EXECUTION COPY
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of December 30, 2004, by and among
AMERICAN LEISURE EQUITIES CORPORATION, a Florida corporation (the "Purchaser");
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AMERICAN LEISURE HOLDINGS INC., a Nevada corporation (the "Parent"); and AROUND
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THE WORLD TRAVEL INC., a Florida corporation (the "Seller").
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RECITALS
A. The Seller is the owner and operator of a travel services business
(the "Business").
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B. The Purchaser desires to purchase, and the Seller desires to sell,
certain of the assets of Seller, including all of the assets necessary
to operate the Business, on the terms, and subject to the conditions
of, this Agreement.
C. Parent is the owner of all of the outstanding capital stock of the
Purchaser.
D. The Seller is indebted to the Parent under various promissory notes
and related instruments more fully described on Exhibit A to this
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Agreement (the "Seller Indebtedness").
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NOW THEREFORE, in consideration of the mutual covenants, representations,
warranties, and agreements contained in this Agreement, the parties hereby agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For the purposes of this Agreement, the following
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words and phrases will have the meanings set forth below:
"Affiliate" means, with respect to any Person, any other corporation or
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company which directly or indirectly controls or is controlled by or is under
direct or indirect common control with such first mentioned Person or any Person
which is directly or indirectly controlled by a Person which controls the first
mentioned Person.
"AMLH Debt" means that the portion of the Seller Indebtedness owed by
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Seller to the Parent with respect to working capital loans evidenced by
promissory notes made by Seller in favor of Parent during the period from March
22, 2004 through the date of Closing. The parties acknowledge that the AMLH Debt
is secured by Liens on the assets of Seller pursuant to the same financing
statements and security agreements which evidence the Liens securing the Galileo
Debt. The current amount of the AMLH Debt is set forth on Exhibit A.
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"Books and Records" means all books, records, files and documentation (in
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whatever medium and wherever situated) of the Seller necessary to operate the
Business, including, without limitation, the books and records listed on
Schedule 2.1(c).
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"Closing" means the completion of the transactions contemplated by Article
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2 as provided in Article 2.
"Closing Date" has the meaning set forth in Section 8.3.
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"Confidential Information" has the meaning set forth in Section 5.7.
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"Effective Time" means 11:59 P.M. on the Closing Date.
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"Equipment" shall mean (a) all machinery, spare parts, equipment, tools,
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computers, furniture, fixtures, furnishings, office equipment (including,
without limitation, word processing, accounting, communication and reproduction
equipment) and the like of Seller used in the operation of the Business, and (b)
all assignable warranties covering all or any part of the Equipment.
"Excluded Assets" has the meaning set forth in Section 2.2.
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"Excluded Books And Records" has the meaning set forth in Section 2.2(a).
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"Financial Statements" has the meaning set forth in Section 4.1(f).
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"Galileo Debt" means that portion of the Seller Indebtedness owed by Seller
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to the Parent, evidenced by the promissory notes made by Seller in favor of
Galileo International, LLC, which notes have been assigned to Parent. The
current amount of the Galileo Debt is set forth on Exhibit A.
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"Generally Accepted Accounting Principles" or "GAAP" means the generally
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accepted accounting principles from time to time approved by the American
Institute of Certified Public Accountants.
"Governmental Body" means (i) any domestic or foreign national, federal,
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provincial, state, municipal or other governmental or body, (ii) any
international or other government or body, (ii) any international or
multilateral body, (iii) any subdivision, ministry, department, secretariat,
bureau, agency, commission, board, instrumentality or authority of any of the
foregoing governments or bodies, (iv) any quasi-governmental or private body
exercising any regulatory, expropriation or taxing authority under or for the
account of any of the foregoing governments or bodies, or (v) any domestic,
foreign, international, multilateral, or multinational judicial, quasi-judicial,
arbitration or administrative court, grand jury, tribunal, commission, board or
panel.
"Hassine Debt" means the indebtedness of Seller to Xxxxx Xxxxxxx as agent
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("Hassine") evidenced by the 5% Junior Subordinated Unsecured Note dated
December 23, 1999 in the original principal amount of $3,550,000 made by Seller
in favor of Hassine, and the additional indebtedness of Seller to Hassine
evidenced by the Stock Purchase Agreement dated December 23, 1999, in the
original principal amount of $1,100,000.
"Indemnified Party" has the meaning set forth in Section 9.3.
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"Indemnifying Party" has the meaning set forth in Section 9.3.
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"Intellectual Property Rights" shall mean any and all domestic and foreign
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intellectual property rights related to or used in the Business including (a)
patents, patent applications, trademarks, trade names, service marks,
copyrights, industrial designs, trade secrets, processes, inventions, know-how,
recipes, technology, computer software, customer and supplier lists, formulas,
franchises, licenses, right-to-use, drawings, specifications for products,
materials and equipment, process development, manufacturing information, quality
control information, performance data, plant service information and other
intellectual property, and (b) all registrations and applications for
registration of the aforesaid rights.
"Laws" will mean: (i) all constitutions, treaties, laws, statutes, codes,
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ordinances, orders, decrees, rules, regulations, and municipal by-laws, whether
domestic, foreign or international; (ii) all judgments, orders, writs,
injunctions, decisions, rulings, decrees, and awards of any Governmental Body;
and (iii) all policies, practices and guidelines of any Governmental Body.
"License Agreement" means the License Agreement in the form on Exhibit B.
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"Liens" means (i) all hypothecations, mortgages, pledges, privileges,
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liens, security interests, charges, deposits, easements, reserves, conditional
sale contracts, ownership or title retention agreements, leases, occupation
rights, encroachments, restrictive covenants, title defects and other
encumbrances or rights of others of any nature whatsoever or however arising,
(ii) any arrangement or condition that in substance secures payment or
performance of any obligation, and (iii) all actions, claims or demands of any
nature whatsoever or howsoever arising.
"Losses" has the meaning set forth in Section 9.1.
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"Management Agreement" means the Management Agreement in the form on
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Exhibit C.
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"Minority Shareholder Debt" means that portion of the Seller Indebtedness
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owed by Seller to Parent, evidenced by certain promissory notes and related debt
instruments made by Seller in favor of various Persons who were registered
owners of the common or preferred stock of Seller and who have assigned such
notes to Parent. The current amount of the Minority Shareholder Debt is set
forth on Exhibit A. The Minority Shareholder Debt does not include the Hassine
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Debt.
"Order" means any applicable proclamation, judgment, decree or order of any
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Governmental Body.
"Permits" shall mean all franchises, permits, licenses, certificates of
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compliance, consents, approvals and authorizations of, and registrations with,
any Governmental Body in any and all states where Seller conducts business and
has such Permits as are required for the operation of the Business.
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"Permitted Liens" means: (i) all Liens securing the Seller Indebtedness;
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(ii) all Liens existing as of the Effective Date that secure the amounts payable
by Seller to the Internal Revenue Code; and (iii) all Liens securing the amounts
payable under the Hassine Note.
"Person" will mean an individual, corporation, company, cooperative,
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partnership, trust, unincorporated association, or any other entity with
juridical personality, including any Governmental Body.
"Purchase Price" has the meaning set forth in Section 3.1
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"Purchased Assets" has the meaning set forth in Section 2.1.
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"Seller Indebtedness" has the meaning set forth in Recital D. The Seller
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Indebtedness is more fully described on Exhibit A.
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"Series F Preferred Stock" means the preferred stock of Parent having the
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terms set forth in Exhibit D.
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"Taxes" will mean all taxes (including, without limitation, income,
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corporation, capital, value added, sales, withholding, franchise, profits, gross
receipts, excise, property, stamp, transfer, land transfer, water, business and
goods and services taxes), imposts, duties, levies, deductions and withholdings
that are imposed under any Laws or by any taxing authority of competent
jurisdiction or Governmental Body.
"Third Party Claim" has the meaning set forth in Section 9.5.
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ARTICLE 2
PURCHASE AND SALE
2.1 Purchased Assets. Upon and subject to the terms and conditions of
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this Agreement, the Seller will sell, assign and transfer to the Purchaser, and
the Purchaser will purchase from the Seller, at the Closing, with effect as of
the Effective Time, all of the assets of the Seller described in subsections (a)
through (l) below (collectively, the "Purchased Assets"), free and clear of all
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Liens (other than the Permitted Liens):
(a) all right, title and interest of the Seller in and to the
Intellectual Property Rights related to the Business, including but not limited
to all trademarks and service marks (whether or not registered), websites and
the content thereof (subject to the bona fide rights of other content
providers), domain names, software licenses, paid or pre-paid software use
agreements listed on Schedule 2.1(a);
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(b) all right, title and interest of the Seller in the customer
database for the Business, including all software utilized to maintain, access
and update the database;
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(c) all right, title and interest of the Seller in the Books and
Records, including the Books and Records listed on Schedule 2.1(c), but
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specifically excluding the Excluded Books and Records;
(d) all right, title and interest of the Seller in the contracts and
commitments listed on Schedule 2.1(d) (the "Assigned Contracts");
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(e) all right, title and interest of the Seller in all tangible
personal property, including all furniture, fixtures and Equipment, necessary
for or used in the operation of the Business, including the tangible personal
property listed on Schedule 2.1(e) (the "Tangible Property");
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(f) all right, title and interest of the Seller in the personal
property leases listed on Schedule 2.1(f) (the "Personal Property Leases");
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(g) all cash of Seller, including, but not limited to, all right,
title and interest of the Seller in all bank accounts of the Seller on Schedule
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2.1(g) (the "Bank Accounts");
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(h) all notes receivable of the Seller and all accounts receivable of
Seller, including but not limited to, the notes receivable and accounts listed
on Schedule 2.1(h) (the "Receivables");
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(i) all right, title and interest of the Seller in all computer
hardware and software necessary for or used in the operation of the Business,
including , but not limited to, the computer hardware and software listed on
Schedule 2.1(i);
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(j) all right, title and interest of the Seller in all Permits
necessary to operate the Business, to the extent assignable;
(k) all right, title and interest of the Seller in all other assets
and property necessary for or used in the operation of the Business; and
(l) all goodwill related to the Business and the related Intellectual
Property Rights.
2.2 Excluded Assets. The provisions of Section 2.1 notwithstanding,
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Seller will not sell, transfer, assign, convey or deliver to Purchaser, and
Purchaser will not purchase from Seller, the following assets (collectively, the
"Excluded Assets"):
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(a) the Minute Books of the Seller and the books, records, files or
documentation and data (in whatever form) of the Seller listed on Schedule
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2.2(a) (the "Excluded Books and Records");
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(b) any contracts other than the Assumed Contracts; and
(c) any asset used in the operation of the Business that is not the
property of Seller.
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2.3 Limited Assumption of Liabilities.
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(a) Purchaser will not assume any liabilities and obligations of the
Seller or any of its Affiliates other than:
(i) those liabilities of the Seller listed on Schedule 2.3 (the
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"Assumed Liabilities");
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(ii) those liabilities and obligations under the Assigned
Contracts assumed by Purchaser pursuant to Section 2.4 (the "Assumed
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Contracts");
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(iii) those liabilities which Purchaser elects to assume with
respect to Seller's employees (the "Employee Liabilities"); and
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(iv) subject to the provisions of Section 2.3(c), the Hassine
Debt.
(b) The parties hereby acknowledge and agree that: (i) the Purchaser
is not assuming any portion of the Seller Indebtedness; and (ii) the Seller will
continue to be liable for all amounts due with respect to the Seller
Indebtedness (except to the extent that such debt is reduced under Section 3.3
of this Agreement), notwithstanding the Seller's transfer of the collateral for
such debt to Purchaser and Purchaser's agreement to accept such assets subject
to the Liens securing the Seller Indebtedness.
(c) In the event that the Purchaser is unable to reach an agreement
with Hassine with respect to the Hassine Debt on terms acceptable to the
Purchaser, then the Purchaser will assume the Hassine Debt, and the amount of
the Hassine Debt will be applied against the Purchase Price pursuant to Section
3.3.
2.4 Assumed Contracts. The Purchaser will have the right to review all
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of the Assigned Contracts of the Seller related to the Business for a period of
150 days following the date of this Agreement in order to determine which
contracts the Purchaser desires to assume. On or before the end of the 150th
day, the Purchaser shall notify the Seller of the Assigned Contracts that the
Purchaser desires to assume. Once Purchaser has identified an Assigned Contract
as one that Purchaser is willing to assume, Purchaser and the Seller shall
thereafter use commercially reasonable efforts to obtain any required consent of
any other party to the assumption of such contract by the Purchaser. If any
such consent cannot be obtained, the Seller will cooperate with the Purchaser in
any reasonable arrangement designed to provide to the Purchaser the benefits of
the contract. Any Assigned Contracts that the Purchaser desires to assume and
for which any assumption consents have been obtained prior to 180 days from
Effective Date, shall become an Assumed Contract for purposes of this Agreement.
Notwithstanding the foregoing, nothing contained herein shall operate so as to
relieve Seller from any of its obligations under any Assigned Contract, unless
Purchaser affirmatively and expressly assumes such obligation. Nothing
contained in this Section or any other provision of this Agreement is intended
to or shall confer any other Person (including any Person who is a party to any
Assigned Contract) any right to enforce any obligations of Seller under any such
contract against the Purchaser unless the Purchaser has expressly assumed such
obligation.
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ARTICLE 3
PURCHASE PRICE
3.1 Purchase Price. The purchase price (the "Purchase Price") for the
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Purchased Assets will be an amount equal to the fair value (the "Fair Value") of
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the Purchased Assets as of the Closing Date plus the sum of $1,500,000, provided
that in no event will the Purchase Price exceed $29,000,000.
3.2 Establishment of FairValue and Purchase Price. The parties agree
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to engage Capital Link LC (the "Appraiser") to establish the Fair Value and the
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Purchase Price. The Appraiser will determine the Fair Value and Purchase Price
based upon the value of the Business as a going concern. The determination of
the Appraiser shall be final and binding on the parties. Each party agrees to
provide the Appraiser with access to any and all information that the Appraiser
reasonably requests in order to establish the Fair Value and Purchase Price.
The Purchaser and the Seller shall each pay one half of the fees and expenses of
the Appraiser.
3.3 Payment of Purchase Price. The Purchase Price will be paid by the
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Purchaser through a combination of: (i) the assumption of certain liabilities of
Seller; (ii) if required, the reduction, effective as of the Effective Time, of
the Minority Shareholder Debt and AMLH Debt; and (iii) if required, through the
issuance of Series F Preferred Price Stock. In particular, the Purchaser will
pay the Purchase Price by applying the following items of consideration, in the
order of priority set forth below, until such items equal the Purchase Price:
(a) first, through the assumption of the Assumed Liabilities and
Employee Liabilities;
(b) then, through the assumption of the Seller's obligations under the
Assumed Contracts provided that Seller is absolved or indemnified for such
obligations; and
(c) then, subject to Section 2.3(c), through the assumption of the
Hassine Debt;
(d) then, through the reduction of the Minority Shareholder Debt;
(e) then, through the reduction of the AMLH Debt;
(f) then, through the issuance of Series F Preferred Stock based on a
value of $100.00 per share.
For avoidance of doubt, the parties acknowledge that the Purchaser will
only be obligated to provide the items of consideration described above until
such items equal the Purchase Price. Seller agrees that Purchaser may elect, at
its sole discretion, to pay all or a portion of the Purchase Price through the
reduction of other amounts owed by Seller to Parent, including but limited to
the Galileo Debt, in lieu of any of the items listed above.
3.4 Allocation of Purchase Price. The Purchase Price will be allocated
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among the Purchased Assets as set forth on Schedule 3.4. Once the Purchase
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Price is determined, the allocation of the Purchase Price will be final and
binding upon the Parties for all purposes, including, without limitation, the
filing of all Tax or other returns and the preparation of all financial
statements and other documents and records. The Seller and the Purchaser will,
and each hereby covenants with the other to execute and file in the prescribed
form such elections and/or agreements as may be required pursuant to any Law
that may require the same for the purpose of confirming the foregoing allocation
of the Purchase Price. The Seller and the Purchaser will also prepare and file
all of their respective Tax returns in a manner consistent with the aforesaid
allocations.
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3.5 Determination of Payment of Purchase Price. The Purchaser will
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determine the manner in which it will pay the Purchase Price on or before June
30, 2005, based upon the determination of the Purchase Price by the Appraiser
and the calculation of the liabilities assumed by Purchaser.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Seller. The Seller
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represents and warrants to the Purchaser as follows, each of which
representations and warranties is true and correct on the date hereof and will
remain true and correct on the Closing Date:
(a) Due Incorporation. The Seller is duly incorporated, validly
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existing and in good standing under the Laws of the State of Florida and has all
necessary corporate power and authority to own, lease and operate its assets and
properties (including, without limitation, the Purchased Assets) and to conduct
its business (including, without limitation, the operation of the Business) as
and in the places where such assets and properties are now owned, leased or
operated or such business is now conducted.
(b) Due Authorization. The Seller has the necessary corporate power
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and authority to cause its duly authorized officers to enter into and deliver
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement by the Seller and the performance by the Seller of
its obligations hereunder have been duly authorized by all necessary corporate
actions on its part and on the part of its shareholders. Such execution,
delivery and performance by the Seller does not require any action or consent
of, or any registration with, or notification to, any Person, or any action or
consent under any Laws to which the Seller is subject.
(c) Enforceability. This Agreement constitutes a legal, valid and
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binding obligation of the Seller, enforceable against the Seller in accordance
with its terms.
(d) No Conflict. The execution and delivery of this Agreement, the
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consummation of the transactions contemplated herein, the performance by the
Seller of its obligations hereunder and the compliance by the Seller of this
Agreement do not:
(i) violate, contravene or breach, or constitute a default under,
the articles of incorporation or by-laws of the Seller;
(ii) Except as set forth on Schedule 4.1(d), violate, contravene
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or breach, or constitute a default under, any contract, agreement, indenture,
instrument or commitment to which the Seller may be a party or to which the
Purchased Assets may be subject or by which any of them are bound or affected;
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(iii) result in the creation of, or require the creation of, any
Lien upon any Purchased Assets;
(iv) give to any Person the right to (1) terminate, cancel,
modify, amend, vary or renegotiate any Assigned Contract to which the Seller is
a party or to which any Purchased Assets may be subject or by which any such
Persons or property are bound or affected, (2) accelerate or forfeit any term of
payment, or (3) cause the Seller or any Purchased Assets to lose in whole or in
part any benefit which would otherwise accrue to Seller; or
(v) violate, contravene or breach any Law or Order.
(e) Tax Matters.
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(i) Seller has paid all Taxes that are currently due and payable,
and made adequate provision for the payment of all Taxes not yet due, other than
the amounts due to the Internal Revenue Service listed on Schedule 2.3. Since
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January 1, 2003, the Seller has not incurred any Taxes other than taxes incurred
in the ordinary course of business consistent in type and amount with past
practices of the Seller. All Tax returns required to be filed by or on behalf of
the Seller have been filed and when filed were true and correct in all material
respects, and the Taxes were paid or adequately accrued, other than the amounts
due to the Internal Revenue Service listed on Schedule 2.3. The Seller has duly
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withheld and paid all Taxes that it is required to withhold and pay relating to
salaries and other compensation heretofore paid to the employees of Seller,
other than the amounts due to the Internal Revenue Service listed on Schedule
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2.3. In the event that Purchaser or Parent pays any Tax liability of Seller,
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such amount will be applied against the Purchase Price.
(ii) Seller has not received from the Internal Revenue Service or
from the tax authorities of any state, county, local or other jurisdiction any
notice of underpayment of taxes or other deficiency which has not been paid nor
any objection to any return or report filed by Seller other than the amounts due
to the Internal Revenue Service listed on Schedule 2.3. There are outstanding no
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agreements or waivers extending the statutory period of limitations applicable
to any tax liability, other than with respect to the amounts due to the Internal
Revenue Service listed on Schedule 2.3.
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(f) Financial Statements. The Seller has delivered to the Purchaser
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the following internal financial statements for the fiscal years ended December
31, 2002 and 2003 and for the nine months ended September 30, 2004 (the
"Financial Statements"). The Financial Statements fairly present a true,
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correct and complete statement all in accordance with Generally Accepted
Accounting Principles applied on a basis consistent with prior periods. Seller
covenants to deliver to Purchaser audited financial statements for the years
ending 2002, 2003 and 2004 by February 28, 2005.
(g) Title to Property. The Seller is the sole and unconditional legal and
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beneficial owner of, and will at Closing, transfer to the Purchaser good and
valid title to, all of the Purchased Assets, and in each case free and clear of
any and all Liens, except the Permitted Liens.
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(h) Condition of Purchased Equipment. The Purchased Equipment is in good
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operating condition, subject to ordinary wear and tear for the age of such
equipment.
(i) Intellectual Property Rights.
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(A) Schedule 2.1(a) is a true and complete list of all Intellectual
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Property Rights owned by the Seller or used in the operation of the Business,
none of which have been opposed or held unenforceable. Each of the aforesaid
Intellectual Property Rights is duly recorded in the name of the Seller (in the
case of items capable of recording), and the Seller is the absolute owner and
has the sole and exclusive right to hold and use the said Intellectual Property
Right without making any payment to others (other than licensing fees) or
granting rights to others in exchange, except for Intellectual Property Rights
used under the licenses disclosed on Schedule 2.1(a).
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(B) Except as set forth on Schedule 4.1(i), to the knowledge of the
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Seller, the operation of the Business does not infringe in any respect upon the
Intellectual Property Rights of any Person and no Person has ever claimed or
threatened to claim the right to use any of the Intellectual Property Rights set
forth in said Schedule or to deny the right of the Seller to use the same.
There are no Intellectual Property Rights other than those set forth in said
Schedule which are owned or used by the Seller in connection with the operation
of the Business and which are material to operation of the Business, and the
only Persons who have any right to use any of the aforesaid Intellectual
Property Rights are set forth in said Schedule. To the knowledge of the Seller,
no person is infringing on any of the Intellectual Property Rights of the
Seller.
(C) Except as set forth on Schedule 4.1(i), to the knowledge of the
Seller, ---------------
the operation of the Business does not require or use Intellectual Property
Rights not owned or duly licensed by the Seller or which will not otherwise be
duly assigned to the Purchaser at the Closing.
(D) Except as set forth on Schedule 4.1(i), no proceeding for
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infringement of the Intellectual Property Rights of any Person is pending, or to
the knowledge of the Seller, or the Shareholders threatened against the Seller.
(j) Litigation. Except as set forth on Schedule 4.1(j), there are no:
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(i) actions, suits, claims, trials, demands, investigations, arbitrations and
other proceedings (whether or not purportedly on behalf of the Seller) pending
or to the knowledge of the Seller, threatened against, with respect to or
affecting in any manner, the Seller, the Business or any Purchased Assets; or
(ii) outstanding judgments orders, decrees, writs or injunctions, decisions,
rulings or awards against, with respect to, or in any manner affecting Seller,
the Business or any Purchased Assets. Schedule 4.1(j) sets forth for each
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pending claim or other matter listed on such Schedule, the Seller's good faith
assessment of the likely outcome of such claim or matter based upon consultation
with counsel to Seller.
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(k) Adequacy of Assets. The Purchased Assets constitute, in the
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aggregate, all of the assets and property necessary or useful for the operation
of the Business in the manner in which and to the extent to which the Business
is currently being operated, other than the physical facilities needed to
operate the Business. The Seller has adequate physical facilities to operate the
Business after Closing pursuant to the terms of the Management Agreement.
(l) Related Party Transactions. Except as set forth on Schedule
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4.1(l), no officer or director of the Seller, any Shareholder, any Person
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related by blood or marriage to any of such Person, or any entity in which any
such Person owns any beneficial interest, is a party to any of the Assigned
Contracts or potential Assigned Contracts or has any interest in any of the
Purchased Assets or has been an advertiser, supplier or competitor to the
Business.
(m) Permits. The Seller has all Permits required for the conduct of
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the Business. Schedule 4.1(m) sets forth a list of all Permits of the Seller.
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All such Permits are in full force and effect and are assignable to the
Purchaser in accordance with the terms hereof, except as noted on Schedule
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4.1(m). Since January 1, 2003, the Seller and the Business are and have been in
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material compliance with all such Permits.
(n) Compliance with Laws. Seller is in compliance with all Laws
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including, without limitation, those applicable to discrimination in employment,
occupational safety and health, trade practices, competition and pricing,
zoning, building and sanitation, employment, retirement and labor relations and
advertising. Except as disclosed on Schedule 4.1(n), Seller has not received
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notice of any violation or alleged violation of any Laws. All reports and
returns required to be filed by Seller with any Governmental Body have been
filed, and were materially accurate and complete when filed.
(o) No Changes. Since September 30, 2004, there has not been any
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adverse change in the Purchased Assets, the Business, prospects or operations of
the Business or the Seller or any fact, condition or contingency that is likely
to result in such a materially adverse change. Except as set forth in Schedule
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4.1(o), since September 30, 2004, the Seller has operated the Business in the
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ordinary course and in a manner consistent with past practices.
(p) Assigned Contracts; Status. Seller shall not, as of the Closing
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Date, and as of the date that Purchaser assumes any Assigned Contract, be in
default under such Contract. As of the Closing Date and as of the date that
Purchaser assumes any Assigned Contract, no third party will be in default under
any such Contract.
(q) Acknowledgement of Seller Indebtedness. The Seller hereby
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acknowledges and agrees that: (i) Exhibit A accurately sets forth the
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outstanding balance of the Seller Indebtedness as of the date of this Agreement,
including the amount of the Minority Shareholder Debt, the AMLH Debt and the
Galileo Debt; and (ii) all of the Seller Indebtedness is valid and enforceable.
Seller hereby waives, and as of the Closing Date, shall be deemed to have
waived, any and all defenses to the enforceability of the Seller Indebtedness.
(r) No Broker. Neither the Seller nor any of Seller's directors,
----------
officers or employees has employed or incurred any liability to any broker,
finder or agent for any brokerage fees, finder's fees, commissions or other
amounts with respect to this Agreement or any transactions contemplated hereby.
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(s) Full Disclosure. Except as disclosed in this Section 4.1 or as set
----------------
forth in any of the other Schedules, to the knowledge of the Seller, there is no
fact, condition or circumstance which has materially adversely or in the future
may (so far as the Seller can now reasonably foresee) materially adversely
affect the Business or the ability of the Seller to perform this Agreement.
4.2 Representations and Warranties of the Purchaser and Parent. The
-------------------------------------------------------------
Purchaser and Parent hereby represent and warrant to the Seller as follows, each
of which representations and warranties is true and correct on the date hereof
and will remain true and correct on the Closing Date:
(a) Due Incorporation. Each of the Purchaser and the Parent is duly
--------------------
incorporated, validly existing and in good standing under the Laws of the State
of its incorporation and has all necessary corporate power and authority to own,
lease and operate its properties and to carry on its business as and in the
places where such properties are now owned, leased or operated or such business
is now conducted.
(b) Due Authorization. The Purchaser and the Parent each have the
------------------
necessary corporate power and authority to enter into and deliver this Agreement
and to perform their obligations hereunder. Except as provided in Schedule
--------
4.2(b), the execution and delivery of this Agreement by the Purchaser and Parent
-----
and the performance by the Purchaser and Parent of their obligations hereunder
have been duly authorized by all necessary corporate action. Except as listed on
Schedule 4.2(b), such execution, delivery and performance by the Purchaser and
----------------
Parent does not require any action or consent of, or any registration with or
notification to, any Governmental Body or any action or consent under any Laws
to which the Purchaser or Parent is subject.
(c) Enforceability of Obligations. This Agreement constitutes a legal,
-----------------------------
valid and binding obligation of the Purchaser and Parent, enforceable against
them in accordance with its terms.
(d) No Conflict. The execution and delivery of this Agreement, the
------------
consummation of the transactions contemplated herein, the performance by the
Purchaser and Parent of their obligations hereunder and the compliance with the
provisions hereof by the Purchaser and Parent does not:
(i) violate, contravene or breach, or constitute a default under,
the articles of incorporation or by-laws of the Purchaser or Parent;
(ii) violate, contravene or breach, or constitute a default under
any contract, agreement, indenture, instrument or commitment to which the
Purchaser or Parent is a party or subject or by which they are bound or
affected;
(iii) result in the creation of, or require the creation of, any
Lien upon any of the Purchased Assets; and
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MIADOCS 753740 3
(iv) result in the violation of any Law or Order.
(e) No Broker. The Purchaser and Parent have not employed or
incurred any liability to any broker, finder or agent for any brokerage fees,
finder's fees, commissions or other amounts with respect to this Agreement or
any transactions contemplated hereby.
ARTICLE 5
ADDITIONAL COVENANTS OF THE PARTIES
5.1 Conduct of Business. From the date hereof through the Closing
---------------------
Date, the Seller will conduct its business in the ordinary course and in a
manner consistent with past practices.
5.2 Adverse Change. From the date hereof through the Closing Date, the
---------------
Seller will promptly notify the Purchaser of any circumstance or fact which
becomes known to the Seller which (a) would have the effect of making any
representation or warranty of the Seller false or misleading, (b) materially and
adversely affects the Seller, any Purchased Assets or the Business, or (c)
prevents the Seller from operating the Business in the ordinary course and in a
manner consistent with past practice. Without limiting the generality of the
foregoing the Seller will:
(a) give prompt written notice to the Purchaser of the commencement of
any action, suit, proceeding or investigation or the assertion of any material
claim or threat to commence any action, suit, proceeding or investigation; and
(b) keep the Purchaser fully and promptly informed as to any
developments in any pending action, suit, proceeding or investigation.
5.3 Operation of Business Prior to Closing. From the date hereof
-------------------------------------------
through the Closing Date, the Seller, will use commercially reasonable efforts
to (a) maintain the value of the Business; and (b) preserve the goodwill of all
Persons with whom it maintains business relations, including, without
limitation, all subscribers and advertisers of the Business.
5.4 Examination. From the date hereof through the Closing Date, the Seller
-----------
will afford to the Purchaser and its legal, accounting and other representatives
full access during normal business hours (without undue interference to the
ordinary conduct of the business of the Seller) to (a) the Books and Records
related to the Business, and (b) all executive personnel and auditors of the
Seller to consult with them in respect of (i) the Business and the manner in
which it is operated, and (ii) any questions raised by the Purchaser's
examination of the Purchaser and its representatives made pursuant to this
Section 5.4. The Seller will at its expense provide to the Purchaser copies
(certified by the Seller as true, complete and accurate, if requested) of all
documents listed in any Schedule hereto and all additional documents and
information concerning the Business and the Purchased Assets as the Purchaser
may reasonably request. The Parties acknowledge that all information and
documents delivered by Seller to Purchaser will remain subject to the
Confidentiality Agreement between the parties; provided, however, that such
agreement will terminate on the Closing Date.
5.5 Confidentiality; Publicity. Except as may be required by Law, including
--------------------------
but not limited to the requirement to provide notice of this transaction to
certain creditors of Seller, which Seller expressly undertakes to do, or
otherwise permitted or expressly contemplated by this Agreement, no party hereto
or their respective affiliates, employees, agents or representatives will
disclose to any third party this Agreement, the subject matter or the terms
hereof or any confidential information or other proprietary knowledge concerning
the business or affairs of the other party which it may have acquired from such
party in the course of pursuing the transactions contemplated by this Agreement
without the prior consent of the other party hereto. No press release or other
public announcement relating to this Agreement or the transactions contemplated
by this Agreement will be issued by any party hereto without the prior approval
of the Purchaser.
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5.6 No Other Discussions. The Seller and the Affiliates, employees, agents
---------------------
and representatives of the Seller will not (i) initiate or encourage the
initiation by others of discussions or negotiations with third parties or
respond to solicitations by third parties relating to the direct or indirect
acquisition of the Seller, the Business or any of the Purchased Assets or (ii)
enter into any agreement or commitment (whether or not binding) with respect to
the direct or indirect acquisition of the Seller, the Business or any of the
Purchased Assets. The Seller will promptly notify the Purchaser if any third
party attempts to initiate any solicitation, discussion, or negotiation with
respect to the foregoing transaction.
5.7 Covenant Against Competition.
------------------------------
(a) The parties acknowledge that the Purchaser and the Seller intend
to enter into the Management Agreement pursuant to which the Seller will be
authorized to continue to operate the Business on behalf of the Purchaser, as
more fully set forth in such agreement. The Seller's performance of its
obligations under the Management Agreement will not constitute a violation of
the provisions of this Section 5.7.
(b) Except as expressly permitted by Section 5.7(a), the Seller hereby
agrees that, subject to consummation of the Closing, Seller will not, without
the prior written consent of the Purchaser, for its own account or jointly with
another, directly or indirectly, for or on behalf of any Person, as principal,
agent, shareholder, participant, partner, promoter, lender, director, officer,
manager, employee, consultant, sales representative or otherwise:
(i) for a period of five (5) years from the Closing Date, engage
or invest in, or own, control, manage or participate in the development,
ownership, control, management, marketing or administration of, or render
services or advice to, or lend the name of the Seller to, any business engaged,
or which the Seller reasonably know is undertaking to become engaged, anywhere
in the world in any aspect of the development, ownership, control, management,
marketing or administration of any business that competes with the Business,
including any Business engaged in corporate or leisure travel management or
distribution (a "Competitive Business");
(ii) for a period of five (5) years from the Closing Date,
solicit or assist in the solicitation of, any Person employed by the Purchaser
(as an employee, independent contractor or otherwise), to terminate such
employment, whether or not such employment is pursuant to a Assigned Contract
and whether or not such employment is at will; or
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MIADOCS 753740 3
(iii) for a period of five (5) years from the Closing Date, use,
or disclose or reveal to any Person, any Confidential Information of the Seller
or Purchaser, including the subscriber databases or the advertiser database.
(c) For purposes of this Section 5.7, "Confidential Information" will
mean technical, business and other information of Seller, whether or not in
writing, which derives value from not being generally known to the public or to
other Persons who can obtain value from its disclosure or use, including,
without limitation, financial data, financial plans, lists or information
concerning actual or potential customers, suppliers and advertisers, information
regarding businesses plans and operations, methods and plans of operation,
marketing strategies, sales and distribution plans or strategies, cost
information, pricing strategies, and acquisition and investment plans.
Confidential Information includes information disclosed by third parties that
the Seller is obligated to maintain as confidential.
(d) Although the parties believe, in good faith, that the provisions
of this Section 5.7 are reasonable in both geographic area and in duration, and
it is not anticipated, nor is it intended, by any of the parties that a
Governmental Body would find it necessary to reform the provisions hereof to
make them reasonable in both geographic area and in duration, or otherwise, the
parties understand and agree that if a Governmental Body of competent
jurisdiction determines it necessary to reform the scope of the provisions of
this Section 5.7 in order to make them reasonable in either geographic area or
duration, or otherwise, damages, if any, for a breach hereof, as so reformed,
would be deemed to accrue to the Purchaser as of and from the date of such a
breach only insofar as the damages for such breach relate to an action which
occurred within the scope of the corrected geographic area.
5.8 Transfer Taxes. The Seller will be liable for and will pay all
---------------
transfer Taxes (if any), payable upon and in connection with the sale,
assignment and transfer of the Purchased Assets from the Seller to the Purchaser
hereunder.
5.9 Management Agreement. At the Closing, the Purchaser and the Seller will
--------------------
enter into the Management Agreement.
5.10 License Agreement. At the Closing, the Purchaser and Seller will enter
-----------------
into the License Agreement.
5.11 Post Closing Deliveries. The parties will deliver the documents
------------------------
described on Schedule 5.11 within forty-five (45) days of the Closing Date.
--------------
ARTICLE 6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
6.1 Survival of Representations and Warranties. The representations
---------------------------------------------
and warranties of the parties contained in this Agreement, in the Exhibits and
Schedules annexed hereto or in any certificate or other document delivered or
given pursuant to this Agreement will survive the consummation of the
transactions contemplated by this Agreement and will continue in full force and
effect for the benefit of the Purchaser for a period of five (5) years from the
Closing Date, except for the representations and warranties of Seller set forth
in Section 4.1, which will be unlimited as to duration.
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ARTICLE 7
CONDITIONS OF CLOSING
7.1 Conditions for the Benefit of the Purchaser. Each and every
-------------------------------------------------
obligation of Purchaser and Parent to be performed on the Closing Date will be
subject to the satisfaction prior to or at Closing of each of the following
conditions:
(a) Truth of Representations and Warranties. The representations and
-----------------------------------------
warranties of the Seller contained in this Agreement or in any Schedule annexed
hereto or in any certificate or other document delivered or given pursuant
hereto will be true and correct when made and will be true and correct in all
material respects as of the Closing Date as though made at such time on such
date, except for changes consented to in writing by Purchaser.
(b) Performance of Covenants. The Seller will have performed or
--------------------------
complied in all material respects with all covenants, agreements and obligations
herein contained to be performed or complied with or caused to be performed or
complied with by them.
(c) Third Party Approvals. There will have been obtained from all
-----------------------
appropriate Persons all such approvals, consents and assurances in form and
substance satisfactory to the legal counsel of the Purchaser, acting reasonably,
in order to permit, as the case may be, either the change of ownership of the
Purchased Assets or the assumption of the Assigned Contracts as contemplated
herein to be completed without affecting or resulting in the termination,
cancellation, modification, amendment, variation or renegotiation of any of the
Purchased Assets or this Agreement.
(d) No Material Change. From the date hereof through the Closing Date,
--------------------
there will have been no material adverse change in the operations or prospects
of the Business.
(e) Litigation. There will be no actions, suits, claims, trials,
----------
demands, investigations, arbitrations or other proceeding pending or threatened
to restrain, enjoin or invalidate any transaction contemplated by this
Agreement, or which, in the judgment of the Purchaser, makes it inadvisable to
proceed with the transactions contemplated by this Agreement.
(f) Approval of the Board of Directors of Parent and Purchaser. The
------------------------------------------------------------
approval of this Agreement by the board of directors of the Parent and of
Purchaser.
7.2 Conditions for the Benefit of the Seller. Each and every
----------------------------------------------
obligation of the Seller to be performed on the Closing Date will be subject to
the satisfaction prior to or at Closing of each of the following terms and
conditions:
(a) Truth of Representations and Warranties. The representations and
-----------------------------------------
warranties of the Purchaser and Parent contained in this Agreement or in any
Schedule annexed hereto or in any certificate or other document delivered or
given pursuant hereto will be true and correct when made and will be true and
correct in all material respects as of the Closing Date as though made at such
time on such date, except for changes consented to in writing by Seller.
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(b) Performance of Covenants. The Purchaser and Parent will have
--------------------------
performed or complied in all material respects with all covenants, agreements
and obligations herein contained to be performed or complied with or caused to
be performed or complied by the Purchaser and Parent.
(c) Litigation. There will be no actions, suits, claims, trials,
-----------
demands, investigations, arbitrations or other proceedings (whether or not
purportedly on behalf of the Purchaser and Parent) pending or threatened to
restrain, enjoin or invalidate any transaction contemplated by this Agreement.
ARTICLE 8
CLOSING
8.1 Date, Time and Place of Closing. The Closing will take place at
----------------------------------
the offices of Seller in Coral Gables, Florida, on December 31, 2004 (the
"Closing Date"), or at such other place, on such other date and/or at such other
--------------
time as may be agreed between the Seller and Purchaser. The Closing will be
effective as of the Effective Time, or on such other date and/or time as may be
agreed between Seller and Purchaser.
8.2 Documents to be Delivered by Seller. At the Closing, Seller will
----------------------------------------
deliver to Purchaser the following documents, in each case duly executed or
otherwise in proper form:
(a) Assignment Instruments. (i) A Xxxx of Sale substantially in the
-----------------------
form of Exhibit D (the "Xxxx of Sale"), and (ii) such other good and sufficient
------------
instruments of conveyance, assignment and transfer, duly executed by the Seller,
in form and substance reasonably acceptable to the Purchaser's counsel, as shall
be effective to vest in the Purchaser good title to the Purchased Assets (the
Xxxx of Sale and the other instruments referred to in this Section 8.2(a) being
collectively referred to as the "Assignment Instruments");
-----------------------
(b) Compliance Certificate. A certificate signed by the chief
-----------------------
executive officer of Seller that each of the representations and warranties made
by Seller in this Agreement is true and correct in all material respects on and
as of the Closing Date with the same effect as though such representations and
warranties had been made or given on and as of the Closing Date (except for any
changes permitted by the terms of this Agreement or consented to in writing by
Purchaser), and that Seller have performed and complied with all of Seller's
obligations under this Agreement which are to be performed or complied with on
or prior to the Closing Date.
(c) Management Agreement and License Agreement. The Management
Agreement and License Agreement, duly executed by the Seller.
(d) Certified Resolutions. A certified copy of the resolutions of the
---------------------
Board of Directors and a majority of the shareholders of Seller entitled to vote
authorizing and approving this Agreement and the consummation of the
transactions contemplated by this Agreement.
(e) Articles; By-laws. A copy of the By-laws of Seller certified by
------------------
the secretary of Seller, and a copy of the Articles of Incorporation of Seller
certified by the Secretary of State of the State of Florida.
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(f) Incumbency Certificate. Incumbency certificates relating to each
-----------------------
person executing any document executed and delivered to Purchaser pursuant to
the terms hereof.
(g) Other Documents. All other documents, instruments or writings
----------------
required to be delivered to Purchaser at or prior to the Closing pursuant to
this Agreement and such other certificates of authority and documents as
Purchaser may reasonably request.
8.3 Documents to be Delivered by Purchaser and Parent. At the Closing,
-----------------------------------------------------
Purchaser and Parent will deliver to the Seller the following documents, in each
case duly executed or otherwise in proper form:
(a) Compliance Certificate. A certificate signed by an executive
-----------------------
officer of Purchaser and Parent that the representations and warranties made by
Purchaser and Parent in this Agreement are true and correct on and as of the
Closing Date with the same effect as though such representations and warranties
had been made or given on and as of the Closing Date (except for any changes
permitted by the terms of this Agreement or consented to in writing by Seller),
and that Purchaser and Parent have performed and complied with all of their
obligations under this Agreement which are to be performed or complied with on
or prior to the Closing Date.
(b) Management Agreement and License Agreement. The Management
---------------------
Agreement and Lease Agreement duly executed by the Purchaser.
(c) Certified Resolutions. A certified copy of the resolutions of the
---------------------
Board of Directors of Purchaser and Parent authorizing and approving this
Agreement and the consummation of the transactions contemplated by this
Agreement.
(d) Incumbency Certificate. Incumbency certificates relating to each
-----------------------
person executing any document executed and delivered to Seller by Purchaser and
Parent pursuant to the terms hereof.
(e) Other Documents. All other documents, instruments or writings
----------------
required to be delivered to Purchaser and Parent at or prior to the Closing
pursuant to this Agreement and such other certificates of authority and
documents as Seller may reasonably request.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification by the Seller. The Seller will indemnify and save
--------------------------------
harmless the Purchaser and Parent from and against any claims, demands, actions,
causes of action, judgments, damages, losses (which will include any diminution
in value), liabilities, costs or expenses (including, without limitation,
interest, penalties and reasonable attorneys' and experts' fees and
disbursements) (collectively, the "Losses") which may be made against the
------
Purchaser or which it may suffer or incur as a result of, arising out of or
relating to:
(a) any material breach, non-performance of or non-compliance with any
covenant, agreement or obligation of the Seller or pursuant to this Agreement;
18
MIADOCS 753740 3
(b) any material breach of, any representation or warranty made by the
Seller in Section 4.1, the Schedules annexed hereto or in any certificate or
other document delivered or given pursuant hereto;
(c) any liabilities or obligations of the Seller; and
(d) any claims asserted by any third party arising from the operation
of the Business prior to the Closing Date, including any claims asserted by the
shareholders of Seller.
(e) any claims asserted by Seamless Technologies, Inc. arising from
the consummation of the transactions contemplated by this Agreement, including,
but not limited to, any claims based upon any alleged breach of the Agreement
known as the Seamless Litigation Funding Agreement.
(f) any claims asserted by e-Traveleaders, Inc. arising from the
transactions contemplated by this Agreement, including, but not limited to, any
claims based upon the alleged breach by Seller of the any agreement with
e-Traveleaders, Inc.
9.2 Indemnification by Purchaser. The Purchaser will indemnify and
------------------------------
save harmless the Seller from and against any Losses which may be made against
the Seller or which the Seller may suffer or incur as a result of, in respect of
or arising out of:
(a) any breach, non-performance of or non-compliance with any
covenant, agreement or obligation of the Purchaser under or pursuant to this
Agreement; and
(b) any incorrectness in, or breach of, any representation or warranty
made by the Purchaser in Section 4.2, the Schedules hereto annexed or in any
certificate or other document delivered or given pursuant hereto.
For avoidance of doubt, the parties acknowledge and agree that under no
circumstances will the Purchaser be obligated to indemnify the Seller for any
claims asserted by any person that the transactions contemplated by this
Agreement violate any of the rights, duties or obligations of the Seller,
Purchaser, Parent or any other person.
9.3 Obligation to Reimburse. The party providing indemnification
-------------------------
hereunder (the "Indemnifying Party") will reimburse, on demand, the party being
------------------
indemnified hereunder (the "Indemnified Party") for the amount of any Losses
------------------
suffered or incurred by the Indemnified Party, as of the date that the
Indemnified Party incurs any such Losses. If such reimbursement is not made
within ten (10) days after the demand therefore, the Indemnified Party may
set-off the amount of any Losses for which it is entitled to indemnification
against any and all amounts otherwise owed by the Indemnified Party to the
Indemnifying Party pursuant hereto or to any other agreement between the parties
or otherwise.
9.4 Notification. Promptly upon obtaining knowledge thereof, the
------------
Indemnified Party will notify the Indemnifying Party of any cause that the
Indemnified Party has determined has given or could give rise to indemnification
under this Article 9. The omission so to notify the Indemnifying Party will not
relieve the Indemnifying Party from any duty to indemnify and hold harmless
which otherwise might exist with respect to such cause unless (and only to that
extent) the omission to notify materially prejudices the ability of the
Indemnifying Party to exercise its right to defend provided in this Article 9.
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9.5 Defense of Third Party Claims. If any legal proceeding will be
---------------------------------
instituted or any claim or demand will be asserted by a third party against the
Indemnified Party (each a "Third Party Claim"), then the Indemnifying Party will
-----------------
have the right, after receipt of the Indemnified Party's notice under Section
9.4 and upon giving written notice to the Indemnified Party within seven (7)
days of such receipt, to defend the Third Party Claim at its own cost and
expense with counsel of its own selection, provided that:
(a) the Indemnified Party will at all times have the right to fully
participate in the defense at its own expense;
(b) the Third Party Claim seeks only monetary damages and does not
seek any injunctive or other relief against the Indemnified Party;
(c) the Indemnifying Party unconditionally acknowledges in writing its
obligation to indemnify and hold the Indemnified Party harmless with respect to
the Third Party Claim; and
(d) legal counsel chosen by the Indemnifying Party is satisfactory to
legal counsel of the Indemnified Party, acting reasonably.
9.6 No Compromise. The Indemnifying Party will not be permitted to
--------------
compromise and settle or to cause a compromise and settlement of any Third Party
Claim, without the prior written consent of the Indemnified Party.
9.7 Failure to Defend. If the Indemnifying Party fails:
-------------------
(a) within seven (7) Business Days from receipt of the notice of a
Third Party Claim to give notice of its intention to defend the Third Party
Claim in accordance with Section 9.5; or
(b) to comply at any time with the other requirements of Section 9.5,
then the Indemnifying Party will be deemed to have waived its right to defend
the Third Party Claim and the Indemnified Party will have the right (but not the
obligation) to undertake or to cause the defense of the Third Party Claim and
compromise and settle the Third Party Claim on behalf, for the account and at
the risk and expense of the Indemnifying Party.
9.8 Non-Waiver. The rights, remedies and recourses of the Seller and
----------
Purchaser hereunder will not be affected by the Closing having occurred, by any
investigation made by or on behalf of either party, by either party terminating
or failing to terminate this Agreement or by any other event or matter
whatsoever except a specific and duly authorized written waiver or release
executed by the waiving party.
9.9 Limitation on Claims for Indemnification. No party to this Agreement or
----------------------------------------
other Person entitled to indemnification under this Article 9 may assert a claim
for indemnification under this Article 9 unless such Person provides written
notice of such claim to the Indemnifying Party on or before: (i) the fifth
anniversary of the Closing Date, but in the case of any claim based upon a
breach of the representations and warranty set forth in Section 4.1 within 30
days of the receipt of notice of a Third Party Claim.
20
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ARTICLE 10
TERMINATION
10.1 Right of Termination Without Breach. This Agreement may be
---------------------------------------
terminated without further liability by any party at any time prior to the
Closing:
(a) by mutual written agreement of Seller, Parent and Purchaser;
(b) by either Parent, Purchaser or Seller if the Closing will not have
occurred on or before March 1, 2005, provided the terminating party has not,
--------
through a breach of a representation, warranty or covenant, prevented the
Closing from occurring on or before such date.
10.2 Effect of Termination. Termination of this Agreement pursuant to
----------------------
this Section 10.3 will not in any way terminate, limit or restrict the rights
and remedies of any party hereto against any other party which has violated,
breached or failed to satisfy any of the representations, warranties, covenants,
agreements, conditions or other provisions of this Agreement prior to
termination hereof.
ARTICLE 11
MISCELLANEOUS
11.1 Gender. Any reference in this Agreement to any gender will
------
include all genders and words used herein importing the singular number only
will include the plural and vice versa.
11.2 Headings. The division of this Agreement into Articles, Sections,
--------
Subsections and other subdivisions and the insertion of headings are for
convenience of reference only and will not affect or be utilized in the
construction or interpretation of this Agreement.
11.3 Severability. If any provision or covenant, or any part thereof,
------------
of this Agreement should be held by any Governmental Body to be invalid, illegal
or unenforceable, either in whole or in part, then such invalidity, illegality
or unenforceability will not affect the validity, legality or enforceability of
the remaining provisions or covenants, or any part thereof, of this Agreement,
all of which will remain in full force and effect.
11.4 Entire Agreement. This Agreement together with any documents to
-----------------
be delivered pursuant hereto constitute the entire agreement by and between the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties in respect of such subject matter. The Schedules to this
Agreement are a part of this Agreement.
11.5 Amendment. No amendment of this Agreement will be binding unless
---------
expressly provided in an instrument duly executed by the parties.
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11.6 Waiver. No waiver, whether by conduct or otherwise, of any of the
------
provisions of this Agreement will be deemed to constitute a waiver of any other
provisions (whether or not similar) nor will such waiver constitute a continuing
waiver unless otherwise expressly provided in an instrument duly executed by the
parties.
11.7 Governing Law. This Agreement will be interpreted and construed in
--------------
accordance with the Laws of the State of Florida and the laws of the United
States of America applicable therein. Any action, suit or proceeding relating
to, arising out of, or in connection with this Agreement, subject to the
arbitration provisions contained in this Agreement, may be brought by any party
against any other party in an appropriate Federal or state court located in
Florida. All parties hereby waive any objection to jurisdiction or venue in any
such proceeding before said court.
11.8 Accounting Principles. Accounting terms not otherwise defined herein
----------------------
have the meanings given to them under Generally Accepted Accounting Principles.
11.9 Further Assurances. Each of the parties upon the request of any other
-------------------
party, whether before or after the Closing, will do, execute, acknowledge and
deliver or cause to be done, executed, acknowledged or delivered all such
further acts, deeds, documents, assignments, transfers conveyances, powers of
attorney and assurances as may be reasonably necessary or desirable to effect
complete consummation of the transactions contemplated by this Agreement.
11.10 Successors in Interest. This Agreement and the provisions hereof will
----------------------
inure to the benefit of and be binding upon the parties and their respective
successors and permitted assigns. No party may assign this Agreement or any of
its rights and obligations hereunder without the prior consent of all of the
other parties.
11.11 No Third Party Beneficiaries. Except as provided in Article 9,
------------------------------- ---------
nothing in this Agreement is intended or shall be construed to give any Person
(including employees of the parties), other than the parties hereto, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein
11.12 Notices. Any notice, consent, authorization, direction or other
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communications required or permitted to be given hereunder will be in writing
and will be delivered either by (a) personal delivery, (b) telex, telecopy or
similar telecommunication device, or (c) sent to the parties at their respective
addresses indicated herein by registered or certified mail, return receipt
requested and postage prepaid, or by private overnight mail courier service, and
addressed as follows:
in the case of the Seller, to it at:
Xxxxx Xx Xxxx Xxxx.
Xxxxx Xxxxxx, XX 00000
Attn: President
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with a mandatory copy to:
Xxxxx Xxxxxx, Esq.
Camner, Xxxxxxx & Poller
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
in the case of the Purchaser, to it at:
Xxxxxx Xxxx
Xxxxxxx, XX 00000
with a mandatory copy to:
Xxxxxx Xxxxx, Esq.
Xxxxxx & Xxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxxxx Xxxx.
Xxxxx, XX 00000
Any notice, consent, authorization, direction or other communication as
aforesaid will be deemed to have been effectively delivered and received, if
sent by telecopy or similar telecommunications device, on the business day next
following such transmission; if personally delivered, on the date of such
delivery; if sent by overnight courier, on the date of delivery; and if sent by
U.S. mail, as of the date of delivery indicated on the receipt, or, if the
recipient refuses delivery, as of the date of such refusal; provided, however,
that if delivered by means other than personal delivery and the date of receipt
is not a business day then it will be deemed to have been delivered and received
on the business day next following such delivery. Any party may change its
address for service by written notice given as aforesaid.
11.13 Expenses. Each party will bear and pay all costs, expenses and
--------
fees (including, without limitation, legal counsel and accounting fees and
disbursements) incurred by such party in connection with the preparation,
execution and consummation of this Agreement and the transactions contemplated
hereunder.
11.14 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which when so executed will be deemed an original, and
such counterparts together will constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PURCHASER:
----------
AMERICAN LEISURE EQUITIES CORPORATION
By: /s/ L. Xxxxxxx Xxxxxx
---------------------------------
Its: V. President
---------------------------------
Name: L. Xxxxxxx Xxxxxx
---------------------------------
PARENT:
-------
AMERICAN LEISURE HOLDINGS, INC.
By: /s/ L. Xxxxxxx Xxxxxx
---------------------------------
Its: Chairman of Board
---------------------------------
Name: L. Xxxxxxx Xxxxxx
---------------------------------
SELLER:
-------
AROUND THE WORLD TRAVEL, INC.
By: /s/ Xxxxx St. Clair
---------------------------------
Its: Chairman & CEO
---------------------------------
Name: Xxxxx St. Clair
---------------------------------
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MIADOCS 753740 3
The undersigned, constituting the holders of a majority of the outstanding
common stock of Around the World Travel, Inc., a Florida corporation, hereby
approve the execution, delivery and performance of the foregoing Asset Purchase
Agreement by Around The World Travel, Inc., including the transactions
contemplated by such Agreement.
AROUND THE WORLD HOLDINGS LLC
By: /s/ Xxxxx St. Clair
---------------------------------
Its: Member
---------------------------------
Name: Xxxxx St. Clair
---------------------------------
ATWH LLC
By: /s/ Xxxxx St. Clair
---------------------------------
Its: Member
---------------------------------
Name: Xxxxx St. Clair
---------------------------------
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MIADOCS 753740 3
