Exhibit 99.1
PURCHASE AGREEMENTPURCHASE AGREEMENT
THIS PURCHASE AGREEMENT entered into as of February 18, 2004 by and between
INVICTA GROUP INC., a Nevada Corporation (the "Buyer"), and ▇▇▇▇ ▇▇▇▇▇▇▇ and
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▇▇▇▇▇ ▇▇▇▇▇▇▇, (jointly the "Selling Shareholders") individuals and sole
shareholders of AIRPLAN, INC. (collectively the "Corporations"),
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WHEREAS, the Selling Shareholders, among other things, own a Wholesale and
retail Travel Company, own certain domain names, a database of 3,000 plus Travel
Agencies/customers; have an ARC appointment (ARC number 39812776), have various
bank and credit card merchant accounts, own two Internet websites, and are
located in the suburbs of Pittsburgh, PA.
WHEREAS, the Selling Shareholders desire to sell and the Buyer desires to
purchase all of the outstanding stock and assets of the Corporations, upon the
terms and conditions hereinafter set forth;
WHEREAS, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ are the sole shareholders of the
Corporations.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. DEFINITIONS.
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"Acquired Assets": means all of the right, title, and interest that the
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Corporations possess in those assets identified on Schedule A hereto, which, by
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virtue of the acquisition of the stock of the Corporations, will be acquired
indirectly by the Buyer.
"Buyer": means Invicta Group Inc., as set forth in the preface above.
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"Closing": means the day the Selling Shareholders and Buyer agree to
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transfer stock of respective companies.
"Intellectual Property": means
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(a) All inventions (whether patentable or unpatentable and whether or not
reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions, and reexaminations
thereof,
(b) All Internet websites owned by the Corporations:
(c) All trademarks, service marks, trade dress, logos, trade names, and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith,
(d) All mask works and all applications, registrations, and renewals in
connection therewith,
(e) All trade secrets and confidential business information (including
ideas, research and development, know-how, formulas, compositions, manufacturing
and production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals),
(f) All computer software (including data and related documentation),
(g) All other proprietary rights, and
(h) All copies and tangible embodiments thereof (in whatever form or
medium).
"Liabilities": means all debt of the Corporation owed to suppliers,
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customers, employees and accounts payable listed on Balance Sheet or a list of
liabilities prepared as of the date of Closing.
"Selling Shareholders": means ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
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"Stock": means all shares from Selling Shareholders and shares issued to
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Selling Shareholders by Invicta Group Inc. as applicable of the Corporation
being acquired.
"Website": means Internet site promoting business of AIRPLAN, INC.
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2. ACQUISITION OF STOCK. On the Closing Date, Buyer will acquire all of
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the outstanding shares of capital stock of the Corporations (the "Acquisition")
on the terms and conditions set forth in this Agreement.
3. CONSIDERATION.
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(a) The purchase price for the stock of the Corporations will be the
issuance to the Selling Shareholders, in a ratio to be determined by them, of an
aggregate of 1,000,000 shares of Invicta Group, Inc. common Stock. 700,000 of
these shares will be restricted, and 300,000 of these shares will be eligible
for piggyback registration rights on Invicta's next Registration Statement to be
filed with the SEC. At the completion of the Closing, each of the Corporations
shall be and become a wholly owned subsidiary of Buyer.
(b) Buyer shall guarantee the value of the stock to be at least $500,000
180 days after the Closing (price determined by the average of the closing ASK
price of the Buyer's common stock as quoted on the Over-the-Counter Bulletin
Board System for the last ten (10) trading days of the 5th month after Closing).
If the value of the stock is less than $500,000, then additional shares will be
issued to total $500,000 based on the market price at the time of the
calculation (for example, if the market price for the stock is $.40 per share at
that date, that would mean that the total value of the initial shares issued was
$400,000. To make up the additional $100,000 owed, the Buyer would issue to
Selling Shareholders a total of 250,000 more shares.)
(c) Buyer will offer the Selling Shareholders a 5 year Earn out Agreement
offering an EARN OUT of 10% of EBITDA of the Corporation for each of the fiscal
years ending 12/31/2004 thru 12/31/2008. Payment will be made 20 days after
Independent Auditors complete annual audit.
It is the Buyer's intent to add airline inventory for North America, South
America, Asia, Hawaiian Islands and Caribbean Islands, with negotiated air
consolidator fares. The added inventory of airline markets should enhance
EBITDA.
4. THE CLOSING.
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(a) The Closing shall take place at the offices of Seller no later than
February 28, 2004, unless the parties agree in writing to extend the closing
date to another place or time.
(b) The following will be delivered by Selling Shareholders and the
Corporations at Closing:
- All certificates for outstanding shares of Corporations' Stock, duly
endorsed for transfer
- All corporate records and minute books of the Corporations
- All financial and corporate books and records of the Corporations,
including bank account information.
(c) The following will be delivered by Buyer at Closing:
- Original Certificates for the Shares duly issued and registered in the
respective names of the Selling shareholders.
5. REPRESENTATION AND WARRANTIES OF SELLING SHAREHOLDERS.
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Selling Shareholders represent and warrant to Buyer as follows:
5.1 CORPORATE COMPLIANCE; AUTHORIZATION
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A. COMPLIANCE. The Corporations are duly and validly in existence and are
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in good standing in the State of Florida. To the best knowledge of the Selling
Shareholders, neither of the Corporations is in violation, breach, or default of
any term of its Certificate of Incorporation or By-laws, or of any material term
or provision of any contract, agreement, judgment, decree, order, statute, rule
or regulation applicable to or binding upon the Corporations, the breach or
default of which would have a material adverse affect on either of the
Corporation's business or financial condition.
B. AUTHORIZATION. The Selling Shareholders are the sole shareholders of
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the Corporations and have all requisite power and authority to execute, deliver
and perform their respective obligations under this Agreement, and all corporate
action on the part of the Corporations, their officers and directors, necessary
for the sale and transfer of the Stock has been taken. This Agreement, the
Certificate of Incorporation of the Corporations, and all agreements attached
hereto as Exhibits, are each legal, valid and binding obligations of the
respective Corporations enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws and equitable principles relating to or
affecting the enforcement of creditors' rights in general and by general
principles of equity. The execution, delivery and compliance with the
performance by the Corporations of this Agreement do not and will not (1)
conflict with or result in a breach of the terms, conditions and provisions of
any contractual obligation, (2) result in the creation of any material lien,
security interest, charge or encumbrance upon the Stock or assets of the
Corporations.
5.2 ABSENCE OF LITIGATION. In good faith and to the best of the knowledge
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of Selling Shareholders, after due inquiry and investigation, there are no (a)
actions proceedings, arbitrations or investigations pending or any threat
thereof, or verdicts or judgments entered against the Corporations before any
court or before any administrative agency or officer which might result in any
material adverse change in the business, properties or condition, financial or
otherwise, of the Corporations or (b) violations by the Corporations of any
foreign, federal, state or local laws, regulations or order, including but not
limited to laws pending to workplace safety and environmental clean-up, the
violation of which would have a material adverse effect on the business of the
Corporations.
5.3 TAX RETURNS AND PAYMENTS. In good faith and to the best knowledge of
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Selling Shareholders, the Corporations are not in violation of the filing
requirements for all federal and state income tax returns that are required to
be filed by the Corporations.
5.4.1 MATERIAL LICENSES, AGREEMENTS AND RELATED PARTY AGREEMENTS.
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To the Best knowledge of Selling Shareholders:
A. Schedule 5.4 hereto identifies each Material Contract of the
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Corporations (the "Contracts"). All Contracts are in writing. Selling
Shareholders have delivered to Buyer accurate and complete copies of all
Contracts identified in Exhibit B, including all amendments thereto;
B. each Contract is valid and in full force and effect, and is enforceable
by The Corporations in accordance with its terms;
C. except as set forth in Exhibit B :
(1) No person acting for the Corporations has violated or breached, or
declared or committed any default under, any Contract;
(2) No event has occurred, and no circumstance or condition exists, that
likely would (with or without notice or lapse of time) (A) result in a
violation or breach of any of the provisions of any Contract, (B) give
any Person the right to declare a default or exercise any remedy or
hinder any Contract, (C) give any Person the right to accelerate the
maturity or performance of any Contract, or (D) give any Person the
right to cancel, terminate or modify any Contract;
(3) The Corporations have not waived any of their respective rights under
any Contract.
D. each person against which the Corporations have or may acquire any
rights under any Contract is solvent and is able to satisfy all of such person's
current and future monetary obligations and other obligations and liabilities to
the Corporations;
E. except as set forth in Schedule 5.4:
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(1) The Corporations have never guaranteed or otherwise agreed to cause,
insure or become liable for, and has never pledged any of their
respective assets to secure the performance or payment of any
obligation or other liability of any other person except in the
ordinary course of business; and
(2) The Corporations have never been a party to or bound by (A) any joint
venture agreement, partnership agreement, profit sharing agreement,
cost sharing agreement, loss sharing agreement or similar Contract, or
(B) any Contract that creates or grants to any person, or provides for
the creation or grant of, any stock appreciation right, phantom stock
right or similar right or interest.
F. the performance of the Contracts will not result in any violation of or
failure to comply with any legal requirement;
G. except as identified in Schedule 5.4 , no person is materially
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renegotiating, or has the contractual right to materially renegotiate, any
amount paid or payable to either Corporation under any Contract or any other
term or provision of any Contract;
H. the Contracts identified in Schedule 5.4 constitute all of the
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Contracts necessary to enable the Corporations to conduct their respective
businesses in the manner in which such businesses are currently being conducted
and in the manner in which such businesses are proposed to be conducted;
I. except as set forth in Schedule 5.4: (i) the Contracts, including but
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not limited to those described in Exhibit B, are legally valid, binding and
enforceable agreements of the Corporations, except as enforceability may be
limited by bankruptcy and other similar laws affecting creditors rights, and the
other parties thereto; the Corporations are not and no other party to any such
Contract is in violation of or in default under such Contracts and no event or
circumstances have occurred which constitute, or after notice or lapse of time
or both would constitute, a violation or default thereunder on the part of the
Corporation or any other party thereto or result in a right to accelerate or
loss of rights; and such Contracts will continue to be binding in accordance
with their terms after the Closing, assuming any consents listed in Exhibit B
are obtained; (ii) the Corporations have fulfilled all obligations required
pursuant to each Contract to have been performed by them, and the Sellers have
no reason to believe that the Corporations will not be able to fulfill all of
their obligations under the Contracts which remain to be performed after the
date hereof, and (iii) none of the payments required to be made under any
Contract has been prepaid by more than 30 days prior to the due date of such
payment thereunder and the estimated cost to complete any Contract, plus
expenses incurred by them on that Contract, will not exceed the total Contract
price.
5.5 MATERIAL CHANGE. Since February 18, 2004, there has not occurred:
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A. Any material adverse change in the assets, liabilities, business,
prospects, condition (financial or otherwise), or operating results of either
Corporation;
B. Any material increase in the indebtedness or liabilities of the
Corporations over the level thereof;
C. Any material increase in the compensation (including, without
limitation, the rate of commissions) payable to, or any payment of a cash salary
bonus to, any officer, director or employee of, or consultant to, the
Corporations;
D. Any material change in the manner of keeping the book accounts or
records of the Corporations or in the accounting practices therein reflected; or
E. Any declaration or payment of any dividends or distribution to the
Selling Shareholders by the Corporations, any acquisition or redemption by the
Corporations of any of its equity securities or loan by the Corporations to any
of its security holders.
5.6 LEASES. Neither Corporation has any right, title or interest in, or
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any obligation or duty relating to, any real estate or real property, except for
its interest as a tenant, lessee, subtenant or sub lessee under the lease for
the Corporations' principal place of business, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Leased Premises"), attached as Schedule 5.6 hereto (the "Lease").
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A. (1) Corporations have delivered to Buyer true and complete copies of
the Lease, all amendments and supplements thereto and all such non-disturbance
agreements, if any; (2) Corporations are the holders of the lessee's interest,
as applicable, in the Lease and Corporations have not assigned any Lease or any
interest therein or subleased any portion of the Leased Premises; (3) the Lease
is in full force and effect; (4) Corporations are not and, to the best of the
knowledge of the Corporation and each Selling shareholder, the landlord under
the Lease is not in default under the Lease, and no event has occurred which,
with the giving of notice or passage of time or both, would constitute a default
by Corporation or, to the best of the knowledge of the Selling Shareholders, the
landlord under the Lease; and (5) neither the execution or performance of this
Agreement, with the consent of the landlord, in a form reasonably acceptable to
landlord and Buyer, will result in a breach of or constitute a default under any
of the Leases.
B. The buildings and improvements situated on and comprising part of the
Leased Premises, and all heating and air conditioning equipment and all
plumbing, electrical and other mechanical facilities which are part of, or which
service, such Leased Premises are, to the best of the knowledge of the Selling
Shareholders, in good operating condition and repair and do not require any
repairs other than routine maintenance, and with respect to the roof, free from
leaks.
C. To the best of Selling Shareholder's knowledge, the Corporations have
not received any notice of any condemnation proceeding or any other proceeding
in the nature of eminent domain (a "Taking") in connection with any of the Real
Properties, and to Corporation's knowledge no Taking has been threatened.
D. All essential utilities (including water, sewer, gas, electricity and
telephone service) are available to the Leased Premises.
5.7 TITLE TO ASSETS. The Corporations own, free and clear of encumbrances:
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A. All assets reflected on the December 31, 2003 Unaudited Interim Balance
Sheets (except for inventory sold by the Corporations since December 31st 2003,
in the ordinary course of business);
B. All assets acquired by the Corporations since December 31, 2003 (except
for inventory sold by the Corporations since December 31, 2003 in the Ordinary
Course of Business);
C. All assets that constitute the Corporations' rights and privileges
under ARC Agency Code Number ▇▇▇-▇▇-▇▇▇; and
D. All other assets reflected in the Corporations' books and records as
being owned by the Corporations.
5.8 EQUIPMENT, ETC.
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A. Schedule 5.8 hereto lists each of the Corporations' capital equipment
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and depreciation schedule, which describes historical cost and depreciation
information with respect to all of Corporation's capital equipment, furniture,
fixtures, improvements and other tangible personal property, and also accurately
identifies all material tangible personal property leased to the Corporations;
B. Each material asset of the Corporations:
(1) Is free of defects and deficiencies and in good condition and repair,
consistent with its age and intended use (ordinary wear and tear
excepted);
(2) Complies in all material respects and, to the Seller's best knowledge,
is being operated and otherwise used in full compliance with all
applicable legal requirements;
(3) Is adequate for the uses to which it is being put;
(4) Is adequate for the conduct of the Corporation's business in the
manner in which such business is currently being conducted;
(5) Has been maintained in accordance with reasonable maintenance
schedules;
(6) Is owned by the Corporations free and clear of any encumbrance; and
(7) Is located at the Corporations' principal business office.
5.9 NO LIABILITIES. Except for the Lease, and the telephone leases, the
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Corporations are not subject to any claims, demands, liens, agreements,
contracts, covenants, promises, suits, actions or cross-actions, causes of
action, obligations, controversies, disputes, costs, fees, losses, damages (both
compensatory and exemplary or punitive), judgments, orders, wrongful acts, and
liabilities of whatever kind or nature in law, equity, or otherwise, fixed or
contingent.
6.00 EXTENT OF OFFERING. Except as contemplated in this Agreement, neither
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the Corporations, nor any agent acting on their behalf, has offered or will
offer or solicit any offers to sell any securities to any person or persons so
as to require the issuance or sale of the Stock, to be registered to the
provisions of 5 of the Securities Act, or prevent the Corporations from
utilizing the provisions of 4(2) or Regulation D of the Securities Act or any
applicable state securities law exemption from qualification.
6.1 FEES, COMMISSIONS AND EXPENSES. The Selling Shareholders and the Buyer
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have made no agreements or arrangements for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon the Corporation.
6.2 VALIDITY OF ISSUANCE. The Stock to be purchased and sold pursuant to
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this Agreement, and delivered, will be duly and validly issued, fully paid and
no assessable, and will be free and clear of any liens or encumbrances caused or
created by the Selling Shareholders and, assuming the accuracy and completeness
of the Buyer's and the Corporations' and Selling Shareholders' representations
hereunder, will have been issued in compliance with all the applicable state and
federal securities laws.
6.3 DISCLOSURE. Neither this Agreement, nor any of the schedules,
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attachments, exhibits, written statements, documents, certificates or other
materials prepared or supplied by the Selling Shareholders with respect to the
transactions contemplated hereby contain any untrue statements of a material
fact or omit a material fact to make the statements contained herein or therein
not misleading.
6.4 PRIVATE OFFERING. The offer to sell the Stock was directly
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communicated to the Buyer by the Selling Shareholders. At no time did the
Selling Shareholders present to Buyer or any other person, or solicit Buyer or
any other person with, any leaflet, newspaper or magazine article, radio or
television advertisement, or any other form of general advertising or
solicitation,
nor did the Selling Shareholders invite Buyer or any other to attend a
promotional meeting otherwise than in connection and concurrently with such
communicated offer.
6.5 BUYER REPRESENTATION. The Selling Shareholders have a reasonable basis
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to believe that representations and warranties of Buyer set forth in this
Agreement are true and accurate.
7. SELLER'S INVESTMENT REPRESENTATIONS AND WARRANTIES. As to stock of
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Buyer being acquired by the Selling Shareholders, the Selling Shareholders
represent and warrant to the Buyer as follows:
(A) INVESTMENT. Selling Shareholders are acquiring shares of Buyer's stock
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for investment purposes for their own accounts and not with a view to, or resale
in connection with, any distribution thereof, and Selling Shareholders have no
present intention of selling or distributing any of these shares of the Stock.
(B) LIMITATIONS ON RESALE OR TRANSFER. Selling Shareholders understand and
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acknowledge that their ability to sell any of the shares of Stock may be limited
by the lack of a ready market in which to sell the Stock, and that the
certificates issued will carry the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1993, OR APPLICABLE STATE SECURITIES LAWS. NO SALE OR DISPOSITION MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN
OPINION OF COUNSEL SATISFACTORY TO THE BUYER, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES
LAWS OR RECEIPT OF AN NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE
COMMISSION THAT SUCH REGISTRATION IS NOT REQUIRED."
At such time that the Company has received an effective date for any future
registration statement in which the 300,000 shares issued to Selling
Shareholders have been included, then such shares may have the above legend
removed therefore.
A. ACCESS TO DATA. The Selling Shareholders have had an opportunity to
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discuss the Buyer's business, management and financial affairs with its
management and to obtain any additional information necessary or appropriate for
deciding whether or not to purchase the Stock. Selling Shareholders acknowledge
that the Buyer or any agent thereof has made no representation or warranties,
oral and written, except as set forth in this Agreement. Selling Shareholders
have availed themselves fully of all publicly available information on Buyer,
including records available on ▇▇▇▇▇.
B. PREVIOUS INVESTMENTS. Seller are investors in securities of companies
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in the development stage and acknowledges that they are able to fend for
themselves, can bear the economic risk of this investment and have such
knowledge and experience in financial or business matters that their capable of
evaluating the merit and risks of the investment contemplated herein.
C. RISKS. Sellers understand that the investment in the Buyer involves a
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high degree of risk and is suitable only for Seller who can afford a loss of
their entire investment and who have no need for liquidity from their
investment.
D. PRIVATE OFFERING. The offer to sell the Stock was directly communicated
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to Sellers by the Buyer. At no time was Sellers presented or solicited by any
leaflet, newspaper or magazine article, radio or television advertisement, or
any form of general advertising or solicited or invited to attend a promotional
meeting otherwise than in connection and concurrently with such communicated
offer.
8. REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer represents and
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warrants to the Shareholders as follows: that the statements contained in this
Section 5 are correct and complete as of the date of this Agreement and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the date of this Agreement throughout this
Section 5), except to the extent set forth in the Disclosure Schedule. The
Disclosure Schedule will be arranged in paragraphs corresponding to the lettered
and numbered paragraphs contained in this Section 5.
8.1 ORGANIZATION OF THE BUYER. The Buyer is a corporation duly
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organized and incorporated under the laws of the state of Nevada, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation,
8.2 AUTHORIZATION OF TRANSACTION. The Buyer has full power and
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authority (including full corporate power and authority) to execute and deliver
this Agreement, and the other agreements, documents and instruments contemplated
hereby, and to perform their respective obligations hereunder and hereunder.
This agreement constitutes the valid and legally binding obligations of the
Buyer, as the case may be, enforceable in accordance with their terms and
conditions.
8.3 CAPITALIZATION OF BUYER. As of the 1/29/04 the authorized capital
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stock of Buyer consists of 90 million common shares and 10 million Preferred
shares, of which 45,152,279 common shares are validly issued and outstanding;
all are fully paid and nonassessable. The Buyers stock to be delivered as part
of this purchase price will be validly issued, fully paid and nonassessable; and
the Buyer has the power and authority to issue the same.
8.4 AUTHORIZATION OF THE SALE The officers of Buyer who sign this
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agreement have the requisite capacity, power, and authority to do so. The
signing and delivery of this Agreement and all related documents, by Buyer
through its officers, and the performance of this agreement (i) does not violate
any contract to which Buyer is a party; or (ii) violate any provisions of
Buyer's Articles of Association, or any of Buyer's other governing documents or
corporate documents.
8.5 BINDING NATURE AND ENFORCEABILITY OF AGREEMENT Assuming that this
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Agreement is binding upon and enforceable against all other parties, this
Agreement, the stock of Buyer, and all other documents that are signed by Buyer
and delivered at the Closing, are legally binding upon, and enforceable against
Buyer.
8.6 CONSENTS No authorization of, or registration or filing with, any
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court, Government, Entity, or person is required in connection with the signing,
delivery or performance by Buyer of this Agreement, any exhibit, or any other
agreement or document to be delivered by or on behalf of Buyer in connection
with the Transaction of this Agreement ("The Transaction")
8.7 BROKERS AND FINDERS No Broker, Finder or other person or entity acting
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in a similar capacity (i) has acted on behalf of Buyer in bringing about this
transaction, (ii) has rendered any services with respect to the Transaction, or
(iii) has been involved in any way, with this transaction.
8.8 LIABILITIES OF THE CORPORATION on and after the Closing Date the
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Liabilities of the Corporation shall remain liabilities thereof and Selling
Shareholders shall have no obligation, liability, or responsibility for the
payment thereof.
9. TERMINATION.
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a. This Agreement may be terminated at any time prior to the Closing Date:
(1) By the written agreement of Sellers and the Buyer;
(2) By either Party by written notice to the other parties if the
transactions contemplated hereby shall not have been consummated
pursuant hereto by 5:00 p.m. on February 28th 2004, unless such date
shall be extended by the written consent of Buyer;
(3) By either Party by written notice to the other parties if (i) the
representations and warranties of the other Party shall not have been
true and correct in all respects (in the case of a representation or
warranty containing a materiality qualification) or in all material
respects (in the case of a representation or warranty without a
materiality qualification) as of the date when made, or (ii) any of
the conditions set forth in Section 2 shall not have been, or if it
becomes apparent that any of such conditions will not be, fulfilled by
5:00 p.m. on February 28th 2004
(4) In the event of the termination of this Agreement pursuant to Section
4, this Agreement shall become void, without any liability to any
party in respect hereof or of the transactions contemplated hereby on
the part of any party hereto, or any of its directors, officers,
employees, agents, consultants, representatives, attorney's advisers,
or stockholders, and except for any liability resulting from such
party's breach of this Agreement.
10. MISCELLANEOUS.
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A. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
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the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
B. NO THIRD-PARTY BENEFICIARIES. The terms and provisions of this
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Agreement are intended solely for the benefit of each party hereto and their
respective successors and assigns, and it are not the intention of the parties
to confer third-party beneficiary rights upon any other person.
C. SURVIVAL OF AGREEMENTS, REPRESENTATIONS, ETC. All warranties,
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representations, agreements and covenants made by a party herein or in any
certificate or other instrument required to be delivered by or on behalf of a
party in connection with this Agreement, shall be considered to have been relied
upon by the other party and shall survive the Closing under this Agreement
regardless of any investigation made by any party or information about any
breach known to any party prior to the Closing; shall continue in full force and
effect; and shall provide a basis for the remedies provided for herein or
otherwise available to the non-breaching party.
No representation or warranty contained herein shall be deemed to have been
waived, affected or impaired by any investigation made by with the knowledge of
any party to this Agreement. All statements in any such certificate or other
instrument delivered at or in connection with the Closing shall constitute
representations and warranties of the party making such delivery. Each
agreement, representation and warranty contained herein is independent of all
other agreements; representations and warranties contained herein (whether or
not covering an identical or a related subject matter) and must be independently
and separately complied with and satisfied. Exceptions or qualifications to any
agreement, representation or warranty contained herein shall not be construed as
exceptions or qualifications to any agreement, other warranty or representation.
D. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto and
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the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the Sellers and Buyer with regard to the
subjects hereof and thereof.
E. AMENDMENTS AND MODIFICATIONS. This Agreement may not be amended or
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modified other than by an agreement in writing signed by all of the parties.
F. NOTICE. Any notice, payment, report or other communication required or
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permitted to be given by one to any other party by this Agreement shall be in
writing and either (i) served personally on the other party or parties; (ii)
sent by express, registered or certified first class mail, postage prepaid,
addressed to the other party or parties at its or their address or addresses as
indicated next to their signatures below, or to such other address as any
addressee shall have therefore furnished to the other parties by like notice;
(iii) delivered by commercial courier to the other party or parties; or (iv)
sent by facsimile with the original sent by U.S. Mail. Such notice shall be
deemed received on the second day after transmittal if sent by one (1) day
courier together with a transmission of such notice by facsimile if the
recipient has the capability to receive a facsimile.
G. STATUTORY REFERENCES. A reference in this Agreement to a statute or
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statutory provision shall mean such statute or statutory provision as it has
been amended through the date as of which the particular Agreement provision is
to take effect, or to any successor statute or statutory provision relating to
the same subject as the statutory provision referred to in this Agreement, and
to any then applicable rules or regulations promulgated thereunder.
H. WAIVER OF JURY TRIAL. THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A
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TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER OF THEM
RELATING TO THIS AGREEMENT. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
TRANSACTIONS ARE MORE QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON, THE PARTIES PREFER, BASED ON THE ADVICE OF THEIR COUNSEL, THAT
ANY DISPUTE BE RESOLVED BY A JUDGE APPLYING APPLICABLE LAW.
I. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking to
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enforce any provision of, or based on any right arising out of, this Agreement
may shall be brought against any of the parties only in the courts of the State
of Florida, County of Dade, or, if it has or can acquire the necessary
jurisdiction, in the United States District Court for the Southern District of
Florida, and each of the parties consents to the exclusive jurisdiction of such
courts (and of the appropriate appellate courts) in any such action or
proceeding and irrevocably waives any objection to venue made therein. Process
in any action or proceeding referred to in the preceding sentence may be served
on any party anywhere in the world. The provisions of this Section shall also
apply to any actions involving directors, officers, Buyers, or controlling
persons and affiliates of Buyer brought by or against them in their respective
capacities as such.
J. ENFORCEMENT. The parties agree that irreparable damage would occur in
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the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. Accordingly, it
is agreed that the parties shall be entitled to seek an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Florida or in any Florida state court, this being in
addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (a) consents to the personal
jurisdiction of any federal court located in the State of Florida or of any
Florida state court in the event any dispute arises out of this Agreement or any
of the transactions contemplated by this Agreement, (b) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a federal or state court sitting in the State
of Florida.
K. RECOVERY OF FEES BY PREVAILING PARTY. In the event of a lawsuit to
-----------------------------------------
enforce or interpret the provisions of this Agreement, the prevailing party
shall pay the other party reasonable attorneys' fees and other costs and
expenses including expert witness fees in such amount as the court shall
determine. In addition, such non-prevailing party shall pay reasonable
attorneys' fees incurred by the prevailing party in enforcing, or on appeal
from, a judgment in favor of the prevailing party. The preceding sentence is
intended by the parties hereto to be severable from the other provisions of this
Agreement and to survive and not be merged into such judgment.
L. TIME OF THE ESSENCE. With regard to all dates and time periods set
----------------------
forth or referred to in this Agreement, time is of the essence.
M. CONFIDENTIALITY; PUBLICITY. The Sellers and Buyers acknowledge that the
--------------------------
transaction described herein is of a confidential nature and shall not be
disclosed prior to the Closing except to consultants, attorneys and advisors, or
as required by law. The Sellers and Buyers shall not make any public disclosure
of the terms of this Agreement prior to the Closing, except as required by law,
such requirement to substantiated by a written opinion of counsel.
N. CONSTRUCTION. The construction of this Agreement shall not take into
------------
consideration the party who drafted or whose representatives drafted any portion
of this Agreement, and no canon of construction shall be applied that resolves
ambiguities against the drafter of a document. The parties acknowledge that
competent counsel that each has chosen to represent such party and each party
has had a full opportunity to comment upon and negotiate the terms of this
Agreement advised them.
The language used in this Agreement shall be deemed to be the language chosen by
the parties hereto to express their mutual intent as a result of arm's length
bargaining.
O. FINDER'S FEE AND BROKER'S FEES. The Sellers and Buyer hereto represent
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and warrant that they have retained no finder or broker in connection with the
transactions by this Agreement, and hereby agrees to indemnify and to hold the
other harmless from any liability for any finder's or broker's fee to any broker
or other person or firm (and the cost and expenses of defending against such
liability or asserted liability) for which such indemnifying person, or any of
its employees or representatives, are responsible.
P. TITLES AND SUBTITLES. The titles of the Sections and subsections of
----------------------
this Agreement are for the convenience of reference only and are not to be
considered in construing this Agreement.
Q. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
R. APPLICABLE LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Florida.
S. AIRLINE REPORTING CORPORATION Notwithstanding the other terms and
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provisions of this agreement the Buyer cannot have access to the Airline
Reporting Corporation ticket stock until the Airlines Reporting Corporation has
completed the necessary documentation relating to the change of ownership.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year hereinabove first written.
"SELLERS"
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
"BUYER"
INVICTA GROUP INC.
/s/ R.▇▇▇▇▇ ▇▇▇▇▇
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R.▇▇▇▇▇ ▇▇▇▇▇, C.O.O.
EXHIBITS
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Furniture, equipment and fixtures.
Security deposits
Lease
Computer contracts
Liabilities amount
Payroll roster of employees
Sellers customer list
Seller's accounts receivable
Material changes
Consent of landlord for lease
Information on computer contracts
Verification of ARC bond
Verification the sellers are in good standing under the lease and other
contracts
Copies of airline contracts
EXHIBIT B
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(Lease)
EXHIBIT C
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(Capital equipment and depreciation schedule)
