ASSET SALE AGREEMENT
THIS ASSET SALE AGREEMENT (the "AGREEMENT") is made as of this 29th day
of January 2003, by and among, American Leisure Holdings, Inc., a Nevada
corporation (the "PURCHASER") and Xxx Xxxxxxx ("XXXXXXX").
RECITALS
WHEREAS, the Purchaser desires to purchase from Gershon and Gershon
desires to sell and transfer on an "AS IS, WHERE IS" basis the rights, title,
and interest Gershon maintains with respect to the Assets; and
WHEREAS, Gershon has previously purchased a Secured Promissory Note,
which is currently past due, of Inter-Call-Net Teleservices, Inc. (the "NOTE")
in the original principal amount of $100,000.00 under which a principal balance
of $108,917.00 is outstanding; and
WHEREAS, Gershon shall assign the Note upon the closing of the sale of
Assets herein; and
WHEREAS, the Purchaser desires to purchase from Gershon and Gershon
desires to sell and transfer to the Purchaser on an "AS IS, WHERE IS" basis all
of Gershon's right, title and interest in the Assets and Note, upon the terms
and conditions contained herein.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, covenants and agreements
hereinafter set forth, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are adopted
herein.
2. Purchase and Sale. On the Closing Date, as defined below, upon the terms
and subject to the conditions set forth in this Agreement, Gershon shall sell,
assign, grant, convey, deliver and transfer to Purchaser, and Purchaser shall
purchase, acquire and receive from Gershon, all of his respective right, title
and interest in the Assets and Note, as is, where is, and, in the case of the
Assets, subject to any liens and encumbrances thereon. Gershon shall evidence
such transaction by executing and delivering to Purchaser a Xxxx of Sale in the
form of Exhibit A and an Assignment of Note in the form of Exhibit B (such Xxxx
of Sale and Assignment of Note as herein collectively referred to as the
"CONVEYANCE DOCUMENTS").
3. Purchase Consideration. The parties hereto agree that the purchase
consideration for the Assets is the issuance of 956 shares of its 4% Series C
Convertible Redeemable Preferred Stock (the "SERIES C PREFERRED Stock"), the
terms of which are set forth in the Certificate of Designation attached as
Exhibit C hereto and 4,000 shares of Common Stock. The Purchaser shall issue to
Gershon at the Closing certificates representing an aggregate of 956 shares of
its duly authorized and issued, fully paid and non-assessable Series C Preferred
Stock and 4,000 shares of its duly authorized and issued, fully paid and
non-assessable Common Stock.
4. Closing. The closing of the purchase and sale of the Purchased Assets shall
be held at a mutually agreeable time on November 19, 2002. If the closing has
not occurred within ninety (90) days following the date hereof through no fault
of the Purchaser, this Agreement and Securities Purchase Agreement shall
terminate and be of no further force or effect. The Closing shall take place at
the offices of Xxxxxx & Associates, P.A., counsel for Purchaser., at 0000 X.X.
0xx Xxxxxx, 0xx Xxxxx, Xxxxx, Xxxxxxx 00000, at 10:00 a.m. on the date
established for Closing.
5. Warranty of Gershon. Gershon warrants: (i) that its Note is free and clear
of any liens and encumbrances; and (ii) that Gershon has full and complete
authority to assign the subject Note and enter into the transactions
contemplated hereby.
6. Deliveries of Gershon at Closing. At the Closing, Gershon shall deliver to
Purchaser the Xxxx of Sale and Assignment of Note, duly and validly executed.
7. Deliveries of Purchaser at Closing. At the Closing, unless otherwise
indicated, Purchaser shall deliver to Gershon the following: (i) certificates
for the 956 shares of Series C Preferred Stock and for 4,000 shares of its
Common Stock registered in the name of Gershon, to be provided within 10 days
following the date of Closing; (ii) an executed Registration Rights Agreement in
the form of Exhibit D hereto; (iii) an executed Securities Purchase Agreement,
dated the date of the Closing, in the form of Exhibit E hereto; (iv) an
Assignment and Assumption Agreement within 45 days following the date of
Closing, whereby Purchaser will assume and agree to pay amounts due or becoming
due under leases of the Assets from Hewlett Packard or its affiliates (which
amounts shall be deducted from the Series C Preferred Shares to be issued to
Stanford Venture Capital Holdings, Inc.) and under operating leases from
Sunrise; (v) a maximum of two thousand ($2,000.00) dollars in the aggregate,
which shall be tendered to the counsel of Stanford Venture Capital Holdings,
Inc., towards the payment of a legal opinion of Nevada counsel to the Purchaser,
addressed to Gershon, Stanford Venture Capital Holdings, Inc., and Xxxxxxx X.
Xxxx, to be obtained within 45 days following the date of Closing; and (v) such
other documents as may be reasonably requested by Gershon in order to evidence
the consummation of the transactions contemplated herein.
8. Expenses. Each of the parties hereto will pay its respective expenses,
income and other taxes, and costs (including without limitation, the fees,
disbursements and expenses of attorneys, accountants and consultants) incurred
by it in negotiating, preparing, closing and carrying out this Agreement and the
transactions contemplated by this Agreement.
9. Notices. Any notices, requests, demands and other communications required
or permitted to be given hereunder must be in writing and, except as otherwise
specified in writing, will be deemed to have been duly given when personally
delivered or facsimile transmitted, or three days after deposit in the United
States mail, by certified mail, postage prepaid, return receipt requested, as
follows:
IF TO GERSHON:
Xxx Xxxxxxx
0000 XX 000xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxx 00000
IF TO THE PURCHASER:
American Leisure Holdings, Inc.
Park 00 Xxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
WITH A COPY TO:
Xxxxx Xxxxxx & Xxxxx, LLP
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other addresses or facsimile numbers as either party hereto may from
time to time give notice of (complying as to delivery with the terms of this
Section) to the other.
10. Entire Agreement. This Agreement along with all exhibits and schedules
attached hereto constitutes the entire agreement between the parties hereto and
supersedes all prior agreements, understandings, negotiations and discussions,
both written and oral, between the parties hereto with respect to the subject
matter hereof.
11. Benefits; Binding Effect; Assignment. This Agreement is for the benefit of
and binding upon the parties hereto, their respective successors and, where
applicable, assigns. Neither party may assign this Agreement or any of its
rights, interests or obligations hereunder without the prior approval of the
other party.
12. Waiver. No waiver of any of the provisions of this Agreement will be deemed
to constitute or will constitute a waiver of any other provision hereof (whether
or not similar), nor shall any such waiver constitute a continuing waiver unless
otherwise expressly so provided.
13. No Third Party Beneficiary. Nothing expressed or implied in this Agreement
is intended, or will be construed, to confer upon or give any person or entity
other than the parties hereto and their respective successors and assigns any
rights or remedies under or by reason of this Agreement.
14. Section Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of any provisions of this Agreement.
15. Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which will be deemed
to be one and the same instrument.
16. Litigation. If any legal action is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorney fees, paralegal fees and other costs incurred in that action
or proceeding, in addition to any other relief to which it or they may be
entitled. Any such legal action shall be brought in courts of competent
jurisdiction in Miami-Dade County, Florida.
17. Remedies Cumulative. No remedy made available by any of the provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy is cumulative and is in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity.
18. Governing Law. This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Florida.
3
19. Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise.
20. Further Assurances. The parties shall execute and deliver any other
instruments or documents and take any further actions after the execution of
this Agreement, which may be reasonably required for the implementation of this
Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
XXX XXXXXXX
By: S/XXX XXXXXXX
AMERICAN LEISURE HOLDINGS, INC.
By: S/X X XXXXXX
President
4
