Exhibit 10.5.2
ASSET PURCHASE AGREEMENT
This Agreement is entered into on August 18, 2000, by and between SEA GULL
TRAVEL, INC., a Florida corporation ("Seller"), XXXXXX XXXXXX as the controlling
principal of Seller ("Principal") and PREFERRED TRAVEL & TOURS, INC., a Florida
corporation ("Buyer") which is a wholly owned subsidiary of xXxxxxxXxxxx.xxx,
Inc., a Nevada corporation ("eTravel").
In consideration of the mutual promises, covenants and conditions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by all parties, the parties have
agreed as follows:
1. Description of Assets. Buyer will purchase all of the Seller's ticket
stock and other merchandise; tangible personal property owned by Seller (not
leased) and located at the Business addresses, including all equipment,
photocopy machines, telephones and related equipment, signs, office supplies,
furniture, furnishings, shelving and leasehold improve ments; and goodwill,
customer lists, telephone numbers, trade names and other intangible assets used
in the Business. Seller will assign to Buyer all of Seller's right, title and
interest in any sales and service agreements, employment agreements, equipment
leases, advertising agreements and licenses used in the Business. Buyer will
assume all obligations of Seller thereunder and indemnify and hold the Seller
harmless from any obligations of Seller thereunder from and after the Closing
Date. Amounts due or prepaid under such assumed obligations will be prorated as
of the date of closing.
2. Purchase Price and Payment. The entire purchase price for the Assets
purchased hereunder shall be $70,000.00, payable as follows:
(a) $70,000 in cleared funds at closing.
(b) In addition, Principal shall be granted options to purchase up to 10,000
shares of eTravel common stock at an option exercise price of $1.00 per share
pursuant to a Stock Option Certificate attached hereto.
3. Transition Period. For a period of 60 days after the Closing Date, the
Principal will continue his present duties at the Business, at no additional
charge, in order to acquaint Buyer with all aspects of the Business. If the
Principal is to be employed by Buyer beyond the 60 day transition period, the
terms of such employment shall be set forth in a separate agreement. Buyer will
allow the Principal to remain on Buyer's IATAN list for so long as Principal
continues to meet the IATAN requirements.
4. Accounts Receivable and Seller's Books. Buyer, on Seller's behalf,
shall accept payment of Seller's accounts receivable arising out of the
operation of the Business prior to the Closing Date at no charge to Seller, for
a period of 60 days after the Closing Date,
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and Buyer shall turn over to Seller weekly all amounts so accepted. At the end
of the 60 day period, Buyer shall turn over to Seller all documents in Buyer's
possession which pertain to any of Seller's accounts receivable which remain
uncollected. Buyer's responsibility for collection is limited to the acceptance
of amounts received on behalf of Seller and Buyer has no obligation to attempt
to enforce payment. No adjustments shall be made in any of Seller's accounts
receivable without the written permission of Seller or his nominee.
5. Prorations and Adjustments. Real estate taxes, personal property taxes,
rental charges, utilities, advertising fees such as yellow pages ads, salaries,
lease deposits, prepaid mail box rentals, key deposits and other prepaid
accounts and customer deposits shall be prorated as of the Closing Date.
6. Seller's Employees. Employees of Seller shall be and remain employees
of Seller through the Closing Date and Buyer is not assuming any obligation or
liability of any kind which Seller may have to said employees for compensation,
pension or retirement plan contributions, or any other obligation or
responsibility of any kind. Buyer shall not be obligated to hire or employ any
of Seller's employees as of the Closing Date, but may hire or employ any of
Seller's current employees in Buyer's sole discretion and upon such terms as it
determines. Seller and Principal agree that, for a period of one (1) year from
the Closing Date, neither Seller, Principal nor any of their affiliates will
employ or seek to employ any of Seller's current employees which are employed by
Buyer as of the Closing Date, without the prior written consent of Buyer. Seller
and Principal agree to indemnify, defend and hold Buyer harmless with respect to
any claims made by any of Seller's employees arising out of actions which
occurred on or prior to the Closing Date.
7. Representations and Warranties of Seller. Seller and Principal hereby
make the following representations and warranties to Buyer:
(a) Seller is a corporation duly organized and existing and in good
standing under the laws of the State of Florida, and is duly authorized to carry
on the Business and to own and lease its properties as and in the places where
such properties are now owned, leased or operated.
(b) Seller has good and marketable title to the Assets, subject to no
mortgage, conditional sales agreement, charges, liens, or encumbrances, or any
other assignment of rights and/or interests, other than those set forth on the
Schedule of Liens attached hereto, which shall be satisfied from the proceeds of
sale at closing or, if included in the attached Schedule of Assumed Contracts,
shall be assumed by Buyer at closing.
(c) Attached hereto is Seller's balance sheet as of their last
available year end, and Seller's income statement for the period ended as of
their last available year end. Such financial statements (including any related
schedules and/or notes) are true and correct in all material respects, and show
all liabilities, direct and contingent, required to be shown in accordance with
the principles of GAAP. From the date of such financial statements to the date
of this Agreement, there has been no material change in the assets, liabilities,
financial condition, business or prospects of Seller from that reflected in such
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financial statements, other than changes in the ordinary course of business,
including acquisitions, none of which have been, either in any case or in the
aggregate, materially adverse.
(d) Seller has filed all federal, state and local governmental tax
returns required to be filed in accordance with applicable law and has paid all
taxes and assessments (including, without limitation, income, excise,
unemployment, social security, occupation, franchise, property, sales, and
import taxes, duties or charges and all penalties and interest in respect
thereto) required to have been paid to date.
(e) Except as set forth on the Schedule of Legal Matters attached
hereto, there are no legal, quasi-judicial or administrative actions, suits or
proceedings of any kind or nature now pending or threatened before any court or
administrative body in any manner involving Seller or the Assets, or which may
adversely affect the power or authority of Seller to carry out the transactions
to be performed by Seller hereunder. Seller and Principal agree to defend any
matters set forth on the Schedule of Legal Matters attached hereto at their own
expense and indemnify Buyer from any and all liabilities and expenses which may
be incurred by Buyer in connection with such matters.
(f) Except as listed on the Schedule of Assumed Contracts, Seller is
not a party to any written or oral (i) contract not made in the ordinary course
of business, (ii) employment contract which is not terminable without cost or
other liability to Seller, or any successor, upon notice of thirty (30) days or
less, (iii) contract with any labor union, (iv) bonus, pension, profit-sharing,
retirement, share purchase, hospitalization insurance or similar plan providing
employee benefits, (v) lease or sublease with respect to any property, real or
personal, whether as lessor or lessee, (vi) advertising contract or contract for
public relations services, (vii) continuing contract for the purchase of
materials, supplies or equipment, or (viii) contract continuing for a period of
more than thirty (30) days or which is not terminable without cost or other
liability to Seller or its successors. Seller has in all respects performed all
obligations required to be performed by it to date and is not in default in any
respect under any such agreements or obligations.
(g) Seller will pay all of its trade and other creditors as such
obligations become due, except for obligations which Seller is contesting in
good faith, so as not to adversely affect the Business.
(h) The consummation of the transactions contemplated by this Agreement
and compliance with the provisions hereof will not conflict with or result in a
breach of the terms, conditions or provisions of, any order of any court or
other agency of government, the charter or bylaws of Seller, or any note,
debenture, mortgage, loan agreement or other instrument to which Seller is a
party, or by which it is bound, or result in the creation or imposition of any
lien, charge or encumbrance of any kind whatsoever on any of the Assets.
(i) No broker, finder or other intermediary has acted on behalf of
Seller in connection with the transactions contemplated herein, or is owed any
fee or other compensation as a result of this transaction.
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8. Covenants of Seller. Seller and Principal represent and covenant to
Buyer that pending completion of the sale of Assets contemplated hereby and as
of the Closing Date:
(a) Each representation and warranty set forth in Section 7 hereof
shall be true and correct in all material respects.
(b) Seller will maintain itself at all times up to and including the
Closing Date as a duly licensed corporation in good standing under the laws of
its state of incorporation.
(c) Seller will keep the Business open during its usual and customary
hours and cause the Business to function in the ordinary course of business and
in a good and efficient manner in keeping with Seller's customary practices.
(d) Seller will afford Buyer and its accountants, attorneys,
consultants, representatives, agents and employees, at all reasonable times,
access and facilities to use, with respect to the Assets, Seller's books, files,
records and insurance policies for the purpose of audit, inspection and
examination thereof, and will do everything reasonably necessary to enable Buyer
to make a complete examination of the Assets and the condition thereof. All
information so obtained by Buyer and its representatives, agents, and employees
shall be kept confidential.
(e) Seller will not mortgage, pledge or allow any lien to be placed
upon any of the Assets.
(f) Seller will not acquire additional Assets or dispose of any of the
Assets, or in any way obligate itself to do so, except in the ordinary course of
business.
(g) Seller will keep all of its insurable Assets insured in accordance
with its present practice, and it will maintain, preserve and keep all
improvements on property constituting a part of the Assets in a good condition
and state of repair, reasonable wear and tear or damage or loss by fire, storm
or other casualty loss excepted.
(h) Seller will not enter into any contract or commitment, or incur or
agree to incur any liability, or make any capital expenditures, except in the
normal course of business.
(i) Seller will not increase compensation payable or to become payable
to any officer, employee or agent.
9. Seller's and Principal's Non-Compete Agreement. In consideration of the
purchase price to be paid by Buyer hereunder and the mutual covenants and
agreements of the parties herein contained, and in recognition by Seller and
Principal that (i) the parties entering into this Agreement are induced
primarily by the covenants and assurances made by Seller and Principal, (ii)
that the Seller's and Principal's covenants not to compete are necessary to
ensure the continuation of the Business, and (iii) that irrevocable harm and
damage will be done to the Buyer if Seller or the Principal compete with the
Buyer, Seller and Principal, severally and not jointly, covenant and agree with
and for the benefit of the Buyer that for a period of two (2) years after the
Closing Date Seller and Principal will not,
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either directly or indirectly, own, manage, operate, control, participate in the
management or assist in building, plan or assist in planning, finance or lend
money to or assist in obtaining a loan or loans for (as a loan broker,
guarantor, or otherwise), have any financial interest in or otherwise
participate in the operation, management, financing or ownership of, or maintain
or continue any interest whatsoever in, any travel agency business within Dade,
Broward and Palm Beach Counties, Florida, nor solicit business pursuant to any
mailing list or prospect list generated from Seller's customer or service
records.
10. Conditions Precedent to Closing. Closing of the transaction described
in this Agreement is contingent upon:
(a) Seller having obtained the written consent of Seller's landlord,
consenting to the assignment to Buyer of Seller's existing lease for the
Business premises without change in the terms thereof and without expense to
Buyer.
(b) Neither Buyer nor Seller having discovered any material error,
misstatement or omission in any of the representations or warranties made by the
other herein. If any such material error, misstatement or omission is
discovered, either party may terminate this Agreement by written notice to the
other.
(c) There not having been any fire, accident or other casualty or any
labor disturbance, civil commotion, riot, act of God or the public enemy, or any
material change in the Business or the Assets, or applicable laws, regulations
and ordinances pertaining to the Business or the Assets, which would have a
material adverse effect on the conduct of the Business at the present Business
location. If any such Act of God shall occur, either party may terminate this
Agreement by written notice to the other.
11. Closing. Subject to satisfaction of all of the foregoing conditions
precedent, closing of the transaction provided for in this Agreement shall take
place within 30 days after the date of this Agreement (the "Closing Date"). The
transfer of the Assets shall be effective as of the close of business on the day
preceding the Closing Date. At closing, Seller shall take the following actions:
(a) Seller shall transfer to Buyer all of its sales and service
records.
(b) Seller shall transfer to Buyer Seller's right in the Business'
telephone numbers.
(c) Seller shall deliver to Buyer a Xxxx of Sale for the Assets, other
documents of transfer of title, and any other documents necessary or desirable
in the opinion of Buyer's counsel in connection with the transfer, which
documents shall warrant title to Buyer and shall in all respects be in such form
as may be reasonably required by Buyer or its counsel.
(d) If a corporation or other entity, Seller shall furnish to Buyer
evidence to the reasonable satisfaction of Buyer or its counsel of proper entity
action authorizing or ratifying the execution of this Agreement and the
consummation of the transaction contemplated hereby.
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12. Seller's and Principal's Indemnity. Seller and Principal, jointly and
severally, agree to defend, indemnify and hold Buyer harmless from and against
any and all claims, liabilities, losses, damages, obligations, assessments,
lawsuits, actions, proceedings and/or demands, including reasonable attorneys'
fees and the costs and expenses of enforcing this indemnification provision,
that Buyer may suffer, sustain or incur or that may be asserted against Buyer,
the Assets or any rights to be acquired or purchased by Buyer, that result from
any inaccuracy of any representation or warranty made by Seller in this
Agreement or otherwise as a result of any breach of any provision of this
Agreement by Seller, including any claims asserted by local, state or federal
authorities for unpaid taxes or arising from any imposition of taxes or the
assessment of any deficiency for taxes or penalties or interest incidental
thereto.
13. Liabilities of Seller. Buyer does not assume any liabilities of
Seller, including liabilities which may arise after closing based upon
occurrences prior to the Closing Date except as may otherwise be expressly
specified herein.
14. Expenses. Each party shall pay its own expenses incident to this
Agreement and the transactions hereby contemplated. In the event of any
litigation between the parties arising out of this Agreement, the prevailing
party shall be entitled to recover from the other party its court costs and
reasonable attorneys' fees at the trial and all appellate levels.
15. Schedules. Each Schedule attached hereto shall be deemed to be a part
of this Agreement to the same extent as if set forth verbatim in the body of
this Agreement.
16. Enforcement. The laws of the State of Florida shall govern the
interpretation, validity, performance and enforcement of this Agreement. If any
provision of this Agreement should be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
17. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by binding arbitration
in Broward County, Florida, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitration shall be conducted before and by a single arbitrator selected by the
parties. If the parties have not selected an arbitrator within 10 days of
written demand for arbitration, the arbitrator shall be selected by the American
Arbitration Association pursuant to the then current rules of that Association.
The expenses of arbitration shall be divided equally between the parties. The
duty to arbitrate shall survive the cancellation or termination of this
Agreement.
18. Parties. This Agreement shall be binding upon and enforceable against,
and shall inure solely to the benefit of, the parties hereto and their
respective successors and assigns.
19. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
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20. Facsimile Signature. This Agreement may be executed and accepted by
facsimile signature and any such signature shall be of the same force and effect
as an original signature.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
PREFERRED TRAVEL & TOURS, INC. SEA GULL TRAVEL, INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxx
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Xxxxxxx Xxxxxxx, Chief Operating Officer XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX
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