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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 December 20, 1999
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THE SOUTHSHORE CORPORATION
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(Exact name of registrant as specified in its charter)
Colorado 0-19949 84-1153522
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State or other jurisdiction Commission (I.R.S. Employer
of incorporation File Number Identification No.)
26 Tamarade Drive, Littleton, Colorado 80127
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (303) 978-1475
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N/A
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(Former name or former address, if changed since last report)
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Item 5. Other Events
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On December 20, 1999, Registrant entered into an agreement and plan of
merger whereby RV Holiday.Com, Inc. would, subject to conditions of closing,
be merged into a wholly owned subsidiary of the Registrant. Pursuant to the
agreement 5,500,000 shares of the Registrant are to be issued in the proposed
transaction. Closing is subject to, among other things, RV Holiday completing
a private offering of its securities from which it grosses $600,000 and the
acquisition of certain URL names (websites) in connection with its proposed
business, an internet recreational vehicle business. The Agreement
contemplates the resignation of current officers and directors of the
Registrant and appointment of three new directors designated by RV Holiday.
Closing is to take place on or before January 31, 2000 and is subject to
customary due diligence examinations by the parties.
Item 7. Financial Statements and Exhibits
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(c) Exhibits.
10.32 Agreement and Plan of Merger By and Among RV Holiday.Com, Inc.
and The Southshore Corporation and Southshore Acquisition Corp.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
(Registrant) THE SOUTHSHORE CORPORATION
(Date) December 20, 1999
BY(Signature) /s/ Kenneth M. Dalton
(Name and Title) Kenneth M. Dalton, President
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
RV HOLIDAY.COM, INC.
AND
SOUTHSHORE CORPORATION
AND
SOUTHSHORE ACQUISITION CORP.
DATED AS OF DECEMBER 20, 1999
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TABLE OF CONTENTS
SECTION 1: GENERAL DEFINITIONS 1
1.2 Best Knowledge 1
1.3 Control 1
1.4 Exchange Act 1
1.5 Fiscal Year 2
1.6 Governmental Authority 2
1.7 Governmental Requirement 2
1.8 Legal Requirements 2
1.9 Net Worth 2
1.10 Person 2
1.11 Exhibit 2
1.12 Section 2
1.13 Securities Act 2
1.14 Taxes 2
SECTION 2: THE MERGER 3
2.1 The Merger 3
2.2 Filing 3
2.3 Effective Time of the Merger 3
2.4 Closing: Closing Date 3
SECTION 3: APPROVALS 3
3.1 Southshore Approvals 3
3.2 RV Approvals 3
3.3 Dissenter Rights 4
SECTION 4: CONVERSION OR CANCELLATION OF SHARES 4
4.1 Conversion or Cancellation of Shares 4
4.2 Surrender and Payment 4
4.3 Subscription Agreements 5
4.4 No Further Transfers 5
SECTION 5: CERTAIN EFFECTS OF MERGER 5
5.1 Effect of Merger 5
5.2 Further Assurances 5
SECTION 6: POST-MERGER GOVERNANCE 6
6.1 Articles of Incorporation and Bylaws 6
6.2 Directors, Officers and Employees 6
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING 7
7.1 Covenants Regarding the Closing 7
7.2 Conditions to Obligation of Southshore 7
7.3 Conditions to Obligation of RV 10
7.4 Specific Items to be Delivered at the Closing 12
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE 14
8.1 Organization and Standing 14
8.2 Subsidiaries, etc. 15
8.3 Qualification 15
8.4 Financial Statements 15
8.5 Capitalization of Southshore 16
8.6 No Defaults 16
8.7 Taxes 16
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8.8 No Actions, Proceedings, etc. 16
8.9 Post Balance Sheet Changes 16
8.10 No Breaches 17
8.11 Condition of Southshore's Assets 17
8.12 Inventory 17
8.13 Accounts Receivable 17
8.14 Southshore Acts and Proceedings 17
8.15 Patents and Other Intangible Rights 18
8.16 Changes in Suppliers and Customers 18
8.17 No Liens or Encumbrances 18
8.18 Employee Matters 18
8.19 Legal Proceedings and Compliance with Law 19
8.20 Contract Schedules 19
8.21 Labor Matters 20
8.22 Insurance 20
8.23 Environmental 20
8.24 Compliance with Reporting Requirements 21
SECTION 9: COVENANTS OF SOUTHSHORE 21
9.1 Preservation of Business 21
9.2 Ordinary Course 21
9.3 Negative Covenants 22
9.4 Access to Books and Records, Premises, etc. 22
9.5 Compensation 22
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV 22
10.1 Organization and Standing 23
10.2 Subsidiaries, etc. 23
10.3 Qualification 23
10.4 Financial Statements 23
10.5 Capitalization of RV 23
10.6 No Defaults 24
10.7 Taxes 24
10.8 No Actions. Proceedings, etc. 24
10.9 Post Balance Sheet Changes 24
10.10 No Breaches 25
10.11 Condition of RV's Assets 25
10.12 Inventory 25
10.13 Accounts Receivable 25
10.14 RV Acts and Proceedings 25
10.15 Patents and Other Intangible Rights 25
10.16 Changes in Suppliers and Customers 26
10.17 No Liens or Encumbrances 26
10.18 Legal Proceedings and Compliance with Law 27
10.19 Contract Schedules 27
10.20 Labor Matters 28
10.21 Insurance 28
10.22 Environmental 28
SECTION 11: COVENANTS OF RV 29
11.1 Preservation of Business 29
11.2 Ordinary Course 29
11.3 Negative Covenants 29
11.4 Access to Books and Records,. Premises, etc. 30
11.5 Compensation 30
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SECTION 12: TERMINATION 30
12.1 Termination 30
12.2 Effect of Termination 31
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH 31
13.1 Indemnification by Southshore and SAC 31
13.2 Indemnification by RV 31
13.3 Additional Notice 32
13.4 Determination of Damages and Related Matters 32
13.5 Remedies for Breach 33
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION 33
SECTION 15: EXPENSES 34
SECTION 16: MISCELLANEOUS 34
16.1 Attorney's Fees 34
16.2 Survival and Incorporation of Representations 35
16.3 Incorporation by Reference 35
16.4 Parties in Interest 35
16.5 Amendments and Waivers 35
16.6 Waiver 35
16.7 Governing Law - Construction 36
16.8 Limitation of Actions 36
16.9 Notices 37
16.10 Fax/Counterparts 37
16.11 Captions 37
16.12 Severabilitv 37
16.13 Jurisdiction and Venue 37
16.14 Good Faith Cooperation and Additional Documents 37
16.15 Legal Counsel 37
16.16 No Finders or Brokers Fees 38
16.17 Assignment 38
16.18 List of Exhibits 38
16.19 Entire Agreement - Amendment 39
16.20 Authority to Sign 39
16.21 Execution of Documents 39
16.22 Time 40
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EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with John Deufel
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax Related
Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs, Injunctions,
Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation, Exceptions
to Compliance with Laws, Ordinances, Requirements,
Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste Production,
Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults)
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes; Tax Related Disputes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative, or
Proceedings or Other Material DocumentsGovernmental
Investigation, Exceptions to Compliance with Laws,
Ordinances, Requirements, Regulations or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f)RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into this 20th day of December, 1999, by and among RV HOLIDAY.COM, INC., a
Colorado corporation ("RV"), SOUTHSHORE CORPORATION, a Colorado corporation
("Southshore") and SOUTHSHORE ACQUISITION CORP., a Colorado Subsidiary of
Southshore ("SAC").
WITNESETH:
WHEREAS, RV is a company formed for the purpose of developing an Internet
web site portal for the recreational vehicle industry; and
WHEREAS, Prior to the Closing, Southshore shall organize a shell
acquisition corporation and become the owner in the aggregate of ten (10)
shares (the "Shares") of the issued and outstanding Common Stock of SAC, $.001
par value per share, representing all the issued and outstanding shares of the
capital stock of SAC; and
WHEREAS, following the Closing, RV intends to acquire one or more RV
dealerships; and
WHEREAS, the parties hereto desire to set forth certain representations,
warranties and covenants under which a merger of SAC and RV will occur.
NOW, THEREFORE, for and in consideration of the premises, the mutual
representations, warranties and covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
SECTION 1: GENERAL DEFINITIONS
For purposes of this Agreement, the following terms shall have the
respective meanings set forth below:
1.1 Affiliate. "Affiliate" of any Person shall mean any Person
Controlling, controlled by or under common Control with such Person.
1.2 Best Knowledge. "Best Knowledge" shall mean both what a Person
knew as well as what the Person should have known had the Person exercised
reasonable diligence. When used with respect to a Person other than a natural
person, the term "Best Knowledge" shall include matters that are known to the
directors, officers, partners, trustees, administrators, executors, managers,
employees, consultants and agents of the Person.
1.3 Control. "Control" and all derivations thereof shall mean the
ability to either (i) vote (or direct the vote of) 50% or more of the voting
interests in any Person or (ii) direct the affairs of another, whether through
voting power, contract or otherwise.
1.4 Exchange Act. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
1.5 Fiscal Year. "Fiscal Year" shall mean a twelve-month period
beginning January 1;
1.6 Governmental Authority. "Governmental Authority "shall mean any
and all foreign, federal, state or local governments, governmental
institutions, public authorities and governmental entities of any nature
whatsoever, and any subdivisions or instrumentalities thereof, including, but
not limited to, departments, boards, bureaus, commissions, agencies, courts,
administrations and panels, and any division or instrumentalities thereof,
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whether permanent or ad hoc and whether now or hereafter constituted or
existing.
1.7 Governmental Requirement. "Governmental Requirement" shall mean
any and all laws (including, but not limited to, applicable common law
principles), statutes, ordinances, codes, rules regulations, interpretations,
guidelines, directions, orders, judgments, writs, injunctions, decrees,
decisions or similar items or pronouncements, promulgated, issued, passed or
set forth by any Governmental Authority.
1.8 Legal Requirements. "Legal Requirements" means applicable common
law and any statute, ordinance, code or other laws, rule, regulation,
order, technical or other standard, requirement, judgment, or procedure
enacted, adopted, promulgated, applied or followed by any governmental
authority, including, without limitation, any order, decree, award, verdict,
findings of fact, conclusions of law, decision or judgment, whether or not
final or appealable, of any court, arbitrator, arbitration board or
administrative agency.
1.9 Net Worth. "Net Worth" shall mean the assets of a Person minus
the liabilities of the Person, as of a given date as determined in accordance
with generally accepted accounting principles.
1.10 Person. "Person" shall mean any natural person, any
Governmental Authority and any entity the separate existence of which is
recognized by any Governmental Authority or Governmental Requirement,
including, but not limited to, corporations, partnerships, joint ventures,
joint stock companies, trusts, estates, companies and associations, whether
organized for profit or otherwise.
1.11 Exhibit. Unless otherwise stated herein, the term "Exhibit"
when used in this Agreement shall refer to the Exhibits to this Agreement. The
Exhibits to this Agreement may be attached to this Agreement or may be set
forth in a separate document denoted as the Exhibits to this Agreement, or
both.
1.12 Section. Unless otherwise stated herein, the term "Section"
when used in this Agreement shall refer to the Sections of this Agreement.
1.13 Securities Act. "Securities Act" shall mean the Securities Act
of 1933, as amended.
1.14 Taxes. "Tax" and "Taxes" shall mean any and all income, excise,
franchise or other taxes and all other charges or fees imposed or collected by
any Governmental Authority or pursuant to any Governmental Requirement, and
shall also include any and all penalties, interest, deficiencies, assessments
and other charges with respect thereto.
SECTION 2: THE MERGER
2.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 2.3 herein). SAC shall
be merged (the "Merger") with and into RV upon the terms and conditions set
forth herein as permitted by and in accordance with the Colorado Corporation
Code (the "Colorado Corporation Law"). Thereupon, the separate existence of
SAC shall cease, and RV, as the surviving corporation in the Merger (the
"Surviving Corporation"), shall continue to exist under and be governed by the
Colorado Corporation Law, with all its purposes, objects, rights, privileges,
immunities, powers and franchises continuing unaffected and unimpaired by the
Merger. The name of the Surviving Corporation shall be "RV Holiday.com, Inc."
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2.2 Filing. As soon as practicable following fulfillment or waiver
of the conditions specified in Sections 7, 9 and II hereof, and provided that
this Agreement has not been terminated pursuant to Section 12 hereof, SAC and
RV will cause a short form Agreement and Plan of Merger, in the form attached
hereto as Exhibit 2.2, to be executed, acknowledged and filed with the
Secretary of State of each of Colorado as provided in Section 7-7-104 of the
Colorado Corporation Law and obtain a copy of the Articles of Merger,
certified by the Secretary of State of the State of Colorado.
2.3 Effective Time of the Merger. The Merger shall become effective
immediately upon the filing of the Articles of Merger with the Secretary of
State of the State of Colorado in accordance with the Colorado Corporation
Law. The date and time of the completion of such filings is herein sometimes
referred to as the "Effective Time".
2.4 Closing: Closing Date. Subject to the terms and conditions set
forth herein, the consummation of the transactions referenced above shall take
place (the "Closing") on ___________, 1999, at ___________ __.m. Mountain Time
at the offices of Neuman & Drennen, Temple-Bowron House, 1507 Pine Street,
Boulder, Colorado, or at such other time, date and place as RV and SAC shall
designate (the "Closing Date").
SECTION 3: APPROVALS
3.1 Southshore Approvals. Subject to the provisions hereof, the
Board of Directors of Southshore shall, by written unanimous consent approve
the transactions contemplated by this Agreement in its capacity as the sole
shareholder of SAC; provided, however, that such approval shall be subject to
their satisfaction that the issuance of the Common Stock of Southshore to the
RV Shareholders shall be and is exempt from the registration requirements of
the Securities Act, is undertaken without violation of the anti-fraud
provisions of the Securities Act and has been consummated in conformity with
all other applicable Legal Requirements, including the requirements of Rule
14(f)-1 under the Exchange Act.
3.2 RV Approvals. As promptly as practicable after the date hereof.
RV shall take all action necessary or appropriate under the Colorado
Corporation Law, and the Articles of Incorporation and Bylaws of RV, to
convene a meeting of its Stockholders as promptly as practicable for the
purpose of considering and voting upon appropriate resolutions approving the
transactions contemplated by this Agreement, or in lieu thereof, obtain such
approval by unanimous written consent.
3.3 Dissenter Rights. At all times, and as applicable, RV shall
comply with applicable Legal Requirements including, without limitation, the
payment of cash for dissenting shares related to the Merger.
SECTION 4: CONVERSION OR CANCELLATION OF SHARES
4.1 Conversion or Cancellation of Shares. At the Effective Time,
the issued and outstanding shares of Common Stock, $.001 par value, of RV ("RV
Common Stock") shall, by virtue of the Merger, be cancelled and converted into
shares of the capital stock of Southshore, as follows:
(a) Subject to compliance with Sections 5 and 17(a) of the
Securities Act, the shares of RV Stock issued and outstanding immediately
prior to the Effective Time, excluding any such shares held in the treasury of
RV, shall be converted into the right to receive an equal number of shares of
Common Stock of Southshore, $.01 par value per share (the "Southshore Stock").
Such right may be exercised by the surrender of the certificates representing
such shares of RV stock in accordance with Section 4.2 hereof. The number of
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shares of Southshore Stock issued upon surrender shall be calculated as
follows:
The aggregate number of shares of Southshore Stock so issuable in the
conversion of the RV Stock shall be 5,500,000. The Southshore Stock shall be
allocated to the holders of RV Stock pro rata on a one-for-one basis.
(b) Each share of Southshore Stock, issued under paragraph (a)
above shall be Restricted Stock pursuant to Rule 144 promulgated under the
Securities Act.
(c) Each share of RV Stock, if any, held in RV's treasury
immediately prior to the Effective Time shall be canceled and retired and no
payment shall be made in respect thereof.
(d) At the Effective Time, all outstanding shares of SAC shall
be converted into an equal number of shares of Common Stock of RV.
4.2 Surrender and Payment. Subject to compliance with Sections 5
and 17(a) of the Securities Act, after the Effective Time, each holder of a
certificate representing an issued and outstanding share of RV Stock shall be
entitled upon surrender of such certificate along with a fully executed
Subscription Agreement in the form of Exhibit 4.3, to Southshore, to receive
the Southshore stock as set forth in Section 4.1 above. Until so surrendered,
each certificate which immediately prior to the Effective Time represented an
issued and outstanding share of RV Stock shall, upon and after the Effective
Time, be deemed for all purposes to represent and evidence only the right to
receive Southshore Stock as set forth in Section 4.1. If any exchange for
shares of RV Stock is to be made in a name other than that in which the
certificate therefor surrendered for exchange is registered, it shall be a
condition of such payment that the certificate so surrendered be properly
endorsed or otherwise in proper form for transfer and that the person
requesting such payment either pay to Southshore any transfer or other similar
taxes required by reason of the payment to a person other than the registered
holder of the certificate surrendered or establish to the satisfaction of
Southshore that such tax has been paid or is not payable.
4.3 Subscription Agreements. Each of the RV Shareholders receiving
Southshore Stock pursuant to the terms hereof shall have delivered a fully
executed Subscription Agreement in the form included on Exhibit 4.3.
4.4 No Further Transfers. On and after the Effective Time, no
transfer of the shares of RV Stock issued and outstanding immediately prior to
the Effective Time shall be made on the stock transfer books of RV.
SECTION 5: CERTAIN EFFECTS OF MERGER
5.1 Effect of Merger. On and after the Effective Time, the separate
existence of SAC shall cease and SAC shall be merged with and into RV, which
as the Surviving Corporation shall, consistently with its Articles of
Incorporation succeed to, and without other transfer, possess all the rights,
privileges, immunities, powers and franchises of public as well as private
nature, and be subject to all restrictions, disabilities and duties of SAC;
and all rights, privileges, immunities, powers and franchises of SAC, and all
property, real, personal and mixed, causes of action and every other asset of,
and all debts due to SAC on whatever account as well as stock subscriptions
and all other things in action or belonging to SAC shall vest in the Surviving
Corporation; and all property, rights, privileges, immunities, powers and
franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of SAC, and
the title to any real estate vested by deed or otherwise in SAC, and the title
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to any real estate vested by deed or otherwise in SAC shall not revert or be
in any way impaired but all rights of creditors and all liens upon any
property of SAC shall be preserved unimpaired, and all debts, liabilities and
duties of SAC shall thenceforth attach to the Surviving Corporation, and may
be enforced against it to the same extent as if such debts, liabilities and
duties had been incurred or contracted by it. Any action or proceeding
pending by or against SAC may be prosecuted to judgment, which shall bind the
Surviving Corporation, or the Surviving Corporation may be proceeded against
or substituted in its place.
5.2 Further Assurances. If at any time after the Effective Time the
Surviving Corporation shall consider any further deeds, assignments or
assurances in law or any other action necessary, desirable or proper (a) to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to any property or rights of SAC acquired or to be acquired by
reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, SAC agrees that it and its proper officers and
directors shall and will execute and deliver all such property, deeds,
assignments and assurances in law and take all other action necessary,
desirable or proper to vest, perfect or confirm title to such property or
right in the Surviving Corporation and otherwise to carry out the purposes of
this Agreement.
SECTION 6: POST-MERGER GOVERNANCE
6.1 Articles of Incorporation and Bylaws. At the Effective Time,
the Articles of Incorporation and By-Laws of RV as in effect immediately prior
to the Effective Time, shall be and continue to be the Articles of
Incorporation and By-Laws of RV, as the Surviving Corporation, until duly
amended in accordance with law.
6.2 Directors. Officers and Employees.
(a) Directors of Southshore. On Closing, the current members
of the Board of Directors of Southshore shall, in accordance with the Colorado
Corporation Law and the Articles of Incorporation and By-Laws of Southshore,
cause the Board of Directors of Southshore to be reconstituted to consist of a
total of three (3) persons, to be designated by the management of RV. The
current members of the Southshore Board of Directors shall resign their
respective board memberships.
(b) Information Statement. At least ten (10) days prior to the
Closing, Southshore shall cause to be mailed to its shareholders of record and
filed with the Securities and Exchange Commission (the "Commission") an
information statement meeting the requirements of Rule 14(f)-1 under the
Exchange Act.
(c) Executive Officers of Southshore. Immediately after the
Effective Time, the newly constituted Board of Directors of Southshore shall
elect persons to serve as Executive Officers of Southshore any persons serving
as Executive Officers of Southshore immediately prior to the Effective Time
who will not continue in such capacity immediately after the Effective Time
shall tender their resignations in accordance with applicable Legal
Requirements.
(d) Employment Agreements of Southshore. At Closing,
Southshore shall enter into a written Employment Agreement with John Deufel as
____________________, substantially in the form of Exhibit 6.2(d) hereto.
(e) Directors of RV. Immediately after the Effective Time, the
Board of Directors of RV shall be reconstituted to consist of one (1) or more
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persons as shall be appointed by a majority vote of the newly constituted
Board of Directors of Southshore.
(f) Executive Officers of RV. Immediately after the Effective
Time, any person serving as an executive officer of RV immediately prior to
the Effective Time who will not continue in such capacity immediately after
the Effective Time shall tender their resignation in accordance with
applicable legal requirements. The executive officers of RV immediately after
the Effective Time shall be persons duly appointed by the newly constituted
directors of RV.
SECTION 7: COVENANTS AND CONDITIONS OF CLOSING
7.1 Covenants Regarding the Closing. The parties hereto hereby
covenant and agree that they shall (i) use reasonable efforts to cause all of
their respective representations and warranties set forth in this Agreement to
be true on and as of the Closing Date, (ii) use reasonable efforts to cause
all of their respective obligations that are to be fulfilled on or prior to
the Closing Date to be so fulfilled, (iii) use reasonable efforts to cause all
conditions to the Closing set forth in this Agreement to be satisfied on or
prior to the Closing Date, and (iv) deliver to each other at the Closing the
certificates, updated lists, opinion of counsel, notices, consents,
authorizations, approvals, agreements, transfer documents, receipts and
amendments contemplated by Sections 7, 8 and 10 (with such additions or
exceptions to such items as are necessary to make the statements set forth in
such items accurate, provided that if any such additions or exceptions cause
any of the conditions to the parties' obligations hereunder as set forth in
Sections 7, 8 and 10 below not to be fulfilled, such additions and exceptions
shall in no way limit the rights of the parties to terminate this Agreement or
refuse to consummate the transactions contemplated hereby.) All
indemnifications, guarantees, covenants, agreements, representations and
warranties made by the parties hereunder or pursuant hereto or in connection
with the transactions contemplated hereby shall survive the Closing regardless
of any investigation at any time made by or on behalf of the parties.
7.2 Conditions to Obligation of Southshore. The obligation of
Southshore to complete the Merger on the Closing date on the terms set forth
in this Agreement is, at the option of Southshore, subject to the satisfaction
or waiver by Southshore of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties made by RV in this Agreement shall be correct
in all material respects on and as of the Closing date with the same force and
effect as though such representations and warranties had been made on the
Closing date.
(b) Compliance with Covenants. All covenants which RV is
required to perform or comply with on or before the Closing date shall have
been fully complied with or performed in all material respects.
(c) Corporate Approvals. The Board of Directors and
shareholders of RV shall have approved and ratified this Agreement and shall
have authorized the appropriate officers of RV to execute same and fully
perform its terms.
(d) Consents and Approvals. To the extent that any material
lease, mortgage, deed of trust, contract or agreement to which RV is a party
shall require the consent of any person to the exchange of RV's shares of
common stock or any other transaction provided for herein, such consent shall
have been obtained; provided, however, that RV shall not make, as a condition
for the obtaining of any such consent, any agreements or undertakings not
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approved in writing by Southshore to the extent that such condition otherwise
has an effect on Southshore.
(e) Review and Due Diligence. Southshore, its investment
bankers, legal counsel and/or auditors shall have had the opportunity to
complete, and shall have completed, a satisfactory due diligence investigation
of RV together with a satisfactory review of RV's corporate status and the
marketability of title to RV's property.
(f) No Governmental Actions. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the Companies
shall have delivered to each other certificates dated as of the Closing Date
and executed by such parties, staling that to their Best Knowledge, no such
items exist. No governmental authority shall have taken any other action as a
result of which the management of Southshore, in its sole discretion,
reasonably deems it inadvisable to proceed with the transactions contemplated
by this Agreement.
(g) No Material Adverse Change. No material adverse change in
the business, property or assets of any party hereto shall have occurred, and
no loss or damage to any of the assets, whether or not covered by insurance,
with respect to any party hereto has occurred, and the parties hereto shall
have delivered to each other certificates dated as of the Closing Date and
executed by each of the parties to all such effects.
(h) Update of Contracts. The parties hereto shall have
delivered to each other an accurate list, as of the Closing Date, showing (i)
all agreements, contracts and commitments of the type listed on Exhibits 8.20
and 10.13 entered into since the date of this Agreement; and (ii) all other
agreements, contracts and commitments related to the businesses or the assets
of the respective parties entered into since the date of this Agreement,
together with true, complete and accurate copies of all such documents (the
"New Contracts"). Each party shall have had the opportunity to review and
approve the New Contracts of the other, and any of the parties shall have the
right to delay the Closing for up to ten (10) days if it in its sole
discretion deems such delay necessary to enable it to adequately review the
New Contracts.
(i) Approval of Counsel. All actions, proceedings, instruments
and documents required or incidental to carry out this Agreement, including
all schedules and exhibits thereto, and all other related legal matters shall
have been approved by Neuman & Drennen, LLC, counsel to RV and SAC, and Krys,
Boyle, Freedman & Sawyer, counsel to Southshore.
(j) No Adverse Information. The investigations with respect to
the parties, the assets and the respective businesses performed by each
party's respective professional advisors and other representatives shall not
have revealed any information concerning the other parties, their assets or
their business and with respect to the backgrounds of the proposed directors
and officers of Southshore nominated by RV that has not been made known to the
discovering party, in writing prior to the date of this Agreement and that, in
the opinion of such party and its advisors, materially and adversely affects
the business or assets of the other party or the viability of the transaction
contemplated by this Agreement.
(k) Course of Business. During the period from the date of this
Agreement until the Closing Date, RV shall have carried on its business which
consists of completing a private offering of its securities and entering into
agreements to acquire one or more RV dealerships.
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(l) Liens. RV shall have delivered to Southshore a reasonably
current lien and judgment search (both state and county levels in each
jurisdiction where the party is qualified to or is doing business or owns
material assets) confirming the absence of any judicial liens, security
interests, tax liens and similar such liens affecting any of its business or
assets. Each and every lien or encumbrance of any nature, if any, relating to
the assets, business, or the shares of common stock of RV shall have been
terminated and released, and proof thereof delivered to Southshore.
(m) Other Documents. The parties shall have delivered or caused
to be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(n) Governmental and Regulatory Approvals. The parties shall
have obtained evidence, in form and substance satisfactory to each of them,
that there have been obtained all consents, approvals and authorizations
required by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions
contemplated pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction
where such approval may be required.
(o) Dissenting Shareholders. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(p) Audit Confirmation. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, Southshore shall have received confirmation from its
independent accountants or the independent public accountants selected by RV
that books and records of RV will permit the preparation by Southshore of
audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(q) Federal and State Securities Laws. The sale and/or issuance
of Southshore securities pursuant to the Merger shall have been cleared by all
applicable federal and state securities authorities or the issuance of such
securities shall be exempt from registration with said authorities.
(r) Private Placement. RV shall have completed a private
placement of its securities exclusively to persons who qualify as "accredited
investors" within the meaning of Rule 501(a) of Regulation D realizing gross
revenues of at least Six Hundred Thousand Dollars ($600,000).
(s) URL Name. Prior to the Closing, RV shall have acquired
ownership to the following URL names:
IRV.com
Destination Freedom.com
IRV.com.com
IRV Home Page.com
IRV Home Page.net
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MYRV Bid.com
MYRV Bid.net
MYRV Offer.com
MYRV Offer.net
RV Dealers.net.com
RV Dealers.net.net
RVHoliday.com
RVHoliday.net
RV Home Page.com
RV Home Page.net
RV Locators.com
RV Locators.net
RV Nation.net
RV Negotiators.com
RV Negotiators.net
RV Priceline.com
RV Priceline.net
RV Pricequote.com
RV Pricequote.net
RV Purchase.com
RV Purchase.net
RV Smart.net
(s) Compliance with Sections 5 and 17 of the Securities Act.
The Board of Directors of Southshore shall be satisfied that the issuance of
Common Stock to the RV shareholders is in compliance with the provisions of
Sections 5 and 17 of the Securities Act.
7.3 Conditions to Obligation of RV. The obligations of RV to
complete the Merger on the Closing date on the terms set forth in this
Agreement is, at the option of RV, subject to the satisfaction or waiver by RV
of each of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties made by Southshore and SAC in this Agreement
shall be correct in all material respects on and as of the Closing date with
the same force and effect as though such representations and warranties had
been made on the Closing date.
(b) Compliance with Covenants. All covenants which Southshore
and SAC is required to perform or comply with on or before the Closing date
shall have been fully complied with or performed in all material respects.
(c) Corporate Approvals. The Board of Directors of Southshore
and SAC shall have approved and ratified this Agreement and shall have
authorized the appropriate officers to execute same and fully perform its
terms.
(d) Consents and Approvals. To the extent that any material
lease, mortgage, deed of trust, contract or agreement to which Southshore and
SAC is a party shall require the consent of any person to the exchange of
Southshore and SAC's shares of common stock or any other transaction provided
for herein, such consent shall have been obtained; provided, however, that
Southshore and SAC shall not make, as a condition for the obtaining of any
such consent, any agreements or undertakings not approved in writing by RV to
the extent that such condition otherwise has an effect on RV or Southshore and
SAC.
(e) Review and Due Diligence. RV and its legal counsel and/or
auditors shall have had the opportunity to complete, and shall have completed,
a satisfactory due diligence investigation of Southshore and SAC, together
with a satisfactory review of Southshore and SAC's corporate status, the
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marketability of title to Southshore and SAC's property, and compliance with
all reporting requirements imposed by or on account of any federal or state
securities laws or regulations.
(f) No Governmental Actions. No action or proceeding before any
governmental authority shall have been instituted or threatened to restrain or
prohibit the transactions contemplated by this Agreement, and the parties
hereto shall have delivered to each other certificates dated as of the Closing
Date and executed by such parties stating that, to their Best Knowledge, no
such items exist. No governmental authority shall have taken any other action
as a result of which the management of any of the parties, in its sole
discretion, reasonably deems it inadvisable to proceed with the transactions
contemplated by this Agreement.
(g) No Material Adverse Change. No material adverse change in
the business, property or assets of any party hereto shall have occurred, and
no loss or damage to any of the assets, whether or not covered by insurance,
with respect to any party hereto has occurred, and the parties shall have
delivered to each other certificates dated as of the Closing Date and executed
by each of the parties to all such effects.
(h) Update of Contracts. The parties shall have delivered to
each other an accurate list, as of the Closing Date, showing (i) all
agreements, contracts and commitments of the type listed on Exhibits 8.20 and
10.13 entered into since the date of this Agreement; and (ii) all other
agreements, contracts and commitments related to the businesses or the assets
of the respective parties entered into since the date of this Agreement,
together with true, complete and accurate copies of all such documents (the
"New Contracts"). Each party shall have had the opportunity to review the New
Contracts of the other, and any of the parties shall have the right to delay
the Closing for up to ten (10) days if it in its sole discretion deems such
delay necessary to enable it to adequately review the New Contracts.
(i) Approval of Counsel. All actions, proceedings, instruments
and documents required or incidental to carry out this Agreement, including
all schedules and exhibits thereto, and all other related legal matters shall
have been approved as to substance and form by Neuman & Drennen, LLC, counsel
to RV, and Krys, Boyle, Freedman & Sawyer, counsel to Southshore.
(j) No Adverse Information. The investigations with respect to
the parties, the assets and their respective businesses performed by each
party's respective professional advisors and other representatives shall not
have revealed any information concerning the other panes, their assets or
their business that has not been made known to the discovering party, in
writing prior to the date of this Agreement and that, in the opinion of such
party and its advisors, materially and adversely affects the business or
assets of the other party or the viability of the transaction contemplated by
this Agreement.
(k) Ordinary Course of Business. During the period from the
date of this Agreement until the Closing Date, Southshore shall have carried
on its business in the ordinary and usual course, and shall have delivered to
RV a certificate to that effect.
(1) Other Documents. The parties shall have delivered or caused
to be delivered all other documents, agreements, resolutions, certificates or
declarations as each respective party or its attorneys may have reasonably
requested.
(m) Governmental and Regulatory Approvals. The parties shall
have obtained evidence, in form and substance satisfactory to each of them,
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that there have been obtained all consents, approvals and authorizations
required by this Agreement, including, without limitation, the following:
(i) RV Stockholder approval of all the transactions contemplated
pursuant to this Agreement; and
(ii) All regulatory approvals necessary for RV to conduct
business in the ordinary course in each jurisdiction
where such approval may be required.
(n) Dissenting Shareholders. All validly dissenting RV
Shareholders shall have been paid, or provision made therefor, or the number
of dissenting shares of RV Common Stock does not exceed two percent (2%) of
the RV Common Shares.
(o) Audit Confirmation. The parties recognize that, in order to
comply with the reporting requirements of the Exchange Act, it will be
necessary for Southshore to prepare and file with the Commission a Current
Report on Form 8-K which must include the audited financial statements of RV
and pro forma financial information in accordance with Item 7 of Form 8-K.
Prior to Closing, RV shall have received confirmation from its independent
accountants that the books and records of RV will permit the preparation by RV
of audited financial statements, together with report of independent public
accountants, in conformity with generally accepted accounting principles
consistently applied and in compliance with all requirements of Regulation SX
under the Securities Act.
(p) Federal and State Securities Laws. The sale and/or issuance
of Southshore securities pursuant to the Merger shall be exempt from
registration under state and federal securities laws.
(q) Shareholder Options. At Closing, certain shareholders of
Southshore shall have granted options to persons designated by RV exercisable
for ninety (90) days to purchase an aggregate of 500,000 shares of Southshore
Common Stock at an exercise price of $.50 per share.
(r) Net Worth and Shares Outstanding. At Closing, Southshore
shall have Net Worth of not less than One Hundred Thousand Dollars ($100,000)
and no more than 2,610,470 shares of Common Stock outstanding.
(s) Resale Agreements. At Closing, Ken Dalton and Michael
McCallum should have executed and delivered their agreements to limit their
resales of Southshore common stock in market transactions upon terms
acceptable to RV.
7.4 Specific Items to be Delivered at the Closing. The parties shall
deliver the following items to the appropriate party at the Closing of the
transactions contemplated by this Agreement.
(a) To be delivered by RV (in duplicate original):
(i) Copy of corporate resolutions authorizing the
execution of this Agreement, and the consummation
by RV of the transactions contemplated by this
Agreement.
(ii) A certificate of the President of RV staring
that the representations and warranties of RV set forth
in this Agreement are true and correct. Said
certificate shall further verify and affirm that
all consents or waivers, if any, which may be necessary
to execute and deliver this Agreement have been
obtained and are in full force and effect.
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(iii) A certificate dated the Closing Date, signed by the
Chief Executive Officer and the Chief Financial
Officer of RV, in form and substance satisfactory to
the other party and its legal counsel, certifying that
all conditions precedent set forth in this Agreement
to the obligations of RV to close, have been fulfilled,
and that no event of default hereunder and no event
which, with the giving of notice or passage of time,
or both, would be an event of default, has occurred as
of such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of RV, (i) certifying resolutions duly
adopted by the Board of Directors and Shareholders of
RV, authorizing the execution of this Agreement
and all of the other transactions to be consummated
pursuant thereto; (ii) certifying the names and
incumbency of the officers of RV who are empowered to
execute the foregoing documents for and on behalf of
such company; (iii) certifying the authenticity of
copies of the Articles of Incorporation and Bylaws of
RV; and (iv) certifying the authenticity of a
reasonably current Certificate of Good Standing, from
all jurisdictions in which the company is
qualified to conduct business.
(b) To be delivered by Shareholders of RV (in duplicate
original):
(i) Certificate or certificates representing 100% of
the issued and outstanding common shares of RV,
which stock certificates shall be endorsed in favor
of Southshore.
(ii) Fully executed Subscription Agreements from all
shareholders of record of RV substantially in the
form of Exhibit 4.3.
(iii) Assignments, if any, with unconditional warranties
of title, duly executed by Shareholders, assigning to
Southshore any and all equity rights, including, but
not limited to, options, warrants, puts and so
forth, which Shareholders may own in RV at the time of
Closing.
(iv) Certificate of Shareholders in which they state that
they own the shares and other rights of RV free and
clear of all liens, encumbrances, security interests
and limitations on transfer whatsoever.
(c) To be delivered by Southshore (in duplicate original):
(i) Certificate or certificates representing 5,500,000
shares of Southshore Common Stock, which stock
certificates shall be issued in the names of each
Shareholder in the numbers set forth in Section 4.1
hereof;
(ii) Copy of corporate resolution authorizing the
execution of this Agreement and the consummation by
Southshore and SAC of the transactions contemplated by
this Agreement, including, but not limited to, the
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issuance of Southshore Common Stock in the amounts
and manner set forth in Section 4.1 above;
(iii) A certificate dated the Closing Date, signed by the
Chief Executive Officer and the Chief Financial
Officer of Southshore and SAC, in form and substance
satisfactory to the other party and its legal counsel,
certifying that all conditions precedent set forth in
this Agreement to the obligations of Southshore and
SAC to close, have been fulfilled, and that no
event of default hereunder and no event which, with the
giving of notice or passage of time, or both, would be
an event of default, has occurred as of such date.
(iv) Certificates dated the Closing Date, signed by the
Secretary of Southshore and SAC, (i) certifying
resolutions duly adopted by the Board of Directors of
Southshore and SAC, authorizing the execution of
this Agreement and all of the other transactions to be
consummated pursuant thereto; (ii) certifying the names
and incumbency of the officers of Southshore and SAC
who are empowered to execute the foregoing documents for
and on behalf of such company; (iii) certifying the
authenticity of copies of the Articles of Incorporation
and Bylaws of Southshore and SAC; and (iv) certifying
the authenticity of a reasonably current Certificate
of Good Standing, from all jurisdictions in which
Southshore and SAC are qualified to conduct business.
SECTION 8: REPRESENTATIONS AND WARRANTIES OF SOUTHSHORE
Southshore represents and warrants as follows:
8.1 Organization and Standing. Southshore is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Colorado and has all requisite corporate power and authority to own their
assets and properties and to carry on their businesses as they are now being
conducted.
8.2 Subsidiaries, etc. SAC will prior to Closing be a subsidiary of
and wholly owned by Southshore, a Colorado. Other than its ownership interest
in SAC, Southshore has no direct or indirect ownership interest in any
corporation, partnership, joint venture, association or other business
enterprise. SAC will not have any direct or indirect ownership interest in
any corporation, partnership, joint venture, association or other business
enterprise, and, at the Effective Time, will have no assets and no
liabilities.
8.3 Qualification. Southshore is not qualified to engage in business
as foreign corporations in any state, and there is no other jurisdiction
wherein the character of the properties presently owned by Southshore or the
nature of the activities presently conducted by Southshore and SAC make
necessary the qualification, licensing or domestication of Southshore as
foreign corporations.
8.4 Financial Statements. The following financial statements have
been filed with the Commission:
(a) Audited financial statements of Southshore accompanied
by a report of its independent certified public accountants containing
audited balance sheets of Southshore for the periods ending March 31, 1999,
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1998 and 1997, together with statements of operations and cash flows for
Southshore for the three year period ending March 31, 1999 on Form 10-K; and
(b) Unaudited financial statements of Southshore containing
balance sheets and statements of operations for Southshore at June 30, 1999
and September 30, 1999 on Form 10-Q.
To the Best Knowledge of Southshore, such financial statements, together
with and subject to the disclosures and notes thereto, (i) are in accordance
with the books and records of Southshore; (ii) present fairly and accurately
the financial condition of Southshore; as of the dates of the balance sheets;
(iii) present fairly and accurately the results of operations for the periods
covered by such statements; (iv) have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis; (v)
include all adjustments (consisting of only normal recurring accruals) which
are necessary for a fair presentation of the financial condition of
Southshore, and of the results of operations of Southshore for the periods
covered by such statements; and (vi) fully comply with all requirements of
Regulation SK and all applicable securities laws.
As of the date hereof, and as of Closing, Southshore does not have any
liabilities or payables (absolute or contingent, known or unknown) except for
liabilities or payables set forth on Southshore's financial statements or
otherwise disclosed in writing by Southshore, or except for liabilities and
payables incurred in the ordinary course of business.
8.5 Capitalization of Southshore. The authorized capital stock of
Southshore consists entirely of 100,000,000 shares common stock having a par
value of $.001 per share. As of the date of this Agreement, 2,610,470 shares
of common stock are issued and outstanding, and there are no preferred shares
issued and outstanding. All outstanding shares of Southshore's capital stock
have been validly issued and are fully paid and nonassessable. Except as set
forth in its latest Form 10-K, there are no other equity securities of
Southshore authorized, issued or outstanding, and there are no authorized,
issued or outstanding subscriptions, options, warrants, contracts, calls,
commitments or other purchase rights of any nature or character relating to
any of Southshore's capital stock, equity securities, debt or other securities
convertible into stock or equity securities of Southshore.
8.6 No Defaults. Except as set forth on the attached Exhibit 8.6,
each of the leases, contracts, agreements and insurance policies to which
Southshore is a party is in full force and effect as of the date hereof with
no material defaults existing thereunder.
8.7 Taxes. Except as set forth in Exhibit 8.7, Southshore has filed
(or has obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of Southshore accrued for or applicable to all periods
ended on or prior to the date of this Agreement, or which may subsequently be
determined to be owing by Southshore with respect to all periods ending on or
prior to the Closing date, subject to normal year-end adjustments, which will
not be material. There are no present disputes as to Taxes of any nature
payable by Southshore.
8.8 No Actions. Proceedings, etc. Except as listed on the attached
Exhibit 8.8, there is no action or proceeding (whether or not purportedly on
behalf of Southshore) pending or threatened by or against Southshore, nor does
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there exist any basis therefor, which might result in any material adverse
change in the condition, financial or otherwise, of Southshore's business or
assets. No order, writ or injunction or decree has been issued by, or
requested of any court or governmental agency which does nor may result in any
material adverse change in Southshore's assets or properties or in the
financial condition or the business of Southshore. Southshore is not liable
for damages to any employee or former employee as a result of any violation of
any state, federal or foreign laws directly or indirectly relating to such
employee or former employee.
8.9 Post Balance Sheet Changes. Except as set forth on the attached
Exhibit 8.9, since the date of the latest financial statements through the
date of this Agreement, Southshore has not without the prior written consent
of RV, (a) issued, bought, redeemed or entered into any agreements,
commitments or obligations to sell, buy or redeem any shares of its capital
stock; (b) incurred any obligation or liability (absolute or contingent),
other than current liabilities incurred, and obligations under contracts
entered into, in the ordinary course of business; (c) discharged or satisfied
any lien or encumbrance or paid any obligation or liability (absolute or
contingent), other than current liabilities incurred in the ordinary course of
business; (d) mortgaged, pledged or subjected to lien charges, or other
encumbrance any of its assets, other than the lien of current or real property
taxes not yet due and payable; (e) waived any rights of substantial value,
whether or not in the ordinary course of business; (f) suffered any damage,
destruction or loss, whether or not covered by insurance, materially and
adversely affecting its assets or its business; (g) made or suffered any
amendment or termination of any material contract or any agreement which
adversely affects its business; (h) received notice or had knowledge of any
labor trouble other than routine grievance matters, none of which is material;
(i) increased the salaries or other compensation of any of its directors,
officers or employees or made any increase in other benefits to which
employees may be entitled, other than employee salary increases made in the
ordinary course of business; (j) sold, transferred or otherwise disposed of
any of its assets, other than in the ordinary course of business; (k) declared
or made any distribution or payments to any of its shareholders, officers or
employees, other than wages and salaries made to employees in the ordinary
course of business; (1) revalued any of its assets; or (m) entered into any
transactions not in the ordinary course of business.
8.10 No Breaches. Southshore is not in violation of, and the
consummation of the transactions contemplated hereby do not and will not
result in any material breach of, any of the terms or conditions of any
mortgage, bond, indenture, agreement, contract, license or other instrument or
obligation to which Southshore is a party or by which its assets are bound;
nor will the consummation of the transactions contemplated hereby cause
Southshore to violate any statute, regulation, judgment, writ, injunction or
decree of any court, threatened or entered in a proceeding or action in which
Southshore is, was or may be bound or to which any of Southshore's assets are
subject.
8.11 Condition of Southshore's Assets. Southshore's assets are
currently in good and usable condition and there are no defects or other
conditions which, in the aggregate, materially and adversely affect the
operation or values of such assets. Except as disclosed on the attached
Exhibit 8.11, no third party (including any officer or employee of Southshore)
has any proprietary interest in any know-how or other intangible assets used
by Southshore in the conduct of its business. All product which is currently
being marketed by Southshore is operable for its intended purposes in
accordance with its written specifications and trade representations.
8.12 Inventory. Except as otherwise set forth on Exhibit 8.12, all
inventories reflected in Southshore's latest financial statements in excess of
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the reserves for excess or obsolete inventories are stated at the lowest of
cost, replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
ordinary course of business of Southshore, without discounts other than normal
trade discounts regularly offered by Southshore, for prompt payment or
quantity purchase.
8.13 Accounts Receivable. The accounts receivable of Southshore
represent valid and enforceable obligations due to Southshore, and, except to
the extent of the reserve reflected in the latest financial statements, to the
Best Knowledge of Southshore shall be collectible by Southshore in the
ordinary course of business. Except as set forth on the attached Exhibit
8.13, Southshore has not received any notice of any material counterclaim or
set-off with respect to such accounts receivable.
8.14 Southshore Acts and Proceedings. This Agreement has been duly
authorized by all necessary corporate action on behalf of Southshore, has been
duly executed and delivered by authorized officers of Southshore, and is a
valid and binding Agreement on the part of Southshore that is enforceable
against Southshore in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and to judicial limitations on the enforcement of the remedy of specific
performance and other equitable remedies. All corporate action necessary to
issue and deliver to the shareholders of RV the Southshore Stock (as described
in Section 4) has been taken by Southshore.
8.15 Patents and Other Intangible Rights. Except as disclosed on
Exhibit 8.15, Southshore (a) owns or has the exclusive right to use, free and
clear of all material liens, claims and restrictions, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect to
the foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
8.16 Changes in Suppliers and Customers. Except as disclosed on
Exhibit 8.16, Southshore is not aware of any fact which indicates that any of
the suppliers supplying products, components or materials to Southshore
intends to cease selling such products to Southshore nor is Southshore aware
of any fact which indicates that any major customer of Southshore intends to
terminate its business relations with Southshore.
8.17 No Liens or Encumbrances. Southshore has good and marketable
title to all of the property and assets, tangible and intangible, employed in
the operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 8.17 and except for such property and assets
as may be leased by Southshore.
8.18 Employee Matters. Ken Dalton and Eric Nelson are the only
employees of Southshore. They intend to terminate their employment
relationship with Southshore on the Closing Date, without further liability of
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Southshore. Except as specifically described on Exhibit 8.18, Southshore has
no employee benefit plans (including, but not limited to, pension plans and
health or welfare plans), arrangements or understandings, whether formal or
informal. Southshore does not now and has never contributed to a
"multi-employer plan" as defined in Section 400(a)(3) of the Employee
Retirement Income Securities Act of 1934, as amended ("ERISA"). Southshore has
complied with all applicable provisions of ERISA and all rules and regulations
promulgated thereunder, and neither Southshore nor any trustee, administrator,
fiduciary, agent or employee thereof has at any time been involved in a
transaction that would constitute a "prohibited transaction" within the
meaning of Section 406 of ERISA as to any covered plan of Southshore.
Southshore is not a party to any collective bargaining or other union
agreement. Southshore has not, within the past five (5) years had, or been
threatened with, any union activities, work stoppages or other labor trouble
with respect to its employees which had or might have had a material adverse
effect on Southshore or SAC, their businesses or assets. Except as disclosed
on Exhibit 8.18, within the twelve (12) months prior to and since the date of
the financial statements provided for in this Agreement, Southshore has not
made any commitment or agreements to increase the wages or modify the
conditions or terms of employment of any of the employees of Southshore used
in connection with its business, and between the date of this Agreement and
the Closing Date, neither Southshore or SAC will make any agreement to
increase the wages or modify the conditions or terms of employment of any of
the employees of Southshore or SAC respectively, without the prior written
consent of all parties hereto.
8.19 Legal Proceedings and Compliance with Law. Except as set forth
in Exhibits 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.13 or 8.19, there is no legal,
administrative, arbitration or other proceeding or governmental investigation
pending or threatened (including those relating to the health, safety,
employment of labor, or protection of the environment) pertaining to
Southshore which might result in the aggregate in money damages payable by
Southshore in excess of insurance coverage or which might result in a
permanent injunction against Southshore. Except as set forth in such Exhibits,
Southshore has substantially complied with, and is not in default in any
respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of Southshore, the violation of which might
materially and adversely affect it. Except as set forth in such Exhibits,
Southshore is not a party to any agreement or instrument, nor is it subject to
any charter or other corporate restriction or any judgment, order, writ,
injunction, decree, rule, regulation, code or ordinance which materially and
adversely affects, or might reasonably be expected materially and adversely to
affect the business, operations, prospects, property, assets or condition,
financial or otherwise, of Southshore.
8.20 Contract Schedules. Attached as Exhibits 8.20(a) to 8.20(f)
hereto are an accurate list and summary description of the following:
(a) All contracts, leases, agreements, covenants,
licenses, instruments or commitments of Southshore pertaining to the
business of Southshore calling for the payment of $5,000 or more or which is
otherwise material to the business of Southshore, including, without
limitation, the following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of
any assets;
(iii) Management or consulting contracts;
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(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the
like, other than those entered into and executed in
the ordinary course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and
collective bargaining agreements related to Southshore.
(c) All instruments evidencing any liens or security
interest securing any indebtedness of Southshore covering any asset of
Southshore.
(d) A listing generally describing all computer programs and
related software proprietary to Southshore, and all management proprietary
systems utilized by Southshore in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of Southshore.
(f) Any and all documents, instruments and other writings not
listed in any other schedule hereto which are material to the business
operations of Southshore.
Except as set forth in Exhibit 8.20(f), all of such contracts,
agreements, leases, licenses, plans, arrangements and commitments and all
other such items set forth above are valid, binding and in full force and
effect in accordance with their terms and conditions, and there is no existing
default thereunder or breach thereof by Southshore, or by any party to such
contracts, or any conditions which, with the passage of time or the giving of
notice or both, might constitute such a default by Southshore or by any other
party to the contracts.
8.21 Labor Matters. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of Southshore or any of its agent or employees,
threatened against Southshore.
8.22 Insurance. Southshore maintains in full force and effect
insurance coverage on its assets and business in such amounts and against such
risks and losses as set forth in Exhibit 8.22.
8.23 Environmental. Except as disclosed on Exhibit 8.23, and except
for normal office and consumer products utilized in the ordinary course of
business, the conduct and operation of the business of Southshore has not and
does not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
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(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency. The terms "hazardous wastes" and "hazardous
substances" shall have the meaning specified by any applicable local, state,
or federal statute or regulation concerning or governing water pollution,
groundwater protection, air pollution, solid wastes, hazardous wastes, spills,
and other releases of toxic or hazardous substances, transportation of
hazardous substances, materials, and wastes and occupational or employee
health and safety.
8.24 Compliance with Reporting Requirements. Southshore represents,
warrants and agrees that, as of the date of Closing, Southshore has filed all
forms, reports and documents with the Securities and Exchange Commission (the
"Commission") required to be filed by it pursuant to the Securities Act and
the Exchange Act, including, without limitation, all reporting requirements of
13(a) of the Exchange Act. The reports filed with the Commission, to
Southshore's Best Knowledge, did not contain, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
SECTION 9: COVENANTS OF SOUTHSHORE AND SAC
9.1 Preservation of Business. Until Closing, Southshore shall use
its best efforts to:
(a) preserve intact the present business organization of
Southshore;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of Southshore with its customers and all other persons having
business dealings with Southshore;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of Southshore; and
(e) comply with all laws applicable to the conduct of its
business
9.2 Ordinary Course. Southshore shall conduct its business only in
the usual, regular and ordinary course, in substantially the same manner as
previously, and shall not make any substantial change to its methods of
management or operation in respect of such business or property. Without
limiting the foregoing, Southshore shall not:
(a) sell, mortgage, pledge or encumber or agree to sell,
mortgage, pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
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(c) discuss, solicit negotiate, enter into an agreement
concerning any merger, consolidation or sale of all or substantially all of
its assets except as contemplated by this Agreement.
9.3 Negative Covenants. From the date hereof until the Closing date,
unless and until RV otherwise consents in writing, Southshore will not (a)
change or alter the physical contents or character of the inventories of its
business, so as to materially affect the nature of Southshore's business or
materially and adversely change the total dollar valuation of such inventories
from that reflected on the financial statements referred to in Section 8.4
other than in the ordinary course of business; (b) incur any obligations or
liabilities (absolute or contingent) other than current liabilities incurred
and obligations under contracts entered into in the ordinary course of
business; (c) mortgage, pledge or voluntarily subject to lien, charge or other
encumbrance any assets, tangible or intangible, other than the lien of current
property taxes not due and payable; (d) sell, assign or transfer any of its
assets or cancel any debts or claims, other than in the ordinary course of
business; (e) waive any right of any substantial value; (f) declare or make
any payment or distribution to shareholders or issue, purchase or redeem any
shares of its capital stock or other equity securities or issue or sell any
rights to acquire the same; (g) grant any increase in the salary or other
compensation of any of its directors, officers, or employees or make any
increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
9.4 Access to Books and Records. Premises, etc. From the date of
this Agreement through the Closing date, Southshore will grant RV and its
authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling RV to fully investigate the business of Southshore. Southshore will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to RV
as soon as such statements are available.
9.5 Compensation. Southshore shall not enter into or agree to enter
into any employment contract or agreement for consulting, professional, or
other services which will adversely and materially affect the operation of
Southshore prior to the Closing Date.
SECTION 10: REPRESENTATIONS AND WARRANTIES OF RV
RV represents and warrants as follows:
10.1 Organization and Standing. RV is a corporation duly organized,
validly existing and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own its assets and
properties and to carry on its business as it is now being conducted.
10.2 Subsidiaries, etc. RV has no direct or indirect ownership
interest in any corporation, partnership, joint venture, association or other
business enterprise.
10.3 Qualification. RV is not qualified to engage in business as a
foreign corporation in any state, and there is no other jurisdiction wherein
the character of the properties presently owned by RV or the nature of the
activities presently conducted by RV make necessary the qualification,
licensing or domestication of RV as foreign corporations.
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10.4 Financial Statements. The following statements will be prepared
and made a part of this Agreement within sixty (60) days following Closing as
Exhibit 10.4:
(a) Audited financial statements and pro forma financial
information of RV and its subsidiaries conforming to the requirements of Item
7 of Form 8-K under the Exchange Act.
To the Best Knowledge of RV, such financial statements, together with and
subject to the disclosures and notes thereto, (i) are in accordance with the
books and records of RV; (ii) present fairly and accurately the financial
condition of RV; as of the dates of the balance sheets; (iii) present fairly
and accurately the results of operations for the periods covered by such
statements; (iv) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis; (v) include all
adjustments (consisting of only normal recurring accruals) which are necessary
for a fair presentation of the financial condition of RV, and of the results
of operations of RV for the periods covered by such statements; and (vi) fully
comply with all requirements of all applicable securities laws. As of the date
hereof, and as of Closing, RV does not have any liabilities or payables
(absolute or contingent, known or unknown) except for liabilities or payables
set forth on RV's financial statements or otherwise disclosed in writing by
RV, or except for liabilities and payables incurred in the ordinary course of
business.
10.5 Capitalization of RV. The authorized capital stock of RV
consists entirely of 100,000,000 shares of common stock having a par value of
$.001 per share and 50,000,000 shares of preferred stock having a par value of
$.01 per share. As of the Closing of the Merger, 5,500,000 shares of common
stock and no shares of preferred stock will be issued and outstanding. All
outstanding shares of RV's capital stock have been validly issued and are
fully paid and nonassessable. Except as set forth on Exhibit 10.5, there are
no other equity securities of RV authorized, issued or outstanding, and there
are no authorized, issued or outstanding subscriptions, options, warrants,
contracts, calls, commitments or other purchase rights of any nature or
character relating to any of RV's capital stock, equity securities, debt or
other securities convertible into stock or equity securities of RV.
10.6 No Defaults. Except as set forth on the attached Exhibit 10.6,
each of the leases, contracts, agreements and insurance policies to which RV
is a party is in full force and effect as of the date hereof with no material
defaults existing thereunder.
10.7 Taxes. Except as set forth in Exhibit 10.7, RV has filed (or
has obtained extensions for filing) all income, excise, sales, corporate
franchise, property, payroll and other tax returns or reports required to be
filed by it, as of the date hereof by the United States of America, any state
or other political subdivision thereof or any foreign country and has paid all
Taxes or assessments relating to the time periods covered by such returns or
reports. The amounts set up as provisions for Taxes in the Latest Financial
Statements are sufficient for the payment of all unpaid federal, foreign,
state or local Taxes of RV accrued for or applicable to all periods ended on
or prior to the date of this Agreement, or which may subsequently be
determined to be owing by RV with respect to all periods ending on or prior to
the Closing date, subject to normal year-end adjustments, which will not be
material. There are no present disputes as to Taxes of any nature payable by
RV.
10.8 No Actions, Proceedings, etc. Except as listed on the attached
Exhibit 10.8, there is no action or proceeding (whether or not purportedly on
behalf of RV) pending or threatened by or against RV, nor does there exist any
basis therefor, which might result in any material adverse change in the
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condition, financial or otherwise, of RV's business or assets. No order, writ
or injunction or decree has been issued by, or requested of any court or
governmental agency which does nor may result in any material adverse change
in RV's assets or properties or in the financial condition or the business of
RV. RV is not liable for damages to any employee or former employee as a
result of any violation of any state, federal or foreign laws directly or
indirectly relating to such employee or former employee.
10.9 Post Balance Sheet Changes. Except as set forth on the attached
Exhibit 10.9, since the date of the latest financial statements through the
date of this Agreement, RV has not without the prior written consent of
Southshore and SAC, (a) issued, bought, redeemed or entered into any
agreements, commitments or obligations to sell, buy or redeem any shares of
its capital stock; (b) incurred any obligation or liability (absolute or
contingent), other than current liabilities incurred, and obligations under
contracts entered into, in the ordinary course of business; (c) discharged or
satisfied any lien or encumbrance or paid any obligation or liability
(absolute or contingent), other than current liabilities incurred in the
ordinary course of business; (d) mortgaged, pledged or subjected to lien
charges, or other encumbrance any of its assets, other than the lien of
current or real property taxes not yet due and payable; (e) waived any rights
of substantial value, whether or not in the ordinary course of business; (f)
suffered any damage, destruction or loss, whether or not covered by insurance,
materially and adversely affecting its assets or its business; (g) made or
suffered any amendment or termination of any material contract or any
agreement which adversely affects its business; (h) received notice or had
knowledge of any labor trouble other than routine grievance matters, none of
which is material; (i) increased the salaries or other compensation of any of
its directors, officers or employees or made any increase in other benefits to
which employees may be entitled, other than employee salary increases made in
the ordinary course of business; (j) sold, transferred or otherwise disposed
of any of its assets, other than in the ordinary course of business; (k)
declared or made any distribution or payments to any of its shareholders,
officers or employees, other than wages and salaries made to employees in the
ordinary course of business; (1) revalued any of its assets; or (m) entered
into any transactions not in the ordinary course of business.
10.10 No Breaches. RV is not in violation of, and the consummation
of the transactions contemplated hereby do not and will not result in any
material breach of, any of the terms or conditions of any mortgage, bond,
indenture, agreement, contract, license or other instrument or obligation to
which RV is a party or by which its assets are bound; nor will the
consummation of the transactions contemplated hereby cause RV to violate any
statute, regulation, judgment, writ, injunction or decree of any court,
threatened or entered in a proceeding or action in which RV is, was or may be
bound or to which any of RV's assets are subject.
10.11 Condition of RV's Assets. RV's assets are currently in good
and usable condition and there are no defects or other conditions which, in
the aggregate, materially and adversely affect the operation or values of such
assets. Except as disclosed on the attached Exhibit 10.11, no third party
(including any officer or employee of RV) has any proprietary interest in any
know-how or other intangible assets used by RV in the conduct of its
business. All product which is currently being marketed by RV is operable for
its intended purposes in accordance with its written specifications and trade
representations.
10.12 Inventory. Except as otherwise set forth on Exhibit 10.12, all
inventories reflected in RV's latest financial statements in excess of the
reserves for excess or obsolete inventories are stated at the lowest of cost,
replacement cost or market, and, as so stated, are in good condition and
usable or salable in the category in which they are inventoried, in the
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ordinary course of business of RV, without discounts other than normal trade
discounts regularly offered by RV, for prompt payment or quantity purchase.
10.13 Accounts Receivable. The accounts receivable of RV represent
valid and enforceable obligations due to RV, and, except to the extent of the
reserve reflected in the latest financial statements, to the Best Knowledge of
RV shall be collectible by RV in the ordinary course of business. Except as
set forth on the attached Exhibit 10.13, Southshore has not received any
notice of any material counterclaim or set-off with respect to such accounts
receivable.
10.14 RV Acts and Proceedings. This Agreement has been duly
authorized by all necessary corporate action on behalf of RV, has been duly
executed and delivered by authorized officers of RV, and is a valid and
binding Agreement on the part of RV that is enforceable against RV in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and to judicial
limitations on the enforcement of the remedy of specific performance and other
equitable remedies. All corporate action necessary to issue and deliver to
the shareholders of Southshore the RV (as described in Section 4) has been
taken by RV.
10.15 Patents and Other Intangible Rights. Except as disclosed on
Exhibit 10.15, RV (a) owns or has the exclusive right to use, free and clear
of all material liens, claims and restrictions, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect to
the foregoing, used in the conduct of its business as now conducted without
infringing upon or otherwise acting adversely to the right or claimed right of
any person under or with respect to any of the foregoing; (b) is not obligated
or under any liability whatsoever to make any payments of a material nature by
way of royalties, fees or otherwise to any owner of, licensor of, or other
claimant to, any patent, trademark, tradename, copyright or other intangible
asset, with respect to the use thereof or in connection with the conduct of
its business or otherwise; (c) owns or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions, designs,
processes, computer programs and technical data necessary to the development,
operation and sale of all products and services sold or proposed to be sold by
it, free and clear of any rights, liens or claims of others; and (d) is not
using any confidential information to trade secrets of others.
10.16 Changes in Suppliers and Customers. Except as disclosed on
Exhibit 10.16, Southshore is not aware of any fact which indicates that any of
the suppliers supplying products, components or materials to RV intends to
cease selling such products to Southshore nor is Southshore aware of any fact
which indicates that any major customer of RV intends to terminate its
business relations with RV.
10.17 No Liens or Encumbrances. RV has good and marketable title to
all of the property and assets, tangible and intangible, employed in the
operations of its business, free of any material mortgages, security
interests, pledges, easements or encumbrances of any kind whatsoever except as
set forth on the attached Exhibit 10.17 and except for such property and
assets as may be leased by RV.
10.18 Legal Proceedings and Compliance with Law. Except as set forth
in Exhibits 10.4, 10.6, 10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.13, 10.14,
10.15, 10.16, 10.17 or 10.18, there is no legal, administrative, arbitration
or other proceeding or governmental investigation pending or threatened
(including those relating to the health, safety, employment of labor, or
protection of the environment) pertaining to RV which might result in the
aggregate in money damages payable by RV in excess of insurance coverage or
which might result in a permanent injunction against RV. Except as set forth
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in such Exhibits, RV has substantially complied with, and is not in default in
any respect under any laws, ordinances, requirements, regulations, or orders
applicable to the business of RV, the violation of which might materially and
adversely affect it. Except as set forth in such Exhibits, RV is not a party
to any agreement or instrument, nor is it subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree, rule,
regulation, code or ordinance which materially and adversely affects, or might
reasonably be expected materially and adversely to affect the business,
operations, prospects, property, assets or condition, financial or otherwise,
of RV.
10.19 Contract Schedules. Attached as Exhibit 10.19 hereto is an
accurate list and summary description of the following:
(a) All contracts, leases, agreements, covenants,
licenses, instruments or commitments of RV pertaining to the business of RV
calling for the payment of $5,000 or more or which is otherwise material to
the business of RV, including, without limitation, the following:
(i) Executory contracts for the manufacture and sale of
products;
(ii) Executory contracts for the purchase sale or lease of
any assets;
(iii) Management or consulting contracts;
(iv) Patent, trademark and copyright applications,
registrations or licenses, and know-how, intellectual
property and trade secret agreements or other licenses;
(v) Note agreements, loan agreements, indentures and the
like, other than those entered into and executed in
the ordinary course of business;
(vi) All sales, agency, distributorship or franchise
agreements; and
(vii) Any other contracts not in the ordinary course of
business.
(b) All labor contracts, employment agreements and
collective bargaining agreements related to RV.
(c) All instruments evidencing any liens or security
interest securing any indebtedness of RV covering any asset of RV.
(d) A listing generally describing all computer programs and
related software proprietary to RV, and all management proprietary systems
utilized by RV in its operations.
(e) All profit sharing, pension, stock option, severance pay,
retirement, bonus, deferred compensation, group life and health insurance or
other employee benefit plans, agreements, arrangements or commitments of any
nature whatsoever, whether or not legally binding, and all agreements with any
present or former officer, director or shareholder of RV. Any and all
documents, instruments and other writings not listed in any other schedule
hereto which are material to the business operations of RV. Except as set
forth in Exhibit 10.19(f), all of such contracts, agreements, leases,
licenses, plans, arrangements and commitments and all other such items set
forth above are valid, binding and in full force and effect in accordance with
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their terms and conditions, and there is no existing default thereunder or
breach thereof by RV, or by any party to such contracts, or any conditions
which, with the passage of time or the giving of notice or both, might
constitute such a default by RV or by any other party to the contracts.
10.20 Labor Matters. There are no strikes, slowdowns, stoppages,
organizational efforts, discrimination charges or other labor disputes pending
or, to the knowledge of RV or any of its agent or employees, threatened
against RV.
10.21 Insurance. RV maintains in full force and effect insurance
coverage on its assets and business in such amounts and against such risks and
losses as set forth in Exhibit 10.21.
10.22 Environmental. Except as disclosed on Exhibit 10.22, and
except for normal office and consumer products utilized in the ordinary course
of business, the conduct and operation of the business of RV has not and does
not:
(a) Involve or require the storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of toxic
wastes, hazardous wastes, or hazardous substances;
(b) Resulted in any spill, discharge, leak, emission, injection,
escape, dumping, or release of any kind onto the business premises, or into
the environment surrounding the business premises, of any toxic wastes or
hazardous substances; or
(c) Involve or require the treatment, collection, storage or
disposal of any refuse or objectionable wastes so as to require a permit or
approval from the United States Environmental Protection Agency, or otherwise
subject to the regulation of the United States Environmental Protection Agency
or any state regulatory agency.
The terms "hazardous wastes" and "hazardous substances" shall have the
meaning specified by any applicable local, state, or federal statute or
regulation concerning or governing water pollution, groundwater protection,
air pollution, solid wastes, hazardous wastes, spills, and other releases of
toxic or hazardous substances, transportation of hazardous substances,
materials, and wastes and occupational or employee health and safety.
SECTION 11: COVENANTS OF RV
11.1 Preservation of Business. Until Closing, RV shall use its best
efforts to:
(a) preserve intact the present business organization of RV;
(b) maintain its property and assets in its present state of
repair, order and condition, reasonable wear and tear excepted;
(c) preserve and protect the goodwill and advantageous
relationships of RV with its customers and all other persons having business
dealings with RV;
(d) preserve and maintain in force all licenses, permits,
registrations, franchises, patents, trademarks, tradenames, trade secrets,
service marks, copyrights, bonds and other similar rights of RV; and
(e) comply with all laws applicable to the conduct of its
business
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11.2 Ordinary Course. RV shall conduct its business only in the
usual, regular and ordinary course, in substantially the same manner as
previously, and shall not make any substantial change to its methods of
management or operation in respect of such business or property. Without
limiting the foregoing, RV shall not, with respect to RV:
(a) sell, mortgage, pledge or encumber or agree to sell,
mortgage, pledge or encumber, any of its property or assets;
(b) incur any obligation (contingent or otherwise) or purchase,
acquire, transfer, or convey, any material assets or property or enter into
any contract or commitment;
(c) discuss, solicit negotiate, enter into an agreement
concerning any merger, consolidation or sale of all or substantially all of
its assets except as contemplated by this Agreement.
11.3 Negative Covenants. From the date hereof until the Closing
date, unless and until Southshore and SAC otherwise consent in writing. RV
will not (a) change or alter the physical contents or character of the
inventories of its business, so as to materially affect the nature of RV's
business or materially and adversely change the total dollar valuation of such
inventories from that reflected on the financial statements referred to in
Section 10.4 other than in the ordinary course of business; (b) incur any
obligations or liabilities (absolute or contingent) other than current
liabilities incurred and obligations under contracts entered into in the
ordinary course of business; (c) mortgage, pledge or voluntarily subject to
lien, charge or other encumbrance any assets, tangible or intangible, other
than the lien of current property taxes not due and payable; (d) sell, assign
or transfer any of its assets or cancel any debts or claims, other than in the
ordinary course of business; (e) waive any right of any substantial value; (f)
declare or make any payment or distribution to shareholders or issue, purchase
or redeem any shares of its capital stock or other equity securities or issue
or sell any rights to acquire the same; (g) grant any increase in the salary
or other compensation of any of its directors, officers, or employees or make
any increase in any benefits to which such employees might be entitled; (h)
institute any bonus, benefit, profit sharing, stock option, pension,
retirement plan or similar arrangement, or make any changes in any such plans
or arrangements presently existing; or (i) enter into any transactions or
series of transactions other than in the ordinary course of business.
11.4 Access to Books and Records. Premises, etc. From the date of
this Agreement through the Closing date. RV will grant Southshore and SAC and
their authorized representatives access to its books and records, premises,
products, employees and customers and other parties with whom it has
contractual relations during reasonable business hours for purposes of
enabling Southshore and SAC to fully investigate the business of RV. RV will
also deliver copies of its monthly statements of operations and financial
condition for the period subsequent to the latest financial statements to
Southshore and SAC as soon as such statements are available.
11.5 Compensation. RV shall not enter into or agree to enter into
any employment contract or agreement for consulting, professional, or other
services which will adversely and materially affect the operation of RV prior
to the Closing Date.
SECTION 12: TERMINATION
12.1 Termination. This Agreement may be terminated and abandoned
solely as follows:
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(a) At any time until the Closing Date by the mutual agreement
of the Board of Directors of RV, Southshore and SAC.
(b) Failure of Conditions. This Agreement may be terminated by
either party hereto, if the conditions, as set forth in this Agreement to such
terminating party's obligations under this Agreement are not fulfilled on or
prior to the Closing Date; provided that any such termination shall not limit
the remedies otherwise available to such party as a result of
misrepresentations of or breaches by the other party.
(c) Material Breach. This Agreement may be terminated by
either party if the other party is in material breach or default of its
respective covenants, agreements or other obligations hereunder, or if any of
its representations and warranties herein are not true and accurate in all
material respects when made or when otherwise required by this Agreement to be
true and accurate.
(d) By either Southshore, SAC or RV, if for any reason the
parties have failed to close this Agreement on or before January 31, 2000,
provided that neither Southshore, SAC nor RV is then in default hereunder.
In the event of any termination pursuant to this Section 12.1 (other than
pursuant to subparagraph 12.1(a)), written notice setting forth the reasons
therefor shall forthwith be given by RV, if it is the terminating party, to
Southshore and SAC, or by Southshore or SAC, if either of them is the
terminating party, to RV.
12.2 Effect of Termination. If Terminated as provided for in this
Section, this Agreement shall forthwith become wholly void and of no effect,
except for the confidentiality obligations set forth in Section 14 hereof,
without liability to any party to this Agreement except for breach of this
Agreement.
SECTION 13: INDEMNIFICATION AND REMEDIES FOR BREACH
13.1 Indemnification by Southshore and SAC.
(a) Southshore and SAC shall defend, indemnify and hold RV
harmless against and in respect of any damage, loss, liability, cost or
expense, including expert witness fees and reasonable attorneys' fees, whether
or not recoverable under applicable state law, resulting or arising from or
incurred in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on
the part of Southshore or SAC under this Agreement, or
any misrepresentation or omission from any exhibit,
schedule, list, certificate or other instrument furnished
or to be furnished by them under this Agreement;
(ii) any and all liabilities of Southshore or SAC of
any nature whatsoever, whether accrued, absolute,
contingent or otherwise and whether known or unknown,
except to the extent that any such liability arises
from RV's failure to perform or discharge, when due.
RV's future obligations; and
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
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(b) Promptly after the receipt by RV of notice of any claim
asserted by a third party that may give rise to Southshore or SAC's liability
to RV under this Section, RV shall give to Southshore or SAC respectively
written notice of such claim, and Southshore or SAC shall be entitled to
participate at its own expense in the defense of any such claim. RV shall not
pay, acknowledge, compromise or settle any such claim without the written
consent of Southshore or SAC, unless such payment, acknowledgement, compromise
or settlement results in a full and complete release and discharge of
Southshore and SAC from any liability.
13.2 Indemnification by RV.
(a) RV shall defend, indemnify and hold Southshore and SAC
harmless against and in respect of any damage, loss, liability, cost or
expense, including expert witness fees and reasonable attorneys' fees, whether
or not recoverable under applicable state law, resulting or arising from or
incurred in connection with:
(i) any misrepresentation, breach of warranty, or
nonfulfillment or nonperformance of any agreement on the
part of RV under this Agreement, or any misrepresentation
or omission from any exhibit, schedule, list, certificate
or other instrument furnished or to be furnished by it
under this Agreement;
(ii) any and all liabilities of RV of any nature whatsoever,
whether accrued, absolute, contingent or otherwise and
whether known or unknown, except to the extent that any
such liability arises from Southshore or SAC's failure to
perform or discharge, when due, Southshore or SAC's
future obligations;
(iii) any actions, suits, proceedings, damages, assessments,
judgments, costs or expenses incident to any of the
foregoing.
(b) Promptly after the receipt by Southshore or SAC of notice of
any claim asserted by a third party that may give rise to RV's liability to
Southshore or SAC under this Section, Southshore or SAC shall give to RV
written notice of such claim and RV shall be entitled to participate at its
own expense in the defense of any such claim. Neither Southshore nor SAC shall
pay, acknowledge, compromise or settle any such claim without the written
consent of RV, unless such payment, acknowledgement, compromise or settlement
results in a full and complete release and discharge of RV from any
liability.
13.3 Additional Notice. Notwithstanding the provisions of Sections
13.1 or 13.2 above, promptly after the receipt by any party hereto of notice
of any claim asserted by a third party that may give rise to the liability of
any party for which the right to indemnification may be claimed under this
Section, such party shall give to each other party written notice of such
claim as soon as practicable. The provisions of this Section 13.3 in addition
to and not in lieu of the covenants of the parties contained in Sections 13.1
or 13.2 above.
13.4 Determination of Damages and Related Matters.
(a) Upon the occurrence of any event which would give rise to a
claim by Southshore or SAC against, or to a right of defense and indemnity
against RV pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which RV may become obligated to Southshore or SAC hereunder, Southshore and
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SAC shall give notice to RV of the occurrence of such event and shall identify
Southshore or SAC's choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of Southshore or SAC to give notice
shall not affect the indemnification obligations of RV hereunder. Southshore
or SAC (i) shall have the exclusive right to so defend, contest or protect
against such matter utilizing the counsel of Southshore or SAC's choice (who
shall be reasonably acceptable to RV), and (ii) without further notice may set
off or apply against all amounts due RV hereunder, or their affiliates,
under any instrument or pursuant to any obligation, the full amount
for which indemnification hereunder is provided. RV shall have the right,
but not the obligation, to participate, at its own expense, in the defense
thereof by counsel of their choice.
(b) As Southshore or SAC incurs expenses for which
indemnification hereunder is provided and after any final judgment or award
shall have been rendered by a court, arbitration board or administrative
agency of competent jurisdiction, and the expiration of the time in which to
appeal therefrom, or a settlement shall have been consummated, Southshore or
SAC shall forward to RV notice of any sums due and owing by them pursuant to
this Agreement with respect to such matter and they shall be required to pay
all of the sums so due and owing to Southshore or SAC by certified or bank
cashier's check within ten (10) days of such notice.
(c) Upon the occurrence of any event which would give rise to a
claim by RV against, or to a right of defense and indemnity against Southshore
or SAC pursuant to this Section 13, or in the event that any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result of
which Southshore or SAC may become obligated to RV hereunder. RV shall give
notice to Southshore or SAC respectively of the occurrence of such event and
shall identify their choice of counsel to represent such investigation, claim
or proceedings, provided that the failure of RV to give notice shall not affect
the indemnification obligations of Southshore or SAC hereunder. RV (i) shall
have the exclusive right to so defend, contest or protect against such matter
utilizing the counsel of their choice (who shall be reasonably acceptable to
Southshore or SAC), and (ii) without further notice may set off or apply
against all amounts due Southshore or SAC hereunder, or their affiliates,
under any instrument or pursuant to any obligation, the full amount
for which indemnification hereunder is provided. Southshore and SAC shall
have the right, but not the obligation, to participate, at their own expense,
in the defense thereof by counsel of their choice.
(d) As RV incurs expenses for which indemnification hereunder is
provided and after any final judgment or award shall have been rendered by a
court, arbitration board or administrative agency of competent jurisdiction,
and the expiration of the time in which to appeal therefrom, or a settlement
shall have been consummated. RV shall forward to Southshore or SAC notice of
any sums due and owing by it pursuant to this Agreement with respect to such
matter, and Southshore or SAC respectively shall be required to pay all of the
sums so due and owing to RV by certified or bank cashier's check within ten
(10) days of such notice.
13.5 Remedies for Breach. In the event of any material breach of any
of the provisions of this Agreement, including but not limited to any breach
of any covenant, warranty or representation made by any party hereto, the
other party may terminate this Agreement as provided for in Section 12.1
above. Specific performance shall not be a remedy available to any party for
breach of this Agreement.
SECTION 14: NONDISCLOSURE OF CONFIDENTIAL INFORMATION
Each of the parties hereto recognizes and acknowledges that it has and
will have access to certain nonpublic information of the others which shall be
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deemed the confidential information of the other parties that is included in
the assets (including, but not limited to, business plans, costs, trade
secrets, licenses, research projects, profits, markets, sales, customer lists,
strategies, plans for future development, financial information and any other
information of a similar nature) that after the consummation of the
transactions contemplated hereby will be valuable, special and unique property
of the parties. Information shall not be deemed Confidential Information and
afforded the protections of this Section 14 if, on the Closing Date, such
information has been (i) developed by the receiving party independently of the
disclosing party, (ii) rightfully obtained without restriction by the
receiving party from a third party, provided that the third party had full
legal authority to possess and disclose such information, (iii) publicly
available other than through the fault or negligence of the receiving party,
(iv) released without restriction by the disclosing party to anyone, including
the United States government, or (v) properly and lawfully known to the
receiving party at the time of its disclosure, as evidenced by written
documentation conclusively established to have been in the possession of the
receiving party on the date of such disclosure. Each of the parties hereto
agrees that they will not disclose, and that they will use their best efforts
to prevent disclosure by any other Person of, any such confidential
information to any Person for any purpose or reason whatsoever, except to
authorized representatives of the parties. Notwithstanding, a party may use
and disclose any such confidential information to the extent that a party may
become compelled by Legal Requirements to disclose any such information;
provided, however, that such party shall use all reasonable efforts and
shall have afforded the other parties the opportunity to obtain an
appropriate protective order or other satisfactory assurance of confidential
treatment for any such information compelled to be disclosed. In the event of
termination of this Agreement, each party shall use all reasonable efforts to
cause to be delivered to the other parties, and to retain no copies of, any
documents, work papers and other materials obtained by such party or on such
party's behalf during the conduct of the matters provided for in this
Agreement, whether so obtained before or after the execution hereof. Each of
the parties recognizes and agrees that violation of any of the agreements
contained in this Section 14 will cause irreparable damage or injury to the
other parties, the exact amount of which may be impossible to ascertain, and
that, for such reason, among others, the other shall be entitled to an
injunction, without the necessity of posting bond therefor, restraining any
further violation of such agreements. Such rights to any injunction shall be
in addition to, and not in limitation of, any other rights and remedies the
parties may have against each other.
SECTION 15: EXPENSES
Each of the parties will pay all costs and expenses of its or his
performance and compliance with this Agreement. Notwithstanding the
foregoing, if the Agreement is not consummated by reason of a default of one
of the parties, then the expenses of each of the parties in connection with
the transaction contemplated herein shall be paid by such defaulting party.
SECTION 16: MISCELLANEOUS
16.1 Attorney's Fees. In any action at law or in equity or in any
arbitration proceeding, for declaratory relief or to enforce any of the
provisions or rights or obligations under this Agreement, the unsuccessful
party to such proceeding, shall pay the successful party or parties all
statutorily recoverable costs, expenses and reasonable attorneys' fees
incurred by the successful party or parties including without limitation
costs, expenses, and fees on any appeals and the enforcement of any award,
judgment or settlement obtained, such costs, expenses and attorneys' fees
shall be included as part of the judgment. The successful party shall be that
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party who obtained substantially the relief or remedy sought, whether by
judgment, compromise, settlement or otherwise.
16.2 Survival and Incorporation of Representations. The
representations, warranties, covenants and agreements made herein or in any
certificates or documents executed in connection herewith shall survive the
execution and delivery thereof for a period of one (1) year, and all
statements contained in any certificate or other document delivered by any
party hereunder or in connection herewith shall be deemed to constitute
representations and warranties made by that party to this Agreement.
16.3 Incorporation by Reference. All appendices to this Agreement
and all documents delivered pursuant to or referred to in this Agreement are
herein incorporated by reference and made a part hereof.
16.4 Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to, or shall, confer any rights or remedies under, or
by reason of, this Agreement, on any person other than the parties hereto and
their respective and proper successors and assigns. Nor shall anything in
this Agreement act to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement.
16.5 Amendments and Waivers. This Agreement may not be amended, nor
may compliance with any term, covenant, agreement, condition or provision set
forth herein be waived (either generally or in a particular instance and
either retroactively or prospectively) unless such amendment or waiver is
agreed to in writing by all parties hereto.
16.6 Waiver. No waiver of any breach of any one of the agreements,
terms, conditions, or covenants of this Agreement by the parties shall be
deemed to imply or constitute a waiver of any other agreement, term,
condition, or covenant of this Agreement. The failure of any party to insist
on strict performance of any agreement, term, condition, or covenant, herein
set forth, shall not constitute or be construed as a waiver of the rights of
either or the other thereafter to enforce any other default of such agreement,
term, condition, or covenant; neither shall such failure to insist upon strict
performance be deemed sufficient grounds to enable either party hereto to
forego or subvert or otherwise disregard any other agreement, term, condition,
or covenants of this Agreement.
16.7 Governing Law - Construction. This Agreement, and the rights
and obligations of the respective parties, shall be governed by and construed
in accordance with the laws of the State of Colorado, excluding conflict of
law provisions which would act to apply the laws of another state.
Notwithstanding the preceding sentence, it is acknowledged that each party
hereto is being represented by, or has waived the right to be. represented by,
independent counsel. Accordingly, the parties expressly agree that no
provision of this Agreement shall be construed against any party on the ground
that the party or its counsel drafted the provision. Nor may any provision of
this Agreement be construed against any party on the grounds that party caused
the provision to be present.
16.8 Limitation of Actions. No action may be brought by any party to
this Agreement to enforce any covenant made by any party hereto or to seek
damages or equitable relief arising from any claimed breach or nonperformance
of a covenant, representation, warranty or other performance provided for
herein unless such action is commenced within one (1) year of the date of
Closing. The parties hereto agree to be bound by the aforesaid limitation of
actions notwithstanding the provisions of any applicable statutory limitation
of actions to the contrary.
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16.9 Notices. Any notice, communication, offer, acceptance, request,
consent, reply, or advice (herein severally and collectively, for convenience,
called "Notice"), in this Agreement provided or permitted to be given, served,
made, or accepted by any party or person to any other party or parties, person
or persons, hereunder must be in writing, addressed to the party to be
notified at the address set forth below, or such other address as to which one
party notifies the other in writing pursuant to the terms of this Section, and
must be served by (1) telefax or other similar electronic method, or (2)
depositing the same in the United States mail, certified, return receipt
requested and postage paid to the party or parties, person or persons to be
notified or entitled to receive same, or (3) delivering the same in person to
such party.
Notice shall be deemed to have been given immediately when sent by
telefax or other electronic method and seventy-two hours after being deposited
in the United States mail, or when personally delivered in the manner
hereinabove described. Notice provided in any manner not specified above
shall be effective only if and when received by the party or parties, person
or persons to be, or provided to be notified.
All notices, requests, demands and other communications required or
permitted under this Agreement shall be addressed as set forth below:
To Southshore: Ken Dalton
c/o Active Medical
790 Umatilla Street
Denver, Colorado 80204
With copies to: Tom Boyle, Esq.
Krys, Boyle, Freedman & Sawyer
South Tower
600 17th Street, Suite 2700
Denver, Colorado 80202-5427
To RV: RV Holiday.com, Inc.
5373 North Union Boulevard, Suite 100
Colorado Springs, Colorado 80918
With copies to: Clifford L. Neuman, Esq.
Neuman & Drennen, LLC
1507 Pine Street
Boulder, Colorado 80302
Any party receiving a facsimile transmission shall be entitled to rely upon a
facsimile transmission to the same extent as if it were an original. Any
party may alter the address to which communications or copies are to be sent
by giving notice of such change of address in conformity with the provisions
of this Section for the giving of notice.
16.10 Fax/Counterparts. This Agreement may be executed by telex,
telecopy or other facsimile transmission, and such facsimile transmission
shall be valid and binding to the same extent as if it were an original.
Further, this Agreement may be signed in one or more counterparts, all of
which when taken together shall constitute the same documents. For all
evidentiary purposes, any one complete counter set of this Agreement shall be
considered an original.
16.11 Captions. The caption and heading of various sections and
paragraphs of this Agreement are for convenience only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
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16.12 Severabilitv. Wherever there is any conflict between any
provision of this Agreement and any statute, law, regulation or judicial
precedent, the latter shall prevail, but in such event the provisions of this
Agreement thus affected shall be curtailed and limited only to the extent
necessary to bring it within the requirement of the law. In the event that
any part, section, paragraph or clause of this Agreement shall be held by a
court of proper jurisdiction to be invalid or unenforceable, the entire
Agreement shall not fail on account thereof, but the balance of the Agreement
shall continue in full force and effect unless such construction would clearly
be contrary to the intention of the parties or would result in unconscionable
injustice.
16.13 Jurisdiction and Venue. Jurisdiction over any action,
proceeding or arbitration shall be proper only if filed and maintained in
Colorado, and venue shall be proper therefor only in the County of Boulder as
to state court proceedings or the District Court for the District of Colorado
as to federal court proceedings.
16.14 Good Faith Cooperation and Additional Documents. The parties
shall use their best good faith efforts to fulfill all of the conditions set
forth in this Agreement over which it has control or influence. Each party
covenants and agrees to cooperate in good faith and to enter into and deliver
such other documents and papers as the other party reasonably shall require in
order to consummate the transactions contemplated hereby, provided in each
instance, any such document is in form and substance approved by the parties
and their respective legal counsel.
16.15 Legal Counsel. Each of the parties are being represented by
independent counsel; RV acknowledges that it is being represented by Clifford
L. Neuman of Neuman & Drennen, LLC; and Southshore by Tom Boyle of Krys,
Boyle, Freedman & Sawyer.
16.16 No Finders or Brokers Fees. Both parties agree that there are
no finders fees or brokers fees due to any person or entity in connection with
the transactions contemplated or provided for herein.
16.17 Assignment. Neither party may directly or indirectly assign or
delegate, by operation of law or otherwise, all or any portion of
its/their/his rights, obligations or liabilities under this Agreement without
the prior written consent of all other parties, which consent may be withheld
in their respective sole and absolute discretion.
16.18 List of Exhibits. The following Exhibits are attached to this
Agreement:
EXHIBITS
Exhibit 2.2 Short Form Agreement and Plan of Merger
Exhibit 4.3 Subscription Agreement
Exhibit 6.2(d) Employment Agreement with John Deufel
Exhibit 8.6 Southshore Disclosure Schedule (Material Defaults)
Exhibit 8.7 Southshore Exceptions to Timely Filing of Taxes; Tax Related
Disputes
Exhibit 8.8 Southshore Actions, Proceedings, Orders, Writs, Injunctions,
Decrees, Liability for Damages
Exhibit 8.9 Southshore Post Balance Sheet Changes
Exhibit 8.11 Southshore Third Party Proprietary Interest in Intangible
Assets
Exhibit 8.12 Southshore Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 8.13 Southshore Exceptions to Collectability of Accounts
Receivable (Material Counterclaims or Set-Offs)
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Exhibit 8.15 Southshore Exceptions to Ownership of Patents and Other
Intangible Rights
Exhibit 8.16 Southshore Changes in Suppliers and Customers
Exhibit 8.17 Southshore Liens or Encumbrances
Exhibit 8.18 Southshore and SAC Current Employees
Exhibit 8.19 Southshore Pending or Threatened Legal, Administrative, or
Other Proceedings or Governmental Investigation, Exceptions
to Compliance with Laws,Ordinances, Requirements,
Regulations, or Orders
Exhibit 8.20 Southshore Material Contract Agreements
Exhibit 8.20(f) Southshore Defaults or Breaches of Existing Contracts,
Agreements, Leases, Licenses, Plans, Arrangements and
Commitments
Exhibit 8.22 Southshore Insurance Coverage
Exhibit 8.23 Southshore Environmental Concerns: Hazardous Waste
Production, Storage, etc.
Exhibit 10.4 RV Financial Statements
Exhibit 10.5 RV: Other Equity Securities; Outstanding Purchase Rights
Exhibit 10.6 RV Disclosure Schedule (Material Defaults
Exhibit 10.7 RV Exceptions to Timely Filing of Taxes
Exhibit 10.8 RV Pending or Threatened Actions or Proceedings
Exhibit 10.9 RV Post Balance Sheet Changes
Exhibit 10.11 RV Third Party Proprietary Interest in Intangible Assets
Exhibit 10.12 RV Exceptions to Inventory Valuation, Condition and
Marketability
Exhibit 10.13 RV Exceptions to Collectability of Accounts Receivable
(Material Counterclaims or Set-Offs)
Exhibit 10.15 RV Exceptions to Ownership of Patents and Other Intangible
Rights
Exhibit 10.16 RV Changes in Suppliers and Customers
Exhibit 10.17 RV Liens or Encumbrances
Exhibit 10.18 RV Pending or Threatened Legal, Administrative or Other
Proceedings or Governmental Investigation, Exceptions to
Compliance with Laws, Ordinances, Requirements, Regulations
or Orders
Exhibit 10.19 RV Material Contract Agreements
Exhibit 10.19(f) RV Defaults or Breaches of Existing Contracts, Agreements,
Leases, Licenses, Plans, Arrangements and Commitments
Exhibit 10.20 RV Insurance Coverage
Exhibit 10.21 RV Environmental Concerns: Hazardous Waste Production,
Storage, etc.
16.19 Entire Agreement - Amendment. For purposes of this Section,
the term "Agreement" shall include this Agreement and the Exhibits and other
documents attached hereto or described in Section 16.18. This Agreement, and
other documents delivered pursuant to this Agreement, contain all of the terms
and conditions agreed upon by the parties relating to the subject matter of
this Agreement and supersede all prior and contemporaneous agreements,
letters of intent, representations, warranties, disclosures, negotiations,
correspondence, undertakings and communications of the parties, oral or
written, respecting that subject matter.
16.20 Authority to Sign. Each of the persons signing below on behalf
of any party hereby represents and warrants that s/he or it is signing with
full and complete authority to bind the party on whose behalf of whom s/he or
it is signing, to each and every term of this Agreement.
16.21 Execution of Documents. The parties hereto agree to execute
and deliver any and all other documents necessary and convenient to effectuate
the exchange of stock herein provided for, and RV as an inducing condition,
represent that it has the authority to enter into this Agreement and to make
the foregoing commitments for itself.
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16.22 Time. Time is of the essence of this Agreement and each of its
provisions.
IN WITNESS WHEREOF, the parties have signed the Agreement the date and
year first above written.
SOUTHSHORE CORPORATION,
a Colorado corporation
BY(Signature) /s/ Kenneth Dalton
(Name and Title) Kenneth Dalton, President
RV HOLIDAY.COM, INC.,
a Colorado corporation
BY(Signature) /s/ John Deufel
(Name and Title) John Deufel, President
