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STOCK PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 1, 2000
BY AND AMONG
QUALTON GROUP CORPORATION, A ▇▇▇▇▇▇▇▇ ISLANDS CORPORATION
QUALTON HOTELS & RESORTS CORPORATION, A ▇▇▇▇▇▇▇▇ ISLANDS CORPORATION
HOTELERA QUALTON, S.A. DE C.V., A CORPORATION ORGANIZED UNDER
THE LAWS OF MEXICO
IMPULSORA TURISTICA DE ACAPULCO, S.A. DE C.V., A CORPORATION ORGANIZED
UNDER THE LAWS OF MEXICO
IMPULSORA TURISTICA DE IXTAPA, S.A. DE C.V., A CORPORATION ORGANIZED
UNDER THE LAWS OF MEXICO
AND
INTERNATIONAL REALTY GROUP, INC., A DELAWARE
CORPORATION
FOR THE PURCHASE OF ALL OF THE OUTSTANDING SHARES OF CAPITAL STOCK
OF
QUALTON HOTELS & RESORTS CORPORATION, A ▇▇▇▇▇▇▇▇ ISLANDS CORPORATION
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TABLE OF EXHIBITS
EXHIBIT A - DEFINED TERMS
EXHIBIT B - SCHEDULE OF EXCEPTIONS
EXHIBIT C - LEGAL OPINION OF ▇▇▇▇▇▇▇▇ ISLANDS COUNSEL
EXHIBIT D - LEGAL OPINION OF MEXICO COUNSEL
i
THIS STOCK PURCHASE AGREEMENT, dated as of September 1, 2000 (this
"AGREEMENT"), is made and entered into by and among:
(i) Qualton Group Corporation, a ▇▇▇▇▇▇▇▇ Islands corporation
("SELLER");
(ii) Qualton Hotels & Resorts Corporation, a ▇▇▇▇▇▇▇▇ Islands
corporation and wholly-owned subsidiary of Seller ("TARGET");
(iii) Hotelera Qualton, S.A. de C.V., a corporation formed under the
laws of Mexico and a subsidiary of Target ("HOTELERA QUALTON");
(iv) Impulsora Turistica de Acapulco, S.A. de C.V., a corporation
formed under the laws of Mexico and a subsidiary of Target ("ITA");
(v) Impulsora Turistica de Ixtapa, S.A. de C.V., a corporation
formed under the laws of Mexico and a subsidiary of Target ("ITI", and
collectively with Hotelera Qualton and ITA, the "SUBSIDIARIES"); and
(vi) International Realty Group, Inc., a Delaware corporation
("BUYER");
with reference to the following facts:
RECITALS
A. Seller is the beneficial owner of all of the outstanding
shares of capital stock of Target (collectively, the "TARGET STOCK").
B. Buyer wishes to acquire Target by purchasing all of the Target
Stock from Seller, and Seller wishes to sell the Target Stock to Buyer, subject
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto agree as follows (unless otherwise specified,
definitions of capitalized terms are set forth in EXHIBIT A attached hereto):
1. PURCHASE AND SALE OF THE STOCK.
1.1 SALE OF THE TARGET STOCK; ISSUANCE OF BUYER STOCK. Subject to the
terms and conditions set forth in this Agreement, Seller hereby agrees to sell
and transfer to Buyer, and Buyer hereby agrees to purchase from Seller, all of
the Target Stock. As consideration for the purchase of all of the Target Stock
from Seller, Buyer shall issue and deliver to Seller an aggregate of One Hundred
Sixty-Three Million Five Hundred Forty Thousand (163,540,000) shares of Buyer's
Common Stock, $0.001 par value per share (the "BUYER STOCK"), in accordance with
SECTION 1.3.
1.2 CLOSING. The closing (the "CLOSING") shall take place at the offices
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
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92130-2071, on October 18, 2000 at 10:00 a.m., or at such other place or at such
other date and time as Seller and Buyer may mutually agree (the "CLOSING DATE").
1.3 DELIVERY. At the Closing, (a) Seller shall deliver to Buyer the
certificate(s) representing all of the Target Stock and (b) Buyer will issue
irrevocable transfer instructions to Buyer's transfer agent to effect the
issuance and delivery of the Buyer Stock to Seller. Each of Buyer and Seller
also shall deliver to each other such other documents required to be delivered
by such party hereunder.
2. REPRESENTATIONS AND WARRANTIES OF SELLER, TARGET AND THE SUBSIDIARIES.
As an inducement for Buyer to enter into this Agreement and except as
set forth in the Schedule of Exceptions attached hereto as EXHIBIT B, each of
Seller, Target and the Subsidiaries represents and warrants that each of the
following statements is true and correct as of the date hereof and as of the
Closing Date:
2.1 ORGANIZATION, POWER, ETC. OF SELLER AND TARGET. Each of Seller and
Target: (i) is a corporation duly organized, validly existing and in good
standing under the laws of the ▇▇▇▇▇▇▇▇ Islands; (ii) is duly qualified to do
business as a foreign corporation in the jurisdictions in which Seller and
Target, respectively, conducts the Business; and (iii) has all requisite
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. Target has all requisite corporate power and
authority to own, operate and lease its assets, and to conduct the Business.
SCHEDULE 2.1 contains (x) a complete and correct summary of all powers of
attorney executed on behalf of Target, each of which is validly issued and duly
authorized by Target, (y) a complete and correct list of the officers and
directors of Seller and Target and (z) complete and correct copies of the
charter documents or equivalent organizational documents, in each case as
amended or restated, of Seller and Target. Neither Seller nor Target is in
violation of any of the provisions of its respective charter documents or
equivalent organizational documents, in each case as amended or restated.
2.2 ORGANIZATION, POWER, ETC. OF THE SUBSIDIARIES. Each of the
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of Mexico. Each of the Subsidiaries has all the
requisite power and authority to (i) own, operate and lease its assets, and to
conduct the Business and (ii) execute and deliver this Agreement and to perform
its obligations hereunder. SCHEDULE 2.2 contains (x) a complete and correct
summary of all powers of attorney executed on behalf of any of the Subsidiaries,
each of which is validly issued and duly authorized by such Subsidiary, (y) a
complete and correct list of the officers and directors of each of the
Subsidiaries and (z) complete and correct copies of the charter documents or
equivalent organizational documents, in each case as amended or restated, of
each of the Subsidiaries. None of the Subsidiaries are in violation of any of
the provisions of their respective charter documents or equivalent
organizational documents, in each case as amended or restated. Except for the
Subsidiaries, there are no other subsidiaries or affiliated entities of Target.
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2.3 CAPITALIZATION.
2.3.1 TARGET CAPITALIZATION. The authorized capital stock of Target
consists of One Thousand (1,000) bearer shares, $1.00 par value per share, of
which: (i) all of the issued and outstanding shares of the Target Stock are
owned by Seller, free and clear of all liens, charges, security interests,
encumbrances or claims of any kind; and (ii) such shares of the Target Stock are
duly authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights created by statute, Target's charter documents or any
agreement to which such Target is a party or bound. Holders of the Target Stock
have the rights, preferences, privileges and restrictions set forth in Target's
charter documents, copies of which have been provided to Buyer's counsel. All of
the issued and outstanding shares of Target were issued in compliance with all
applicable U.S. federal and state securities laws and the laws of the ▇▇▇▇▇▇▇▇
Islands or applicable exemptions thereunder. There are no options, warrants,
calls or other rights (including registration rights), agreements, arrangements
or commitments of any character, presently outstanding, that (x) obligate Target
to issue, deliver or sell shares of its capital stock or debt securities, (y)
obligate Target to grant, extend or enter into any such option, warrant, call or
other such right, agreement, arrangement or commitment or (z) obligate Target to
repurchase, redeem or otherwise acquire any shares of the Target Stock.
2.3.2 CAPITALIZATION OF THE SUBSIDIARIES. SCHEDULE 2.3.2 contains a
complete and correct list of all stockholders of each of the Subsidiaries and
the number of shares owned by each, of which: (i) all of the issued and
outstanding shares of capital stock of such Subsidiary are owned by the entities
listed next to such Subsidiary's name in SCHEDULE 2.3.2, free and clear of all
pledges, liens, encumbrances or claims of any kind; and (ii) such shares of
capital stock are duly authorized, validly issued, fully paid and nonassessable
and not subject to preemptive rights created by statute, such Subsidiary's
charter documents or any agreement to which such Subsidiary is a party or bound.
Holders of shares of each of the Subsidiaries' capital stock have the rights,
preferences, privileges and restrictions set forth in such Subsidiary's charter
documents, copies of which have been provided to Buyer's counsel. All of the
issued and outstanding shares of each Subsidiary's capital stock were issued in
compliance with all applicable laws of Mexico. There are no options, warrants,
calls or other rights (including registration rights), agreements, arrangements
or commitments of any character, presently outstanding, that (x) obligate any of
the Subsidiaries to issue, deliver or sell shares of its capital stock or debt
securities, (y) obligate any of the Subsidiaries to grant, extend or enter into
any such option, warrant, call or other such right, agreement, arrangement or
commitment or (z) obligate any of the Subsidiaries to repurchase, redeem or
otherwise acquire any shares of such Subsidiary's capital stock.
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2.4 AUTHORIZATION OF AGREEMENTS. The execution, delivery and performance
of this Agreement by Seller, Target and each of the Subsidiaries, and the
consummation by Seller, Target and each of the Subsidiaries of the Transactions,
have been duly authorized by all necessary corporate action. This Agreement has
been duly executed and delivered by Seller, Target and each of the Subsidiaries
and constitutes the legal, valid and binding obligation of Seller, Target and
each of the Subsidiaries, enforceable against each of them in accordance with
its terms.
2.5 EFFECT OF AGREEMENT. The execution, delivery and performance of this
Agreement by each of Seller, Target and each of the Subsidiaries, and the
consummation by them of the Transactions, will not: (i) conflict with or violate
any of the charter documents or the equivalent organizational documents, in each
case as amended or restated, of Seller, Target or any of the Subsidiaries; (ii)
conflict with or violate any federal, state, foreign or local law, statute,
ordinance, rule, regulation, order, judgment or decree (collectively, "LAWS") in
effect as of the date of this Agreement and applicable to Seller, Target or any
of the Subsidiaries or by which any of their respective properties is bound or
subject; or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or cancellation of,
or require payment under, or result in the creation of any lien, charge,
security interest, encumbrance or claim of any kind on, any of the properties or
assets of Seller, Target or any of the Subsidiaries pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Seller, Target or any of the
Subsidiaries is a party or by which Seller, Target or any of the Subsidiaries or
any of its properties is bound or subject.
2.6 GOVERNMENTAL APPROVALS. No approval, authorization, consent or order
or action of or filing with any court, administrative agency or other
governmental authority, domestic or foreign, is required to be obtained by any
of Seller, Target or the Subsidiaries for the execution and delivery by each of
Seller Target and the Subsidiaries of this Agreement or the consummation by them
of the Transactions, except for applicable requirements under the laws of Mexico
relating to the acquisition of the capital stock of the Subsidiaries by entities
or persons not formed under the laws of Mexico.
2.7 FINANCIAL STATEMENTS.
2.7.1 Seller has furnished to Buyer the (a) Balance Sheet and (b)
Statement of Operations. Such Financial Statements have been prepared in
accordance with accounting methods and procedures used by Target consistently
applied throughout the periods involved. The Balance Sheet fairly presents the
condition of Target as of the date thereof, and the Statement of Operations
fairly present the results of operations of Target for the period indicated.
2.7.2 Neither Target nor any of the Subsidiaries has any obligations,
contingent or otherwise, including, without limitation, liabilities for Charges,
long-term leases or unusual forward or long-term commitments that are not
reflected in the Balance Sheet.
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2.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the Balance Sheet Date,
except as set forth in SCHEDULE 2.8, neither Target nor any of the Subsidiaries
has:
2.8.1 MATERIAL OBLIGATIONS. Incurred any material obligation or
liability (fixed or contingent), except normal trade or business obligations
incurred in the ordinary course of business and consistent with past practice,
and except in connection with this Agreement and the Transactions;
2.8.2 DISCHARGE OR SATISFACTION OF LIENS. Discharged or satisfied any
lien, charge, security interest, encumbrance or claim of any kind or paid any
obligation or liability (fixed or contingent), other than pursuant to the terms
of such obligation, or in the ordinary course of business and consistent with
past practice;
2.8.3 ADDITIONAL LIENS. Mortgaged, pledged or subjected to any lien,
charge, security interest, encumbrance or claim of any kind on any of its assets
or properties (other than mechanic's, materialman's and similar statutory liens
arising in the ordinary course of business and consistent with past practice and
purchase money security interests);
2.8.4 ACQUISITION OR DISPOSITION OF ASSETS. Transferred, leased or
otherwise disposed of any of its material assets or properties or acquired any
assets or properties except in the ordinary course of business and consistent
with past practice;
2.8.5 COMPROMISE OF DEBTS OR CLAIMS. Cancelled or compromised any debt
or claim, except in the ordinary course of business and consistent with past
practice;
2.8.6 WAIVER OF RIGHTS. Waived or released in writing any rights of
value;
2.8.7 RIGHTS IN LICENSES, TRADEMARKS, PATENTS. Transferred or granted
any rights under any intellectual property licenses, patents, inventions,
trademarks, tradenames, servicemarks or copyrights or with respect to any
know-how (other than licenses granted by Target in the ordinary course of
business and consistent with past practice);
2.8.8 EMPLOYEE COMPENSATION. Made or granted any wage or salary
increase applicable generally to any group or classification of employees of
Target or any of the Subsidiaries (other than in connection with Seller's,
Target's or such Subsidiary's general salary plan), entered into any written
employment contract with any officer or employee of Target or any of the
Subsidiaries, or made any loan to, or entered into any transaction of any other
nature with, any officer or employee of Target or any of the Subsidiaries.
2.8.9 MATERIAL CONTRACTS. Entered into any material transaction,
contract or commitment, except for contracts listed in SCHEDULE 2.10 and this
Agreement and the Transactions;
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2.8.10 MATERIAL ADVERSE CHANGE. Suffered any material adverse change
in the operations or condition (financial or other) of the Business.
2.9 TITLE TO PROPERTIES, ABSENCE OF LIENS AND ENCUMBRANCES. Except as
set forth in the last sentence of this section, each of Target and the
Subsidiaries has good and marketable title to all of its assets and
properties listed on SCHEDULE 2.10 or as are reflected in the Financial
Statements, free and clear of all mortgages, liens, charges, security
interests or other encumbrances of any nature whatsoever, other than (a)
liens for taxes not yet due, (b) imperfections in title, if any, not material
in amount and which, individually or in the aggregate, do not materially
interfere with the conduct of the Business or with the use of the property
subject thereto, (c) such secured indebtedness as is disclosed in the
Financial Statements covering the assets and properties referred to therein,
and (d) liens arising in the ordinary course of business and consistent with
past practice. With respect to the assets and properties leased by Target and
the Subsidiaries listed in SCHEDULE 2.10, each of Target and the Subsidiaries
is in compliance in all material respects with such leases and hold valid
leasehold interests free and clear of any liens, charges, security interests,
encumbrances or claims of any kind. Neither Target nor any of the
Subsidiaries is obligated under or a party to, any option, right of first
refusal or any other contractual right to purchase, acquire, sell, assign or
dispose of any real property owned or leased by Target or such Subsidiary.
2.10 LIST OF REAL PROPERTIES, CONTRACTS AND OTHER DATA. Attached hereto as
SCHEDULE 2.10 is a list setting forth the following with respect to each of
Target and the Subsidiaries:
2.10.1 REAL PROPERTIES. All real properties owned by each of Target
and the Subsidiaries;
2.10.2 LEASES. All material leases of real or personal property to
which Target or any of the Subsidiaries is a party;
2.10.3 PATENTS AND TRADEMARKS. All patents, trademarks, tradenames,
servicemarks and copyrights, and registrations therefor, unexpired as of the
date hereof, and all applications pending on the date hereof for patents,
trademarks, tradenames, servicemarks and copyrights, and all other proprietary
rights, owned or held by Target or any of the Subsidiaries and used by Target or
any of the Subsidiaries in connection with the Business, and all licenses
granted by or to Target or any of the Subsidiaries and all other agreements to
which Target or any of the Subsidiaries is a party that relate to any items of
the categories mentioned above;
2.10.4 EMPLOYEE COMPENSATION PLANS AND BENEFITS. All collective
bargaining agreements, employment and consulting agreements, executive
compensation plans, bonus plans, deferred compensation agreements, employee
pension plans or retirement plans, employee profit sharing plans, employee stock
purchase and stock option plans, group life insurance, hospitalization insurance
or other plans or arrangements providing for benefits to employees of Target or
any of the Subsidiaries;
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2.10.5 HOTEL CONTRACTS. All material contracts, agreements, leases and
commitments of Target and/or the Subsidiaries with or relating to Hotel
Qualton Puerto Vallarta, Hotel Qualton Acapulco or Hotel Qualton Ixtapa
(collectively, the "HOTEL CONTRACTS");
2.10.6 OTHER CONTRACTS. All contracts, agreements and commitments
(including, without limitation, mortgages, indentures and loan agreements) to
which Target or any of the Subsidiaries is a party, or to which any of Target's
or the Subsidiaries' assets or properties are subject and which are not
specifically referred to in SECTIONS 2.10.1, 2.10.2, 2.10.3, 2.10.4 or 2.10.5,
except for any contracts, agreements or commitments under purchase orders, sales
orders, supply contracts and other contracts, agreements or commitments (a)
incurred in the ordinary course of business and consistent with past practice,
by Target or any of the Subsidiaries or (b) to Target or any of the Subsidiaries
of less than Five Thousand United States Dollars (US$5,000). With respect to
each Hotel Contract and other contract, agreement and commitment listed in
SCHEDULE 2.10: (i) such agreement is legal, valid, binding, enforceable and in
full force and effect; (ii) such agreement will continue to be legal, valid,
binding, enforceable and in full force and effect following the consummation of
the transactions contemplated hereby; (iii) no party is in breach or default,
and no event has occurred that with notice or lapse of time would constitute a
breach or default, or permit termination, modification of any term or condition
or acceleration, under such agreement; and (iv) no party has repudiated any
provision of such agreement; and
2.11 AVAILABILITY OF DOCUMENTS. True and complete copies of all documents
referred to in the schedules hereto have been provided or made available to
Buyer. Except as disclosed in such schedules, none of Seller, Target or the
Subsidiaries has been notified in writing of any claim that any contract
referred to in such schedules is not valid and enforceable in accordance with
its terms for the periods stated therein, or that there is under any such
contract any existing default or event of default or event that with notice or
lapse of time or both would constitute such a default.
2.12 LITIGATION. Except as set forth in SCHEDULES 2.12 and 2.13: (i) there
is no claim, action, suit, litigation, proceeding, arbitration or investigation
of any kind, at law or in equity (including actions or proceedings seeking
injunctive relief), pending or threatened against Target or any of the
Subsidiaries or any its respective properties or rights; and (ii) neither Target
nor any of the Subsidiaries is subject to any continuing order of, consent
decree, settlement agreement or other similar written agreement with or
continuing investigation by, any governmental entity, or any judgment, order,
writ, injunction, decree or award of any governmental entity or arbitrator. In
respect of the matters relating to or arising in connection with the actions set
forth in SCHEDULES 2.12 and 2.13, there is no fact, event, condition,
circumstance or other matter which either has, or is reasonably likely to have
resulted in, an event or determination having a material adverse effect on the
Business. Each of Target and the Subsidiaries has delivered to Buyer copies of
all pleadings, correspondence and other documents relating to each matter
disclosed in SCHEDULES 2.12 and 2.13.
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2.13 LABOR MATTERS. Except as set forth in SCHEDULES 2.12 and 2.13, there
are no unfair labor practice or labor arbitration proceedings against Target or
any of the Subsidiaries pending or, to the Seller's Knowledge, threatened
against Target's or any of the Subsidiaries, and there are no organizational
efforts presently being made or threatened involving any of Target's or the
Subsidiaries' employees. Since the Balance Sheet Date, none of Seller, Target or
the Subsidiaries has received notice of any material claim that, with respect to
the Business, Target or any of the Subsidiaries, has not complied with any laws
relating to the employment of labor, including any provisions thereof relating
to wages, hours, collective bargaining, the payment of social security and
similar taxes, equal employment opportunity, employment discrimination and
employment safety, or that Target or any of the Subsidiaries is liable for any
arrears of wages or any taxes or penalties for failure to comply with any of the
foregoing.
2.14 PATENT, TRADEMARK, ETC. CLAIMS. Except as set forth in SCHEDULE 2.14,
since the Balance Sheet Date, no person has made or, to the Seller's Knowledge,
threatened to make any claims that the operation of the Business is in violation
or infringement of any patent, patent license, tradename, trademark,
servicemark, copyright, know-how or other proprietary or trade rights of any
third party.
2.15 USE OF REAL PROPERTY. Except as set forth in SCHEDULE 2.15, the owned
and leased real properties listed in SCHEDULE 2.10 are used and operated in
compliance and conformity with all applicable leases, contracts, commitments,
licenses and permits, to the extent that the failure so to conform would,
individually or in the aggregate, materially and adversely affect the operations
or condition (financial or other) of the Business. None of Sellers, Target or
the Subsidiaries has received notice of any violation of any applicable zoning
or building regulation, ordinance or other law relating to the real property of
Target or any of the Subsidiaries and, to Seller's Knowledge, there is no such
violation.
2.16 ACCOUNTS RECEIVABLE. Except as disclosed in SCHEDULE 2.16, the
accounts receivable reflected on the Balance Sheet, and all accounts receivable
arising between the Balance Sheet Date and the date hereof, arose from
transactions in the ordinary course of business, and the goods or services
involved have been sold and delivered to the account obligor, and no further
goods or services are required to be provided in order to complete the sales and
to entitle Target or any of the Subsidiaries or the assignees to collect the
accounts receivable in full. No such account has been assigned or pledged to any
other person, firm or corporation and no defense or setoff to any such account
has been asserted by the account obligor or, to Seller's Knowledge, exists.
2.17 COMPLIANCE WITH LAW. Neither Target nor any of the Subsidiaries (a) is
in default with respect to any order of any court or governmental authority to
which Target or such Subsidiary is a party or is subject that applies to the
Business or any of its assets, (b) is in violation of any Laws to which it is
subject, or (c) has failed to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the conduct of the Business, which
default, violation or failure to obtain might, individually or in the aggregate,
materially and adversely affect the operations or condition (financial or other)
of the Business.
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2.18 CONTRACTS. Except as set forth in SCHEDULE 2.18, there are no disputes
with customers, vendors or other third parties of Target or any of the
Subsidiaries with respect to performance by Target or the Subsidiaries under any
Hotel Contract or other contract, agreement and commitment listed in SCHEDULE
2.10, that (a) may result in the termination of such Hotel Contract or other
contract, agreement or commitment or (b) requiring, or that could require,
payment by Target or any of the Subsidiaries, or performance of services or
delivery of assets or properties of Target or any of the Subsidiaries, in excess
of Five Thousand United States Dollars (US$5,000). None of the Hotel Contracts
or other contracts, agreements or commitments listed in SCHEDULE 2.10 is
terminable upon the consummation of the Transactions contemplated hereby.
2.19 COMMISSIONS. None of Seller, Target, the Subsidiaries or any of their
respective directors, officers, employees or agents has employed or incurred any
liability to any broker, finder or agent for any brokerage fees, finder fees,
commissions or other amounts with respect to the Transactions.
2.20 INVESTMENT REPRESENTATIONS.
2.20.1 INVESTMENT INTENTION. Seller is acquiring the Buyer Stock for
its own account, for investment purposes only and not with a view to, or any
present intention of, the distribution thereof. Seller will not, directly or
indirectly, offer, transfer, sell, assign, pledge, hypothecate or otherwise
dispose of any shares of the Buyer Stock (or solicit any offers to buy, purchase
or otherwise acquire any shares of the Buyer Stock), except in compliance with
the Securities Act of 1933, as amended (the "SECURITIES ACT"). Seller
acknowledges that the shares of the Buyer Stock have not been registered under
the Securities Act or the securities laws of any state or other jurisdiction and
cannot be disposed of unless they are subsequently registered under the
Securities Act and any applicable state laws or exemption from such registration
is available.
2.20.2 ACCREDITED INVESTOR. Seller is an "accredited investor" (as
that term is defined in Rule 501 of Regulation D under the Securities Act) and
by reason of its business and financial experience, it has such knowledge,
sophistication and experience in business and financial matters as to be capable
of evaluating the merits and risks of the prospective investment, Seller
represents and warrants that it maintains its principal place of business
indicated for Seller on SCHEDULE 2.20 and that Seller is organized under the
laws of the state indicated for Seller in the recitals of this Agreement.
2.20.3 DUE DILIGENCE; DISCLOSURE OF INFORMATION. Seller has performed
a due diligence investigation of Buyer and its industry. Seller further
represents that it has had the opportunity to ask questions and receive answers
from Buyer's management regarding Buyer's business, management and financial
affairs, as well as the terms and conditions of the issuance of shares of the
Buyer Stock. Seller has received a copy of the following documents relating to
Buyer: (i) the Annual Report on Form 10-KSB for the year ended December 31,
1999; (ii) the Quarterly Report on Form 10-Q for the quarter ended June 30,
2000; and (iii) the Current Reports on Form 8-K filed by Buyer with the SEC on
the following dates since December 31, 1999: March 6, 2000 and March 15,
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2000. Seller acknowledges that it has reviewed carefully the risk factors
contained in the above referenced reports.
2.20.4 RESTRICTED SECURITIES. Seller understands that the shares of
the Buyer Stock that it is acquiring are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from Buyer in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be resold without
registration under the Securities Act only in certain limited circumstances. In
this connection, Seller represents that it is familiar with SEC Rule 144, as
presently in effect, and understands the resale limitations imposed thereby
under the Securities Act.
2.20.5 SECURITIES LAWS COMPLIANCE. Seller acknowledges and understands
that Buyer is relying upon the representations and warranties set forth in this
SECTION 2.20 for compliance with applicable federal and state securities laws.
2.21 TAXES. Except as set forth in SCHEDULE 2.21, each of Target and the
Subsidiaries has timely filed or will timely file all Tax Returns that it was or
is required to file prior to the date hereof. All such Tax Returns were correct
and complete when filed. All Taxes owed by each of Target and the Subsidiaries
(whether or not shown on any Tax Return) have been paid. Neither Target nor any
of the Subsidiaries is currently the beneficiary of any extension of time within
which to file any Tax Return. No claim has ever been made by an authority in a
jurisdiction where Target or any of the Subsidiaries did not file a Tax Return
that it is or may be subject to taxation by that jurisdiction. There are no
security interests on any of the assets of the Target or the Subsidiaries that
arose in connection with any failure (or alleged failure) to pay any Tax. There
is no dispute or claim concerning any Tax liability of Target or any of the
Subsidiaries claimed or raised by any governmental entity.
2.22 CERTAIN BUSINESS PRACTICES. None of Target, the Subsidiaries, nor any
director, officer, stockholder, agent or employee of Target or such Subsidiary
has (i) used any funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to foreign or
domestic political parties or campaigns or violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended, or (iii) made any other unlawful
payment.
2.23 DISCLOSURE. No representation or warranty made by Seller, Target or
any of the Subsidiaries, nor any document, written information, statement,
financial statement, certificate, schedule or exhibit prepared and furnished or
to be prepared and furnished by Seller, Target or any of the Subsidiaries, or
its representatives pursuant hereto or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact, or omits or will omit to state a material fact necessary to make the
statements of facts contained herein or therein not misleading in light of the
circumstances under which they were furnished.
10
2.24 GUARANTIES. Neither Target nor any of the Subsidiaries is a guarantor
or otherwise is liable for any liability or obligation (including indebtedness)
of any other person or third-party entity.
3. REPRESENTATIONS AND WARRANTIES OF BUYER.
As an inducement for Seller and Target to enter into this Agreement,
Buyer represents and warrants that each of the following statements is true and
correct as of the date hereof and as of the Closing Date:
3.1 ORGANIZATION, POWER, ETC. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and is duly qualified to do business as a foreign corporation in the
jurisdictions in which Buyer conducts its business, except where the failure to
so qualify will not have a material adverse effect on Buyer's ability to perform
its obligations hereunder. Buyer has all requisite corporate power and authority
to acquire the Target Stock to deliver this Agreement and to perform its
obligations hereunder.
3.2 AUTHORIZATION OF AGREEMENT. The execution, delivery and performance of
this Agreement by Buyer, and the consummation by it of the Transactions, have
been duly authorized by all necessary corporate action. This Agreement has been
duly executed and delivered by Buyer and constitutes the legal, valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
3.3 EFFECT OF AGREEMENTS. The execution, delivery and performance by Buyer
of this Agreement, and the consummation by it of the Transactions, will not
violate the Certificate of Incorporation or By-laws of Buyer or any judgment,
award or decree or any material indenture, agreement or other instrument to
which Buyer is a party, or by which Buyer or its properties or assets are bound,
or conflict with, result in a breach of or constitute (with due notice or lapse
of time or both) a default under, any such indenture, agreement or other
instrument, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of
Buyer, except to the extent the effect thereof will not be materially adverse to
Buyer's ability to fulfill its obligations under this Agreement.
3.4 GOVERNMENTAL APPROVALS. No approval, authorization, consent or order
or action of or filing with any court, administrative agency or other
governmental authority is required to be obtained by Buyer for the execution and
delivery by Buyer of this Agreement or the consummation by it of the
Transactions.
3.5 COMMISSIONS. Neither Buyer nor any of its directors, officers,
employees or agents has employed or incurred any liability to any broker, finder
or agent for any brokerage fees, finder fees, commissions or other amounts with
respect to the Transactions.
3.6 LIMITATION ON REPRESENTATIONS AND WARRANTIES.
11
3.6.1 Except as and to the extent expressly set forth in this SECTION
3, included on any schedule hereto or included in any writing delivered by Buyer
to Seller, Target and/or any of the Subsidiaries concurrently herewith or
subsequent hereto expressly pursuant to this Agreement, Buyer makes no other
representation or warranty and disclaims all liability and responsibility for
any representation, warranty, statement or information (financial or otherwise)
made or communicated (orally or in writing) to the Seller, Target and/or any of
the Subsidiaries or any of its stockholders, employees, agents, consultants or
representatives.
3.6.2 Buyer makes no representation or warranty to Seller, Target or
any of the Subsidiaries regarding the probable success or profitability of
Buyer. Without limiting the foregoing, Buyer makes no representation or warranty
to Seller, Target or any of the Subsidiaries with respect to the revenues or
profitability of Buyer for the quarter ending September 30, 2000.
4. COVENANTS OF SELLER.
4.1 CONDUCT OF BUSINESS. During the period from the date hereof up to and
including the Closing Date, except if Buyer consents otherwise in writing, each
of Target and the Subsidiaries shall use their best efforts to:
4.1.1 ORDINARY COURSE. Conduct the Business only in the ordinary
course of business and consistent with past practice.
4.1.2 PRESERVATION OF GOODWILL. Preserve the goodwill of Target's and
such Subsidiary's suppliers, customers, distributors and other third parties
having business relations with Target and such Subsidiary.
4.1.3 MAINTAIN INSURANCE. Maintain the insurance policies of Target
and such Subsidiary existing as of the date hereof against loss or damage to the
assets and properties of Target and such Subsidiary.
4.1.4 SALE OF ASSETS. Not transfer or encumber any of the assets of
Target and such Subsidiary except for any transfer or encumbrance in the
ordinary course of business and consistent with past practice or where the book
value of the transferred or encumbered assets does not exceed Five Thousand U.S.
Dollars (US$5000) individually or in the aggregate.
4.1.5 EMPLOYMENT CONTRACTS. Not enter into any employment contract
with any employees of Target or such Subsidiary or increase any compensation of
any employer of Target or such Subsidiary (other than in the ordinary course of
business and consistent with past practice).
4.1.6 MAINTENANCE OF ASSETS. Maintain all of the assets of Target and
such Subsidiary in good repair, order and condition, reasonable wear and tear
excepted, and, except for properties and assets otherwise disposed of, sold or
consumed in the ordinary course of business and consistent with past practice or
where the book value of
12
disposed, sold or consumed properties or assets do not exceed Five Thousand U.S.
Dollars (US$5000) individually or in the aggregate.
4.1.7 AMENDMENTS TO CONTRACTS. Not materially amend Hotel Contract or
other contract, agreement and commitment listed in SCHEDULE 2.10.
4.2 REPRESENTATIONS TRUE. Until the Closing Date, each of Seller, Target
and the Subsidiaries will use all reasonable efforts to prevent the occurrence
of any event that would cause any of their respective representations and
warranties set forth in this Agreement not to be true and correct in any
material respect.
4.3 ACCESS. Subject to SECTION 9.1, each of Target and the Subsidiaries
will (a) during ordinary business hours and upon reasonable notice to Seller,
permit Buyer and its authorized representatives to have access to all assets,
plant, properties, employees' records, contracts, and accounting books and
records and documents of Target and such Subsidiary, subject to Seller, Target
or such Subsidiary obtaining any necessary consents with respect to personal
information concerning its employees, (b) furnish as soon as reasonably
practicable to Buyer or its authorized representatives such other information
with respect to the Business as Buyer may from time to time request, and (c)
otherwise cooperate in the examination or audit of Target and such Subsidiary by
Buyer.
4.4 PERMITS. As promptly as practicable after the date hereof, Seller,
Target and the Subsidiaries will make all filings with governmental bodies and
other regulatory authorities, and use all reasonable efforts to obtain all
permits, approvals, authorizations and consents of all third parties, necessary
for Seller to consummate the Transactions. As soon as practicable following
receipt of any written request from Buyer, each of Seller, Target and the
Subsidiaries will furnish to Buyer all information that is in Seller's, Target's
and such Subsidiary's possession and not otherwise available to Buyer, which
Buyer may request in connection with any such filing to be made by Buyer. 4.5
MINORITY STOCKHOLDERS OF THE SUBSIDIARIES. On and after the Closing Date,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall effect the transfer of his shares of capital
stock of each Subsidiary as set forth in SCHEDULE 2.3.2 to Buyer, free and clear
of all pledges, liens, encumbrances or claims of any kind. Seller shall provide
Buyer with all written evidence of such transfer requested by Buyer, including,
without limitation, any relevant documentation from the government of Mexico
relating to the acquisition of the capital stock of such Subsidiary by an entity
or person not formed under the laws of Mexico.
5. COVENANTS OF BUYER.
5.1 REPRESENTATIONS TRUE. Until the Closing Date, Buyer will use all
reasonable efforts to prevent the occurrence of any event that would cause any
of its representations and warranties set forth in this Agreement not to be true
and correct in any material respect.
5.2 PERMITS. As promptly as practicable after the date hereof, Buyer will
make all filings with governmental bodies and other regulatory authorities, and
use all reasonable
13
efforts to obtain all permits, approvals, authorizations and consents of all
third parties, necessary for Buyer to consummate the Transactions.
6. CONDITIONS PRECEDENT.
6.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations of Buyer
under this Agreement are subject, at the option of Buyer, to the satisfaction or
waiver of each of the following conditions at or prior to the Closing Date:
6.1.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of each of Seller, Target and the Subsidiaries (but specifically
excluding Section 2.8.10) contained in this Agreement or in any certificate or
document delivered to Buyer pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date as though made at and as of that
date (except where such representation and warranty is made as of a date
specifically set forth therein), and each of Seller, Target and the Subsidiaries
shall have delivered to Buyer a certificate to that effect.
6.1.2 COMPLIANCE WITH COVENANTS. Each of Seller, Target and the
Subsidiaries shall have performed and complied with all terms, agreements,
covenants and conditions of this Agreement to be performed or complied with by
them at the Closing Date, and each of Seller, Target and the Subsidiaries shall
have delivered to Buyer certificates to that effect.
6.1.3 ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by Seller, Target and the Subsidiaries in connection
with the Transactions and all documents incident thereto shall be satisfactory
in form and substance to Buyer and its counsel, and Buyer and said counsel shall
have received all such certified or other copies of such documents as it may
request.
6.1.4 OPINION OF COUNSEL FOR SELLER. Buyer shall have received from
Seller the favorable opinions of counsel in the ▇▇▇▇▇▇▇▇ Islands and Mexico,
each dated the Closing Date, in the forms attached hereto as EXHIBITS C and D,
respectively.
6.1.5 LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding
shall have been instituted or threatened by any governmental agency seeking to
restrain, prohibit, invalidate or otherwise affect the consummation of the
Transactions.
6.1.6 THIRD PARTY AGREEMENTs. All Hotel Contracts and other contracts,
agreements and commitments set forth in SCHEDULE 2.10.6 shall be in full force
and effect, and neither Target nor any of the Subsidiaries shall have received
notice of termination or breach of such third party agreements. CONSENTS
OBTAINED. Each of Seller, Target and the Subsidiaries shall have obtained all
consents and approvals (including, without limitation, any consents and
approvals with respect to the Hotel Contracts and other contracts, agreements
and commitments set forth in SECTION 2.10.6) required for the execution,
delivery and performance of this Agreement by each of Seller, Target and the
Subsidiaries and the consummation of the Transactions, except where the failure
to obtain such consents or approvals is a result of a breach by Buyer.
STOCKHOLDER APPROVAL.
14
Buyer shall have received stockholder approval of the issuance of the Buyer
Stock and the consummation of the Transactions.
6.1.9 STOCK CERTIFICATE(S). Seller shall have delivered all of the
certificate(s) representing the Target Stock in accordance with SECTION 1.
6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of
Seller, Target and the Subsidiaries under this Agreement are subject, at the
option of Seller, to the satisfaction or waiver of each of the following
conditions at or prior to the Closing Date:
6.2.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Buyer contained in this Agreement or in any certificate or
document delivered to Seller pursuant hereto shall be true and correct in all
material respects on and as of the Closing Date as though made at and as of that
date (except where such representation and warranty is made as of a date
specifically set forth therein), and Buyer shall have delivered to Seller a
certificate to such effect.
6.2.2 COMPLIANCE WITH COVENANTS. Buyer shall in all material respects
have performed and complied with all terms, agreements, covenants and conditions
of this Agreement to be performed or complied with by it at the Closing Date,
and Buyer shall have delivered to Seller a certificate to that effect.
6.2.3 ALL PROCEEDINGS TO BE SATISFACTORY. All corporate and other
proceedings to be taken by Buyer in connection with the Transactions and all
documents incident thereto shall be reasonably satisfactory in form and
substance to Seller and its counsel, and Seller and said counsel shall have
received all such certified or other copies of such documents as it may
reasonably request.
6.2.4 LEGAL ACTIONS OR PROCEEDINGS. No legal action or proceeding
shall have been instituted or threatened by any governmental agency seeking
to restrain, prohibit, invalidate or otherwise affect the consummation of the
Transactions.
6.2.5 CONSENTS OBTAINED. Buyer shall have obtained all consents and
approvals required for the execution, delivery and performance of this Agreement
by Buyer and the consummation of the Transactions, except where the failure to
obtain such consents or approvals is a result of a breach by Seller or Target or
the Subsidiaries (including, without limitation, a breach of SECTION 9.3
hereof).
6.2.6 STOCK CERTIFICATE(S). Buyer shall have caused the delivery of
all of the certificate(s) representing the Buyer Stock in accordance with
SECTION 1.
7. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATIONS.
7.1 SURVIVAL OF REPRESENTATIONS. The representations and warranties set
forth in SECTIONS 2.1 through 2.24 shall survive the execution and delivery of
this Agreement for a period of five years from the Closing Date, except that (i)
the representations and warranties set forth in SECTIONS 2.3, 2.4 and 2.9 shall
survive indefinitely and (ii) the
15
representations and warranties set forth in SECTION 2.21 shall survive until the
expiration of all applicable statutes of limitation.
7.2 AGREEMENTS TO INDEMNIFY.
7.2.1 SELLER INDEMNITY. Subject to the terms and conditions of this
ARTICLE 7, each of Seller, Target and the Subsidiaries hereby agree to
indemnify, defend and hold Buyer harmless from and against all Losses incurred
by Buyer resulting from a breach of any representation, warranty or covenant of
Seller, Target or any of the Subsidiaries made pursuant to this Agreement.
7.2.2 BUYER INDEMNITY. Subject to the terms and conditions of this
ARTICLE 7, Buyer hereby agrees to indemnify, defend and hold Seller harmless
from and against all Losses incurred by Seller resulting from a breach of any
representation, warranty or covenant of Buyer contained in or made pursuant to
this Agreement.
7.3 CONDITIONS OF INDEMNIFICATION. The respective obligations and
liabilities of Indemnifying Party to the Indemnified Party under SECTION 7.2
with respect to claims resulting from the assertion of liability by third
parties shall be subject to the following terms and conditions:
7.3.1 NOTICE. Within 20 days after receipt of notice of commencement
of any action or the assertion of any claim by a third party, the Indemnified
Party shall give the Indemnifying Party written notice thereof together with a
copy of such claim, process or other legal pleading, and the Indemnifying Party
shall have the right to undertake the defense thereof by representatives of its
own choosing;
7.3.2 FAILURE TO ASSUME DEFENSE. In the event that the Indemnifying
Party, by the 30th day after receipt of notice of any such claim (or, if
earlier, by the tenth day preceding the day on which an answer or other pleading
must be served in order to prevent judgment by default in favor of the person
asserting such claim), does not elect to defend against such claim, the
Indemnified Party will (upon further notice to the Indemnifying Party) have the
right to undertake the defense, compromise or settlement of such claim on behalf
of and for the account and risk of the Indemnifying Party, subject to the right
of the Indemnifying Party to assume the defense of such claim at any time prior
to settlement, compromise or final determination thereof;
7.3.3 CLAIM ADVERSE TO INDEMNIFYING PARTY. Notwithstanding anything to
the contrary in this SECTION 7.3, if there is a reasonable probability that a
claim may materially and adversely affect the Indemnifying Party other than as a
result of money damages or other money payments, the Indemnifying Party shall
have the right, at its own cost and expense, to compromise or settle such claim,
but the Indemnifying Party shall not, without the prior written consent of the
Indemnified Party, settle or compromise any claim or consent to the entry of any
judgment that does not include as an unconditional term thereof the giving by
the claimant or the plaintiff to the Indemnified Party a release from all
liability in respect of such claim;
16
7.3.4 COOPERATION. In connection with any such indemnification, the
Indemnified Party will cooperate in all reasonable requests of the Indemnifying
Party; and
7.4 REMEDIES EXCLUSIVE. Except as provided in SECTION 10.10, the remedies
provided in this SECTION 7 shall be the exclusive remedy for monetary damages
(whether at law or in equity).
8. TERMINATION. This Agreement may be terminated at any time on or prior to
the Closing Date:
8.1 INJUNCTION. By either Seller or Buyer if any court of competent
jurisdiction in the United States or other applicable jurisdiction shall have
issued an order (other than a temporary restraining order), decree or ruling or
taken any other action restraining, enjoining or otherwise prohibiting the
Transactions and such order, decree, ruling or other action shall have become
final and non-appealable.
8.2 MUTUAL AGREEMENT. By mutual agreement of Seller and Buyer.
8.3 TERMINATION DATE. By either Seller or Buyer if the Closing shall not
have occurred on or before December 31, 2000, (provided that the right to
terminate this Agreement pursuant to this SECTION 8.3 shall not be available to
a party who has materially breached any representation, warranty or covenant of
this Agreement, which in the case of Seller, includes a material breach of any
covenant by Target or the subsidiaries).
8.4 MATERIAL BREACH. By Seller or Buyer upon a material breach of any
representation, warranty or covenant of this Agreement (which in the case of
Seller, includes a material breach of any covenant by Target or the
Subsidiaries) by the other party that remains uncured for a period of thirty
(30) days after receipt of written notice of such breach from the nonbreaching
party.
8.5 EFFECTS OF TERMINATION. If this Agreement is terminated pursuant to
SECTIONS 8.1, 8.2., 8.3, or 8.4, all obligations of the parties hereunder
(except for SECTIONS 8.5, 9.1, 9.2, 10.2, 10.8, 10.9 and 10.10) shall terminate
without liability of any party to any other party. Nothing contained in this
SECTION 8.5 shall relieve any party of liability for any breach of this
Agreement that occurred prior to the date of termination of this Agreement.
9. OTHER COVENANTS.
9.1 CONFIDENTIALITY OBLIGATIONS. Each party that receives confidential
and/or proprietary information (the "RECEIVING PARTY") relating to this
Agreement or the consummation of the Transactions (the "INFORMATION") shall
maintain the confidential nature of the other party disclosing such Information
(the "DISCLOSING PARTY"), and not disclose to any third party without prior
written consent of the Disclosing Party; (a) any
17
Information learned about the Disclosing Party or its affiliates in the course
of the Transactions, (b) the terms of this Agreement or the Transactions, unless
and to the extent necessary to carry out the Transactions. At the termination of
this Agreement, the Receiving Party agrees to return to the Disclosing Party any
and all materials containing any such Information. These restrictions on use and
obligations of confidentiality will not apply to any Information that: (i) is or
becomes generally available to the public other than as a result of a disclosure
by the Disclosing Party; (ii) was within the Receiving Party's possession prior
to its being furnished to the Receiving Party by or on behalf of the Disclosing
Party pursuant to this Agreement or for the consummation of the Transactions,
provided that the source of such information was not known by the Receiving
Party to be bound by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to the Disclosing Party or any
other party with respect to such information; (iii) becomes available to the
Receiving Party on a nonconfidential basis from a source other than the
Disclosing Party, provided that such source is not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Disclosing Party or any other party with respect to such
information; or (iv) the Receiving Party has received a written opinion of
outside counsel that such disclosure must be made by the Receiving Party in
order for the Receiving Party not to commit a violation of law.
In the event that the Receiving Party is requested or required (by oral
questions, interrogatories, requests for information or documents in legal
proceedings, subpoena, civil investigative demand or other similar process) to
disclose any Information, the Receiving Party shall provide the Disclosing Party
with prompt written notice of any such request or requirement so that the
Disclosing Party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this SECTION 9.1. If, in the absence of
a protective order or other remedy or the receipt of a waiver by the Disclosing
Party, the Receiving Party is nonetheless, in the written opinion of counsel,
legally compelled to disclose such Information to any tribunal or else stand
liable for contempt or suffer other censure or penalty, the Receiving Party may,
without liability hereunder, disclose to such tribunal only that portion of such
Information that such counsel advises the Receiving Party is legally required to
be disclosed, provided that the Receiving Party exercise its best efforts to
preserve the confidentiality of such Information, including, without limitation,
by cooperating with the Disclosing Party to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
such Information by such tribunal.
9.2 ANNOUNCEMENTS. Neither Seller, Target or any of the Subsidiaries, on
the one hand, nor Buyer, on the other hand, shall make, or cause to be made, any
news releases or other public announcements pertaining to the Transactions
without first consulting the other party and attempting to formulate a mutually
satisfactory arrangement for such disclosure, and in any case will only make an
announcement thereafter without the consent of the other only to the extent
required by applicable law.
9.3 BEST EFFORTS. Each party hereto agrees, both before and after the
Closing, to (i) use its best efforts to consummate the Transactions as soon as
reasonably practicable after the date of this Agreement and (ii) execute any and
all further documents and
18
writings and perform such other actions that may be or become necessary or
expedient to effectuate and carry out the Transactions (which shall not include
any obligation to make payments).
10. MISCELLANEOUS.
10.1 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, none of the parties hereto shall have any obligation
to pay any of the fees and expenses of any other party incident to the
negotiation, preparation and execution of this Agreement or the consummation of
the Transactions, including the fees and expenses of counsel, accountants,
investment bankers and other experts.
10.2 WAIVERS. Seller or Buyer may, by written notice to the other party:
(a) extend the time for the performance of any of the obligations or other
actions of the other party under this Agreement; (b) waive any inaccuracies in
the representations or warranties of the other party contained in this Agreement
or in any document delivered pursuant to this Agreement; (c) waive compliance
with any of the conditions or covenants of the other contained in this
Agreement; or (d) waive performance of any of the obligations of the other under
this Agreement. With regard to any power, remedy or right provided herein or
otherwise available to any party hereunder, (i) no waiver or extension of time
will be effective unless expressly contained in a writing signed by the waiving
party, and (ii) no alteration, modification or impairment will be implied by
reason of any previous waiver, extension of time, delay or omission in exercise.
10.3 AMENDMENTS, SUPPLEMENTS. This Agreement may be amended or supplemented
at any time by the mutual written consent of Buyer and Seller.
10.4 ENTIRE AGREEMENT. This Agreement, its exhibits and schedules, and the
documents executed on the Closing Date in connection herewith, constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral and written,
between the parties hereto with respect to the subject matter hereof. No
representation, warranty, promise, inducement or statement of intention has been
made by either party that is not embodied in this Agreement or such other
documents, and neither party shall be bound by, or be liable for, any alleged
representation, warranty, promise, inducement or statement of intention not
embodied herein or therein.
10.5 BINDING EFFECT, BENEFITS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns. Notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective successors and assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
10.6 ASSIGNABILITY. Neither this Agreement nor any of the parties' rights
hereunder shall be assignable by a party without the prior written consent of
the other parties of this Agreement.
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10.7 NOTICES. All notices under this Agreement will be in writing and will
be delivered by personal service or telegram, telecopy or certified mail (if
such service is not available, then by first class mail), postage prepaid, to
such address as may be designated from time to time by the relevant party, and
that will initially be as set forth below. Any notice sent by certified mail
will be deemed to have been given seven (7) days after the date on which it is
mailed. All other notices will be deemed given when received. No objection may
be made to the manner of delivery of any notice actually received in writing by
an authorized agent of a party. Notices will be addressed as follows or to such
other address as the party to whom the same is directed will have specified in
conformity with the foregoing:
(a) If to Buyer: International Realty Group, Inc.
▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, D.F. C.P. 11810
ATTN: President
(b) If to Seller, Target
or the Subsidiaries: Qualton Group Corporation
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, D.F. C.P. 11000
ATTN: President
10.8 GOVERNING LAW: JURISDICTION. This Agreement will be governed and
construed by and under the laws of the State of Delaware without regard to the
application of the principles of conflict of laws. The parties will submit all
disputes arising out of or related to this Agreement, or to the interpretation,
performance, breach or termination thereof, to binding arbitration pursuant to
the Expedited Procedures of the Commercial Arbitration Rules ("RULES") of the
American Arbitration Association ("AAA"). The arbitration will take place in San
Diego, California at the offices of the AAA. The language of the arbitration
will be English. The dispute will be resolved by a single arbitrator appointed
by the AAA in accordance with the list procedure described in Paragraph 13 of
the Rules. The parties expressly agree that prior to the selection of the
arbitrator, nothing in this Agreement will prevent the parties from applying to
a court that would otherwise have jurisdiction for provisional or interim
relief. After the arbitrator is selected, he will have sole jurisdiction to hear
such applications, except that the parties agree that any relief ordered by the
arbitrator may be immediately and specifically enforced by a court otherwise
having jurisdiction over the parties. All fees and costs will be allocated to
the parties to the arbitration as determined by the arbitrator, except that the
prevailing party shall be entitled to attorneys' fees and costs as provided in
SECTION 10.9. To the extent that state or federal law under which a party's
claim arises provides for the award of attorneys' fees to the prevailing party,
the arbitrator is empowered to award such fees. The parties submit to the
exclusive jurisdiction of the United States District Court for the Southern
District of California for the resolution of any dispute or enforcement of any
right arising out of or relating to this agreement to arbitrate, including
enforcement of this agreement to arbitrate, application for the provisional or
interim remedies provided for herein, and confirmation of any award rendered by
the arbitrator
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pursuant to this agreement to arbitrate and waive any objection to the venue or
personal jurisdiction of said courts. The decision of the arbitrator shall be
final and binding on the parties and enforceable in accordance with the New York
Convention on the Recognition and Enforcement of Arbitral Awards (9 ▇.▇.▇ ▇▇ et.
seq.).
10.9 ATTORNEYS' FEES. Should any litigation be commenced (including any
proceedings in a bankruptcy court) among the parties hereto or their
representatives concerning any provision of this Agreement or the rights and
duties of any person or entity hereunder, solely as among the parties hereto or
their successors, the party or parties prevailing in such proceeding will be
entitled to the reasonable attorneys' fees and expenses of counsel and court
costs incurred by reason of such litigation.
10.10 EQUITABLE REMEDIES. Seller, Target or the subsidiaries and Buyer
acknowledge that the remedy at law for any breach, or threatened breach, of any
of the provisions of SECTION 9.1 will be inadequate and, accordingly, each party
covenants and agrees that the other party will, in addition to any other rights
or remedies that it may have and regardless of whether such other rights or
remedies have been previously exercised, be entitled to such equitable and
injunctive relief as may be available from any appropriate court referred to in
SECTION 10.8. Notwithstanding the foregoing sentence, any monetary damages which
is all or a portion of any equitable relief granted hereunder shall be subject
to the limitations set forth in SECTIONS 7.3 and 7.4.
10.11 RULES OF CONSTRUCTION.
10.11.1 HEADINGS. The article and section headings in this Agreement
are inserted only as a matter of convenience, and in no way define, limit, or
extend or interpret the scope of this Agreement or of any particular article or
section.
10.11.2 TENSE AND CASE. Throughout this Agreement, as the context may
require, references to any word used in one tense or case shall include all
other appropriate tenses or cases.
10.11.3 SEVERABILITY. The validity, legality or enforceability of the
remainder of this Agreement will not be affected even if one or more of the
provisions of this Agreement will be held to be invalid, illegal or
unenforceable in any respect.
10.11.4 AGREEMENT NEGOTIATED. The parties hereto are sophisticated and
have been represented by lawyers throughout this transaction who have carefully
negotiated the provisions hereof. As a consequence, the parties waive any effect
under the laws or rules under Delaware law relating to the interpretation of
contracts against the drafter of any particular clause.
10.12 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 instrument.
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IN WITNESS WHEREOF, this Stock Purchase Agreement has been duly
executed and delivered by the duly authorized officers of the parties hereto as
of the date first above written.
BUYER
International Realty Group, Inc.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: President
SELLER
Qualton Group Corporation
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Chairman of the Board
TARGET
Qualton Hotels & Resorts Corporation
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Chairman of the Board
SUBSIDIARIES
HOTELERA QUALTON, S.A. DE C.V.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Attorney in Fact
IMPULSORA TURISTICA DE ACAPULCO, S.A. DE C.V.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Its: Director
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IMPULSORA TURISTICA DE IXTAPA, S.A. DE C.V.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Attorney in Fact
Acknowledged and agreed to by ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in his capacity as
minority stockholder of Hotelera Qualton,
S.A. de C.V., Impulsora Turistica de
Acapulco, S.A. de C.V. and Impulsora
Turistica de Ixtapa, S.A. de C.V., as to
Sections 2.3.2 and 4.5 of this Agreement:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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EXHIBIT A
"AGREEMENT" shall have the meaning set forth in the preamble.
"BALANCE SHEET" shall mean the unaudited consolidated balance sheet of
Target as of June 30, 2000 (the "BALANCE SHEET DATE"), subject to adjustments
reflecting Intracompany Transactions that have not been reflected in such
balance sheet.
"BUSINESS" shall mean the business of Target and the Subsidiaries as
presently conducted.
"BUYER" shall have the meaning set forth in the preamble.
"BUYER STOCK" shall have the meaning set forth in SECTION 1.1.
"CHARGES" shall mean all federal, state, county city, municipal, local,
foreign or other governmental taxes at the time due and payable, levies,
assessments, charges, liens, claims or encumbrances upon or relating to (i)
Target's or any of the Subsidiaries' employees, payroll, income or gross
receipts, (ii) Target's or any of the Subsidiaries' ownership or use of any of
its assets or (iii) any other aspect of Target's or the Subsidiaries' Business.
"CLOSING" and "CLOSING DATE" shall have the meanings set forth in
SECTION 1.2.
"DISCLOSING PARTY" shall have the meaning set forth in SECTION 9.1.
"FINANCIAL STATEMENTS" shall mean the Balance Sheet and Statement of
Operations.
"HOTEL CONTRACTS" shall have the meaning set forth in SECTION 2.10.5.
"HOTELERA QUALTON" shall have the meaning set forth in the preamble.
"INDEMNIFIED PARTY" shall mean, with respect to any Loss, the party
seeking indemnity hereunder.
"INDEMNIFYING PARTY" shall mean, with respect to any Loss, the party
from whom indemnity is being sought hereunder.
"INTRACOMPANY TRANSACTIONS" shall mean transactions between Target and
Seller or its other subsidiaries that are allocable or attributable to Target,
including, without limitation, any services (such as administrative, data
processing, employee benefits, insurance, etc.) provided by Seller or such
subsidiaries to Target.
"ITA" shall have the meaning set forth in the preamble.
"ITI" shall have the meaning set forth in the preamble.
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"KNOWLEDGE" shall mean the actual knowledge of a party as of the date
hereof, after reasonable inquiry conducted by such party.
"LAWS" shall have the meaning set forth in SECTION 2.5.
"LOSSES" shall mean any and all costs and expenses (including, without
limitation, reasonable attorneys' fees), damages, losses, net of any Tax
adjustments, settlements, reductions or other effects, that actually result from
the Loss and its payment by the Indemnifying Party.
"MANAGEMENT EMPLOYEES" shall mean employees of Target and the
Subsidiaries or employees of Buyer, as the case may be, with a title of at least
Vice President or the equivalent.
"RECEIVING PARTY" shall have the meaning set forth in SECTION 9.1.
"SECURITIES ACT" shall have the meaning set forth in SECTION 2.20.1.
"SELLER" shall have the meaning set forth in the preamble.
"STATEMENT OF OPERATIONS" shall mean the unaudited statement of
operations of Target and the Subsidiaries for the six (6) month period ended
June 30, 2000, as adjusted to reflect Intracompany Transactions.
"SUBSIDIARIES" shall have the meaning set forth in the preamble.
"TARGET" shall have the meaning set forth in the preamble.
"TARGET STOCK" shall have the meaning set forth in Paragraph A of the
Recitals.
"TAX" or "TAXES" shall mean any and all taxes, charges, fees or levies,
payable to any federal, state, local or foreign taxing authority or agency,
including, without limitation, (i) income, franchise, profits, gross receipts,
minimum, alternative minimum, estimated, AD VALOREM, value added, sales, use,
service, real or personal property, capital stock, license, payroll,
withholding, disability, employment, social security, workers compensation,
unemployment compensation, utility, severance, excise, stamp, windfall profits,
transfer and capital gains taxes, (ii) custom duties, imposts, charges, levies
or other similar assessments of any kind, and (iii) interest, penalties and
additions to tax imposed with respect thereto.
"TAX RETURN" shall mean any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"TRANSACTIONS" shall mean the transactions contemplated by this
Agreement.
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EXHIBIT B
SCHEDULE OF EXCEPTIONS
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ COUNSEL
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EXHIBIT D
LEGAL OPINION OF MEXICO COUNSEL
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