ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of March 1, 2000, between
Club - 4U, a California corporation ("Buyer"), and PriceSmart, Inc., a Delaware
corporation ("Seller").
WHEREAS, Seller is engaged in, among other things, the travel business; and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, all of the assets, and properties of Seller used primarily in its travel
business, all on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, it is hereby agreed between Seller and Buyer as follows:
ARTICLE I
PURCHASE AND SALE
1.1 PURCHASED ASSETS. Upon the terms and subject to the conditions of this
Agreement, on the Closing Date, Seller shall sell, transfer, assign, convey and
deliver to Buyer, and Buyer shall purchase from Seller, free and clear of all
encumbrances and liabilities (except for Assumed Liabilities) all of the assets
and properties of Seller or every kind and description, to the extent
transferable, wherever located, real, personal or mixed, tangible or intangible,
used primarily in connection with the Seller's travel business (such business
referred to herein as the "Business") (herein collectively called the "Purchased
Assets"). Seller represents and warrants that, at Closing, it will have and
transfer to Buyer good and marketable title to all Purchased Assets, free of all
liens and encumbrances.
1.2 EXCLUDED ASSETS. Notwithstanding the provisions of Section 1.1, the
Purchased Assets shall not include the following (herein referred to as the
"Excluded Assets"):
(a) All cash, bank deposits and cash equivalents;
(b) Open Bookings (as defined below) to the extent shown on the schedule
delivered at Closing in accordance with Section 5.4(a)(ii);
(c) The name "PriceSmart, Inc." or any related or similar trade names,
trademarks, service marks, URLs or logos to the extent the same incorporate the
name "PriceSmart, Inc." or "PriceSmart"; it being understood that Seller shall
license to Buyer the names "PriceSmart Vacations" or "PriceSmart Travel"
pursuant to Section 1.5 hereof;
(d) All contracts of insurance; and all corporate minute books and stock
transfer books and the corporate seal of Seller.
1.3 ASSUMED LIABILITIES. On the Closing Date, Buyer shall deliver to Seller the
Assignment and Assumption Agreement pursuant to which Buyer shall assume and
agree to discharge the following obligations and liabilities of Seller (referred
to herein as "Assumed Liabilities") in accordance with their respective terms
and subject to the respective conditions thereof: All obligations arising on and
after Closing under the contracts listed on Schedule 1.3 attached hereto.
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1.4 SERVICE PROVIDER AGREEMENTS AND AGENCY LICENSES. Seller has informed Buyer
that there are various agreements and licenses between Seller and various
service providers and agencies that require the consent of the service providers
or agencies to the assignment thereof. Seller makes no representations or
warranties as to the transferability of these or any other agreements or
licenses. Seller, however, shall cooperate with Buyer and use its reasonable
best efforts to transfer and assign such agreements and licenses to Buyer as
soon as practicable in accordance with the terms thereof.
1.5 LICENSE. Effective upon the Closing, Seller hereby grants Buyer an
exclusive, royalty-free, license for the United States, for an unlimited period
following the Closing, to use the names "PriceSmart Vacations" and "PriceSmart
Travel" solely in connection with Buyer's operation of the Business; provided,
however, that Buyer shall be subject to the same limitations on the use of the
"PriceSmart" name to which Seller may be bound under: (i) the Agreement
Concerning Transfer of Certain Assets, entered into between PriceCostco, Inc.,
Price Enterprises, Inc. and certain of their affiliates, in November, 1996; and
(ii) the Agreement dated August 1, 1999 entered into between Seller and
Associated Wholesale Grocers, Inc.
ARTICLE II
PURCHASE PRICE
2.1 PURCHASE PRICE. The purchase price for the Purchased Assets (the "Purchase
Price") shall be One Million Five Hundred Thousand Dollars ($1,500,000).
ARTICLE III
CLOSING
3.1 CLOSING DATE. The Closing shall be consummated on the earlier of March 1,
2000, or a date agreed upon by Buyer and Seller (the "Closing Date"), but in no
event later than August 1, 2000, at the offices of the Seller, 0000 Xxxxxx
Xxxx., Xxx Xxxxx, Xxxxxxxxxx 00000.
3.2 BUYER'S DELIVERIES. At Closing, Buyer shall pay the entire Purchase Price to
Seller and pay to Seller an amount equal to the expected commissions on the
Prepaid Open Bookings (as defined below), and Buyer shall deliver to Seller the
Assignment and Assumption Agreement, duly executed by Buyer.
3.3 SELLER'S DELIVERIES. Seller shall deliver to Buyer all the following: (a) at
Closing the Assignment and Assumption Agreement, duly executed by Seller; and
(b) at or after Closing such other bills of sale, assignments and other
instruments of transfer or conveyance as Buyer may reasonably request or as may
be otherwise necessary to evidence and effect the sale, assignment, transfer,
conveyance and delivery of the Purchased Assets to Buyer.
ARTICLE IV
ACTION PRIOR TO THE CLOSING DATE
4.1 OPERATIONS PRIOR TO THE CLOSING DATE.
(a) Prior to the Closing Date, Seller shall operate and carry on the
Business only in the ordinary course and substantially as presently operated.
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(b) Buyer shall notify Seller within three (3) business days after each
acceptance of an offer of employment with Buyer by an employee employed in the
Business.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 DISCHARGE OF THE BUSINESS'S LIABILITIES. Seller covenants and agrees that it
will pay and discharge, and hold Buyer harmless from, each and every liability
and obligation of Seller in respect of the Business or the Purchased Assets
arising from events occurring on or prior to the Closing Date, excepting only
those liabilities and obligations expressly assumed by Buyer at the Closing
pursuant to the Assignment and Assumption Agreement delivered to Seller at the
Closing, it being understood and agreed that Buyer is assuming no liabilities or
obligations of Seller other than the Assumed Liabilities. Any sales tax, use
tax, or similar tax attributable to the sale or transfer of the Purchased Assets
and the Assumed Liabilities shall be paid by Seller.
5.2 EMPLOYEES AND EMPLOYEE RELATED AGREEMENTS.
(a) Seller shall take all actions necessary in order for both Seller and
Buyer to be in full compliance with Part 6 of Title I of ERISA and Section
49800B of the Code (regarding continuation of health benefits) and all state
laws of a similar nature with regard to all entitlements to continued health
benefits arising with respect to the Business or any other business of Seller.
(b) Seller represents and warrants that, under Seller's Severance Policy
(applicable to Seller's employees, including those employees who are members of
Teamsters Local No. 542 employed in the Business), employees of Seller are not
entitled to severance benefits where their employment has been terminated as a
result of a sale of part of Seller's business or assets but they have been
offered a comparable position by the acquiring company.
(c) Buyer shall have no obligation to offer employment to any employee of
the Seller whether or not such employee is rendering services with respect to
the Business.
(d) Buyer has offered comparable employment to all but one of the employees
of Seller who are involved in the Business. Buyer agrees that it will be solely
responsible for any severance or other payments due any and all of the employees
to which it has offered employment who ultimately accept such employment. Buyer
further agrees that Buyer will credit employees who have accepted such offers of
employment with: (i) the number of vacation day accruals currently existing for
each such employee; and (ii) the same vesting rights as such employees currently
have with respect to existing profit sharing/401(k) plan contributions.
(e) Seller shall be solely responsible for any severance or other payments
due to the one employee involved in the Business not offered employment by
Buyer.
5.3 LEASE. Subject to the consent of Seller's landlord, as promptly as
practicable following the Closing, Buyer and Seller will enter into a lease on
the terms described in Exhibit A, under which Buyer will have the right to
operate the Business in the space where it is now conducted, at 0000 Xxxxxx
Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx, 00000.
5.4 OPEN BOOKINGS.
(a) On the Closing Date, Seller will deliver to Buyer two schedules
describing travel bookings made by Seller on behalf of customers prior to the
Closing Date ("Open Bookings"): (i) a schedule that
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contains a list (by customer name, travel service provider, amounts paid by the
customer to the provider prior to the Closing Date, any amounts to be paid by
the customer to the provider on or after the Closing Date and any commissions to
be paid on or after the Closing Date) of Open Bookings for which Buyer will make
collections on and after the Closing Date (the "Prepaid Open Bookings") and for
which Buyer will pay to Seller on the Closing Date an amount equal to the net
present value of the expected commissions and (ii) a schedule that contains a
list (by customer name, travel service provider, amounts paid by the customer to
the provider prior to the Closing Date, any amounts to be paid by the customer
to the provider on or after the Closing Date and any commissions to be paid on
or after the Closing Date) of Open Bookings for which Seller will make
collections on and after the Closing Date.
(b) Within five (5) business days of the receipt by Seller on or after the
Closing Date of any Prepaid Open Bookings, Seller shall endorse such commission
to the order of Buyer and forward it to Buyer.
(c) Within five (5) business days of receipt by Buyer on or after the
Closing Date of commissions with respect to Open Bookings other than Prepaid
Open Bookings, Buyer shall forward to Seller the amount of the commission
received.
(d) Seller shall have no obligation to reimburse Buyer for commissions
prepaid by Buyer to Seller on Prepaid Open Bookings if Buyer does not actually
receive such commissions (other than as a result of such commissions being paid
by the providers directly to Seller).
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION BY SELLER.
(a) Seller agrees to indemnify and hold harmless the Buyer from and against
any and all losses and expenses incurred by Buyer in connection with or arising
from:
(i) any breach by Seller of any of its covenants, representations or
warranties in this Agreement or in any other instrument given by Seller to Buyer
pursuant to this Agreement;
(ii) the failure of Seller to comply with any applicable bulk sales
law.
(b) The indemnification provided for in this Section 6.1 shall terminate
four (4) years after the Closing Date, except that the indemnification by Seller
shall continue as to: the obligations and representations of Seller under the
Assignment and Assumption Agreement, as to which no time limitation shall apply.
(c) Seller's obligations to indemnify and hold harmless Buyer shall be
limited to an amount equal to the Purchase Price.
ARTICLE VII
GENERAL PROVISIONS
7.1 SURVIVAL OF OBLIGATIONS. All representations, warranties, covenants and
obligations contained in this Agreement shall survive the consummation of the
transactions contemplated by this Agreement.
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7.2 NOTICES. All notices or other communications required or permitted hereunder
shall in be writing and shall be deemed given or delivered when delivered
personally or when sent by registered or certified mail or by private courier
addressed as follows:
IF TO BUYER, TO: IF TO SELLER, TO:
Club - 4U PriceSmart, Inc.
Xxxxx 000 0000 Xxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx Xxx Xxxxx, XX 00000
Xx Xxxxx, XX 00000 Attn: President
Attn: President
or to such other address as such party may indicate by a notice delivered to the
other party hereto.
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7.3 ACCESS TO RECORDS AFTER CLOSING.
For a period of six (6) years after the Closing Date, Seller and its
representatives shall have reasonable access to all of the books and records of
the Business transferred to Buyer hereunder to the extent that such access may
reasonably be required by Seller in connection with matters relating to or
affected by the operations of the Business prior to the Closing Date. If Buyer
shall desire to dispose of any of such books and records prior to the expiration
of such six-year period, Buyer shall, prior to such disposition, give Seller a
reasonable opportunity, at Seller's expense, to segregate and remove such books
and records as Seller may select.
7.4 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the Exhibits and Schedules
referred to herein and the documents delivered pursuant hereto contain the
entire understanding of the parties hereto with regard to the subject matter
contained herein or therein, and supercede all prior agreements, understandings
or letters of intent between or among any of the parties hereto. This Agreement
shall not be amended, modified or supplemented except by a written instrument
signed by an authorized representative of each of the parties hereto.
7.5 INTERPRETATION. Article titles and headings to sections herein are inserted
for convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement.
7.6 WAIVERS. Any term or provision of this Agreement may be waived, or the time
for its performance may be extended, by the party or parties entitled to the
benefit thereof. Any such waiver shall be validly and sufficiently authorized
for the purposes of this Agreement if, as to any party, it is authorized, in
writing, by an authorized representative of such party. The failure of any party
hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way to affect the
validity of this Agreement or any party hereof or the right of any party
thereafter to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to constitute a waiver of any other or subsequent
breach.
7.7 EXPENSES. Each party hereto will pay all costs and expenses incident to its
negotiation and preparation of this Agreement and to its performance and
compliance with all agreements and conditions contained herein on its part to be
performed or complied with, including the fees, expenses and disbursements of
its counsel and accountants.
7.8 PARTIAL INVALIDITY. Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
provision shall be ineffective to the extent, but only to the extent, of such
invalidity, illegality or unenforceability without invalidating the remainder of
such invalid, illegal or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
7.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of California.
7.10 ARBITRATION. In the event of any dispute between the parties hereto with
respect to this Agreement, such dispute shall be settled by binding arbitration
by the American Arbitration Association pursuant to its Rules of Commercial
Arbitration then in effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first above written.
PRICESMART, INC. CLUB - 4U
BY: /s/ XXXX MAY BY:. /s/ XXXXX XXXX
ITS: CHIEF OPERATING OFFICER ITS: PRESIDENT
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EXHIBIT A
SUBLEASE BY PRICESMART, INC. (SUBLESSOR) TO CLUB 4U (SUBLESSEE)
PREMISES: Approximately 5,000 square feet located at 4649 Morena Blvd. (in the
area which has been occupied by the PriceSmart Travel Department);
additionally, Sublessee's employees who work at the premises may
park their vehicles in designated parking lot.
TERM: Through August 31, 2001; terminable upon sixty (60) days notice by
either Sublessor or Sublessee.
RENT/CAM: $1.10 per square foot (Monthly Rent/CAM of $5,500)
USE: Call center for travel services and products, and related
business/office use.
OTHER: (i) Sublease shall be subject to all of the terms, covenants and
conditions of the Lease for 0000 Xxxxxx Xxxx., under which
PriceSmart is Lessee.
(ii) In the event Sublessee is occupying the subleased premises when
Sublessor accepts an offer to receive consideration in return for
Sublessor's agreement to terminate its rights under the
aforementioned Lease, Sublessee shall be entitled to a pro-rata
share of such consideration; such pro-rata share shall be based upon
the square footage leased under the Sublease as compared to the
square footage leased under the Lease.
In addition, the following services shall be provided by PriceSmart to Club 4U:
IT SUPPORT: HELP DESK $2,000 PER MONTH
----------
Technical Support
HR/PAYROLL SERVICES: $253.21 per employee
------------------- (For 39 employees, $823 per month)
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XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
(CLUB - 4U)
This XXXX OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT (the "AGREEMENT") is
made, executed and delivered on March 1, 2000, by, on the one hand, PriceSmart,
Inc., a Delaware corporation ("SELLER") and, on the other hand, Club - 4U, a
California corporation ("BUYER").
RECITALS
A. Seller and Buyer, have entered into that certain Asset Purchase Agreement,
dated as of March 1, 2000, as may be amended from time to time (the "ASSET
PURCHASE AGREEMENT"), pursuant to which, among other things, Seller has agreed
to sell, convey, assign, transfer and deliver the Purchased Assets (as such term
is defined in the Asset Purchase Agreement) to Buyer.
B. Seller and Buyer now desire to carry out the intent and purpose of the
Asset Purchase Agreement by Seller's execution and delivery to Buyer of this
Agreement evidencing (i) the sale, conveyance, assignment, transfer and
delivery to Buyer of the Purchased Assets, subject to the Assumed Liabilities
(as such terms are defined in the Asset Purchase Agreement), and (ii) the
assumption by Buyer of the Assumed Liabilities which are required to be
performed by Buyer pursuant to the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
AGREEMENT
ARTICLE I - ASSIGNMENT
SECTION 1.1. SALE AND ASSIGNMENT. Subject to the terms and conditions
of the Asset Purchase Agreement, Seller does hereby sell, convey, assign,
transfer and deliver unto Buyer, its assigns, transferees and successors,
forever, all of Seller's right, title and interest in and to the Purchased
Assets described in SECTION 1.1 of the Asset Purchase Agreement, subject to the
Assumed Liabilities that relate to the Purchased Assets.
SECTION 1.2. ACCEPTANCE. Buyer hereby accepts the foregoing sale,
conveyance, assignment, transfer and delivery of the Purchased Assets described
in SECTION 1.1 of the Asset Purchase Agreement.
ARTICLE II - ASSUMPTION
SECTION 2.1. ASSUMPTION. Buyer hereby agrees to assume, and hereby
agrees to pay, discharge and perform, as and when due, all of Assumed
Liabilities described in SECTION 1.3 of the Asset Purchase Agreement.
SECTION 2.2. SUCCESSORS AND ASSIGNS. The obligations undertaken
pursuant to this Article II shall bind and inure to the benefit of the
respective parties and their assigns, transferees and successors.
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ARTICLE III - MISCELLANEOUS
SECTION 3.1. DEFINITIONS. Except as otherwise expressly provided
herein, capitalized terms used but not otherwise defined in this Agreement,
shall have the meanings ascribed to such terms in the Asset Purchase Agreement.
SECTION 3.2. RELATIONSHIP WITH THE ASSET PURCHASE AGREEMENT. This
Agreement is governed by and subject to all of the representations, warranties,
covenants, indemnities, and other terms and conditions of the Asset Purchase
Agreement, the terms of which are hereby incorporated into this Agreement. In
the event that any provision of this Agreement is construed to conflict with a
provision of the Asset Purchase Agreement, the provision of the Asset Purchase
Agreement shall be deemed controlling.
SECTION 3.3. GOVERNING LAW. This Agreement shall be governed by, and
construed with, the law of the State of California.
SECTION 3.4. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 3.5. SEVERABILITY. Each provision of this Agreement is
intended to be severable. If any term or provision is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the legality
or validity of the remainder of the Agreement.
SECTION 3.6. EXECUTION OF DOCUMENTS. Each party hereto agrees to
execute all documents necessary to carry out the purpose of this Agreement and
to cooperate with each other for the expeditious filing of any and all documents
and the fulfillment of the terms of this Agreement.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as
of the 1st day of March 2000.
SELLER: BUYER:
PRICESMART, INC. CLUB - 4U
By: /s/ Xxxx May By: /s/ Xxxxx Xxxx
Chief Operating Officer President
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