AMERICAN LEISURE HOLDING, INC.
A NEVADA CORPORATION
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of January 29, 2003, (the
"AGREEMENT"), is entered into by and among American Leisure Holding, Inc. a
Nevada corporation (the "COMPANY") and Stanford Venture Capital Holdings, Inc.,
a Delaware corporation (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, the Company and the Purchaser are executing and delivering
this Agreement in reliance upon the exemptions from registration provided by
Regulation D ("REGULATION D") promulgated by the Securities and Exchange
Commission (the "COMMISSION") under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and/or Section 4(2) of the Securities Act; and
WHEREAS, upon the terms and conditions of this Agreement, the Purchaser
has agreed to purchase, and the Company wishes to issue and sell, as set forth
in that certain Asset Sale Agreement dated as of November 20, 2002 among the
Company, the Purchaser and Call Center Acquisition LLC, a Florida limited
liability company (the ASSET SALE AGREEMENT") 23,850 shares of the Company's 4%
Series C Convertible Redeemable Preferred Stock, $0.01 par value per share (the
"SERIES C PREFERRED STOCK"), the terms of which are as set forth in the
Certificate of Designation of Series C Preferred Stock attached hereto as
Exhibit A (the "SERIES C CERTIFICATE OF DESIGNATION") and 100,000 shares of
Common Stock, par value $0.001 of the Company (collectively, the "SECURITIES");
and
WHEREAS, the Series C Preferred Stock shall be convertible into shares
of Common Stock pursuant to the terms set forth in the Series C Certificate of
Designation; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. AGREEMENT TO PURCHASE; PURCHASE PRICE
(a) PURCHASE OF PREFERRED STOCK. Subject to the terms and
conditions in this Agreement, the Purchaser hereby agrees to purchase from the
Company, and the Company hereby agrees to issue and sell to the Purchaser 23,850
shares of Series C Preferred Stock and 100,000 shares of Common Stock.
(b) CLOSING. The Closing shall occur at the date, time and
place set forth in the Asset Sale Agreement (the "CLOSING").
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2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION
The Purchaser represents and warrants to, and covenants and agrees
with, the Company as follows:
(a) QUALIFIED INVESTOR. The Purchaser is (i) experienced in
making investments of the kind described in this Agreement and the related
documents, (ii) able to afford the entire loss of its investment in the
Securities, and (iv) an "ACCREDITED INVESTOR" as defined in Rule 501(a) of
Regulation D and knows of no reason to anticipate any material change in its
financial condition for the foreseeable future.
(b) RESTRICTED SECURITIES. The Securities are "restricted
securities" as defined in Rule 144 promulgated under the Securities Act. All
subsequent offers and sales by the Purchaser of the Securities shall be made
pursuant to an effective registration statement under the Securities Act or
pursuant to an applicable exemption from such registration.
(c) RELIANCE ON REPRESENTATIONS. The Purchaser understands
that the Securities are being offered and sold to it in reliance upon exemptions
from the registration requirements of the United States federal securities laws,
and that the Company is relying upon the truthfulness and accuracy of the
Purchaser's representations and warranties, and the Purchaser's compliance with
its covenants and agreements, each as set forth herein, in order to determine
the availability of such exemptions and the eligibility of the Purchaser to
acquire the Securities.
(d) ACCESS TO INFORMATION. The Purchaser (i) has been provided
with sufficient information with respect to the business of the Company for the
Purchaser to determine the suitability of making an investment in the Company
and such documents relating to the Company as the Purchaser has requested and
the Purchaser has carefully reviewed the same, (ii) has been provided with such
additional information with respect to the Company and its business and
financial condition as the Purchaser, or the Purchaser's agent or attorney, has
requested, and (iii) has had access to management of the Company and the
opportunity to discuss the information provided by management of the Company and
any questions that the Purchaser had with respect thereto have been answered to
the full satisfaction of the Purchaser.
(e) LEGALITY. The Purchaser has the requisite corporate power
and authority to enter into this Agreement.
(f) AUTHORIZATION. This Agreement and any related agreements,
and the transactions contemplated hereby and thereby, have been duly and validly
authorized by the Purchaser, and such agreements, when executed and delivered by
each of the Purchaser and the Company will each be a valid and binding agreement
of the Purchaser, enforceable in accordance with their respective terms, except
to the extent that enforcement of each such agreement may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors rights
generally and to general principles of equity.
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(g) INVESTMENT. The Purchaser is acquiring the Securities for
investment for the Purchaser's own account, not as a nominee or agent, and not
with the view to, or for resale in connection with, any distribution thereof,
nor with any present intention of distributing or selling such Securities. The
Purchaser is aware of the limits on resale imposed by virtue of the transaction
contemplated by this Agreement and is aware that the Securities will bear
restrictive legends.
(h) LITIGATION. There is no action, suit, proceeding or
investigation pending or, to the Knowledge of the Purchaser (as defined herein),
currently threatened against the Purchaser that questions the validity of the
Primary Documents (as defined below) or the right of Purchaser to enter into any
such agreements or to consummate the transactions contemplated hereby and
thereby, nor, to the Knowledge of Purchaser, is there any basis for the
foregoing. All references to the "KNOWLEDGE" means the actual knowledge of the
person in question or the knowledge such person could reasonably be expected to
have each after reasonable investigation and due diligence.
(i) BROKER'S FEES AND COMMISSIONS. Neither the Purchaser nor
any of its officers, partners, employees or agents has employed any investment
banker, broker, or finder in connection with the transactions contemplated by
the Primary Documents.
3. REPRESENTATIONS OF THE COMPANY
Only as disclosed in the SEC Filings (as defined herein) the Company
represents and warrants to, and covenants and agrees with the Purchaser that:
(a) ORGANIZATION. The Company is a corporation duly organized
and validly existing and in good standing under the laws of the State of Nevada
and has all requisite corporate power and authority to carry on its business as
now conducted and as proposed to be conducted. The Company has no other interest
in any other entities. The Company is duly qualified as a foreign corporation
and in good standing in all jurisdictions in which either the ownership or use
of the properties owned or used by it, or the nature of the activities conducted
by it, requires such qualification. The minute books and stock record books and
other similar records of the Company are complete and correct in all material
respects and have been maintained in accordance with sound business practices.
Such minute books contain true and complete records of all actions taken at all
meetings and by all written consents in lieu of meetings of the directors,
stockholders and committees of the board of directors of the Company from the
date of organization through the date hereof. The Company has, prior to the
execution of this Agreement, delivered to the Purchaser true and complete copies
of the Company's Articles of Incorporation, and Bylaws, each as amended through
the date hereof. The Company is not in violation of any provisions of its
Articles of Incorporation or Bylaws.
(b) CAPITALIZATION. On the date hereof, the authorized capital
of the Company consists of: (i) 100,000,000 shares of Common Stock, par value
$0.001 per share, of which 6,685,974 shares are issued and outstanding; and (ii)
10,000,000 shares of preferred stock, par value $0.01 per share, of which
1,000,000 shares have been designated Series A Preferred Stock (of which 880,000
shares are issued and outstanding), 1,000,000 shares have been designated Series
B Preferred Stock (of which 2,500 shares are issued and outstanding), and 28,000
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shares are designated as Series C Preferred Stock (of which as of the Closing
27,191 shares shall be issued and outstanding). The Company's SEC Filings sets
forth the number and terms of all options, warrants, notes, or any other rights
or instruments which would entitle the holder thereof to acquire shares of the
Common Stock or other equity interests in the Company upon conversion or
exercise, setting forth for each such holder the type of security, number of
equity shares covered thereunder, the exercise or conversion price thereof, the
vesting schedule thereof (if any), and the issuance date and expiration date
thereof. There are no outstanding rights, agreements, arrangements or
understandings to which the Company is a party (written or oral) which would
obligate the Company to issue any equity interest, option, warrant, convertible
note, or other types of securities or to register any shares in a registration
statement filed with the Commission. There is no agreement, arrangement or
understanding between or among any entities or individuals which affects,
restricts or relates to voting, giving of written consents, dividend rights or
transferability of shares with respect to any voting shares of the Company,
including without limitation any voting trust agreement or proxy. There are no
outstanding obligations of the Company to repurchase, redeem or otherwise
acquire for value any outstanding shares of capital stock or other ownership
interests of the Company or to provide funds to or make any investment (in the
form of a loan, capital contribution or otherwise) in any other entity. There
are no anti-dilution or price adjustment provisions regarding any security
issued by the Company (or in any agreement providing rights to security holders)
that will be triggered by the issuance of the Securities.
(c) CONCERNING THE COMMON STOCK AND THE PREFERRED. The
Securities and the Common Stock issuable upon conversion of the Series C
Preferred Stock when issued, shall be duly and validly issued, fully paid and
non-assessable and will not subject the holder thereof to personal liability by
reason of being such a holder.
(d) AUTHORIZED SHARES. The Company shall have available a
sufficient number of authorized and unissued shares of Common Stock as may be
necessary to effect conversion of the Series C Preferred Stock. The Company
understands and acknowledges the potentially dilutive effect to the Common Stock
of the issuance of shares of Common Stock upon the conversion of the Series C
Preferred Stock. The Company further acknowledges that its obligation to issue
shares of Common Stock upon conversion of the Series C Preferred Stock is
absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other stockholders of the Company.
(e) LEGALITY. The Company has the requisite corporate power
and authority to enter into this Agreement, and to issue and deliver the
Securities and the Common Stock issuable upon conversion of the Series C
Preferred Stock.
(f) TRANSACTION AGREEMENTS. This Agreement, the Asset Sale
Agreement, the Registration Rights Agreement (as defined below), and the Series
C Certificate of Designation (collectively, the "PRIMARY DOCUMENTS"), and the
transactions contemplated hereby and thereby, have been duly and validly
authorized by the Company; this Agreement has been duly executed and delivered
by the Company and this Agreement is, and the other Primary Documents, when
executed and delivered by the Company, will each be, a valid and binding
agreement of the Company, enforceable in accordance with their respective terms,
except to the extent that enforcement of each of the Primary Documents may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
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conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally and to general principles of equity.
(g) FINANCIAL STATEMENTS. The financial statements and related
notes thereto contained in the Company's filings with the Commission as of
September 30, 2002 (the "COMPANY FINANCIALS") are correct and complete in all
material respects, comply in all material respects with the Securities Exchange
Act of 1934, as amended (the "EXCHANGE ACT"), and the rules and regulations of
the Commission promulgated thereunder and have been prepared in accordance with
United States generally accepted accounting principles applied on a basis
consistent throughout the periods indicated and consistent with each other. The
Company Financials present fairly and accurately the financial condition and
operating results of the Company in all material respects as of the dates and
during the periods indicated therein and are consistent with the books and
records of the Company.
(h) COMMISSION FILINGS. The Company has made all filings with
the Commission that it has been required to make under the Securities Act and
the Exchange Act amended (the "SEC FILINGS"). As of their respective filing
dates, such filings already filed by the Company or to be filed by the Company
after the date hereof but before the Closing Date complied or, if filed after
the date hereof, will comply in all material respects with the requirements of
the Securities Act and the Exchange Act, and the rules and regulations of the
Commission promulgated thereunder, as the case may be, and none of the filings
with the Commission contained or will contain any untrue statement of a material
fact or omitted or will omit any material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances in
which they were made, not misleading, except to the extent such filings have
been all prior to the date of this Agreement corrected, updated or superseded by
a document subsequently filed with Commission.
(i) NON-CONTRAVENTION. The execution and delivery of this
Agreement and each of the other Primary Documents, and the consummation by the
Company of the transactions contemplated by this Agreement and each of the other
Primary Documents, do not and will not conflict with, or result in a breach by
the Company of, or give any third party any right of termination, cancellation,
acceleration or modification in or with respect to, any of the terms or
provisions of, or constitute a default under, (A) its Articles of Incorporation
or Bylaws, as amended through the date hereof, (B) any material indenture,
mortgage, deed of trust, lease or other agreement or instrument to which the
Company is a party or by which it or any of its properties or assets are bound,
or (C) any existing applicable law, rule, or regulation or any applicable
decree, judgment or order of any court or federal, state, securities industry or
foreign regulatory body, administrative agency, or any other governmental body
having jurisdiction over the Company or any of their properties or assets
(collectively, "LEGAL Requirements"), other than those which have been waived or
satisfied on or prior to the Closing.
(j) APPROVALS AND FILINGS. Other than the completion of the
filing of the Series C Certificate of Designation, no authorization, approval or
consent of any court, governmental body, regulatory agency, self-regulatory
organization, stock exchange or market or the stockholders of the Company is
required to be obtained by the Company for the entry into or the performance of
this Agreement and the other Primary Documents.
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(k) COMPLIANCE WITH LEGAL REQUIREMENTS. The Company has not
violated in any material respect, and is not currently in material default
under, any Legal Requirement applicable to the Company, or any of the assets or
properties of the Company, where such violation could reasonably be expected to
have material adverse effect on the business or financial condition of the
Company.
(l) PERMITS. The Company has all permits, licenses and any
similar authority necessary for the conduct of its business as now conducted,
the lack of which would materially and adversely affect the business or
financial condition of such company. The Company is not in default in any
respect under any of such permits, licenses or similar authority.
(m) ABSENCE OF LITIGATION. There is no action, suit,
proceeding, inquiry or investigation before or by any court, public board or
body, or arbitration tribunal pending or, to the Knowledge of the Company,
threatened, against or affecting the Company, in which an unfavorable decision,
ruling or finding would have a material adverse effect on the properties,
business, condition (financial or other) or results of operations of the
Company, taken as a whole, or the transactions contemplated by the Primary
Documents, or which would adversely affect the validity or enforceability of, or
the authority or ability of the Company to perform its obligations under, the
Primary Documents. All references to the "KNOWLEDGE OF THE COMPANY" in this
Agreement shall mean the actual knowledge of the Company or the knowledge that
the Company could reasonably be expected to have, after reasonable investigation
and due diligence.
(U) AGENT FEES. The Company has not incurred any liability for
any finder's or brokerage fees or agent's commissions in connection with the
transactions contemplated by this Agreement, except from any agent that has
agreed in writing not to seek any compensation from the Purchaser.
(V) PRIVATE OFFERING. Subject to the accuracy of the
Purchaser's representations and warranties set forth in Section 2 hereof, (i)
the offer, sale and issuance of the Securities, and (ii) the issuance of Common
Stock pursuant to the conversion of such securities into shares of Common Stock,
as contemplated by the Primary Documents, are exempt from the registration
requirements of the Securities Act. The Company agrees that neither the Company
nor anyone acting on its behalf will offer any of the Securities or any similar
securities for issuance or sale, or solicit any offer to acquire any of the same
from anyone so as to render the issuance and sale of such securities subject to
the registration requirements of the Securities Act. The Company has not offered
or sold the Securities or any of its other securities by any form of general
solicitation or general advertising, as such terms are used in Rule 502(c) under
the Securities Act.
(W) FULL DISCLOSURE. The representations and warranties of the
Company set forth in this Agreement do not contain any untrue statement of a
material fact or omit any material fact necessary to make the statements
contained herein, in light of the circumstances under which they were made, not
misleading.
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4. CERTAIN COVENANTS, ACKNOWLEDGMENTS AND RESTRICTIONS
(a) TRANSFER RESTRICTIONS. The Purchaser acknowledges that (i)
neither the Securities nor the Common Stock issuable upon conversion of the
Series C Preferred Stock have been registered under the Securities Act, and such
securities may not be transferred unless (A) subsequently registered thereunder
or (B) they are transferred pursuant to an exemption from such registration, and
(ii) any sale of the Securities or the Common Stock issuable upon conversion,
exercise or exchange thereof (collectively, the "SECURITIES") made in reliance
upon Rule 144 under the Securities Act ("RULE 144") may be made only in
accordance with the terms of said Rule 144. The provisions of Section 4(a) and
4(b) hereof, together with the rights of the Purchaser under this Agreement and
the other Primary Documents, shall be binding upon any subsequent transferee of
the Series C Preferred Stock.
(b) RESTRICTIVE LEGEND. The Purchaser acknowledges and agrees
that, until such time as the Securities shall have been registered under the
Securities Act or the Purchaser demonstrates to the reasonable satisfaction of
the Company and its counsel that such registration shall no longer be required,
such Securities may be subject to a stop-transfer order placed against the
transfer of such Securities, and such Securities shall bear a restrictive legend
in substantially the following form:
THESE SECURITIES (INCLUDING ANY UNDERLYING SECURITIES) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO
THE SECURITIES UNDER SAID ACT OR AN OPINION OF COUNSEL OR OTHER
EVIDENCE REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
SHALL NO LONGER BE REQUIRED.
The Purchaser further acknowledges and agrees that the certificates evidencing
the Series C Preferred Stock shall until the first anniversary hereof bear a
restrictive legend in substantially the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UNDER AN ASSET SALE AGREEMENT DATED NOVEMBER 20, 2002, A
COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF AMERICAN
LEISURE HOLDINGS, INC.
From and after November 20, 2003, Purchaser shall be entitled at no cost to
secure from the Company replacement certificates that do not bear this legend.
(c) FILINGS. The Company undertakes and agrees that it will
make all required filings in connection with the sale of the Securities to the
Purchaser as required by federal and state laws and regulations, or by any
domestic securities exchange or trading market, and if applicable, the filing of
a notice on Form D (at such time and in such manner as required by the rules and
regulations of the Commission), and to provide copies thereof to the Purchaser
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promptly after such filing or filings. With a view to making available to the
holders of the Securities the benefits of Rule 144 and any other rule or
regulation of the Commission that may at any time permit such holder to sell
securities of the Company to the public without registration or pursuant to a
registration on Form S-3 or Form SB-2, the Company shall (a) at all times make
and keep public information available, as those terms are understood and defined
in Rule 144, (b) file on a timely basis with the Commission all information that
the Commission may require under either of Section 13 or Section 15(d) of the
Exchange Act and, so long as it is required to file such information, take all
actions that may be required as a condition to the availability of Rule 144 (or
any successor exemptive rule hereafter in effect) with respect to the Common
Stock; and (d) furnish to any holder of the Securities forthwith upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144, (ii) a copy of the most recent annual or quarterly
report of the Company as filed with the Commission, and (iii) any other reports
and documents that a holder of the Securities may reasonably request in order to
avail itself of any rule or regulation of the Commission allowing such holder to
sell any such Securities without registration.
(d) RESERVATION OF COMMON STOCK. The Company will at all times
have authorized and reserved for the purpose of issuance a sufficient number of
shares of Common Stock to provide for the conversion of the Series C Preferred
Stock.
(e) REGISTRATION REQUIREMENT. At the time of the Closing,
holders of the Securities and the Company shall execute a registration rights
agreement in the form attached hereto as Exhibit B (the "REGISTRATION RIGHTS
AGREEMENT").
(f) RETURN OF CERTIFICATES ON CONVERSION. Upon any conversion
by the Purchaser of less than all of the Series C Preferred Stock pursuant to
the terms of the Series C Certificate of Designation, the Company shall issue
and deliver to the Purchaser, within seven business days of the date of
conversion, a new certificate or certificates for, as applicable, the total
number of shares of the Series C Preferred Stock, which the Purchaser has not
yet elected to convert (with the number of and denomination of such new
certificate(s) designated by the Purchaser).
(g) REPLACEMENT CERTIFICATES. The certificate(s) representing
the shares of the Series C Preferred Stock held by the Purchaser shall be
exchangeable, at the option of the Purchaser at any time and from time to time
at the office of Company, for certificates with different denominations
representing, as applicable, an equal aggregate number of shares of the Series C
Preferred Stock as requested by the Purchaser upon surrendering the same. No
service charge will be made for such registration or transfer or exchange.
5. CONDITIONS TO THE COMPANY'S OBLIGATION TO ISSUE THE SHARES
The Purchaser understands that the Company's obligation to issue the
Securities at the Closing to the Purchaser pursuant to this Agreement is
conditioned upon the following, unless waived in writing by the Company:
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(a) The accuracy at the Closing of the representations and
warranties of the Purchaser contained in this Agreement as if made at the
Closing and the performance by the Purchaser on or before the Closing of all
covenants and agreements of the Purchaser required to be performed on or before
the Closing.
(b) The absence or inapplicability at the Closing of any and
all laws, rules or regulations prohibiting or restricting the transactions
contemplated hereby, or requiring any consent or approval, except for any
stockholder or Board of Director approval or consent contemplated herein, which
shall not have been obtained.
(c) The delivery of the Conveyance Documents contemplated by
the Asset Sale Agreement.
6. CONDITIONS TO THE PURCHASER'S OBLIGATION TO PURCHASE THE SHARES
The Company understands that the Purchaser's obligation to purchase the
Securities at the Closing is conditioned upon each of the following, unless
waived in writing by the Purchaser:
(a) The accuracy at the Closing of the representations and
warranties of the Company contained in this Agreement as if made at the Closing,
and the performance by the Company on or before such Closing of all covenants
and agreements of the Company required to be performed on or before the Closing.
(b) The Company shall have executed and delivered to the
Purchaser certificates for the Securities in conformity with the terms hereof
and the additional documents and instruments contemplated by the Asset Sale
Agreement and the Registration Rights Agreement.
(c) At the Closing, the Purchaser shall have received from the
Company such other certificates and documents as it or its representatives, if
applicable, shall reasonably request, and all proceedings taken by the Company
or the Board of Directors of the Company, as applicable, in connection with the
Primary Documents contemplated by this Agreement and the other Primary Documents
and all documents and papers relating to such Primary Documents shall be
satisfactory to the Purchaser.
(d) All regulatory approvals or filings, if any, necessary to
consummate the transactions contemplated by this Agreement shall have been made
as of each Closing Date.
(e) The Purchaser shall have received a legal opinion from
Nevada counsel, dated the Closing date, in form and content acceptable to the
Purchaser.
(f) The Purchaser shall have received customary officer and
secretary certificates, in form and content acceptable to the Purchaser.
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7. FEES AND EXPENSES
The Company and the Purchaser shall bear their own costs, including
attorney's fees, incurred in the negotiation of this Agreement and consummating
of the transactions contemplated herein.
8. SURVIVAL
The agreements, covenants, representations and warranties of the
Company and the Purchaser shall survive the execution and delivery of this
Agreement and the delivery of the Securities hereunder for a period of eighteen
months from the date of the Closing, except that the Company's representations
and warranties contained in Section 3(b) shall survive until the Purchaser and
any of its affiliates are no longer holders of any of the Securities purchased
hereunder.
9. INDEMNIFICATION
(a) The Company and the Purchaser (each in such capacity under
this section, the "INDEMNIFYING PARTY") agrees to indemnify the other party and
each officer, director, employee, agent, partner, stockholder, member and
affiliate of such other party (collectively, the "INDEMNIFIED PARTIES") for, and
hold each Indemnified Party harmless from and against: (i) any and all damages,
losses, claims, diminution in value and other liabilities of any and every kind,
including, without limitation, judgments and costs of settlement, and (ii) any
and all reasonable out-of-pocket costs and expenses of any and every kind,
including, without limitation, reasonable fees and disbursements of counsel for
such Indemnified Parties (all of which expenses periodically shall be reimbursed
as incurred), in each case, arising out of or suffered or incurred in connection
with any of the following, whether or not involving a third party claim: (a) any
misrepresentation or any breach of any warranty made by the Indemnifying Party
herein or in any of the other Primary Documents, (b) any breach or
non-fulfillment of any covenant or agreement made by the Indemnifying Party
herein or in any of the other Primary Documents, or (c) any claim relating to or
arising out of a violation of applicable federal or state securities laws by the
Indemnifying Party in connection with the sale or issuance of the Securities by
the Indemnifying Party to the Indemnified Party (collectively, the "INDEMNIFIED
LIABILITIES"). To the extent that the foregoing undertaking by the Indemnifying
Party may be unenforceable for any reason, the Indemnifying Party shall make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
No indemnification shall be payable in respect of any
Indemnified Liability (i) where the claiming Indemnified Party had actual
knowledge of or notice from information set forth in the schedules hereto of the
facts giving rise to such Indemnified Liability prior to the Closing or (ii)
where such Indemnified Party entered into a settlement of an Indemnified
Liability without the prior written consent of the applicable Indemnifying
Party.
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10. NOTICES
Any notice required or permitted hereunder shall be given in writing
(unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free transmission
and mailing a copy of such confirmation, postage prepaid by certified mail,
return receipt requested) or two business days following deposit of such notice
with an internationally recognized courier service, with postage prepaid and
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by five days
advance written notice to each of the other parties hereto.
COMPANY: American Leisure Holdings, Inc.
Park 00 Xxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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
PURCHASER: Stanford Venture Capital Holdings, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WITH A COPY TO: Xxxxxx & Xxxx, P.A.
0000 X. Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
11. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Florida, without regard to its principles of conflict
of laws. Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against any party in
the federal courts of Florida or the state courts of the State of Florida,
Miami-Dade County and each of the parties consents to the jurisdiction of such
courts and hereby waives, to the maximum extent permitted by law, any objection,
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including any objections based on forum non conveniens, to the bringing of any
such proceeding in such jurisdictions.
12. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof. This Agreement, together with the other Primary
Documents, including any certificate, schedule, exhibit or other document
delivered pursuant to their terms, constitutes the entire agreement among the
parties hereto with respect to the subject matters hereof and thereof, and
supersedes all prior agreements and understandings, whether written or oral,
among the parties with respect to such subject matters.
(b) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged with enforcement.
(c) WAIVER. No waiver of any provision of this Agreement shall
be deemed a waiver of any other provisions or shall a waiver of the performance
of a provision in one or more instances be deemed a waiver of future performance
thereof.
(d) CONSTRUCTION. This Agreement and each of the Primary
Documents have been entered into freely by each of the parties, following
consultation with their respective counsel, and shall be interpreted fairly in
accordance with its respective terms, without any construction in favor of or
against either party.
(e) BINDING EFFECT OF AGREEMENT. This Agreement shall inure to
the benefit of, and be binding upon the successors and assigns of each of the
parties hereto, including any transferees of the Securities.
(f) SEVERABILITY. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or unenforceability of this
Agreement in any other jurisdiction.
(g) ATTORNEYS' FEES. If any action should arise between the
parties hereto to enforce or interpret the provisions of this Agreement, the
prevailing party in such action shall be reimbursed for all reasonable expenses
incurred in connection with such action, including reasonable attorneys' fees.
(h) HEADINGS. The headings of this Agreement are for
convenience of reference only and shall not form part of, or affect the
interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which, when
taken together, will be deemed to constitute one and the same agreement.
12
IN WITNESS WHEREOF, this Agreement has been duly executed by each of
the undersigned as of the 29th day of January, 2003.
AMERICAN LEISURE HOLDINGS, INC.
By: S/X X XXXXXX
Name: Xxxxxxx X Xxxxxx
Title: President
STANFORD VENTURE CAPITAL HOLDINGS, INC.
By: S/X X XXXXXXXXXX
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
