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EXHIBIT 2.1
ACQUISITION AGREEMENT
BY AND BETWEEN
SMARTTRAVELER.COM, INC.,
AS STC,
AND
ALL OF THE STOCKHOLDERS OF STC,
AS HOLDERS,
AND
ONLINE VACATION CENTER HOLDINGS CORP.,
AS ONVC.
DATED AS OF JANUARY 19, 2007.
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement"), dated as of January
19,
2007, is made by ONLINE VACATION CENTER HOLDINGS CORP., a Florida
corporation
("ONVC"), SMARTTRAVELER.COM, INC., a Florida corporation ("STC"),
and Peter
Coloyan, as the sole shareholder of STC ("Holder").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy of
which
is hereby acknowledged, STC and Holder desire to sell, and ONVC
desires to
acquire, certain assets of STC (the "STC Assets"), as set forth in
the Schedule
of Assets attached hereto, 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 STC ASSETS; CLOSING
1.1 STC
ASSETS.
Subject to the terms and conditions of this Agreement, at the
Closing,
STC will sell and transfer the STC Assets to ONVC, and ONVC will
acquire the STC
Assets from STC.
1.2
CONSIDERATION.
The total consideration (the "Consideration") to be paid by ONVC to
STC
for the STC Assets will be paid as follows:
(a) $ 125,000
Cash (the "Cash Consideration") payable by
wire transfer or cashiers check at closing;
(b) 125,000
restricted shares of ONVC common stock, par
value $0.0001 per share (the "Restricted Shares"), of
which
125,000 shares shall be subject to a Lock-Up
Agreement whereby 50,000 shares shall be released on
the 1-year anniversary of closing and 75,000 shares
shall be released on the 2-year anniversary of
closing.
1.3
CLOSING
The acquisition and sale (the "Closing") provided for in this
Agreement
will take place at the offices of Tripp Scott, P.A., 110 Southeast
6th Street,
15th Floor, Fort Lauderdale, FL 33301, at 10:00 a.m. (local time)
on January 19,
2007, or at such other time and place as the parties may agree.
1.4 CLOSING
OBLIGATIONS
STC and Holder have indicated their acceptance of this Agreement
by
their execution hereof. At the Closing, ONVC will have received the
Closing
Deliverables as described in Exhibit A attached hereto, including
the Bill of
Sale, all in form and substance reasonably satisfactory to
ONVC.
1.5
RESERVED
1.6
SUBSIDIARY
ONVC shall have the
right to establish a subsidiary prior to the
Closing, for the purpose of executing the terms of this Agreement.
In the event
ONVC elects to establish such a subsidiary, the STC Assets shall be
transferred,
in accordance with the terms of this Agreement, to the subsidiary.
ONVC will
remain bound by the terms of this Agreement.
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2. REPRESENTATIONS AND WARRANTIES
2.1
REPRESENTATIONS AND WARRANTIES OF HOLDER AND STC
Each of Holder and STC hereby represents and warrants to ONVC
as
follows:
(a) Ownership.
STC is and will be on the Closing Date the record and
beneficial owner and holder of the STC Assets, free and clear of
any
and all liens or encumbrances. STC has no subsidiaries.
(b)
Authorization. Holder is an individual. STC 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 STC 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 STC has, or before Closing will have,
approved the sale of the STC Assets, 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 STC in connection
herewith
(collectively, the "Holder Documents") and each of the Holder
Documents, when executed by Holder or STC, shall be the legal valid
and
binding obligation of each of Holder and STC in accordance with
their
terms.
(d) No
Default. Neither Holder nor STC, nor any vendor or party in
contract
with Holder or STC , is in violation of any provision of, or in
default
under, STC'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 STC
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 STC 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
STC, 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 STC
(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
STC, or the ability of
Holder or STC to consummate the transactions
contemplated hereby.
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(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 STC Assets (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 STC Assets (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 STC 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 STC, which has not been, or prior to
Closing,
will not have been, disclosed in writing to ONVC.
(k) Brokers or
Finders. Neither Holder nor STC 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 Innovative
Travel
Acquisitions, Inc. whose fees and expenses shall be paid directly
by
Holder. Holder will indemnify and hold ONVC and STC harmless from
any
such payment alleged to be due by or through Holder or STC as a
result
of the action of Holder or STC or their officers or agents.
(l) Securities
Representations. STC and Holder hereby represent and warrant
to Company as follows: (1) STC and Holder are "Accredited
Investors",
as such term is defined in Rule 501(a) to the Securities Act of
1933,
as amended (the "Securities Act"); (2) STC's and Holder's addresses
as
set forth on the Bill of Sale are STC's and Holder's true and
correct
residences and STC and Holder have no present intention of becoming
a
resident of any other state or jurisdiction; (3) the Restricted
Shares
are being acquired solely for STC's and 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
STC
and Holder have no present plans to enter into any contract,
undertaking, agreement, or arrangement relating thereto; (4) STC
and
Holder understand that none of the Restricted Shares have been or
will
be
registered under the Securities Act, that STC and Holder have
no
rights to require that the Restricted Shares be registered under
the
Securities Act or any state securities or blue sky laws; that STC
and
Holder may have to hold the Restricted Shares for a substantial
period
of time and that it may not be possible for STC and Holder to
liquidate
STC's and 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 STC and Holder to the satisfaction
of
Company; and in replacement or exchange therefore, are to bear
a
restrictive legend to this effect; (5) STC and Holder are acquiring
the
Restricted Shares without being furnished any offering literature
or
prospectus, but STC and Holder have been granted, and are relying
upon,
STC's and Holder's personal discussions, investigations and due
diligence of Company and its officers; (6) STC and Holder have
such
knowledge and experience in business and financial matters that STC
and
Holder are capable of evaluating the business and financial matters
of
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Company and the risks and merits relating thereto; (7) that there
has
never been any representation, guarantee, or warranty made to STC
and
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 STC
and
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 sale of
the STC Assetss, 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 ONVC in connection herewith
(collectively,
the "ONVC Documents") and each of the ONVC Documents, when executed
by
ONVC, shall be the legal valid and binding obligation of ONVC
in
accordance with their terms.
(c) No
Default. ONVC is not in violation of any provision of, or in
default
under, and the execution and delivery of the ONVC Documents,
the
performance of the obligations therein and the consummation of
the
transactions contemplated thereby will not result in a violation
of, or
default under, any of ONVC's articles of incorporation, by-laws or
any
indenture, mortgagee, deed of trust, indebtedness, agreement,
judgment,
decree, order, statute, rule or regulation to which ONVC is a party
or
by which ONVC or its property is subject or bound.
(d) No
Approvals. ONVC is not 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 ONVC Documents, except as set forth in
Section
3.2(a) hereof.
(e) SEC
Reports. ONVC has filed, on a timely basis, all forms, reports
and
documents (collectively, the "SEC Reports") required to be filed
with
the Securities Exchange Commission in accordance with the
Securities
Exchange Act of 1934, as amended (the "Exchange Act") since August
31,
2003. As of their respective dates, each of the SEC Documents
complied
in all material respects with all applicable requirements of
the
Securities Act of 1933, as amended and the Exchange Act.
(f)
Reserved.
(g) Brokers or
Finders. Neither ONVC nor its 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 and ONVC will indemnify
and
hold Holder harmless from any such payment alleged to be due by
or
through ONVC as a result of the action of ONVC or its officers
or
agents.
3. COVENANTS PRIOR TO CLOSING AND POS
