions contemplated by this Agreement, Seller will have conveyed
and Buyer will be vested with, good and marketable title and interest in and to
the Purchased Assets and all rights therein, free and clear of any and all
Liens.
(b) To the knowledge of Seller, no claims or actions have been
asserted or are pending or threatened overtly in writing against Seller or
against any third party (i) based upon or challenging or seeking to expressly
deny or restrict the use of any of the Purchased Assets, (ii) alleging expressly
that any products or services manufactured, marketed or sold by Seller infringe
on any patent, trademark, copyright, or any other right of any third party or
(iii) alleging expressly that the use of the Purchased Assets does or may
infringe upon the rights of any third party.
(c) Prior to the Closing, OTV has sold, transferred, set over,
conveyed, assigned and delivered to Seller all interest held by OTV, if any, in
any Purchased Assets, which excludes all Toyota Scions.
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3.7 BROKERS OR FINDERS.
(a) Other than in connection with that certain Consulting Agreement,
dated October 26, 2005, by and among Seller, OTV and Crystal Finance LLC, none
of Seller or any of its Affiliates or agents other than OTV has incurred and no
action taken by Seller or any of its Affiliates or agents other than OTV in
connection with this Agreement or the Transaction Documents or any transaction
contemplated hereby or thereby, could be reasonably expected to give rise to any
valid claim against Seller or its Affiliates other than OTV, or any obligation
or liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement or the
Transaction Documents or the transactions contemplated hereby and thereby. Other
than in connection with that certain Consulting Agreement, dated October 26,
2005, by and among Seller, OTV and Crystal Finance LLC, none of OTV or any of
its Affiliates or agents other than Seller has incurred and no action taken by
OTV or any of its Affiliates or agents other than Seller in connection with this
Agreement or the Transaction Documents or any transaction contemplated hereby or
thereby, could be reasonably expected to give rise to any valid claim against
OTV or its Affiliates other than Seller, or any obligation or liability,
contingent or otherwise, for brokerage or finders' fees or agents' commissions
or other similar payment in connection with this Agreement or the Transaction
Documents or the transactions contemplated hereby and thereby.
3.8 DUE INCORPORATION.
(a) Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Seller has full corporate
power and authority to carry on the Business as presently conducted and to own
or lease and to operate the properties of the Business presently owned or leased
and operated.
(b) OTV is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
3.9 ABSENCE OF UNDISCLOSED LIABILITIES : EXCEPT AS SET FORTH IN SCHEDULE
3.5(A), Seller has no known existing debts, claims, commitments, liabilities or
obligations of any nature arising out of or relating to the Purchased Assets.
3.10 [OMITTED]
3.11 [OMITTED]
3.12 COMPLIANCE WITH LAWS; GOVERNMENTAL APPROVALS AND CONSENTS.
(a) To the knowledge of Seller, Seller has complied in all material
respects with all Applicable Laws required to be complied with by Seller
applicable to the Purchased Assets.
(b) [Omitted]
(c) All Governmental Authorizations and Consents have been duly
obtained and are in full force and effect, to the extent required and Seller is
in compliance in all material respects with each of such Governmental
Authorizations and Consents held by it with respect to the Purchased Assets.
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3.13 [OMITTED].
3.14 [OMITTED].
3.15 PROPRIETARY RIGHTS.
(a) None of the Proprietary Rights owned by Seller is subject to any
Lien in favor of any third party. None of Seller's rights in or to any of its
Proprietary Rights shall be adversely affected by its execution or delivery of
this Agreement or by the performance of its obligations hereunder. No claims
with respect to any Proprietary Rights have been asserted or, to Seller's
knowledge, threatened by any Person (i) against Seller, or (ii) to Seller's
knowledge, against any other Person based on its use of any of the Proprietary
Rights. To the knowledge of Seller, no use of any of the Proprietary Rights by
any Person (including Seller) constitutes or has constituted an unauthorized
use, infringement, misappropriation or other violation of the intellectual
property or rights therein of any other Person and no valid grounds exist for
any bona fide claims against Seller or any such Person with respect to any
Proprietary Rights. Without limiting the generality of the foregoing, no Person
ever employed or otherwise engaged by Seller has asserted or, to Seller's
knowledge, threatened any claim against Seller alleging infringement,
misappropriation or violation of any rights of such Person's intellectual
property or rights therein or alleging or claiming any right or interest in or
to the Proprietary Rights. To the knowledge of Seller, there has not been, nor
is there presently, any unauthorized use, infringement, misappropriation or
violation of any of the Proprietary Rights by any Person. Seller has the full
right to possess, use, copy, distribute, display, transfer and license all
Proprietary Rights used in the Business or covering any aspect of the Business.
(b) No Proprietary Rights are subject to any outstanding order,
award, decision, injunction, judgment, decree, stipulation or agreement in any
manner restricting the transfer, use, enforcement or licensing thereof by
Seller. Seller has not entered into any agreement to indemnify any other Person
against any charge of infringement of any Proprietary Rights, except in
connection with certain customer contracts made in the ordinary course of its
business. Seller has not entered into any agreement granting any third party the
right to bring infringement actions with respect to, or otherwise to enforce
rights with respect to, any of the Proprietary Rights.
(c) To the knowledge of Seller, Seller has paid all material fees,
annuities and all other payments which have heretofore become due to any
Governmental Body with respect to the Proprietary Rights Seller has not
transferred its title in or to any of the Proprietary Rights. To the knowledge
of Seller, no Proprietary Rights (including any source code and any algorithm or
documentation contained in or relating to such source code) has been supplied by
Seller to any Person except pursuant to a binding license prohibiting further
distribution and disclosure. All computer programs and software which are owned,
used or licensed by Seller, and all computer programs and software transferred
by Seller to its customers or any other transferees, conform in all material
respects with all specifications, representations, warranties and other
descriptions established by Seller or conveyed thereby to its customers or other
transferees.
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(d) To the knowledge of Seller, all work performed by each of the current
employees, independent contractors and consultants of Seller, and each of the
former employees, independent contractors and consultants of Seller, was a "work
made for hire" within the meaning of and pursuant to 17 U.S.C. ss.101.
(e) No event or circumstance has occurred, will occur, exists, will exist
or is contemplated (including, without limitation, by the authorization,
execution or delivery of this Agreement or the consummation of any of the
transactions contemplated hereby) that (with or without notice or the lapse of
time) will or could reasonably be expected to result in the release, disclosure
or delivery to any third party of any part of any source code (or any algorithm
or documentation contained in or relating to any source code) underlying any
Proprietary Rights.
3.16 [OMITTED]
3.17 [OMITTED].
3.18 [OMITTED].
3.19 DISCLOSURE. Assuming the accuracy of the representation and warranty
of Buyer contained in Section 4.5, this Agreement (including the Exhibits and
Schedules referred to herein) and the documents and instruments furnished to
Buyer in connection with the Closing of the transactions contemplated by this
Agreement, taken together as a whole, do not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading. Anything in this Agreement to the contrary
notwithstanding, Seller makes no representations or warranties with respect to
any projections, forecasts or other similar forward-looking statements.
3.20 NO RETENTION AGREEMENTS, ETC. There are no retention agreements,
severance agreements, change of control agreements and similar arrangements to
which Seller, on the one hand, and any employee, consultant or other Person, on
the other hand, are a party.
3.21 REAL PROPERTY HOLDING COMPANY. Seller is not a real property holding
company within the meaning of Section 897 of the Code.
3.22 [OMITTED]
3.23 INSURANCE. The insurance plans and policies maintained by, or
otherwise benefiting, Seller or the Business (collectively, the "INSURANCE
POLICIES") To Seller's knowledge, the Insurance Policies are currently and have
been at all times during their respective policy periods in full force and
effect and such policies are and have been during all times of the operation of
the Business by Seller reasonably adequate and sufficient to protect the
operation and assets of the Business.
11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
As a material inducement to Seller to enter into this Agreement, Buyer
represents and warrants to, and covenants with, Seller as follows:
4.1 AUTHORITY.
(a) Buyer has the absolute and unrestricted right, power, authority
and capacity to execute and deliver, and to enter into and perform its
obligations under, this Agreement and each of the Transaction Documents to which
it is a party. The execution, delivery and performance of this Agreement and
each of the Transaction Documents by Buyer and the consummation of the
transactions contemplated hereby by Buyer have been duly and validly authorized
by all requisite corporate action, and no other proceedings on the part of Buyer
are necessary to authorize the execution, delivery and performance of this
Agreement and each of the Transaction Documents to which it is a party. This
Agreement has been duly executed and delivered by Buyer. Each of the Transaction
Documents to which Buyer is a party will, at Closing, be duly executed and
delivered by Buyer.
(b) Upon due execution and delivery, this Agreement and each of the
Transaction Documents to which Buyer is a party will constitute the valid and
binding obligation of Buyer, enforceable against Buyer in accordance with their
respective terms, except (i) as limited by general equitable principles and
applicable bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies, and (iii) insofar as
indemnification and contribution provisions may be limited by applicable law.
4.2 No Conflict. Neither the execution and delivery of this Agreement or
any Transaction Document by Buyer nor the performance by Buyer of the
transactions contemplated hereby or thereby will conflict with or result in
(with or without notice or lapse of time) a violation or breach, as the case may
be, of (a) any provision of Buyer's Organizational Documents, (b) any resolution
adopted by Seller's directors, or (c) any Legal Requirement or any Order to
which Buyer or any of the Purchased Assets may be subject.
4.3 Litigation. Other than with respect to the Mexicana claim as described
in Schedule 3.5 (a) There is no pending Proceeding that has been commenced or
threatened in writing by or against Buyer that challenges, or that may have the
effect of preventing, delaying, making illegal, or otherwise interfering with,
any of the transactions contemplated by this Agreement.
4.4 [Omitted].
4.5 Brokers and Finders. None of Buyer or its Affiliates or agents has
incurred any obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement or the Transaction Documents or the transactions contemplated
hereby.
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4.6 Withholding of Information. To Buyer's knowledge after due
investigation with respect to Seller's Business, there are no material Contracts
or liabilities of Seller that are not disclosed on a schedule to this Agreement,
and there are no other violations of Seller's or OTV's representations or
warranties existing that could reasonably be expected to give rise to Seller's
or OTV's obligation to indemnify Buyer or any other Buyer Indemnified Party
pursuant to ARTICLE IX of this Agreement or otherwise. In the event of any
breach of this Section 4.6, (a) the matter, fact or circumstance at issue
omitted from one or more schedules to the Agreement (an "OMITTED MATTER") shall
be deemed for all purposes to have been disclosed as required on one or more
schedules hereto, including as an Assumed Liability as appropriate, (b) neither
Seller nor OTV shall have any liability to indemnify any Buyer Indemnified Party
pursuant to ARTICLE IX of this Agreement or otherwise with respect to the
liability arising from the Omitted Matter, and (c) Seller and OTV shall not have
a claim against Buyer for a breach of this Section 4.6.
ARTICLE V
INTENTIONALLY DELETED
---------------------
5.1 [OMITTED].
5.2 [OMITTED].
ARTICLE VI
----------
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS TO EACH PARTY'S OBLIGATION. The respective obligation of
each party hereto to effect the transactions contemplated hereby shall be
subject to the satisfaction as of the Closing Date of the following conditions:
(a) no provision of any applicable law shall prohibit the consummation of the
Closing and no suit, action or Proceeding by any third party or Governmental
Body with respect to the transactions contemplated hereby shall be pending or
Threatened in writing and (b) other than with respect to the Mexicana litigation
as described in Schedule 3.5(a) no injunction, restraining order or Order of any
nature shall have been issued by or be pending before any court of competent
jurisdiction or any other Governmental Body challenging the validity or legality
of the transactions contemplated hereby or restraining or prohibiting the
consummation of such transactions.
6.2 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to effect
the transactions contemplated hereby is subject to the fulfillment of the
following conditions on or prior to the Closing Date (unless otherwise waived in
writing by Buyer)
(a) Representations and Warranties. The representations and
warranties made by Seller herein that are qualified by materiality shall be true
and correct in all respects and the representations and warranties made by
Seller herein that are not qualified by materiality shall be true and correct in
all material respects, each on the date hereof and on and as of the Closing Date
with the same force and effect as though such representations and warranties had
been made on and as of the Closing Date, except to the extent that any such
representation and warranty is specifically made as of a certain date, in which
case such representation and warranty shall be true and correct in all respects
or in all material respects, as applicable, as of such date, and Seller shall
have delivered a certificate to Buyer executed by the President of Seller which
certifies to the foregoing;
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(b) Performance of Obligations of Seller. Seller shall have
performed or complied in all respects with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by Seller on or before the Closing, and at such time Seller shall
not be in default in the performance of or compliance with any of the provisions
of the Agreement or the Transaction Documents to which Seller is a party, and
Seller shall have delivered a certificate to Buyer executed by the President of
Seller which certifies to the foregoing (such certificates, together with the
certificates referred to in Section 6.2(a), the "SELLER'S CERTIFICATES");
(c) Delivery of Closing Documents. Buyer shall have received all
documents and other items to be delivered under Section 7.2;
6.3 CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to effect
the transactions contemplated hereby are subject to the fulfillment of the
following conditions on or prior to the Closing Date (unless otherwise waived in
writing by Seller):
(a) Representations and Warranties. The representations and warranties
made by Buyer herein that are qualified by materiality shall be true and correct
in all respects and the representations and warranties made by Seller herein
that are not qualified by materiality shall be true and correct in all material
respects, each on the date hereof and on and as of the Closing Date with the
same force and effect as though such representations and warranties had been
made on and as of the Closing Date, except to the extent that any such
representation and warranty is specifically made as of a certain date, in which
case such representation and warranty shall be true and correct in all respects,
or in all material respects, as applicable, as of such date, and Buyer shall
have delivered a certificate to Seller executed by a senior executive of Buyer
to Seller which certifies to the foregoing;
(b) Performance of Obligations of Buyer. Buyer shall have performed or
complied in all respects with all agreements, obligations and conditions
contained in this Agreement that are required to be performed or complied with
by it on or before the Closing, and at such time Buyer shall not be in default
in the performance of or compliance with any of the provisions of this Agreement
or the Transaction Documents to which Buyer is a party, and Buyer shall have
delivered a certificate executed by a senior executive of Buyer to Seller which
certifies to the foregoing (such certificate, together with the certificate
referred to in SECTION 6.3(A), THE "BUYER'S CERTIFICATES");
(c) My Travel Release. A general release on behalf of Seller and OTV with
respect to any claim relating to or arising out of the guarantee by OTV in favor
of MyTravel USA Holdings, Inc. of the Purchase Price Note dated October 31, 2003
in the amount of $5,000,000 from Seller in favor of MyTravel USA Holdings, Inc.
or any other obligations of OTV to MyTravel USA Holdings, Inc. Upon delivery of
the release, Buyer shall receive a credit against the purchase price for the
amount as reflected in Schedule 2.4(a).
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(d) Delivery of Closing Documents. Seller shall have received all
documents and other items to be delivered under Section 7.3; and
ARTICLE VII
CLOSING
-------
7.1 CLOSING. The transactions that are the subject of this Agreement shall
be consummated at a closing (the "CLOSING") which shall be held at the offices
of Proskauer Rose LLP, 1585 Broadway, New York, New York 10036 (or at such other
place or in such other manner as the parties may mutually agree) on a date
mutually satisfactory to all parties, but in no event later than two (2)
business days after satisfaction or waiver of the conditions set forth in
ARTICLE VI (other than the conditions that by their terms shall be or must
necessarily be satisfied at the Closing). The date of the Closing is sometimes
referred to herein as the "CLOSING DATE".
7.2 DELIVERIES BY SELLER. At the Closing, Seller shall deliver to Buyer
the following (or the same shall be waived in writing by Buyer), all of which
shall be deemed to be delivered simultaneously:
(a) Instruments of Conveyance. The Bill of Sale duly executed by
Seller and instruments of conveyance for any Seller Proprietary Rights
reasonably requested by Buyer in form and substance reasonably satisfactory to
Buyer;
(b) Seller's Certificates. Duly executed Seller's Certificates;
(c) Possession of Purchased Assets. Legal and actual possession of
the Purchased Assets;
(d) Opinion of OTV's Delaware Counsel. An opinion from OTV's
Delaware legal counsel stating, subject to customary qualifications and
assumptions for an opinion with respect to such subject matter, that the
approval of the stockholders of OTV is not required in connection with the
transactions contemplated hereby; and
(e) Other Documents. Such other documents as Buyer may reasonably
request for the purpose of consummating the transactions contemplated by this
Agreement, including without limitation a document evidencing credit against the
Buyer Credit pursuant to Section 2.4(a) in the amount provided in Schedule
2.4(a) for obtaining the release from MyTravel..
7.3 DELIVERIES BY BUYER. At the Closing, Buyer shall deliver to Seller the
following (or the same shall be waived in writing by Seller), all of which shall
be deemed to be delivered simultaneously:
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(a) Instruments of Assumption. The Bill of Sale duly executed by
Buyer;
(b) Buyer's Certificates. Duly executed Buyer's Certificates; and
(c) Other Documents. Such other documents as Seller may reasonably
request for the purpose of consummating the transactions contemplated by this
Agreement, including without limitation the MyTravel Release.
ARTICLE VIII
COVENANTS AFTER CLOSING
-----------------------
8.1 TERMINATION OF AGREEMENT BY BUYER.
(a) This Agreement may be terminated by Buyer at any time subsequent
to the Closing in the event that any order, decree or judgment of any court of
Governmental Body having competent jurisdiction ("Order") modifies the Buyer's
Credit pursuant to Section 2.4(a) hereof. Any right to terminate hereunder shall
be exercised if, at all, within the earlier of: (a) twenty (20) days after the
Order; or (b) such earlier date as required to comply with the Order.
(b) If Buyer terminates this Agreement pursuant to this Section 8.1,
all rights and obligations of the parties hereunder shall terminate without any
liability of any party to any other party, except as specified below; provided,
however, that the provisions contained in Section 10.7 (Expenses), Section 10.9
(Consent to Jurisdiction; Forum Selection; Governing Law; Waiver of Jury Trial)
and Section 10.15 (Interpretive Matters) shall survive termination of this
Agreement. If this Agreement is terminated pursuant to Section 8.1(a) above,
Seller and OTV each agree that their sole and exclusive remedy shall be that
Buyer will redeliver to Seller all Purchased Assets provided by Seller in
accordance with the transactions contemplated by this Agreement and the
Transaction Documents and, in the event such termination is pursuant to
applicable bankruptcy law, Buyer shall be entitled to an allowed super-priority
administrative claim pursuant to the United States Bankruptcy Code having
priority in right of payment over any and all other obligations, liabilities and
indebtedness of the Seller, now in existence or hereafter incurred by Seller and
over any and all administrative expenses or priority claims of any kind
specified in, or ordered pursuant to, the United States Bankruptcy Code. Upon
the termination of this Agreement, Buyer shall have no obligation to make any
payment under Section 2.4(a).
8.2 SELLER'S AND OTV'S ACCESS TO INFORMATION. After the Closing Date,
Buyer will give, or cause to be given, to Seller, OTV and their representatives,
during normal business hours, such reasonable access to the personnel,
properties, titles, contracts, books, records, files and documents included in
the Purchased Assets and, at Seller's expense, access to and copies of titles,
contracts, books, records, files and documents included in the Purchased Assets,
in each case to the extent reasonably necessary to allow Seller to obtain
information in connection with the preparation and any audit of Seller's Tax
Returns and any claims, demands, other audits, suits, actions or Proceedings by
or against Seller as the previous owners and operators of the Purchased Assets
and the Business.
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8.3 BUYER'S ACCESS TO INFORMATION. After the Closing Date, Seller and OTV
will cooperate to give to Buyer and its representatives, during normal business
hours, such reasonable access to the personnel, properties, titles, contracts,
books, records, files and documents of Seller not included in the Purchased
Assets and, at Buyer's expense, access to and copies of titles, Contracts,
books, records, files and documents not included in the Purchased Assets to the
extent reasonably necessary to allow Buyer to obtain information in connection
with the operation of the Business, the preparation and any audit of Buyer's Tax
Returns and any claims, demands, other audits, suits, actions or Proceedings by
or against Buyer as the owner and operator of the Purchased Assets and the
Business or as is reasonably necessary to enjoy the full benefit of any of the
Purchased Assets.
8.4 LIABILITY FOR TAXES; RETENTION OF RECORDS. In accordance with ARTICLE
IX, Seller shall indemnify and hold Buyer harmless from and against all
liabilities for Taxes imposed upon, or incurred by, Seller at any time or
attributable to the operation of the Business of Seller prior to the time of the
Closing. Buyer and Seller shall retain all books, records and other data
pertaining to Tax matters with respect to the operation of the Business of
Seller and the Purchased Assets for all open periods through the Closing Date.
In particular, Buyer and Seller shall retain all Tax Returns, schedules and work
papers, and all material records and other documents relating thereto with
respect to the operation of the Business of Seller and the Purchased Assets
prior to the Closing Date, until the expiration of the statute of limitations
(and, to the extent notified by Buyer or Seller, any extensions thereof) of the
respective Tax periods, or for any longer periods as may be required by any
Governmental Authority or ongoing litigation, and shall make such records
reasonably available at reasonable times upon reasonable notice to Seller, as
may be reasonably required. Seller and OTV hereby grant Buyer the right, but not
the obligation, to settle any Proceeding relating to any Tax.
8.5 INSURANCE. From and after the Closing Date, Seller shall maintain each
Insurance Policy as necessary to allow the recovery of any pending or current
claim under any such Insurance Policy.
ARTICLE IX
INDEMNIFICATION
---------------
9.1 INDEMNIFICATION BY SELLER. Subject to the other provisions of this
Article IX, from and after the Closing, Seller agrees to indemnify, defend and
save each Buyer Indemnified Parties harmless from and against, and to promptly
pay to each Buyer Indemnified Party or reimburse each Buyer Indemnified Party
for, any and all liabilities (whether contingent, fixed or unfixed, liquidated
or unliquidated, or otherwise), obligations, deficiencies, demands, claims,
suits, actions, or causes of action, assessments, losses, costs, expenses,
interest, fines, penalties, actual or punitive damages or costs or expense of
any and all investigations, Proceedings, judgments, environmental analysis,
remediations, settlements and compromises (including reasonable fees and
expenses of attorneys, accountants and other experts) (individually and
collectively, the "LOSSES") sustained or incurred by such Buyer Indemnified
Party relating to, resulting from, arising out of, or otherwise by virtue of,
any of the following:
17
(a) any breach of a representation or warranty made herein by
Seller;
(b) any non-compliance with or breach by Seller of any of the
covenants or agreements contained in this Agreement to be performed by Seller;
(c) any liability or obligation of Seller or any assertion against a
Buyer Indemnified Party, arising out of or relating, directly or indirectly, to
any of the Excluded Liabilities (exclusive of those liabilities listed in
Schedule 2.4(a) or Excluded Assets, except for any claim arising from the
pending litigation with Mexicana, as described in Schedule 3.5(a) for which, for
purposes of clarification, Seller shall be obligated to indemnify the Buyer
Indemnified Parties pursuant to this Section 9.1);
(d) the ownership, operation or use of the Purchased Assets prior to
the time of the Closing;
(e) any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement based upon an alleged agreement between claimant and Seller, or
any of its respective Affiliates; and
(f) any claim arising out of or relating to this Agreement or the
transactions contemplated by this Agreement relating to fraudulent conveyance of
the Purchased Assets or any similar claim or theory of liability relating to
Buyer's failure to pay sufficient or adequate consideration for the Purchased
Assets; and
(g) any failure by Seller to comply with any bulk sales laws
applicable to the transactions contemplated hereby.
Notwithstanding the foregoing, Losses for purposes of Section 9.2 shall be
limitied to actual out of pocket expenses incurred by Buyer with a duty to
mitigate Losses in all reasonable respects. Consequential, unfixed and
contingent losses shall not be included in Losses for purposes of Section
9.2.
9.2 INDEMNIFICATION BY OTV. Subject to the other provisions of this
Article IX, from and after the Closing, OTV agrees to indemnify, defend and save
each Buyer Indemnified Parties harmless from and against, and to promptly pay to
each Buyer Indemnified Party or reimburse each Buyer Indemnified Party for, any
and all Losses sustained or incurred by such Buyer Indemnified Party relating
to, resulting from, arising out of, or otherwise by virtue of, any of the
following:
(a) any breach of a representation or warranty made herein by OTV;
(b) any non-compliance with or breach by OTV of any of the covenants
or agreements contained in this Agreement to be performed by OTV; and
(c) any claim arising out of or relating to any act or omission by
OTV under or relating to this Agreement or the transactions contemplated by this
Agreement, including, relating to a theory of liability relating to an
allegation that Buyer did not pay sufficient or adequate consideration for the
Purchased Assets; and
18
(d) any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement based upon an alleged agreement between claimant and OTV, or any
of its respective Affiliates.
9.3 INDEMNIFICATION BY BUYER. Subject to the other provisions of this
Article IX, from and after the Closing, Buyer agrees to indemnify, defend and
save Seller Indemnified Parties harmless from and against, and to promptly pay
to each Seller Indemnified Party or reimburse each Seller Indemnified Party for,
any and all Losses sustained or incurred by such Seller Indemnified Party
relating to, resulting from, arising out of, or otherwise by virtue of, any of
the following:
(a) any breach of a representation or warranty made herein by Buyer;
(b) any non-compliance with or breach by Buyer of any of the
covenants or agreements contained in this Agreement to be performed by Buyer;
(c) any liability or obligation of Buyer or any assertion against a
Seller Indemnified Party, arising out of or relating, directly or indirectly, to
any of the Assumed Liabilities;
(d) the ownership, operation or use of the Purchased Assets
following the Closing other than with respect to or in connection with the
Excluded Liabilities. For purposes of clarification and not limitation, Buyer
shall not be liable under this Section 9.3 or otherwise for any Losses arising
from or relating to the use or ownership of the Purchased Assets prior to the
Closing; and
(e) any claim for payment of fees and/or expenses as a broker or
finder in connection with the origin, negotiation, execution or consummation of
this Agreement based upon an alleged agreement between claimant and any of Buyer
or its Affiliates.
9.4 INDEMNIFICATION PROCEDURE FOR THIRD PARTY CLAIMS.
(a) In the event that subsequent to the Closing any Person entitled
to indemnification under this Agreement (an "INDEMNIFIED PARTY") asserts a claim
for indemnification or receives notice of the assertion of any claim or of the
commencement of any action or Proceeding by any Person who is not a party to
this Agreement or an Affiliate of a party to this Agreement (including, but not
limited to, any domestic or foreign court or Governmental Body) (a "THIRD PARTY
CLAIM") against such Indemnified Party, relating to a matter for which a party
to this Agreement is required to provide indemnification under this Agreement
(an "INDEMNIFYING PARTY"), the Indemnified Party shall give written notice
regarding such claim (and attaching a copy of all papers served with respect to
such claim) to the Indemnifying Party within thirty (30) days after learning of
such claim (the "CLAIM NOTICE"). The Indemnifying Party shall have the right,
upon written notice to the Indemnified Party (the "DEFENSE NOTICE") within
thirty (30) days after receipt from the Indemnified Party of the Claim Notice,
to conduct at its expense the defense against such claim in its own name, or, if
necessary, in the name of the Indemnified Party. Notwithstanding the foregoing,
the Indemnifying Party shall not be entitled to assume control of a Third Party
Claim and shall pay the reasonable fees and expenses of counsel retained by the
Indemnified Party if the Third Party Claim (i) seeks injunctive or other
equitable relief, or (ii) involves criminal allegations against the Indemnified
Party.
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(b) In the event that the Indemnifying Party shall fail to give the
Defense Notice within the time period described above, it shall be deemed to
have elected not to conduct the defense of the subject claim, and in such event
the Indemnified Party shall have the right to conduct such defense in good faith
and to compromise and settle the claim without prior consent of the Indemnifying
Party and such Indemnifying Party will be liable for all reasonable costs and
expenses paid or incurred in connection therewith. The Indemnified Party may not
settle the Third Party Claim without the written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld, if such settlement
would lead to any liability or create any other obligation of the Indemnifying
Party.
(c) In the event that the Indemnifying Party does deliver a Defense
Notice within the time period described above and thereby elects to conduct the
defense of the subject claim, the Indemnifying Party shall diligently conduct
such defense and the Indemnified Party will cooperate with and make available to
the Indemnifying Party such assistance and materials as it may reasonably
request, all at the expense of the Indemnifying Party, and the Indemnified Party
shall have the right at its expense to participate in the defense assisted by
counsel of its own choosing.
(d) The Indemnifying Party may enter into any settlement of any
Third Party Claim; provided, however, the Indemnifying Party may not enter into
any settlement of any Third Party Claim without the prior written consent of the
Indemnified Party if pursuant to or as a result of such settlement injunctive or
other equitable relief would be imposed against the Indemnified Party.
(e) Any final judgment entered or settlement agreed upon in the
manner provided herein shall be binding upon the Indemnifying Party, and shall
conclusively be deemed to be an obligation with respect to which the Indemnified
Party is entitled to prompt indemnification hereunder.
(f) Each party shall cooperate, and cause their respective
Affiliates to cooperate, in the defense or prosecution of any Third Party Claim
and shall provide reasonable access upon reasonable notice at reasonable times
to properties and individuals as reasonably requested and furnish or cause to be
furnished records, information and testimony, all at the expense of the
Indemnifying Party.
9.5 DIRECT CLAIMS. It is the intent of the parties hereto that all direct
claims by an Indemnified Party against a party hereto not arising out of Third
Party Claims shall be subject to and benefit from the terms of this Section 9.5.
Any claim under this Section 9.5 by an Indemnified Party for indemnification
other than indemnification against a Third Party Claim (a "DIRECT CLAIM") will
be asserted by giving the Indemnifying Party written notice thereof (a "DIRECT
CLAIM NOTICE"), and the Indemnifying Party will have a period of thirty (30)
days within which to satisfy such Direct Claims, except for injunctive or
equitable relief, which the Indemnified Party may pursue at any time. The
Indemnifying Party shall only be deemed to reject such claim if it sends notice
thereof to the Indemnified Party within such thirty (30) day period, in which
event the Indemnified Party will be free to pursue such remedies as may be
available to the Indemnified Party under this ARTICLE IX or otherwise. If the
Indemnifying Party does not so respond within such thirty (30) day period, the
Indemnifying Party will be deemed to have accepted such claim.
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9.6 FAILURE TO GIVE TIMELY NOTICE. A failure by an Indemnified Party to
give timely, complete or accurate notice as provided in this ARTICLE IX will not
affect the rights or obligations of the Indemnifying Party hereunder except and
only to the extent that, as a result of such failure, any party entitled to
receive such notice was deprived of its right to recover any payment under its
applicable insurance coverage or was otherwise materially damaged as a result of
such failure to give timely notice.
9.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations
and warranties set forth in this Agreement or in any of the other Transaction
Documents shall survive the execution and delivery of this Agreement and the
consummation of the transactions until they expire and terminate on the date one
(1) year after the Closing Date, except the representations and warranties
contained in Sections 3.1(a), 3.1(c), 3.2, 3.6(a) and 4.1(a) which shall survive
indefinitely, and Section 3.10, which shall survive until the expiration of the
applicable statute of limitations.
9.8 CERTAIN LIMITATIONS. Notwithstanding anything to the contrary set
forth in this Agreement (but subject to the terms of this Section 9.8), other
than Losses arising out of fraud or willful misconduct of a party hereto, the
obligation hereunder of any Indemnifying Party shall not include any special,
punitive or consequential damages.
ARTICLE X
MISCELLANEOUS
-------------
10.1 NOTICES, CONSENTS, ETC. Any notices, consents or other communication
required to be sent or given hereunder by any of the parties shall in every case
be in writing and shall be deemed properly served (a) when personally delivered,
(b) one (1) business day following delivery by sender to a nationally-recognized
overnight courier service for pre-paid delivery on the succeeding business day,
and (c) upon facsimile transmission (provided such facsimile machine emits a
transmission confirmation), if such transmission occurs prior to 5:00 pm
recipient's time on a business day so long as such notice is also sent by
nationally recognized overnight courier for the following business day, or on
the next succeeding business day if such transmission occurs at or after 5:00 pm
recipient's time on a business day or on a day other than a business day so long
as such notice is also sent by nationally recognized overnight courier for the
following business day, in each case to the respective mailing addresses of each
party hereto as provided below:
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(a) If to Buyer:
Crystal Hospitality Group, Inc.
641 Shunpike Road, Suite 333
Chatham, New Jersey 07928
Attn: Fabrizzio P. Busso-Campana
Fax: (908) 349-3043
with a copy to (which shall not constitute notice):
Proskauer Rose LLP
1585 Broadway
New York, New York 10036-8299
Attn: Sheldon I. Hirshon, Esq.
Fax: (212) 969-2900
(b) If to Seller or OTV:
1200 Lake Hearn Drive
Suite 300
Atlanta, Georgia 30319
Attention: Marc E. Bercoon
Fax No.:(404) 943-1094
with a copy to (which shall not constitute notice):
Katten Muchin Rosenman LLP
525 West Monroe Street
Chicago, Illinois 60661-3693
Attention: Matthew S. Brown, Esq.
Mark D. Guidubaldi, Esq.
Fax No.:(312) 902-1061
10.2 PUBLIC ANNOUNCEMENTS. No party hereto shall make any public
announcement or filing with respect to the transactions provided for herein
without the prior written consent of the other parties hereto (which consent
shall not be unreasonably withheld or delayed), except as required by any Legal
Requirement (including, but not limited to rules and regulations of the
Securities Exchange Commission or the American Stock Exchange). Buyer
acknowledges that upon each of the execution of this Agreement and the Closing
OTV will issue a press release announcing the transactions contemplated herein,
and the terms thereof, and file this Agreement and the Transaction Documents as
publicly-available exhibits to a Current Report on Form 8-K with the Securities
Exchange Commission.
10.3 SEVERABILITY. The unenforceability or invalidity of any provision of
this Agreement shall not affect the enforceability or validity of any other
provision.
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10.4 AMENDMENT AND WAIVER. This Agreement, or any provision hereof may be
amended or waived; provided that any such amendment or waiver will be binding on
Buyer only if such amendment or waiver is set forth in a writing executed by
Buyer; provided further that any such amendment or waiver will be binding upon
Seller only if such amendment or waiver is set forth in a writing executed by
Seller; provided further that any such amendment or waiver will be binding upon
OTV only if such amendment or waiver is set forth in a writing executed by OTV.
The waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other breach.
10.5 COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement and shall become effective
when one or more counterparts have been signed by each of the parties hereto and
delivered to the other.
10.6 DELIVERY BY FACSIMILE. This Agreement, the Transaction Documents and
each other agreement or instrument entered into in connection herewith or
therewith or contemplated hereby or thereby, and any amendments hereto or
thereto, to the extent signed and delivered by means of a facsimile machine,
shall be treated in all manner and respects and for all purposes as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person. At
the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation or enforceability of a contract and each such party forever waives any
such defense.
10.7 EXPENSES. Except as otherwise expressly set forth herein, each of
Seller and OTV, on the one hand, and Buyer, on the other hand, shall pay all
costs and expenses incurred or to be incurred by it in negotiating and preparing
this Agreement and in closing and carrying out the transactions contemplated by
this Agreement.
10.8 HEADINGS. The subject headings of Articles and Sections of this
Agreement are included for purposes of convenience of reference only and shall
not affect the construction or interpretation of any of its provisions.
10.9 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
INTERPRETATION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO PROVISIONS
THEREOF REGARDING CONFLICT OF LAWS. THE PARTIES HERETO HEREBY IRREVOCABLY SUBMIT
TO THE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF
DELAWARE.
10.10 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
OR EVENTS CONTEMPLATED HEREBY OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THE
PARTIES EACH AGREE THAT ANY AND ALL SUCH CLAIMS AND CAUSES OF ACTION SHALL BE
TRIED BY THE COURT WITHOUT A JURY. EACH OF THE PARTIES FURTHER WAIVES ANY RIGHT
TO SEEK TO CONSOLIDATE ANY SUCH LEGAL PROCEEDING IN WHICH A JURY TRIAL HAS BEEN
WAIVED WITH ANY OTHER LEGAL PROCEEDING IN WHICH A JURY TRIAL CANNOT OR HAS NOT
BEEN WAIVED.
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10.11 ASSIGNMENT. This Agreement will be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, but will not be assignable or delegable by any party without the prior
written consent of the other party, which shall not be unreasonably withheld or
delayed; provided, however, that each of Buyer, Seller and OTV shall be allowed
to assign its rights and benefits hereto to an Affiliate thereof so long as such
Affiliate assumes all obligations hereunder of Buyer or Seller and OTV, as
applicable; and provided, further, that OTV shall be allowed to assign its
rights and benefits hereto to any acquirer (by purchase, merger or otherwise) of
substantially all of the common stock or assets of OTV, provided that such
successor assumes all obligations of OTV hereunder.
10.12 ENTIRE AGREEMENT. This Agreement, the Recitals and all the Schedules
and Exhibits attached to this Agreement (all of which shall be deemed
incorporated in the Agreement and made a part hereof), and the other Transaction
Documents set forth the entire understanding of the parties, and supersede and
preempt all prior oral or written understandings and agreements with respect to
the subject matter hereof (including, but not limited to, any term sheet and/or
other letter of intent), and shall not be modified or affected by any offer,
proposal, statement or representation, oral or written, made by or for any party
in connection with the negotiation of the terms hereof, and may be modified only
by instruments signed by all of the parties hereto. OTV, Seller and Buyer agree
and acknowledge that this Agreement shall replace in its entirety the entire
Original Agreement and that the Original Agreement is hereby terminated and
shall have no further force or effect. and no party shall have any obligation or
liability thereunder.
10.13 THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any Person, other than the parties
to this Agreement and their respective permitted successors and assigns, any
rights or remedies under or by reason of this Agreement, other than Buyer
Indemnified Parties and Seller Indemnified Parties pursuant to and in accordance
with ARTICLE IX hereof.
10.14 INTERPRETATIVE MATTERS. Unless the context otherwise requires, (a)
all references to Articles, Sections or Schedules are to Articles, Sections or
Schedules in this Agreement, (b) words in the singular or plural include the
singular and plural, pronouns stated in either the masculine, the feminine or
neuter gender shall include the masculine, feminine and neuter and (c) the term
"including" shall mean by way of example and not by way of limitation. The
parties hereto have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or questions of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
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10.15 FURTHER ASSURANCES. Each of Buyer and Seller shall from time to time
after the Closing, at the other party's reasonable request, promptly execute and
deliver or cause to be executed and delivered such instruments of transfer,
conveyance and assignment (in addition to those delivered at the Closing), and
take or cause to be taken such other action, as such party may reasonably
require, to effect, consummate, confirm, or evidence the transactions
contemplated hereby or to more effectively transfer, convey and assign to, and
put Buyer in actual possession and control of, each of the Purchased Assets, and
to more effectively evidence the assumption by Buyer of or to permit Buyer to
more effectively perform the Assumed Liabilities. Seller and Buyer will also do
such acts as are reasonably necessary to perform their covenants and agreements
herein and to consummate the transactions contemplated hereby and in the
Transaction Documents.
10.16 TRANSFER TAXES. Buyer shall pay any and all sales, use, transfer,
stamp, conveyance, recording, value-added and other similar Taxes imposed under
any applicable laws and recording and filing fees, notarial fees and other
similar costs of Closing, with respect to the sale and transfer of the Purchased
Assets to Buyer or otherwise on account of this Agreement, or any of the
transactions contemplated hereby or thereby.
10.17 BULK SALES LAWS. Buyer, Seller and OTV hereby waive compliance with
all relevant bulk sales laws respecting the sale and purchase of the Purchased
Assets, if any.
10.18 CONFIDENTIALITY. Subject to Section 10.2 hereof, Seller and OTV
will, and will cause their respective Affiliates to, hold in strict confidence,
and will not use to the detriment of Buyer or any of its Affiliates, any
confidential, secret or proprietary information with respect to Buyer or its
Affiliates, the Business, Seller or the Purchased Assets. Notwithstanding the
foregoing, Seller and OTV may disclose such information (i) if compelled to
disclose the same by judicial or administrative process or by any other Legal
Requirement, (ii) if the same hereafter is in the public domain through no fault
of Seller or OTV, as applicable, or any of their respective Affiliates, as
applicable, or (iii) if the same is later acquired by Seller or OTV, from
another source neither Seller nor OTV, as applicable, nor any of their
respective Affiliates is aware that such source is under an obligation to
another Person to keep such information confidential.
10.19 MAIL; PAYMENTS. After the Closing, Seller authorizes and empowers
Buyer to receive and open all mail and other communications received by Buyer
and to act with respect to such communications in such manner as Buyer may elect
if such communications relate to the Purchased Assets (including the right to
endorse checks and other instruments of payment), or, if such communications do
not relate to the Purchased Assets, to forward the same promptly to Seller.
Seller shall promptly deliver to Buyer any cash, checks or other instruments of
payment received by Seller to which Buyer is entitled and shall hold the same in
trust for the other until such delivery. Seller will endorse and/or pay over to
Buyer all checks or other instruments of payment received by Seller to which
Buyer is entitled hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties have executed this Asset Purchase
Agreement as of the date first written above.
SELLER:
FS SUNTOURS, INC.
By: \s\ Matthew Holliday
--------------------------------
Name: \ Matthew Holliday
------------------------------
Its: President
--------------------------------
OTV:
OneTravel Holdings, Inc.
By: \s\ Marc E. Bercoon
--------------------------------
Name: \ Marc E. Bercoon
------------------------------
Its: President
--------------------------------
BUYER:
CRYSTAL HOSPITALITY HOLDINGS, INC.
By: \s\ Peter Gallic
---------------------------------
Name: \ Peter Gallic
-------------------------------
Its: President
--------------------------------