EXHIBIT 2.1
ACQUISITION AGREEMENT
BY AND BETWEEN
LA TOURS & CRUISES, INC. D/B/A WEST UNIVERSITY TRAVEL,
AS
LTC,
AND
ALL OF THE HOLDERS OF LTC INTERESTS,
AS HOLDERS,
AND
ONLINE VACATION CENTER HOLDINGS CORP.,
AS ONVC.
DATED AS OF JANUARY 3, 2007.
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement"), dated as of January
3,
2007, is made by ONLINE VACATION CENTER HOLDINGS CORP., a Florida
corporation
("ONVC"), LA TOURS & CRUISES, INC. D/B/A WEST UNIVERSITY
TRAVEL, a Texas
corporation ("LTC"), and Ray Schutter and Cecilia Schutter
(collectively,
"Holder").
FOR GOOD AND VALAUBLE CONSIDERATION, the receipt and adequacy of
which
is hereby acknowledged, Holder desires to sell, and ONVC desires to
acquire, all
of the issued and outstanding ownership interests of LTC (the "LTC
Interests")
for the consideration and on the terms set forth in this Agreement
and the
parties, intending to be legally bound, hereby agree as
follows:
1. SALE AND TRANSFER OF LTC INTERESTS; CLOSING
1.1 LTC
INTERESTS.
Subject to the terms and conditions of this Agreement, at the
Closing,
Holder will sell and transfer the LTC Interests to ONVC, and ONVC
will acquire
the LTC Interests from Holder.
1.2
CONSIDERATION.
(a) The total
consideration (the "Consideration") to be paid by ONVC to the
Holder for the LTC Interests will be paid as follows:
(A) $ 250,000
Cash (the "Cash Consideration") payable by
wire transfer or cashiers check at closing;
(B) $ 100,000
Cash payable by corporate check on January
2, 2008, plus an adjustment (not to exceed $25,000)
equal to 50% of the revenues less cost of goods
("Total Commissions") earned in 2007 in excess of
$530,000 or minus an adjustment (not to exceed
$25,000) equal to 50% of the difference between
$530,000 and the total commissions earned in 2007,
such adjustments to be paid to Holder or reimbursed
to ONVC on February 15, 2008, such $100,000 payment
and adjustments to be payable on such dates only if
Ray Schutter's Employment Agreement has not been
terminated on or before such dates by Ray Schutter
without cause or by ONVC with cause (excluding
therefrom death and/or disability);
(C)
$ 100,000
Cash payable by corporate check on January
2, 2009, plus an adjustment (not to exceed $25,000)
equal to 50% of the total commissions earned in 2008
in excess of $530,000 or minus an adjustment (not to
exceed $25,000) equal to 50% of the difference
between $530,000 and the total commissions earned in
2008, such adjustments to be paid to Holder or
reimbursed to ONVC on February 15, 2009, such
$100,000 payment and adjustments to be payable on
such dates only if Ray Schutter's Employment
Agreement has not been terminated on or before such
dates by Ray Schutter without cause or by ONVC with
cause (excluding therefrom death and/or disability);
(D) $ 100,000
Cash payable by corporate check on January
4, 2010, plus an adjustment (not to exceed $25,000)
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equal to 50% of the total commissions earned in 2009
in excess of $530,000 or minus an adjustment (not to
exceed $25,000) equal to 50% of the difference
between $530,000 and the total commissions earned in
2009, such adjustments to be paid to Holder or
reimbursed to ONVC on February 15, 2010, such
$100,000 payment and adjustments to be payable on
such dates only if Ray Schutter's Employment
Agreement has not been terminated on or before such
dates by Ray Schutter without cause or by ONVC with
cause (excluding therefrom death and/or disability);
(E) 50,000
restricted shares of ONVC common stock, par
value $0.0001 per share, (the "Restricted Shares") to
be issued at closing, which shares shall be subject
to a Lock-Up Agreement whereby 25,000 shares shall be
released for trading on January 1, 2008 and 25,000
shares shall be released for trading on January 1,
2009; and
(b) The
Consideration shall be adjusted, if necessary, as required
pursuant
to Section 3.1(d) hereof.
1.3
CLOSING
The acquisition and sale (the "Closing") provided for in this
Agreement
will take place at the offices of The Shanks Law Firm, 5300
Memorial Drive,
Suite 800, Houston, Texas 77007, at 10:00 a.m. (local time) on
January 3, 2007,
or at such other time and place as the parties may agree.
1.4 CLOSING
OBLIGATIONS
Holder has indicated his acceptance of this Agreement by his
execution
hereof. At the Closing, ONVC will have received the Closing
Deliverables as
described in Exhibit A attached hereto, including holder's
ownership certificate
and transfer power, all in form and substance reasonably
satisfactory to ONVC.
1.5 TAX
MATTERS
Holder and LTC further represent and warrant that all (a) tax
returns
due to be filed on or before Closing have been accurately and
timely filed, (b)
all taxes due and payable on or before Closing have been paid, and
(c) for any
"short-periods" for which tax returns are not yet due, or for which
all taxes
have not yet been paid, LTC has accurately and properly accrued on
the books,
records and financial statements of LTC liabilities or reserves
reflecting the
taxes due from LTC for such "short-periods", except as follows:
(1)
Holder and LTC represent and warrant that LTC has elected to
file
its federal income tax returns as a "Subchapter S Corporation"
and
therefore no federal or state income taxes are payable by LTC
nor
are any federal or state income tax accruals, reserve or
payments
reflected on the books, records or financial statements of LTC.
(2)
Holder will prepare and timely file "short-period" federal and
state income tax returns for the "short-period" ended as of the
date of Closing and Holder will be responsible for, and will
pay
when due, any and all taxes, interest, penalties preparation,
audit or other expenses or costs in connection therewith.
Holder
shall provide a copy of these "short-period" tax returns to
ONVC
together with the work papers and schedules utilized in their
preparation.
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(3)
For clarification, all expenses incurred by LTC prior to the
date
of Closing, including, but not limited to, expenses associated
with (A) the transactions contemplated by this Agreement, and
(B)
payments of compensation to employees and other service
providers,
shall be paid by Holder and, to the extent so paid, shall be
expenses of LTC reflected on the "short-period' tax returns,
except that the parties to this agreement agree that any
expenses
billed on a monthly basis after the date of Closing shall be
the
responsibility of ONVC.
(4)
Neither Holder, ONVC nor LTC shall file an amended tax return
with
respect to any and all taxable periods, or portions thereof
(including the "short-period"), ending on or before the Closing
Date, without the prior written consent of Holder, ONVC and
LTC;
except that such consents shall not be required for any
amendment
filed in connection with any requirement or finding of any
audit
by a governmental entity of the tax return to which the
amendment
relates. Holder shall indemnify ONVC and LTC for any liability,
cost or expense ONVC or LTC incurs as a result of any such
amendment filed in accordance with the terms hereof.
For purposes hereof, "taxes" shall mean all federal, state, local,
foreign and
other governmental net income, gross income, gross receipts, sales,
use, ad
valorem, transfer, franchise, profits, withholding, payroll,
employment,
unemployment, excise, severance, stamp, occupation, premium,
property, windfall
profits, customs, duties or other taxes, fees, assessments or
charges of any
kind whatever, together with any interest and any penalties,
additions to tax or
additional amounts with respect thereto.
2. REPRESENTATIONS AND WARRANTIES
2.1
REPRESENTATIONS AND WARRANTIES OF HOLDER AND LTC
Each of Holder and LTC hereby represents and warrants to ONVC
as
follows:
(a) Ownership.
Holder is and will be on the Closing Date the record and
beneficial owner and holder of the LTC Interests, free and clear of
any
and all liens or encumbrances. There are no agreements, rights,
claims
or obligations relating to the issuance, sale, or transfer of
any
equity or other securities of LTC. LTC has no subsidiaries.
(b)
Authorization. Holder is an individual. LTC is duly organized and
in
good standing under the laws of the State in which it was formed
and is
duly qualified and in good standing in each jurisdiction in which
such
registration is required. Each of Holder and LTC has full right,
power
and authority to execute and deliver the Holder Documents (as
defined
below), to perform its obligations therein and to consummate all of
the
transactions contemplated thereby.
(c) Documents.
Each of Holder and LTC has, or before Closing will have,
approved the sale of the LTC Interests, this Acquisition Agreement
and
the transactions contemplated hereby, and approved, executed
and
delivered this Acquisition Agreement and certain agreements,
instruments to be executed and delivered by each of Holder and LTC
in
connection herewith (collectively, the "Holder Documents") and each
of
the Holder Documents, when executed by Holder or LTC, shall be
the
legal valid and binding obligation of each of Holder and LTC in
accordance with their terms.
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(d) No
Default. Neither Holder nor LTC, nor any vendor or party in
contract
with Holder or LTC , is in violation of any provision of, or in
default
under, LTC's articles of incorporation, by-laws, articles of
organization, operating agreement or partnership agreement or
any
indenture, mortgagee, deed of trust, indebtedness, agreement,
judgment,
decree, order, statute, rule or regulation to which Holder or LTC
is a
party or by which any of them or their property is subject or bound
and
further, the execution and delivery of the Holder Documents,
the
performance of the obligations therein and the consummation of
the
transactions contemplated thereby will not result in a
violation
thereof, or a default thereunder.
(e) No
Approvals. Neither Holder nor LTC is required to obtain the
approval, authorization, consent or any other order of any public
or
private entity, person, board or body in connection with the
transactions contemplated by the Holder Documents, except as set
forth
in Section 3.1(e) hereof.
(f) Financial
Statements. The financial statements and other information of
LTC, copies of which have been, or prior to Closing will have
been,
provided to ONVC, are true and correct in all material respects
and
fairly present the assets, liabilities, financial condition,
results of
operations, changes in stockholders' equity, and cash flow of LTC
(and
of any person or entity required by sound accounting principles to
be
consolidated or included therein) at their respective dates and
for
their respective periods, all in accordance with sound
accounting
principles applied on a consistent basis, subject only to
normal
recurring year-end adjustments and footnotes (the effect and
the
content of either of which will not, individually or in the
aggregate,
be materially adverse).
(g) No
Material Adverse Change. From the date of the last audited
financial
statements to the date hereof, there has not been, and through the
date
of Closing, there will not have been, any change that would
materially
and adversely affect the financial position or results of operation
of
LTC, or the ability of Holder or LTC to consummate the
transactions
contemplated hereby.
(h) No
Undisclosed Liabilities. There is no account, note, lease, tax,
environmental liability, fine, penalty, civil or criminal
action,
filing, liability, obligation, lien, encumbrance, restriction or
other
duty affecting the Holder or LTC (nor is there any basis,
circumstance
or fact that might give rise thereto), whether realized or
contingent,
pending or threatened, or known, as of the date hereof or as of
the
date of Closing, which has not been, or prior to Closing, will not
have
been, disclosed in writing to ONVC.
(i) No
Litigation. There is no action, suit, proceeding or investigation
at
law or in equity, before or by any court, public board or body,
realized or contingent, pending or threatened, known or
unknown,
against or affecting the Holder or LTC (nor is there any basis,
circumstance or fact therefor) as of the date hereof or as of the
date
of Closing, which has not been, or prior to Closing, will not
have
been, disclosed in writing to ONVC.
(j) Ordinary
Course of Business. Neither Holder nor LTC have, nor prior to
Closing will they have, taken, or failed or chosen not to take,
any
action in contemplation of the transactions contemplated hereby
other
than in the ordinary course of business consistent with the
past
practices of Holder or LTC, which has not been, or prior to
Closing,
will not have been, disclosed in writing to ONVC.
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(k) Brokers or
Finders. Neither Holder nor LTC or their officers or agents
have incurred any obligation or liability, contingent or otherwise,
for
brokerage or finders' fees or agents' commissions or other
similar
payment in connection with this Agreement, except for GW Equities
whose
fees
and expenses shall be paid directly by Holder. Holder will
indemnify and hold ONVC and LTC harmless from any such payment
alleged
to be due by or through Holder or LTC as a result of the action
of
Holder or LTC or their officers or agents.
(l) Securities
Representations. Holder hereby represents and warrants to
Company as follows: (1) Holder is an "Accredited Investor", as
such
term is defined in Rule 501(a) to the Securities Act of 1933,
as
amended
(the "Securities Act"); (2) Holder's address as set forth on
the Transfer Power is Holder's true and correct residence and
Holder
has no present intention of becoming a resident of any other state
or
jurisdiction; (3) the Restricted Shares are being acquired solely
for
Holder's own account, for investment, and are not being purchased
with
a view to or for the resale, distribution, subdivision, or
fractionalization thereof and Holder has no present plans to enter
into
any contract, undertaking, agreement, or arrangement relating
thereto;
(4) Holder understands that none of the Restricted Shares have been
or
will be registered under the Securities Act, that Holder has no
rights
to require that the Restricted Shares be registered under the
Securities Act or any state securities or blue sky laws; that
Holder
may have to hold the Restricted Shares for a substantial period of
time
and that it may not be possible for Holder to liquidate
Holder's
investment in Company; and that in any event the Restricted Shares
may
not be assigned, transferred, pledged, or otherwise sold or offered
for
sale except pursuant to an effective registration statement under
the
Securities Act or pursuant to an exemption from registration under
the
Securities Act, the availability of which must be established by
Holder
to the satisfaction of Company; and in replacement or exchange
therefore, are to bear a restrictive legend to this effect; (5)
Holder
is acquiring the Restricted Shares without being furnished any
offering
literature or prospectus, but Holder has been granted, and is
relying
upon, Holder's personal discussions, investigations and due
diligence
of Company and its officers; (6) Holder has such knowledge and
experience in business and financial matters that Holder is capable
of
evaluating the business and financial matters of Company and the
risks
and merits relating thereto; (7) that there has never been any
representation, guarantee, or warranty made to Holder by any
broker,
Company, its agents or employees, or any other person, expressly or
by
implication, as to any gain or profit to be derived from, or
the
approximate or exact length of time that Holder may be required
to
remain an owner of, the Restricted Shares, or as to any other
matter
not expressly contained herein.
2.2
REPRESENTATIONS AND WARRANTIES OF ONVC
ONVC hereby represents and warrants to Holder as follows:
(a)
Authorization. ONVC is duly organized, validly existing, and in
good
standing under the laws of the State in which it was formed. ONVC
has
full right, power and authority to execute and deliver the ONVC
Documents (as defined below), to perform its obligations therein
and to
consummate all of the transactions contemplated thereby.
(b) Documents.
ONVC has, or before Closing will have, approved the purchase
of the LTC Interests, this A
