EXHIBIT 10.47
AGREEMENT
This Agreement, made and concluded this 1st day of April, 2004 is by and between
The Shadmore Trust U/A/D 12/26/89, a California trust, Xxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxxxxxxx, Trustees (hereinafter "Shadmore") and,
American Leisure Holdings, Inc., a Nevada corporation with its principal office
and place of business located at Orlando, Florida (hereinafter "AMLH"), and
Around The World Travel, Inc., a Florida corporation with its principal office
and place of business located at Coral Gables, Florida (hereinafter "AWT"), and
Around The World Floldings, LLC, a Delaware limited liability company with its
principal office and place of business located fit Coral Gables, Florida
(hereinafter "ATWH").
WITNESSETH
Whereas, Shadmore is the owner of Common Stock in the Florida corporation known
as Around The World Travel, Inc. of Coral Gables, Florida ("AWT"), and
Whereas, Shadmore is also the owner of Preferred Stock in AWT; and
Whereas, Shadmore is the holder of a promissory note or notes wherein AWT is the
Maker; and
Whereas, Shadmore is a party in an agreement with Around The World Holdings, LLC
("ATWH") dated February 28, 2001 (the "Put Agreement") wherein it agreed to
acquire stock in AWT from ATWH and also contains the right by Shadmore to put
the stock back to ATWH; and
Whereas, AMLH has made an offer to Shadmore to acquire the Common Stock, the
Preferred Stock and the Note(s); and
Whereas, AMLH has made an offer to Shadmore to fulfill selected responsibilities
of ATWH in said Put Agreement; and
Whereas, Shadmore has accepted the AMLH offer and the Parties desire to
memorialize their agreement.
Now, therefore, in consideration of the mutual promises herein contained, it is
agreed as follows.
1. Recitals. The forgoing Recitals are true and accurate and are incorporated
herein
2. Common Stock. Shadmore represents that it is the owner of 3,046,505 shares of
common stock of AWT. Said shares are not leveraged, assigned as collateral or in
any way impaired such that Shadmore can convey clean title to these shares to
AMLH. AMLH hereby acknowledges that said stock may contain restrictive legends
and has no objection thereto. Shadmore hereby agrees to provide a statement from
AWT executed by a duly authorized officer of AWT that verifies their common
stock holding. Attached hereto as Exhibits A-l through A-4 are copies of the
stock certificates numbered NC-32, Nc-42, NC-51 and NC-55, respectively.
3. Preferred Stock. Shadmore represents that it is the owner of 907,677 shares
of Preferred Stock of AWT. Said shares are not leveraged, assigned as collateral
or in any way impaired such that Shadmore can convey clean title to these shares
to AMLH, AMLH hereby acknowledges that said stock may contain restrictive
legends and has no objection thereto. Shadmore hereby provides a statement from
AWT executed by a duly authorized officer of AWT that verifies their Preferred
Stock holding. Attached hereto as Exhibits X-x and B-2 are copies of the stock
certificates numbered PA-16 and PA-31, respectively.
4. Note(s). Shadrnore represents that is the holder of certain instruments of
debt owed by AWT. Attached hereto as Exhibit C-l et seq. are copy(s) of said
instruments. Shadmore hereby promises to provide confirmations from AWT of the
amounts due under said instruments.
5. Consideration to Be Paid for the acquisition of 2, 3 & 4 above.
A.) AMLH agrees to pay to Shadmore the sum of 24,101 shares of AMLH Series E
Convertible Preferred Stock, with a liquidation value of $100 a share
representing a value upon conversion of $2,410,113, bearing a 4% per annum
dividend rate, a Par Value of $.001 and convertible into the common stock of
AMLH at a minimum strike price of $15.00 per share. The Certificate of
Designation of Series E Convertible Preferred Stock is attached hereto as
Exhibit D and made a part hereof.
B.) In addition, AMLH agrees to guarantee to fulfill most of the
responsibilities of ATWH in the Settlement Agreement dated September 30, 2003
with the exception of the duty to sell additional shares of AWT to Shadmore and
other exceptions. Said Agreement is attached hereto as Exhibit E-l. Exhibit E-2
contains an amendment to said agreement that excludes those provisions that AMLH
is not fulfilling. The Parties agree that, as of this date, that a valid put of
the AWT stock has been made by Shadmore and that the amount due from ATWH is
$1,698,340. The weekly payments of $3,692 will be adjusted to $5,000 per week.
AMLH further agrees that from the date of this Agreement it shall cause AWT to
pay interest on the unpaid put price at the rate of four per cent (4%) per
annum. Said interest shall be paid annually in arrears.
C.) In addition, AMLH agrees that Shadmore shall receive on account of the
amount due per Section 5.B an amount of money equal to 9.5% of the annual
Earnings Before Income Tax, Depreciation and Amortization ("EBITDA") of the
TraveLeaders Western Unit at Irvine, California until such time as the amount
owed per 5,6 is fully
paid. AMLH shall cause said amount to be determined by March 1 following the
calendar year and the amount determined to be due shall be paid in lumps sum by
April 1 of each year. Standard GAAP procedures shall be performed and the entire
formula shall be transparent and disclosed to Shadmore. Disputes over the amount
due per this section shall be resolved by utilizing the dispute resolution
procedures of the CPAA of America.
6. Indemnities. A.) AMLH hereby agrees to indemnify Shadmore from any and all
loss, cost or expense associated with the transfer of the Common Stock and the
Preferred Stock of AWT relative to any rights that AMLH may have under the state
and federal laws and regulations of the state and federal regulatory bodies
relating to the private sale of exempt, non-registered securities. AMLH is an
accredited investor as defined in Rule 501 of Regulation D of the Securities Act
of 1933, as amended (the "Act").
B.) Shadmore hereby avers that their acquisition of the Series E Preferred Stock
is for their own account, for investment purposes only and not for re-sale or
distribution. Shadmore acknowledges that this acquisition is not being done in
conjunction with a public offering as defined in the Act and that Shadmore, and
its Trustees, are accredited investors as defined in the Act. Therefore,
Shadmore hereby indemnifies AMLH against all loss, cost or expense associated
with the transfer to them of the Series E Preferred Stock of and by AMLH
relative to any rights that Shadmore may have under the state and federal laws
and regulations of the state and federal regulatory bodies relating to the
private sale of these securities.
C) AMLH hereby promises and agrees that it shall hold the individuals known as
Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx financially harmless from actions
undertaken by the Internal Revenue Service ("IRS") on account of federal
withholding tax, PUT A, FICA and the resulting penalties and interest and fines
associated with an assessment by the IRS of the liability owed by AWT for
non-payment and late payment of employer and trust fund taxes that were to be
paid over to the IRS while Livermore and Xxxxxxxx were titular but
non-operational officers of AWT. The only conditions of this indemnity are: a)
that it shall be void and of no effect as to either of them in the event that
the IRS or AWT presents incontrovertible evidence that such individual did
actively engage in the conduct that has given rise to the assessment; and b)
AMLH shall afford to Livermore and Xxxxxxxx the same protection and insulation
from personal liability that it will afford to other officers similarly
situated. The purpose of this second condition is that AMLH will propose a
payment plan to extinguish the agreed liability and it shall faithfully perform
said agreement. AMLH shall also cause AWT to inform the IRS that Livermore and
Xxxxxxxx are not responsible for the assessment. However, AMLH can not and does
not guarantee that the IRS will not take independent action against Livermore
and Xxxxxxxx despite the representations and the payments.
7. Timing and Closing. The Parties agree that the documents and securities
recited herein shall be exchanged within 15 days of the execution of this
Agreement time being of the essence.
8. Disclosures. AMLH has disclosed and by these presents re-affirms their
disclosure to Shadmore that it currently intends to seek an agreement with AWT
to purchase the entire asset array of AWT (the "Assets"). In such pursuit, AMLH
is making this Agreement, as it intends to do with most, if not all, of the
other shareholders of AWT, so as to structure the acquisition of the Assets in
such a way as to provide a fair and amicable transition of the ownership of and
the business operations of AWT in and to AMLH. Attached hereto as Exhibit G is a
spreadsheet entitled "AWT Minority Shareholders Offer Sheet" that depicts the
AMLH offer to Shadmore and other shareholders similarly situated. Also attached
hereto as Exhibit F is a full synopsis of the offer that has been accepted by
the members of ATWH to convey their entire ownership interests in ATWH to AMLH
as it is the majority common shareholder of AWT. Further, AMLH has made an
agreement with GCD Acquisition Corp. to acquire the ownership and rights of the
senior secured debt (formerly owed to Galileo International, LLC) owed by AWT.
In addition, AMLH intends to make appropriate use of the staff and management of
AWT in the ongoing operations of the AMLH Travel Division.
9. Releases. In light of the Disclosures, AMLH requires and Shadmore agrees to
look solely to AMLH for the performance of the obligations contained herein and,
as such, said obligations shall replace and supercede all obligations of AWT,
ATWH and the officers, members and directors of said entities. AWT joins in this
Agreement for the express and specific purpose of demonstrating its consent to
the transaction described as well as to agree to exchange with Shadmore and its
Trustees general, mutual and reciprocal releases upon the execution of this
Agreement.
10. Entire Agreement. This Agreement and the Exhibits attached hereto contain
all aspects of the agreements between the Parties. This Agreement supercedes all
prior written and oral communications pertaining to the transaction described
herein. Any element deemed unenforceable will not vitiate the remaining
provisions or this Agreement. This Agreement is not assignable without the
written consent of the other Party except that AMLH may assign this Agreement to
a subsidiary controlled by AMLH but no such assignment shall relieve AMLH from
the responsibilities incurred herein.
11. Working Relationship. Notwithstanding anything in Exhibit G to the contrary,
AMLH agrees that Shadmore (or by extension Messrs. Livermore and Xxxxxxxx) may
reserve the right to propose an involvement in the upper level management of
AMLH regarding matters pertaining to the AMLH Travel Division.
[Balance of Page Intentionally left blank.]
SIGNATURE PAGE
Dated at Irvine, California this 1st day of April, 2004.
/s/Xxxxxx X. Xxxxxxxxx, Trustee /s/Xxxxx X. Xxxxxxxx, Trustee
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Xxxxxx X. Xxxxxxxxx, Trustee Xxxxx X. Xxxxxxxx, Trustee
The Shadmore Trust U/A/D 12/26/89 The Shadmore Trust U/A/D 12/26/89
/s/ MalcolmWright
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Xxxxxxx Xxxxxx, President
American leisure Holdings, Inc.
Dated at San Diego, California this 1st day of April, 2004
/s/ Xxxxx St. Clair
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Xxxxx St. Clair
Managing Member
Around The World Holdings, LLC
/s/ Xxxxx St. Clair
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Xxxxx St. Clair
Managing Member
Around The World Travel, Inc.
