SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
================================================================================
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 12, 1997
TSUNAMI CAPITAL CORPORATION
---------------------------
(Exact name of Registrant as specified in its charter)
Colorado 33-8066-D 84-1031657
-------- --------- ----------
(State or other jurisdiction of (Commission File No.) (I.R.S. Employer
incorporation or organization) Identification
No.)
5757 W. Century Boulevard, Suite 515, Los Angeles, California 90045
-----------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(310) 337-9979
--------------
(Registrant's telephone number,
including area code)
11811 N. Tatum Boulevard, Suite 4040, Phoenix, Arizona 85028
------------------------------------------------------------
(Former name, former address and former
fiscal year, if changed since last report)
<PAGE>
Summary
This Report describes a major change in the business, control and
financial condition of Tsunami Capital Corporation (the"Registrant"). On
September 12, 1997, the Registrant, which had not conducted any normal business
operations since December 31, 1993, acquired a travel business (the "Business").
At the time of the acquisition, the Business was operated by a California
corporation, CL Thomson-Vision Expedition, Inc., which was founded by Mr.
Dionisio Lee-Yang in January, 1990. As a result of the transaction, whose
details are described below, the former shareholders of CL Thomson-Vision
Expedition, Inc. became, in the aggregate, the shareholders of a majority of the
common stock of the Registrant. This type of transaction is commonly called a
"reverse acquisition." The Business is described in detail below.
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On September 12, 1997, the Registrant consummated the acquisition of CL
Thomson-Vision Expedition, Inc. (the "Company"), a California corporation, by
means of a merger between a newly formed, wholly-owned subsidiary of the
Registrant called Tsunami Acquisition Corp. ("Merger Sub"), an Arizona
corporation, and the Company. As a result of the merger, the former shareholders
of the Company now hold approximately 65% of the presently outstanding common
stock of the Registrant. Pursuant to the terms of the merger, the Merger Sub was
merged with and into the Company, with the Company being the surviving
corporation. Accordingly, the Merger Sub has ceased to exist as a separate
entity, and the Company (i) has succeeded to the assets and properties of the
Merger Sub, (ii) become liable for the liabilities of the Merger Sub and (iii)
is a wholly-owned subsidiary of the Registrant. The Company is an airline ticket
travel consolidator, as described below in this Report.
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
a. Description of the Merger Agreement. The Registrant, the Merger Sub
and the Company entered into a Merger Agreement ("Agreement") on July 31, 1997
and the closing of the transactions contemplated thereby occurred on September
12, 1997. Pursuant to the Agreement, all of the outstanding capital stock of the
Company was exchanged for newly issued shares of common stock of the Registrant
constituting approximately 65% of the total presently outstanding common stock
of the Registrant, excluding any shares of common stock which may be issued upon
the exercise of outstanding stock purchase warrants or options of the
Registrant. The number and percentage of the shares of common stock held by the
officers, directors and holders of more than 5% of the outstanding shares of
common stock , as of the consummation of the merger, is shown below in this
Report.
b. Description of the Company.
General Business and History. The primary business of the Company is
that of an airline
2
<PAGE>
ticket "consolidator." Pursuant to a contract or special arrangement with a
particular airline, a "consolidator" regularly purchases large blocks of
passenger tickets from the airline at discounted prices and resells the tickets
either directly to travelers or indirectly through travel agents. The discounted
price a consolidator receives from an airline is usually expressed as a
percentage of the published retail price for the ticket and that discount is
commonly referred to in the industry as a "commission" . In addition to the
commission, a consolidator will often negotiate certain volume bonuses from the
airline which are based on the consolidator's sales volume. The difference
between the purchase price paid to an airline and the price at which the ticket
is re-sold is the Company's gross margin.
The Company was founded by Dionisio Lee-Yang in January, 1990, under
the name "Vision Expedition, Inc." The Company initially operated as a travel
agent until June, 1991, when Mr. Lee- Yang obtained an agreement with China
Eastern Airlines, a Mainland China airline, to purchase tickets from that
airline and resell them as described above. Since that time the Company's
primary business has been to act as a consolidator, selling airline tickets for
travel between the United States and China and other destinations in Asia.
Historically, the Company's business has expanded primarily as a result
of acquisitions of other travel businesses. In March, 1994, the Company acquired
JJM Interests, Inc.("JJM") from Mr. Joseph J. McGuinness, who is now a director
of the Registrant. JJM had conducted business under the name "Thrifty Travel,"
which is presently used as a trade name by the Company. In connection with the
JJM acquisition, the Company succeeded to the airline consolidator agreements
with Northwest Airlines and Korean Airlines, among others.
In March, 1995, the Company acquired all of the capital stock of Jetwin
Inc., including Jetwin's airline consolidator agreement with Singapore Airlines.
In October, 1995, the Company acquired certain assets and assumed certain
airline consolidator contracts of Tymes Travel & Tours, a division of Tymes
International, Inc., operating in Westminster, California and specializing in
selling tickets for travel between the United States and Vietnam.
The Company continued its acquisitions of consolidators and travel
agencies in August, 1996 when it purchased all of the outstanding capital stock
of CL Thomson, Inc., one of the oldest airline ticket consolidators in the
United States, operating since 1972.
After the acquisition of CL Thomson, the Company changed its name to CL
Thomson-Vision Expedition, Inc. to take advantage of the goodwill and name
recognition associated with CL Thomson in the travel industry. It is anticipated
that the Registrant will, subject to shareholder approval, change its name to CL
Thomson - Vision Corporation.
The Company has contracts or special arrangements to act as a
consolidator for approximately 25 airlines and deals in tickets for
approximately 35 other airlines as well. The Company's three largest suppliers
of airline tickets are Northwest Airlines, United Airlines and China Eastern
Airlines. Business with each of these three airlines is responsible for
approximately
3
<PAGE>
15% of the Company's annual net sales, or a total of 45%. Business with the next
13 largest airline suppliers account for approximately 43% of net sales, and the
remaining approximate 12% of net sales are derived from over 40 other airlines.
More than 95% of the Company's sales are to other travel agents as opposed to
travelers.
The terms of the Company's airline agreements and arrangements vary
among the different airlines. From time to time an airline changes its terms as
changes occur in its general marketing arrangements, fare schedules and route
schedules. The tendency in the industry is that once the relationship between an
airline and a consolidator is established, it tends to be permanent, but the
commission and fare rates are commonly changed frequently during the year.
Approximately half of the Company's airline contracts have no termination date,
while the other half are renewed annually based upon a review of the Company's
performance, i.e., the number of tickets sold by the Company. Almost all of the
contracts provide for termination of the agreement by either party within a
specified time period, usually not more than thirty days, after written notice
of termination to the other party. Typically, most agreements provide: (i) that
the Company is to act as the agent of an airline; (ii) the policies and
procedures for making reservations and issuing tickets and other travel
documents, and (iii) the amount of the security deposit or letter of credit that
the Company must make or issue to insure payment of the tickets. In some
agreements, the renewal of the contract is conditioned upon the Company
purchasing certain minimum quotas of tickets.
The economic benefit of consolidators to the airline industry results
from their advanced purchases of large blocks of tickets, which assures the
airline of a certain minimum number of seat sales and results in more certainty
in the airline's cash flow. Consolidators may often generate additional revenue
for airlines because they are able to sell in specific markets where the
airlines' own marketing efforts are not fully effective.
The amount of discounts or commissions allowed by an airline to a
consolidator is strongly influenced by the amount of revenue a consolidator
provides to an airline through ticket purchases. Consolidators provide value to
travel agents by passing to them a portion of the discount or commission and
other concessions and incentives sometimes provided by the airlines.
The role of a consolidator differs from that of a travel agent in that
a travel agent merely acts as a sales agent of the airline and is compensated on
a fixed commission schedule set by airlines. Firms such as the Company often act
as consolidators for certain airlines and at the same time sell tickets as
agents for other airlines, with whom it does not have a consolidator agreement
or arrangement.
The Company's basic business strategy is to increase sales volume.
Management believes that as the Company's sales volume increases, the Company
will gain an increased ability to negotiate increased discounts from airlines
and an increased opportunity to effect economies of scale in its operations.
Increased discounts enable the Company to increase its gross margins and to pass
on some part of the increase to travel agents and travelers by way of lower
ticket prices.
4
<PAGE>
Marketing. The Company's present marketing method is to accommodate its
selling practices and presentations to the habits, customs and language of
ethnic communities, specifically to travel agents who are a part of and cater to
those communities. The Company places an emphasis on engaging personnel who can
maintain these contacts and relationships in the respective ethnic communities
and who know how to conduct business and promotional activities in a manner
favored by those communities.
The Company's business is conducted through various offices and
divisions organized to focus on a particular ethnic community. For example, the
"Jetwin Air" division is used to market travel to India and Pakistan in the
appropriate ethnic communities; "Tymes Air" to market travel to Vietnam and
Indo-China in the Vietnamese communities, "China Vision" to market travel to
China, Singapore and Taiwan to Chinese communities, "Vision Air" to market
travel to the Philippines and Thailand to the Filipino and Thai communities. The
Company's offices are located in large metropolitan areas with large ethnic
communities; Los Angeles, San Francisco, San Diego, New York, Chicago, Honolulu
and Las Vegas. The Company plans to open another office in San Jose, California
in the near future.
The Company's efforts have been primarily focused on international
travel, but it has recently begun to sell tickets on domestic carriers for air
travel in the United States. During the summer of 1997, the Company obtained
consolidator agreements with America West Airlines and Continental Airlines and
it is in the process of establishing further business relationships with other
domestic air carriers. The marketing of tickets on domestic air carriers is
expected to use trade and print advertising and would allow the Company to add
marketing efforts beyond its traditional ethnic markets.
Marketing to travel agents is done primarily by advertising in trade
publications and magazines and by the use of multiple distribution fax messages
(or "blast faxes") announcing special travel prices and other incentives to its
travel agent customers. Emphasis is placed on the name "CL Thomson" in marketing
to travel agents because management believes that in the travel industry, that
name carries recognition and reputation as one of the oldest and most reliable
airline ticket consolidators. In addition, because of the Company's high volume
of business, compared with the volume of a typical travel agent, the Company is
often able to obtain lower prices from the airlines than can the typical travel
agent and some of the price differential can in turn be passed on to the travel
agents and other customers.
The Company has recently begun to develop programs for the sale of tour
packages. Most tour packages are sold by travel agents, but they are developed
by securing large blocks of low-cost airline seats and low-cost hotel
accommodations and other tourist services (such as ground transportation and
special access to golf courses, casinos, amusement parks and museums) and then
packaging or combining these elements into a complete travel package at a single
price to the consumer. The Company recently entered into an exclusive general
sales agency agreement with Debonair Airways, a low-cost European airline, to
sell airline seats in the United States and which may be used for its tour
packages in Europe. In another marketing program, the Company furnishes
5
<PAGE>
airline tickets to businesses without charge, which are then given to customers
as sales incentives on the condition that the customer purchase hotel
accommodations through the Company. In that program, the Company purchases
blocks of the hotel accommodations from a particular hotel or resort at a
discounted rate and the gains from the re-sale of the hotel accommodations
compensates it for the price of the airline tickets.
Competition. The travel service industry is highly competitive and has
low barriers to entry. The Company competes with other distributors of travel
services, travel providers (airlines), travel agents, tour operators and group
travel sponsors, some of which have substantially greater financial and
marketing resources, more experience in the marketing and sale of travel
services and greater name recognition than does the Company. The Company
competes for customers based upon price, service and with respect to travel
agents, attractive commission structures. The airlines that supply tickets to
the Company under the various consolidator arrangements may decide to compete
more directly with the Company and restrict the availability of tickets or the
ability of the Company to offer tickets at a preferential price. Other
distributors may have similar arrangements with airlines, some of which may
provide better availability or more competitive pricing than that offered by the
Company. Furthermore, some travel agents and group travel sponsors have a strong
presence in their geographic areas which may make it difficult for the Company
to attract customers in those areas.
Seasonality. The domestic and international leisure travel industry is
highly seasonal. The Company has been subject to quarterly fluctuations caused
primarily by the seasonal variations in the travel industry. The Company's net
sales are generally higher in the second and fourth calender quarters. The
Company expects this seasonality to continue in the future on a consolidated
basis, with the Registrant's first and third quarters showing seasonal effects
on sales. The Company's quarterly results of operation may also be subject to
fluctuations as a result of fare wars by airlines, changes in relationships with
airlines, the timing and payment of volume bonuses, extreme weather conditions
and other factors affecting travel.
Proprietary Rights. The Company's operation does not depend on patents,
copyrights, trade secrets, or other proprietary information for its market
penetration and control.
Personnel. As of the consummation of the merger, the Company had 90
full-time employees. These include 35 in administration and 55 were employed in
connection with sales. The Company's employees are not represented by any
collective bargaining organization and the Company has never experienced a work
stoppage. The Company believes its relations with its employees are good.
Facilities. As of the consummation of the merger, the Company had 10
leased facilities. The corporate offices of the Company and one of its travel
offices are located on leased premises at 5757 W. Century Boulevard, Suite 515,
Los Angeles, California 90045. The facility contains approximately 4,700 square
feet of office space and is leased a current rate of $4,900 per month for a term
to expire on March 31, 2000. The Company also leases facilities for its other
travel offices, typically 2,500 square feet of office space or less, at rates
competitive for the particular area. The Company has California offices in Los
Angeles, Monterey Park, Westminster, San Diego and San
6
<PAGE>
Francisco in addition to offices in Chicago, New York, Las Vegas and Honolulu.
Litigation. The Company is not a party to any litigation or
administrative action and management is not aware of any pending or threatened
litigation action which may have a material effect upon the Company's business,
financial condition or operations.
c. Management. The principal officers and directors of the Company are
as follows:
Name Age Position with the Company
- ---- --- -------------------------
Dionisio Lee-Yang 49 President and Director
T. Shaun Burns 33 Vice President of Finance;
Chief Financial Officer
Dionisio Lee, Jr. 26 Vice President of Marketing
Sonia Ibarra 44 Vice President of Administration;
Secretary
Sam Nee 52 Assistant to the President
Donald L. Beck 71 Chairman of the Board of Directors
Christopher Hsiung 47 Director
Joseph J. McGuinness 69 Senior Advisor; Director
Edwin Srenco 53 Director
Wayne L. Stern 54 Director
Dionisio Lee-Yang has been the President and a director of the Company
since he founded it in 1990. Since 1971, Mr. Lee-Yang founded and has served on
the Board of Directors of several entities affiliated with the Dimerco Group.
From May, 1980 to October, 1988, he founded and was the President of Dimerco
Agency Group, Inc. From July, 1976 to February, 1988, he founded and was the
Chairman of the Dimerco Electronic Corp. From July, 1971 to July, 1986, he
founded and served in various officer positions, including President, Chairman
and Chief Executive Officer with Dimerco Express Corp. From 1969 to 1971, Mr.
Lee-Yang was the Vice President with Dimerco Travel Agency, Inc. From 1970 to
1971, he was also the Special Assistant to the Chairman with International
Reinsurance Co., Ltd. From 1967 to 1970, he was employed as the Vice President
and Treasurer by Century Insurance & Surety Co., Inc. Mr. Lee-Yang is the father
of Dionisio Lee, Jr.
T. Shaun Burns has been the Company's Chief Financial Officer since
September 2, 1997. From January, 1995 until joining the Company, Mr. Burns was
employed by Western Pacific Airlines, Inc., serving in various capacities,
including Manager of Finance. From July, 1993 to January 1995, he owned and
operated a travel agency in Scottsdale, Arizona called the Travellers Edge. From
April 1987 until July 1993, he was employed in various capacities by America
West Airlines, Inc., including Manager of Financial Planning.
Dionisio Lee, Jr. has been the Vice President of Marketing since the
consummation of the merger. From August, 1996 to September, 1997, Mr. Lee was
the Company's General Manager for
7
<PAGE>
the Southern California and Nevada regions. From 1993 to July, 1996, he was the
Company's director of Marketing. For the year prior to that, Mr. Lee was a
ticketing agent with the Company. Mr. Lee is the son of Dionisio Lee-Yang.
Sonia Ibarra has been the Company's Vice President of Administration
and Secretary since the consummation of the merger. From March, 1995 until
August, 1997, Ms. Ibarra was an Assistant Vice President. From January, 1994
until February, 1995, she was the Director of Administration. From September,
1987 to August, 1990, she was employed as Personnel Manager with Trico
Industries.
Sam Nee has been the Company's Assistant to the President since the
consummation of the merger. Mr. Nee has 20 years experience in the retail and
wholesale travel industry. From September, 1996 until joining the Company, Mr.
Nee was the Director of Sales for the Western Region for Pacific Bestour, Inc.
From January, 1991 to November, 1995, he was Senior Sales Director for
Inter-Pacific Tours, Inc., based in New York City. For the ten years prior to
that, Mr. Nee owned and operated a number of retail travel agencies in the San
Francisco and Santa Barbara areas of California.
Donald L. Beck, has been a Director and Chairman of the Board of
Directors of the Company since January, 1995, having served the Company in those
same capacities during 1992 and 1993. He is and has been since October, 1990 a
Director of Reno Air, Inc. Since 1988, he has been the Chairman of the Board of
The Pacific Group, an airline consulting firm located in Manhattan Beach,
California. From 1988 to 1993, Mr. Beck was Chairman of Pacific Rim Development
Corp., a land development company, also located in Manhattan Beach, California.
Mr. Beck has over 30 years experience in the airline industry, having been
employed for 28 of those years as a senior officer with Continental Airlines,
Western Airlines and World Airways.
Christopher Hsiung has been a director of the Company since its
inception in April, 1992. Since 1976, Mr. Hsiung has been a Vice President with
American Medical Endocrine Laboratory.
Joseph J. McGuinness has been a Senior Advisor to the Company since
March 1994, when he sold JJM to the Company. Mr McGuinness had owned and
operated JJM ("Thrifty Travel") from April, 1991 to March, 1994. He was
self-employed as a consultant to travel agencies from January, 1989 to April,
1991. From 1980 to 1989, he was employed in various sales capacities with Pan
American World Airways, Inc., last serving as the Western Region Sales Director.
From 1960 to 1980, he was employed in various sales capacities with National
Airlines, last serving as the Western Region Sales Director.
Edwin Srenco has been a director of the Company since April, 1992.
Since 1987, Mr. Srenco has been employed by the Northrop Corp. as a Senior
Technical Specialist. From 1976 to 1987, he was a Senior Engineer with the
McDonnell Douglas Corp.
Wayne L. Stern, M.D. has been a Director of the Company and the
Registrant since the
8
<PAGE>
consummation of the merger. Since 1974, Dr. Stern has been the President of, and
conducts his medical practice in pulmonary medicine through the Minnesota Lung
Center, Ltd., in Minneapolis, Minnesota. He has been a consultant in respiratory
care to a number of Minneapolis hospitals and organizations. Since 1984, he has
been a director of Special Medical Services, Inc., a home health care company in
Minneapolis, Minnesota which he founded. In June 1990, he was one of the
founders and remains a director of Reno Air, Inc. and serves on the Executive
and Strategic Planning Committees of that company. Dr. Stern graduated from the
Massachusetts Institute of Technology with a B.S. in Electrical Engineering. He
received an M.D. from the University of Rochester (New York). Dr. Stern was a
founder and remains a director of Debonair Holdings PLC, a European public
company, and of Debonair Airways Limited, its wholly owned subsidiary which
operates a low-cost European airline.
The principal officers and directors of the Registrant are the same as
those of the Company.
d. Principal Shareholders. The following table sets forth, as of the
date of this Memorandum, certain information with respect to the Registrant's
Common Stock owned of record or beneficially by (i) each director of the
Registrant; (ii) each person who owns beneficially more than five percent (5%)
of the Registrant's outstanding Common Stock; and (iii) all executive officers
and directors as a group.
<TABLE>
<CAPTION>
Name and Position Shares Beneficially Owned Percent of Ownership
- ----------------- ------------------------- --------------------
<S> <C> <C>
Dionisio Lee-Yang, President and 4,432,000 20.4%
Director(1)(2)
Kay Silverman, Greater than 5% 1,940,173 8.9%
shareholder
Wayne L. Stern, Director(3) 612,616 2.8%
Edwin Srenco, Director 528,000 2.4%
Christopher Hsiung, Director 400,000 1.8%
Dionisio Lee, Jr., Vice President 200,000 0.9%
of Marketing (2)
Donald Beck, Chairman of the
Board of Directors(4) 100,000 0.5%
Sonia Ibarra, Vice President of 80,000 0.4%
Administration; Secretary
Joseph J. McGuinness, Director 40,000 0.2%
9
<PAGE>
Sam Nee, Assistant to the 16,000 0.1%
President
T. Shaun Burns, Chief Financial -0- ---
Officer
Officers and Directors as a group
(10 persons)(1)(3)(4) 6,408,616 29.1%
</TABLE>
- -----------------------------------
(1) Includes (i) 600,000 shares held by Mr. Lee-Yang's spouse, (ii) 752,000
shares held by Dimerco Agency Group, Inc., a Philippines corporation
owned by Mr. Lee-Yang and various members of his family and of which
Mr. Lee-Yang is a director, and (iii) 2,000,000 shares held by the D.A.
Group, a California corporation, which is the wholly-owned subsidiary
of Dimerco Agency Group, Inc., and of which Mr. Lee-Yang is the
President.
(2) Dionisio Lee, Jr. is the son of Dionisio Lee-Yang. Dionisio Lee-Yang
disclaims any interest in or control over such shares.
(3) Includes (i) 277,833 shares held in a retirement account by Dr. Stern's
spouse, (ii) 74,783 shares held in trust for the benefit of one of Dr.
Stern's children, (iii) 60,000 shares subject to currently exercisable
options, and (iv) 200,000 shares subject to a convertible promissory
note, held by Dr. Stern.
(4) Includes 20,000 shares subject to a convertible promissory note held by
Mr. Beck.
ITEM 5. OTHER EVENTS.
On September 12, 1997, in connection with the merger transaction
described above, the Registrant moved its offices to leased premises at 5757 W.
Century Blvd., Suite 515, Los Angeles, California 90045, the present corporate
offices of the Company. The Registrant plans to lease approximately 2,875 square
feet of office space in a suite adjacent to the Company's current corporate
offices.
ITEM 6. RESIGNATIONS OF REGISTRANT'S DIRECTORS.
As a condition to the closing of the Merger, the directors of the
Registrant have resigned and have been replaced by the directors named above.
There were no disagreements with the Registrant
by any of the directors.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
a. Financial Statements of Businesses Acquired. The financial
statements required by this Item will be filed with an amendment to this Report,
which will be filed no later than November 26, 1997.
b. Pro Forma Financial Information. The pro forma financial information
required by this Item will be filed with an amendment to this Report, which will
be filed no later than November 26, 1997.
10
<PAGE>
c. Exhibits. The following exhibits are required pursuant to Item 601
of Regulation S-K:
1. Merger Agreement dated July 31, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DATED: September 29, 1997
TSUNAMI CAPITAL CORPORATION
By: /s/ Dionisio Lee-Yang
---------------------------------------
Dionisio Lee-Yang, President
By: /s/ T. Shaun Burns
---------------------------------------
T. Shaun Burns, Chief Financial Officer
11
Merger Agreement
THIS MERGER AGREEMENT (this "Agreement") dated as of July 31, 1997, is
entered into by Tsunami Acquisition Corp., an Arizona corporation (the "Merger
Sub"), and CL Thomson- Vision Expedition, Inc., a California corporation (the
"Company").
Background Statement
The parties to this Agreement desire to effect a merger pursuant to
which the Merger Sub will merge with and into the Company. The Company will be
the surviving corporation, and the shareholders of the Company will receive
common stock of Tsunami Capital Corporation, a Colorado corporation, as
consideration for their shares in the Company.
Statement of Agreement
In consideration of the premises and the mutual representations,
warranties, covenants, agreements and conditions contained herein, the parties
hereto agree as follows:
ARTICLE I.
DEFINED TERMS
1.1. Definitions. As used in this Agreement, the following terms have
the following meanings:
"Affiliate" means, with respect to any Person, each Person that such
Person directly or indirectly owns or controls, each Person that directly or
indirectly owns or controls such Person, and each Person that is under common
control with such Person. For the purpose of this Agreement, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement of Merger" means the Agreement of Merger substantially in
the form attached as Exhibit A to this Agreement and any related filing with the
Arizona Corporation Commission.
"Applicable Law" means, as to any Person, all applicable statutes,
codes, laws, ordinances, rules, orders, decrees and regulations of any
Governmental Authority.
"Assets" means all of the assets, rights, interests and properties of
any nature whatsoever whether real, personal, tangible or intangible, and
whether or not such asset, right, interest or property is treated as an asset
under GAAP.
"Business Day" means any day excluding Saturday, Sunday and any day
that is a legal holiday in either California or Colorado.
"Closing" means the closing of the Merger, as identified more
specifically in Article IV.
<PAGE>
"Closing Date" has the meaning given to it in Section 4.1.
"Company Financial Statements" means, with respect to the Company, the
unaudited statements of income and stockholders' equity for the years ended
December 31, 1996 and 1995 and the unaudited balance sheets as of December 31,
1996 and 1995, together with the notes thereto, and the interim unaudited
statements of income and stockholders' equity for the four-month period ended
April 30, 1997 and the unaudited balance sheet as of April 30, 1997.
"Contract" means any agreement, warranty, indenture, mortgage,
guaranty, lease, license or other contract, agreement, arrangement, commitment
or understanding, written or oral.
"Effective Time" has the meaning given to it in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and interpreted from time to time.
"GAAP" means generally accepted accounting principles in the United
States, as in effect from time to time, consistently applied and maintained on a
consistent basis for a Person throughout the period indicated and consistent
with such Person's prior financial practice.
"Governmental Authority" means any nation, province, state or other
political subdivision thereof, and any agency, natural person or entity
exercising executive, legislative, regulatory or administrative functions of or
pertaining to government.
"Merger" means the merger of the Merger Sub with and into the Company,
as more specifically described herein.
"Merger Sub" means Tsunami Acquisition Corp., an Arizona corporation.
"Person" means a corporation, a company, an association, a joint
venture, a partnership, an organization, a business, an individual, a trust or a
government or political subdivision thereof or any government agency or any
other legal entity.
"Securities Act" means the Securities Act of 1933, as amended and
administratively and judicially interpreted from time to time.
"Shares" has the meaning given to it Section 3.1.
"Surviving Corporation" has the meaning given to it in Section 2.1.
"Taxes" means all taxes, charges, fees, levies or other assessments
(whether federal, state, local or foreign), including, without limitation,
income, gross receipts, excise, property, estate, sales, use, value added,
transfer, license, payroll, franchise, ad valorem, withholding, Social Security
and unemployment taxes, as well as any interest, penalties and other additions
to such taxes, charges, fees, levies or other assessments.
<PAGE>
"TCC" means Tsunami Capital Corporation, a Colorado corporation.
"TCC Financial Statements" means, with respect to TCC and the Merger
Sub, the audited statements of income and stockholders' equity for the years
ended October 31, 1996 and 1995 and the audited balance sheets as of October 31,
1996 and 1995, together with the notes thereto, and the interim unaudited
statements of income and stockholders' equity for the quarter ended April 30,
1997 and the unaudited balance sheet as of April 30, 1997.
"TCC Stock" means the common stock, no par value, of TCC.
ARTICLE II.
THE MERGER
2.1. The Merger. At the Closing, and on the terms and subject to the
conditions of this Agreement, the Company and the Merger Sub shall cause the
Agreement of Merger to be executed and filed with the Secretary of State of
California, and shall take any and all other actions and do any and all other
things to cause the Merger to become effective as contemplated hereby. Effective
on the date and at the time of filing of the Agreement of Merger (the "Effective
Time"), and subject to California Law, the Merger Sub shall merge with and into
the Company, the separate existence of the Merger Sub shall cease and the
Company shall be the surviving corporation (the "Surviving Corporation").
2.2. Articles of Incorporation. The articles of incorporation of the
Company in effect at the Effective Time shall be the articles of incorporation
of the Surviving Corporation.
2.3. Bylaws. The bylaws of the Company in effect at the Effective Time
shall be the bylaws of incorporation of the Surviving Corporation until further
amended in accordance with applicable law.
ARTICLE III.
CONVERSION OF SHARES
3.1. Shares.
(a) Except as provided in subsections (c) and (d) below, each share of
capital stock of the Company issued and outstanding immediately prior to the
Effective Time (the "Shares") shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted at the Effective Time
into 8 duly authorized, validly issued and outstanding shares of TCC Stock.
(b) Except as provided in subsections (c) and (d) below, all Shares, by
virtue of the Merger and without any action on the part of the holders thereof,
shall at the Effective Time no longer be outstanding and shall cease to exist,
and no former holder of Shares thereafter shall have any rights with respect to
such Shares, except for such holder's rights as the holder of the TCC Stock into
which such holder's Shares shall have been converted by virtue of the Merger.
<PAGE>
(c) Notwithstanding anything contained in this Section 3.1 to the
contrary, (i) each Share held in the treasury of the Company immediately prior
to the Effective Time shall be canceled without any conversion thereof, and (ii)
each Share which is a "dissenting share" under the California General
Corporation Law shall not be converted into TCC Stock and shall have the rights
of a dissenting share under such Law.
(d) No fractional shares of TCC Stock shall be issued in connection
with the Merger. If any holder of Shares otherwise has the right to receive
0.5000 or more of a share of TCC Stock in connection with the Merger, such
holder shall receive one additional share of TCC Stock in exchange for such
fractional interest; otherwise, such holder shall receive no additional shares
or other consideration for such fractional interest.
(e) From and after the Effective Time, there shall be no transfers on
the stock transfer books of the Surviving Corporation of the Shares that were
outstanding immediately prior to the date thereof. If, after the Effective Time,
certificates representing Shares are presented to the Surviving Corporation they
shall be canceled.
3.2. Stock Certificates. Certificates which represented Shares prior to
the Effective Time shall, upon and after the Effective Time, represent the
shares of TCC Stock into which the Shares formerly represented thereby were
converted by virtue of the Merger. At and after the Effective Time, upon
surrender by a Shareholder to the Surviving Corporation of certificates
representing Shares, the Surviving Corporation shall promptly deliver, at its
expense, to such Shareholder a certificate issued by TCC for the number of
shares of TCC Stock into which the Shares formerly represented by the
surrendered certificate were converted by virtue of the Merger. The record
holder of the newly-issued certificate shall be the same as the record holder of
the surrendered certificate unless the surrendered certificate is duly endorsed,
or accompanied by a stock power or other appropriate transfer instrument duly
executed, by such record holder. In the latter case, the issuance of the new
certificate shall be subject to the surrendering holder's payment, or agreement
to pay, any associated transfer tax.
3.3. Shares of Merger Sub Stock. At the Effective Time, each issued and
outstanding share of capital stock of the Merger Sub, by virtue of the Merger
and without any action on the part of the holder hereof, shall be converted into
one share of common stock of the Company.
ARTICLE IV.
THE CLOSING
4.1. Closing. The Closing of the Merger shall take place at the offices
of the Company at 5757 West Century Blvd., Suite 515, Los Angeles, CA 90045 on
September 4, 1997, or on such other date or at such other location to which the
Merger Sub and the Company may mutually agree (such date, the "Closing Date").
4.2. Deliveries by the Company. At or by the Closing, the Company shall
cause the following documents to be executed and delivered to the Company:
<PAGE>
(a) A copy of the articles of incorporation of the Company, certified
by the California Secretary of State as of a recent date;
(b) A copy of the bylaws of the Company as in effect as of the Closing,
certified as true and complete by the Secretary of the Company;
(c) The text of the resolutions of the board of directors of the
Company approving and authorizing the execution, delivery and performance of
this Agreement and all instruments and documents to be delivered in connection
herewith, and the transactions contemplated hereby, certified as true and
complete by the Secretary of the Company;
(d) Certificates of status of the Company issued by the California
Secretary of State as of a recent date;
(e) A certificate from the Secretary of the Company certifying (i) the
changes in Schedule 5.1(b) and/or Schedule 5.1(e) contemplated by this
Agreement, or that there have been none; (ii) whether or not the Company has
taken any of the actions specified in Section 7.2(b) and, if so, describing the
same; (iii) that nothing has occurred since the date of issuance of the
certificate described in subsection (d) above that would affect the Company's
corporate status; and (iv) the incumbency and genuine signatures of the officers
of the Company who will execute documents at the Closing or who have executed
this Agreement;
(f) A certificate from the President of the Company certifying that the
conditions set forth in Sections 9.3(a) and (b) have been fulfilled and that the
Company is ready, able and willing to proceed with the Closing;
(g) A certificate from the Secretary of the Company certifying that the
holders of Shares have duly approved the Merger under the California General
Corporation Law;
(h) A copy of the permit issued by the California Department of
Corporations following a hearing, as contemplated by Section 9.1(c); and
(i) All other documents, certificates and instruments required
hereunder to be delivered by the Company, or as may reasonably be requested by
TCC or the Merger Sub at or prior to the Closing.
4.3. Deliveries by the Merger Sub. At or by the Closing, the Merger Sub
shall cause the following documents to be executed and delivered to the Company:
(a) Copies of the articles of incorporation of TCC and the Merger Sub,
certified as of a recent date by the Secretary of State of Colorado and Arizona
Corporation Commission, respectively;
(b) Copies of the bylaws of TCC and of the Merger Sub, each certified
as true and complete by the Secretary of the respective corporation;
<PAGE>
(c) The text of the resolutions of the board of directors and the
stockholder of the Merger Sub approving and authorizing the execution, delivery
and performance of this Agreement and all instruments and documents to be
delivered in connection herewith, and the transactions contemplated hereby,
certified as true and complete by the Secretary of the Merger Sub;
(d) Certificates of the corporate and tax status of TCC and of the
Merger Sub, issued by the appropriate state government agencies as of a recent
date;
(e) Certificates from the Secretaries of TCC and the Merger Sub
certifying, each as to his respective corporation, (i) that the corporation's
articles of incorporation have not been amended since the date of the respective
certificate described in subparagraph (a) above; (ii) that nothing has occurred
since the date of issuance of the respective certificates described in
subparagraph (d) above that would affect the corporation's corporate or tax
status; and (iii) the incumbency and genuine signatures of the officers of the
corporation who will execute documents at the Closing or who have executed this
Agreement;
(f) A certificate of the President of the Merger Sub certifying that
the conditions set forth in Sections 9.2(a) and (b) have been satisfied and that
TCC and the Merger Sub are ready, able and willing to proceed with the Closing;
(g) Stock certificates representing the TCC Stock to be issued upon
conversion of Shares represented by certificates which are being surrendered
simultaneously with the Closing, each duly issued in the names of the respective
Shareholder(s) entitled thereto;
(h) All other documents, certificates and instruments required
hereunder to be delivered by TCC or the Merger Sub, or as may reasonably be
requested by the Company at or prior to the Closing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Merger Sub that the
statements contained in this Article V are correct as of the date of this
Agreement.
5.1 The Company.
(a) Organization; Foreign Qualifications; Authority. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of California and is duly qualified to transact business as a foreign
corporation in, and is in good standing under the laws of, those jurisdictions
in which the character of the property owned or leased or the nature of the
activities conducted by it makes such qualification necessary, except where the
failure to be so qualified and in good standing would not reasonably be expected
to have a material adverse effect on the business, assets or condition of the
Company. The Company has full power and authority under applicable
<PAGE>
corporate law to own, lease or otherwise hold its properties and assets and to
carry on its business as presently conducted.
(b) Capitalization and Stock Ownership. Schedule 5.1(b) sets forth the
number and ownership of all issued and outstanding shares of capital stock of
the Company, all of which have been duly authorized and validly issued and are
fully paid and nonassessable. Except as set forth on Schedule 5.1(b), there are
no shares of capital stock or other equity securities of any of the Company
outstanding, and no outstanding warrants, options, agreements, convertible or
exchangeable securities with respect to any securities of the Company or any
other commitments or arrangements to issue, sell, purchase, return or redeem any
securities of any of them.
(c) Voting Agreements; Registration Rights. The Company is not a party
to, nor is the Company aware of, any voting or other agreement with or among any
holders of its securities relating to the election or removal of directors of
the Company or the exercise of any other voting rights, or granting any Person
any preemptive rights, rights of first refusal, options, buy-sell rights or
other rights to compel or restrict the transfer of securities of the Company
other than pursuant to applicable securities laws. The Company has not granted
any Person the right to compel the Company to register any of its securities or
to include any securities held by such Person in any registration of its
securities under the Securities Act or under any state securities laws.
(d) Corporate Records. Complete and accurate copies of the articles of
incorporation and bylaws of the Company have been delivered to the Merger Sub.
The stock book of the Company contains complete and accurate records of the
record share ownership of the issued and outstanding shares of stock of the
Company.
(e) No Subsidiaries. Except as stated in Schedule 5.1(e), the Company
does not own, directly or indirectly, capital stock or other equity interests in
any subsidiary, nor is the Company a general partner in any partnership or a
joint venturer in any joint venture. Schedule 5.1(e) shall be subject to change
in the course of the Company's continuing and expanding its travel and
travel-related business.
(f) Authority Relative to this Agreement. The Company has the power and
authority under applicable corporate law to execute and deliver this Agreement,
to perform its obligations hereunder and to consummate the transactions
contemplated hereby. Subject to the approval of the Merger by the Company's
shareholders, the execution and delivery of this Agreement by the Company, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of the Company. This Agreement
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms (except as such enforceability
may be limited by applicable bankruptcy, insolvency or other laws of general
applicability affecting creditors' rights and by general principles of equity).
(g) Consents and Approvals, No Violations. There is no requirement
(other than the filing of the Agreement of Merger) applicable to the Company to
make any filing with, or to obtain any permit, authorization, consent or
approval of, any Governmental Authority as a condition to the lawful
consummation of the transactions contemplated hereby. The execution, delivery
and
<PAGE>
performance of this Agreement by the Company and its compliance with the terms
hereof will not (A) conflict with any provisions of the articles of
incorporation or bylaws of the Company; (B) violate or result in a default (or,
by its terms, give rise to any liens or right of termination, cancellation or
acceleration) pursuant to the terms of any Contract to which the Company is a
party, which violation, default or right of termination, cancellation or
acceleration would have a material adverse effect on the business, assets,
financial condition or operations of the Company, or (C) violate any Applicable
Law.
5.2. Assets. The Company owns good, valid and marketable title to all
of its assets free and clear of all mortgages, liens, security interests or
encumbrances of any nature whatsoever except for such mortgages, liens, security
interests or encumbrances arising in the course of continuing and/or expanding
the Company's travel and travel-related business which, in the aggregate, do not
materially affect the value or utility of the Company's assets or operations.
The assets owned, licensed and leased by the Company are sufficient to conduct
its business as presently conducted.
5.3. Interests in Real Property. The Company does not have any interest
in any real property, whether as owner, operator, lessor, mortgagee or
otherwise, except for its leasehold interest in its office and administrative
facilities located in Los Angeles, San Francisco, Monterey Park, Westminister
and San Diego, California, New York, New York, Las Vegas, Nevada, Chicago,
Illinois, and Honolulu, Hawaii.
5.4. Absence of Undisclosed Liabilities. The Company does not have any
known, material liabilities or obligations (whether accrued, absolute,
contingent, unliquidated or otherwise, whether due or to become due) other than
(i) liabilities or obligations reserved against or otherwise disclosed in the
Company Financial Statements, (ii) liabilities or obligations under Contracts to
which the Company is a party, (iii) liabilities and obligations incurred after
December 31, 1996 in the course of continuing and/or expanding its travel and
travel-related business, and (iv) professional fees reasonably incurred in
connection with the transactions contemplated by this Agreement.
5.5. Contracts. The Company has made available to the Merger Sub copies
of all Contracts to which the Company is party or by which the Company or its
properties or assets are bound and which involve a future term (excluding any
portion subject to a right of cancellation without material penalty) exceeding
one year, annual payments exceeding $50,000 in the aggregate, or any leasehold
or other interest in real property. Neither the Company nor, to the knowledge of
the Company any other party, has materially breached or committed a material
uncured event of default under any such Contract, and no facts or circumstances
exist that with the passage of time or the giving of notice or both would
constitute any such event of default.
5.6. Intellectual Property Rights. The Company owns or has the right to
use (pursuant to license, sublicense, agreement or permission) all trademarks,
service marks, trade dress, logos, trade names, corporate names, copyrights,
know-how, trade secrets, computer software, and other proprietary rights,
material either individually or in the aggregate to the operation of its
business as currently conducted.
5.7. Financial Statements. The Company Financial Statements fairly
present the results of operations and financial position of the Company for the
periods and as of the dates set forth
<PAGE>
therein in accordance with GAAP on a basis consistent with the past practices,
subject, in the case of the interim statements, to the omission of footnotes and
to normal year-end adjustments.
5.8. Legal Compliance. To the Company's knowledge, it is in compliance
with all Applicable Laws, except for any noncompliance which would not have a
material adverse effect on its business, assets, financial condition or
operations. The Company has not received any written communication which remains
pending from a Governmental Authority alleging that the Company is not in
compliance with any Applicable Law.
5.9. Taxes and Tax Returns. The Company has duly and timely filed
(including within any applicable extension periods) all Tax returns required to
be filed by it prior to the date hereof and has duly paid the Taxes shown
therein to be due. The material Tax reporting positions of the Company have
substantial support. There are no disputes pending in respect of or claims
asserted for Taxes upon the Company, nor are there any pending or threatened
audits or investigations known t the Company, or outstanding matters under
discussion with any taxing authorities, with respect to the payment of Taxes or
the Company's Tax returns. Copies of all income Tax returns of or including the
Company in respect of all years not barred by the statute of limitations have
been made available to the Merger Sub.
5.10. Litigation. There are no lawsuits, claims, or legal,
administrative or arbitration proceedings or investigations pending or, to the
best knowledge of the Company, threatened by or against or affecting the Company
or any of its assets, operations or business.
5.11. Labor and Employment Matters. The Company has made available to
the Merger Sub complete and accurate copies of each employment, consulting and
similar agreement to which the Company is a party. There is no material
controversy pending or, to the knowledge of the Company, threatened between the
Company and any of its present or former officers, directors, supervisory
personnel, employees or any group of its employees.
5.12. Transactions with Affiliates.
(a) No shareholder, officer or director of the Company has any
agreement, arrangement or understanding with the Company relating to, or any
interest in, any property, real, personal or mixed, tangible or intangible, used
in or pertaining to the Company's business.
(b) Except as set forth in Schedule 5.12(b), there are no loans or
other obligations payable or owing by the Company to any shareholder, officer,
director or employee of the Company except salaries, wages, bonuses and salary
advances and reimbursement of expenses incurred and accrued in the course of
continuing and/or expanding the Company's travel and travel-related business,
nor are any loans or debts payable or owing by any such persons to the Company,
nor has the Company guaranteed any of their loans or obligations.
5.13. Absence of Changes or Events. Except as set forth in Schedule
5.13, Since December 31, 1996, the Company has not: (i) repurchased or redeemed
any shares of capital stock or declared, set aside or paid any dividend or
distribution with respect to shares of capital stock; (ii) granted or made any
commitments with respect to any increases in any form of compensation
<PAGE>
to its employees except in the course of continuing and/or expanding its travel
and travel-related business; (iii) entered into any material Contract or
conducted its business other than in the course of continuing and/or expanding
its travel and travel-related business; or (iv) except as a result of the
consummation of the transactions contemplated by this Agreement, suffered any
material adverse change in its business, assets, financial condition or
operations.
5.14. Commissions. No broker, finder or other Person is entitled to any
brokerage fees, commissions or finder's fees in connection with the transactions
contemplated hereby by reason of any action taken by the Company.
5.15. Full Disclosure. No statement contained in this Article V, or in
any closing certificate delivered to the Merger Sub pursuant hereto, contains
any untrue statement of a material fact nor do any such statements omit to state
any material fact necessary, in light of the circumstances under which it is
made, in order to make such statements, when read together, not misleading.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF THE MERGER SUB
The Merger Sub hereby represents and warrants to the Company that the
statements contained in this Article VI are correct as of the date of this
Agreement.
6.1 TCC and the Merger Sub.
(a) Organization; Foreign Qualifications; Authority. TCC is a
corporation duly organized, validly existing and in good standing under the laws
of Colorado, and the Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of [California], and each is duly
qualified to transact business as a foreign corporation in, and is in good
standing under the laws of, those jurisdictions in which the character of the
property owned or leased or the nature of the activities conducted by it makes
such qualification necessary, except where the failure to be so qualified and in
good standing would not reasonably be expected to have a material adverse effect
on the its business, assets or condition. Neither TCC nor the Merger Sub
conducts any substantial business activities.
(b) Capitalization and Stock Ownership. Schedule 6.1(b) sets forth the
number and ownership of all issued and outstanding shares of capital stock of
TCC and of the Merger Sub, all of which have been duly authorized and validly
issued and are fully paid and nonassessable. Except as set forth on Schedule
6.1(b), there are no shares of capital stock or other equity securities of the
Company or the Merger Sub outstanding, and no outstanding warrants, options,
agreements, convertible or exchangeable securities with respect to any
securities of TCC or the Merger Sub or any other commitments or arrangements to
issue, sell, purchase, return or redeem any securities of any of them.
(c) Voting Agreements; Registration Rights. Neither TCC nor the Merger
Sub is a party to, nor is either TCC or the Merger Sub aware of, any voting or
other agreement with or among any
<PAGE>
holders of securities of either corporation relating to the election or removal
of directors or the exercise of any other voting rights, or granting any Person
any preemptive rights, rights of first refusal, options, buy-sell rights or
other rights compelling or restricting the transfer of securities of either
corporation other than pursuant to applicable securities laws. Neither TCC nor
the Merger Sub has granted any Person the right to compel the registration of
any securities or to include any securities held by such Person in any
registration of securities under the Securities Act or under any state
securities laws.
(d) Corporate Records. Complete and accurate copies of the articles of
incorporation and bylaws of each of TCC and the Merger Sub have been delivered
to the Company. The stock book of TCC and the Merger Sub contain complete and
accurate records of the record share ownership of the issued and outstanding
shares of stock of each corporation.
(e) Subsidiaries. The Merger Sub is a direct, wholly-owned Subsidiary
of TCC. Except for the Merger Sub itself, neither the Company nor the Merger Sub
owns, directly or indirectly, capital stock or other equity interests in any
subsidiary, nor is either TCC or the Merger Sub a partner in any partnership or
a joint venturer in any joint venture.
(f) Authority Relative to this Agreement. The Merger Sub has the power
and authority under applicable corporate law to execute and deliver this
Agreement and to perform its obligations hereunder and consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by the Merger Sub, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby by each of TCC and the
Merger Sub have been duly and validly authorized by all necessary corporate
action, including without limitation any action by TCC as the shareholder of the
Merger Sub. This Agreement constitutes the legal, valid and binding obligation
of the Merger Sub, enforceable against the Merger Sub in accordance with its
terms (except as such enforceability may be limited by applicable bankruptcy,
insolvency or other laws of general applicability affecting creditors' rights
and by general principles of equity that may limit the specific performance of
particular provisions).
(g) Consents and Approvals; No Violations. There is no requirement
(other than the filing of the Agreement of Merger) applicable to TCC or to the
Merger Sub to make any filing with, or to obtain any permit, authorization,
consent or approval of, any Governmental Authority as a condition to the lawful
consummation of the transactions contemplated hereby. The execution, delivery
and performance of this Agreement by the Merger Sub and the consummation of the
transactions contemplated hereby will not (A) conflict with any provisions of
the articles of incorporation or bylaws of TCC or the Merger Sub; (B) violate or
result in a default (or, by its terms, give rise to any liens or right of
termination, cancellation or acceleration) pursuant to the terms of any Contract
to which either corporation is a party, which violation, default or right of
termination, cancellation or acceleration would have a material adverse effect
on the business, assets, financial condition or operations of TCC or the Merger
Sub, or (C) violate any Applicable Law.
6.2. Assets. Neither TCC nor the Merger Sub owns, licenses, leases or
otherwise holds any substantial assets or properties, real or personal, except
for cash and cash equivalents disclosed on the TCC Financial Statements.
<PAGE>
6.3. Absence of Undisclosed Liabilities, Contracts. Neither TCC nor the
Merger Sub has any known, material liabilities or obligations (whether accrued,
absolute, contingent, unliquidated or otherwise, whether due or to become due)
other than (i) liabilities or obligations reserved against or otherwise
disclosed in the TCC Financial Statements, and (ii) professional fees reasonably
incurred in connection with the transactions contemplated by this Agreement.
Except as set forth in Schedule 6.3, neither TCC nor the Merger Sub is a party
to or bound by any Contract other than this Agreement.
6.4. Financial Statements. The TCC Financial Statements fairly present
the financial position of TCC and the Merger Sub for the periods and as of the
dates set forth therein in accordance with GAAP on a basis consistent with the
past practices, subject, in the case of the interim statements, to the omission
of footnotes and to normal year-end adjustments.
6.5. Legal Compliance. To TCC's and the Merger Sub's knowledge, it is
in compliance with all Applicable Laws, except for any noncompliance which would
not have a material adverse effect on its business, assets, financial condition
or operations . Neither TCC nor the Merger Sub has received any written
communication which remains pending from a Governmental Authority alleging that
it is not in compliance with any Applicable Law.
6.6. Securities Laws Compliance. TCC does not have any class of
securities registered under Section 12(g) of the Exchange Act, but is an issuer
that files information, documents and reports with the SEC pursuant to Sections
15(d) and 13 of said Act. TCC has duly and timely filed all reports and other
information required to be filed by it under the Securities Act, the Exchange
Act, and any other state and federal securities laws prior to the date hereof,
and none of such reports or other information contains any material misstatement
or omission.
6.7. Taxes and Tax Returns. TCC and the Merger Sub each has duly and
timely filed (including within any applicable extension periods) all Tax Returns
required to be filed prior to the date hereof and has duly paid the Taxes shown
therein to be due. The material reporting positions of TCC and the Merger Sub
have substantial support. There are no disputes pending in respect of or claims
asserted for Taxes upon TCC or the Merger Sub, nor are there any pending or
threatened audits or investigations known to TCC or the Merger Sub, or
outstanding matters under discussion with any taxing authorities, with respect
to the payment of Taxes or any TCC or Merger Sub Tax returns. Copies of all Tax
returns of or including TCC or the Merger Sub in respect of all years not barred
by the statute of limitations have been made available to the Company.
6.8. Litigation. There are no lawsuits, claims, or legal,
administrative or arbitration proceedings or investigations pending or, to the
best knowledge of TCC or the Merger Sub, threatened by or against or affecting
TCC, the Merger Sub, or any of their respective assets, operations or business.
6.9. Labor and Employment Matters. Neither TCC nor the Merger Sub has
any employee, or had any employees since prior to December 31, 1994. The
officers and directors of TCC and the Merger Sub serve as such without
compensation. Neither TCC nor the Merger Sub is a party to or bound by any
employment, consulting and similar agreement. There is no material
<PAGE>
controversy pending or, to the knowledge of TCC or the Merger Sub, threatened
between TCC or the Merger Sub and any of their present or former officers,
directors, supervisory personnel, employees or any group of their employees.
6.10. Transactions with Affiliates.
(a) No shareholder, officer or director of TCC or the Merger Sub has
any agreement, arrangement or understanding with TCC or the Merger Sub, or any
interest in any property, real, personal or mixed, tangible or intangible, used
in or pertaining to the operations of TCC or the Merger Sub.
(b) There are no loans or other obligations payable or owing by TCC or
the Merger Sub to any shareholders, officers, directors or employees of TCC or
the Merger Sub, nor are any loans or debts payable or owing by any such persons
to TCC or the Merger Sub, nor has TCC or the Merger Sub guaranteed any of their
loans or obligations.
6.11. Absence of Changes or Events. Since December 31, 1996, neither
TCC nor the Merger Sub has (i) issued, repurchased or redeemed any shares of
capital stock (except the issuance of stock by the Merger Sub to TCC in
connection with the organization of the Merger Sub) or declared, set aside or
paid any dividend or distribution with respect to shares of capital stock; (ii)
granted or made any commitments with respect to any form of compensation to its
officers or directors; (iii) entered into any material Contract or conducted any
substantial business; or (iv) except as a result of the consummation of the
transactions contemplated by this Agreement, suffered any material adverse
change in its operations, assets, condition or results of operations.
6.12. Commissions. No broker, finder or other Person is entitled to any
brokerage fees, commissions or finder's fees in connection with the transactions
contemplated hereby by reason of any action taken by TCC or the Merger Sub.
6.13. Full Disclosure. No statement contained in any document,
certificate or other writing furnished or to be furnished by TCC or the Merger
Sub to the Company or the Shareholders pursuant to or in connection with this
Agreement contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact necessary, in light of the
circumstances under which it was, is or will be made, in order to avoid
statements herein or therein being misleading.
ARTICLE VII.
AFFIRMATIVE COVENANTS
7.1. Maintenance of Corporate Existence. The Company and the Merger Sub
shall maintain in full force and effect their respective corporate existences,
and the Merger Sub shall cause TCC to maintain its own corporate existence in
full force and effect, at all times prior to and at the Closing.
7.2. Conduct by Company.
<PAGE>
(a) The parties understand that the Company intends to continue and
expand its travel and travel-related business prior to the Closing and
thereafter. Except as otherwise contemplated by this Agreement, the Company
shall conduct its business in such a manner as the Company in good faith deems
appropriate to continue and/or expand its travel and travel-related business,
and to make reasonable commercial efforts to preserve and develop relationships
with existing and new clients, suppliers and others and to keep available the
services of each of its employees and officers.
(b) Except as otherwise contemplated by this Agreement, the Company
will not do any of the following without prior or concurrent notice to the
Merger Sub:
(i) amend its articles of incorporation or bylaws;
(ii) authorize for issuance, issue, sell, deliver or agree or
commit to issue, sell or deliver any stock or equity equivalents of any class or
any other of its securities except for cash (in which event Schedule 5.1(b) will
be amended accordingly at or before the Closing), or amend any of the terms of
any securities outstanding as of the date hereof;
(iii) (x) split, combine or reclassify any shares of its
capital stock, (y) declare, set aside or pay any dividend or other distribution
(whether in cash,-stock or property or any combination thereof) in respect of
its capital stock or (z) redeem or otherwise acquire any of its securities;
(iv) (v) incur or assume any long-term debt or issue any
long-term debt securities or, except under existing lines of credit and in
amounts not material to it, incur or assume any short-term debt other than in
the course of continuing and/or expanding its travel and travel-related
business, (w) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person except in the course of continuing and/or expanding its travel
and travel-related business, (x) make any loans, advances or capital
contributions to, or investments in, any other Person, (y) pledge or otherwise
encumber shares of its capital, or (z) mortgage or pledge any of its assets,
tangible or intangible, or create or suffer to exist any lien thereupon except
in the course of continuing and/or expanding its travel and travel-related
business;
(v) (x) acquire, sell, lease or dispose of any assets outside
the course of continuing and/or expanding its travel and travel-related
business, or any other assets that in the aggregate are material to it, or (y)
enter into any Contract or transaction except in the course of continuing and/or
expanding its travel and travel-related business;
(vi) take, or agree in writing or otherwise to take, any
action that would make any of its representations or warranties contained in
this Agreement untrue as of the Closing; or
(vii) agree, whether in writing or otherwise, to do any of the
foregoing.
7.3. Conduct by TCC and the Merger Sub. Except as otherwise
contemplated by this Agreement, prior to the Merger the Merger Sub shall not,
and shall cause TCC not to, conduct any
<PAGE>
substantial business activities, acquire or dispose of any significant assets,
undertake any significant obligations or make any changes to their respective
capital structures, without the prior written consent of the Company. Without
limiting the foregoing, the Merger Sub shall not, and shall cause TCC not to:
(a) amend its respective articles of incorporation or bylaws;
(b) authorize for issuance, issue, sell, deliver or agree or commit to
issue, sell or deliver any stock or equity equivalents of any class or any other
of its securities, or amend any of the terms of any securities outstanding as of
the date hereof;
(c) (i) split, combine or reclassify any shares of capital stock,
(ii) declare, set aside or pay any dividend or other distribution (whether in
cash,-stock or property or any combination thereof) in respect of capital stock
or (iii) redeem or otherwise acquire any of its respective securities;
(d) (i) incur or assume any debt or issue any debt securities,
(ii) assume, guarantee, endorse or otherwise become liable or responsible
(whether directly, contingently or otherwise) for the obligations of any other
Person, (iii) make any loans, advances or capital contributions to, or
investments in, any other Person, (iv) pledge or otherwise encumber shares of
its capital, or (v) mortgage or pledge any of its assets, tangible or
intangible, or create or suffer to exist any lien thereupon;
(e) (i) acquire, sell, lease or dispose of any substantial assets,
or (ii) enter into any Contract or transaction other than as contemplated by
this Agreement;
(f) take, or agree in writing or otherwise to take, any action that
would make any of its representations or warranties contained in this Agreement
untrue as of the Closing ; or
(g) agree, whether in writing or otherwise, to do any of the foregoing.
7.4. Directors and Officers. Prior to or simultaneously with and
effective at the Effective Time, (i) the parties shall take all action necessary
to cause the entire board of directors of the Company at the Effective Time and
one further candidate nominated by TCC who is reasonably acceptable to the
Company to be elected or appointed as the entire board of directors of each of
TCC and the Surviving Corporation; and (ii) the parties shall take all action
necessary to cause all of the principal officers of each of TCC and the Merger
Sub to be removed from office and the individuals constituting the principal
officers of the Company at the Effective Time to be elected or appointed to the
same respective offices of each of TCC and the Surviving Corporation.
7.5. Proxy Statement, Hearing. The Company will prepare a proxy
statement for distribution to its shareholders in connection with their vote on
approving the Merger, and hold a meeting of its shareholders for such purpose.
The Company shall furnish the information to be included therein relating to the
Company, and the Merger Sub will furnish the information to be included therein
relating to TCC and the Merger Sub. All such furnished information will not
contain a misstatement of a material fact or omit to state a fact necessary to
be included in order to make such furnished information not misleading. In
connection with such shareholder meeting, the
<PAGE>
Company will seek a fairness hearing before the California Department of
Corporations under Section 25142 of the California Corporations Code and Section
3(a)(10) of the Securities Act of 1933, as amended. The Merger Sub will assist
the Company in connection with such hearing as reasonably requested by the
Company.
7.6. Consummation of Agreement. The Company and the Merger Sub shall
use their reasonable efforts to cause all conditions to their respective
obligations under this Agreement to be fulfilled so that the transactions
contemplated hereby shall be consummated, provided that nothing herein shall be
construed as a waiver of or to require either party to waive the fulfillment of
any condition. Except for events that are the subject of specific provisions of
this Agreement, if any event should occur, either within or outside the control
of the Company or the Merger Sub that would materially delay or prevent
fulfillment of the conditions upon the obligations of any party hereto to
consummate the transactions contemplated by this Agreement, each party will
notify the others of any such event and the parties will use their reasonable,
diligent and good faith efforts to cure or minimize the same as expeditiously as
possible.
7.7 Exchange Act Reports. At all times until the Closing and for at
least one full year thereafter, TCC shall continue to file with the SEC all
information, documents and reports required to be filed by a reporting issuer
under Sections 15(d) and 13 of the Exchange Act. Without limiting the foregoing,
within 15 days after the Closing (or within such longer period as may be allowed
under applicable law and regulations), TCC shall file with the SEC a current
report on Form 8-K with respect to this Agreement and the transactions
contemplated herein.
ARTICLE VIII.
DISCLOSURE OF ADDITIONAL INFORMATION
8.1. Access to Information. Prior to the Closing Date:
(a) the Company shall: (i) give the Merger Sub and their authorized
representatives reasonable access, during normal business hours and upon
reasonable notice, to all of the Company's books, records, offices and other
facilities and properties; and (ii) furnish the Merger Sub such financial and
operating data and other information with respect to the Company's business
operations as the Merger Sub may from time to time reasonably request.
(b) The Merger Sub shall: (i) give the Company and its authorized
representatives reasonable access, during normal business hours and upon
reasonable notice, to all of TCC's and the Merger Sub's books, records, offices
and other facilities and properties, if any; and (ii) furnish the Company such
financial and operating data and other information with respect to TCC and the
Merger Sub as the Company may from time to time reasonably request.
8.2. Confidentiality. Prior to the Closing, no party shall disclose to
any Person other than TCC and the other parties to this Agreement or use for any
purpose other than the transactions contemplated hereby, and each party will use
its best efforts to cause its employees, lenders, accountants, representatives,
agents, consultants and advisors not to disclose to any such other Person or use
for any purpose other than the transactions contemplated hereby, the subject
matter
<PAGE>
or transactions contemplated by this Agreement or information pertaining to TCC
or to any party disclosed in connection with the transactions contemplated by
this Agreement without the prior consent of the affected party, unless (i) such
information is public at the time of disclosure or use otherwise than through
the fault of the disclosing or using party; (ii) such disclosure or use is
compelled by law, and the affected party has been given a reasonable opportunity
to contest such disclosure or use; or (iii) the disclosure or use of such
information is necessary or appropriate in making any filing or obtaining any
consent or approval required for the consummation of the transactions
contemplated hereby. If the Closing and the Merger for any reason should fail to
occur as contemplated, the parties' obligations under this Section 8.2 shall
continue indefinitely, and each party upon demand by any other party shall
return all records, documents and written information obtained from the
demanding party in connection with this Agreement, and all copies, summaries or
abstracts made therefrom. The Merger Sub shall cause TCC to perform and comply
with the terms of this Section 8.2 as if a party hereto.
8.3. Publicity. Without the prior consent of the other parties, no
party hereto shall issue any news release or other public announcement or
disclosure, or any general public announcement to its employees, suppliers or
customers, regarding this Agreement or the transactions contemplated hereby,
except as may be required by law, but in which case the disclosing party shall
provide the other parties hereto with reasonable advance notice of the timing
and substance of any such disclosure. The Merger Sub shall cause TCC to perform
and comply with the terms of this Section 8.3 as if a party hereto.
ARTICLE IX.
CONDITIONS TO CLOSING
9.1. Mutual Conditions. The obligations of each party to effect the
transactions contemplated hereby shall be subject to the fulfillment of the
following conditions, any one or more of which may be mutually waived by both
the Company and the Merger Sub:
(a) Government Challenges. None of the Company, the Merger Sub, or TCC
shall be subject to any order, decree or injunction of a court of competent
jurisdiction that enjoins or prohibits the consummation of this Agreement or any
material action contemplated hereby, nor shall any Governmental Authority have
instituted a suit or proceeding that is then pending and seeks to enjoin or
prohibit the transactions contemplated hereby.
(b) Private Challenges. None of the Company, the Merger Sub, or TCC
shall be a party to any privately-instituted suit or proceeding seeking to
enjoin, prohibit, or impose material liability on any party or TCC with respect
to the transactions contemplated hereby.
(c) Fairness Hearing. The California Department of Corporations shall
have issued a permit approving the fairness of the Merger, following a hearing
under Section 25142 of the California Corporations Code and Section 3(a)(10) of
the Securities Act of 1933, as amended.
(d) Shareholder Approval. The shareholders of the Company shall have
duly approved the Merger.
<PAGE>
9.2. Conditions to the Obligations of the Company. The obligation of
the Company and the Shareholders to effect the transactions contemplated hereby
shall be further subject to the fulfillment of the following conditions, any one
or more of which may be waived by the benefited party:
(a) Representations and Warranties. All representations and warranties
of the Merger Sub contained in this Agreement shall, except as contemplated by
this Agreement, be true and correct in all material respects as of the Closing
Date as though made as of such date.
(b) Performance of Obligations. The Merger Sub shall have performed and
complied in all material respects with all covenants and agreements contained in
this Agreement required to be performed and complied with by the Merger Sub at
or prior to the Closing.
(c) Due Diligence. The Company and its legal, accounting and other
representatives shall have completed their due diligence review of TCC and the
Merger Sub and the results of such review shall have been satisfactory to the
Company in its sole discretion.
(d) Approvals. All approvals and consents of any Government Authority
or other Person(s) whose approval or consent is required for the lawful
execution, delivery and performance of this Agreement and the instruments,
documents and transactions contemplated hereby shall have been duly obtained,
except for such approvals or consents the failure to obtain which will not have
a material adverse effect on the assets, properties, operations or business or
financial condition of TCC or the Surviving Corporation.
(e) Documentary Deliveries. All documents required or contemplated to
have been executed and delivered to the Company by the Merger Sub or any third
party at or prior to the Closing shall have been so executed and delivered,
whether or not such documents have been or will be executed and delivered by the
other parties contemplated thereby.
(f) Cash. The aggregate amount of unrestricted cash owned by TCC as of
the Closing shall not be less than $800,000, which amount shall be in excess of
all other assets including those required to discharge any and all liabilities,
claims or liens in full, and excluding all proceeds from the sale or anticipated
sale of any securities of TCC, including without limitation any options,
warrants, or other rights to purchase securities of TCC.
(g) Waivers of Certain Rights. All Persons who hold any right to
require TCC to register any of its securities under the Securities Act upon
demand, or any right (other than rights arising out of the ownership of voting
securities or under this Agreement) to compel the election or appointment of any
person as a director of TCC or the Merger Sub, shall have waived all of such
rights and released TCC from any obligations in connection therewith to the
Company's reasonable satisfaction.
(h) Directors and Officers. The board of directors and officers of each
of TCC and the Merger Sub shall have resigned or been removed and replaced as
contemplated in Section 7.4.
<PAGE>
(i) TCC Stock. The Merger Sub shall be the record and beneficial holder
of a number of shares of TCC Stock equal to the total number of shares of such
stock into which the Shares will be converted by virtue of the Merger.
(j) Proceedings. All documents delivered and proceedings occurring at
or in connection with the Closing and the Merger shall be reasonably
satisfactory in legal form and effect to the Company and its counsel.
9.3. Conditions to the Obligations of the Merger Sub. The obligations
of the Merger Sub to effect the transactions contemplated hereby shall be
further subject to the fulfillment of the following conditions, any one or more
of which may be waived by the Merger Sub:
(a) Representations and Warranties. All representations and warranties
of the Company contained in this Agreement shall, except as contemplated by this
Agreement, be true and correct in all material respects as of the Closing Date
as though made as of such date.
(b) Performance of Obligations. The Company shall have performed and
complied in all material respects with all covenants and agreements contained in
this Agreement required to be performed and complied with by it at or prior to
the Closing.
(c) Approvals. All approvals and consents of any Government Authority
or other Person(s) whose approval or consent is required for the lawful
execution, delivery and performance of this Agreement and the instruments,
documents and transactions contemplated hereby shall have been duly obtained,
except for such approvals or consents the failure to obtain which will not have
a material adverse effect on the assets, properties, operations or business or
financial condition of TCC or the Surviving Corporation.
(d) Certain Events. The Company shall not have taken any of the actions
specified in Section 7.2(b) or, if any such action is taken, the Merger Sub
shall not have objected thereto.
(e) Documentary Deliveries. All documents required or contemplated to
have been executed and delivered to the Merger Sub or to any third party at or
prior to the Closing shall have been so executed and delivered, whether or not
such documents have been or will be executed and delivered by the other parties
contemplated thereby.
(f) Proceedings. All documents delivered and proceedings occurring at
or in connection with the Closing and the Merger shall be reasonably
satisfactory in legal form and effect to the Merger Sub and its counsel.
ARTICLE X.
TERMINATION; NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES
10.1. Termination. The obligations of the parties hereunder may be
terminated and the transactions contemplated hereby abandoned at any time prior
to the Closing Date:
<PAGE>
(a) By mutual written consent of the Merger Sub and the Company;
(b) By either the Merger Sub or the Company, if there shall be any law
or regulation that makes consummation of this Agreement illegal or otherwise
prohibited or if any judgment, injunction, order or decree enjoining TCC, the
Merger Sub, or the Company from consummating this Agreement is entered and such
judgment, injunction, order or decree shall become final and non appealable;
(c) By either the Merger Sub or the Company, if the conditions to that
party's obligation to effect the transactions contemplated hereby shall not have
been fulfilled or waived by September 30, 1997, and if the party seeking
termination is in material compliance with all of its obligations under this
Agreement; and
(d) By either the Merger Sub or the Company, if a condition to that
party's obligation to effect the transactions contemplated hereby shall have
become incapable of fulfillment (notwithstanding the efforts of the party
seeking to terminate as set forth in Section 7.4) and has not been waived.
10.2. Procedure and Effect of Termination. In the event of a
termination contemplated hereby by any party pursuant to Section 10.1, the party
seeking to terminate this Agreement shall give prompt written notice thereof to
the other parties, and the transactions contemplated hereby shall be abandoned,
without further action by any party hereto. In such event:
(a) The parties hereto shall continue to be bound by their obligations
set forth in Section 8.2.
(b) All filings, applications and other submissions relating to the
transactions contemplated hereby shall, to the extent practicable, be withdrawn
from the Person to which made.
(c) Each party shall be entitled to seek any remedy to which such party
may be entitled at law or in equity for the violation or breach by any other
party prior to the Closing of any agreement, covenant, representation or
warranty contained in this Agreement.
10.3. Nonsurvival of Representations. All representations, warranties,
covenants and agreements made by the Company and the Merger Sub hereunder or in
connection with the Merger will not survive the Closing. If the Closing occurs,
no claim may be brought by any party or any other Person under any such
representation, warranty, covenant or agreement.
ARTICLE XI.
MISCELLANEOUS PROVISIONS
11.1. Expenses. Whether or not the transactions contemplated hereby are
consummated, (i) the Merger Sub shall cause TCC to pay, prior to or at the
Closing, all costs and expenses incurred by TCC and the Merger Sub in connection
with this Agreement and the transactions contemplated
<PAGE>
hereby and (ii) the Company shall pay all costs and expenses incurred by the
Company in connection with this Agreement and the transactions contemplated
hereby.
11.2. Amendment and Modification. This Agreement may be amended,
modified or supplemented only by written agreement of the Merger Sub and the
Company.
11.3. Waiver of Compliance; Consents. Any obligation, representation,
warranty, covenant, agreement or condition set forth or contemplated herein may
be waived by the other party only by a written instrument signed by the party
granting such waiver, but any such waiver, or any or failure by either party to
insist upon strict compliance with such obligation, representation, warranty,
covenant, agreement or condition, shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
11.4. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered by hand or a reputable
national overnight courier service or by facsimile transmission or three
Business Days after mailing when mailed by registered or certified mail (return
receipt requested), postage prepaid, to the parties in the manner provided
below:
(a) Any notice to the Company or to any Shareholder shall be delivered
to the following addresses:
CL Thomson-Vision Expedition, Inc.
5757 W. Century Blvd., Suite 515
Los Angeles, CA 90045
Attn: Mr. Dionisio Lee-Yang, President
Telephone: (310) 337-9979
Facsimile: (310) 216-0266
with a copy to:
McCutchen, Doyle, Brown & Enersen, LLP
Three Embarcadero Center
San Francisco, CA 94111
Attn: Bartley C. Deamer, Esq.
Telephone: (415) 393-2000
Facsimile: (415) 393-2286
(b) Any notice to the Merger Sub or the Surviving Corporation shall be
delivered to the following addresses:
<PAGE>
Tsunami Acquisition Corp.
c/o Tsunami Capital Corporation
11811 N. Tatum Blvd., Suite 4040
Phoenix, AZ 85028
Attn: Anthony Silverman, President
Telephone: (602) 953-7980
Facsimile: (602) 953-7993
with a copy to:
Cruse, Firetag & Bock, P.C.
5611 North 16th Street
Phoenix, AZ 85016
Attn: John L. Stoss, Esq.
Telephone: (602) 279-9411
Facsimile: (602) 241-1260
Any party may change the address to which notice is to be given by notice given
in the manner set forth above
11.5. Assignment; Third Party Beneficiaries. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and permitted assigns.
Neither this Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto without the prior written consent of the
other party. This Agreement shall not be deemed to confer upon any third party
beneficiaries or other Persons, including any employees of the Company, any
rights or remedies hereunder.
11.6. Separable Provisions. If any provision of this Agreement shall be
held invalid or unenforceable. the remainder nevertheless shall remain in full
force and effect.
11.7. Governing Law. The execution, interpretation and performance of
this Agreement shall be governed by the internal laws and judicial decisions of
the State of California.
11.8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9. Interpretation. The article and section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement. The date of this Agreement is for reference
only, and is not necessarily the date it was entered into. The captions used in
this Agreement shall be disregarded in its interpretation.
11.10. Entire Agreement. This Agreement, including the Schedules and
any exhibits hereto, embodies the entire agreement and understanding of the
parties with respect of the subject
<PAGE>
matter of this Agreement. There are no representations or warranties by any
party except those expressly made in this Agreement and in any certificate
delivered at Closing pursuant hereto. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the
transactions contemplated hereby, including without limitation the letter of
intent dated March 19, 1997 between TCC and the Company relating to the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement.
TSUNAMI ACQUISITION CORP. CL THOMSON-VISION EXPEDITION, INC.
By ____________________________________ By ____________________________________
Jeffrey A. Silverman, President Dionisio Lee-Yang, President
