Exhibit 10.1
STOCK PURCHASE AGREEMENT
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Dated as of December 30, 2005
THIS STOCK PURCHASE AGREEMENT ("this Agreement") is made by and between
HARBORAGE LEASING CORPORATION, a New Hampshire corporation ("Seller"), and
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AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation ("AMLH").
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R E C I T A L S
A. Seller is the record and beneficial owner of fifteen thousand (15,000)
shares (the "TDSR Shares") of the common stock, par value $.01, of Tierra del
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Sol Resort, Inc., a Florida corporation ("TDSR"), formerly known as Sunstone
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Golf Resort, Inc.
B. AMLH desires to acquire the TDSR Shares, and Seller desires to sell the
TDSR Shares, on the terms set forth in this Agreement.
NOW THEREFORE, in consideration of mutual promises set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. Purchase and Sale of TDSR Shares.
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1.1 Purchase of TDSR Shares. Upon the execution and delivery of this
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Agreement, Seller will sell, assign and deliver the TDSR Shares to AMLH,
and AMLH will purchase and accept the TDSR Shares.
1.2 Purchase Price for TDSR Shares. The purchase price for the TDSR
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Shares will consist of the following:
(a) The amount of $1,411,705.00, payable by AMLH pursuant to the
terms of a promissory note to be made by AMLH in favor of Seller, or
its designated assign, in the form of Exhibit A to this Agreement (the
"Note");
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(b) the right of Seller or its designated assign to receive,
without payment, two (2) three-bedroom condominium units to be
constructed in Phase 2 of the Tierra del Sol Resort currently being
developed by affiliates of TDSR, at the time of their completion, free
and clear of all liens and encumbrances. AMLH shall pay for any
documentary stamp taxes due as a result of such transfers. All other
usual and ordinary settlement costs shall be allocated or charged to
the parties, as is customary between buyers and sellers in sales of
such units. In the event title to both such units is not delivered to
Seller by December 31, 2007, then AMLH shall pay to Seller, in lieu
thereof, payment of $500,000.00 for each such unit that is not
transferred to Seller by such date;
(c) 197,000 shares of the common stock of AMLH (the "AMLH
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Shares"); and
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(d) warrants to acquire 300,000 additional shares of common stock
of AMLH at a price of $5.00 per share, as evidenced by the Warrant in
the form of Exhibit B to this Agreement (the "Warrant").
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2. Additional Agreements.
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2.1 Put Option. AMLH hereby grants to Seller a put option (the "Put
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Option") pursuant to which Seller will have the right to require AMLH to
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repurchase any or all of the 197,000 AMLH Shares issued to Seller under
Section 1.2(c), subject to the following terms and conditions:
(a) The exercise price of the Put Option will be $5.00 per share
(the "Option Exercise Price"), provided that the Option Exercise Price
will be adjusted to reflect stock dividends, stock splits and similar
corporate actions.
(b) Subject to the provisions of Section 2.1(g) below, Seller may
only exercise the Put Option during the sixty (60) day period
commencing twelve (12) months after the date of this Agreement.
(c) Seller may exercise the Put Option by delivering written
notice of exercise to AMLH, which notice must set forth the number of
shares to be sold to AMLH.
(d) The parties will schedule a closing within ten (10) business
days of AMLH's receipt of the notice of exercise. The closing will
take place at the offices of AMLH.
(e) At the closing of the Put Option, AMLH will deliver to Seller
the Option Exercise Price for the Put Option, and Seller will deliver
to AMLH the original stock certificates representing the AMLH Shares,
duly endorsed in blank, or accompanied by duly executed stock powers
in proper form.
(f) At the closing of the Put Option, Seller will represent and
warrant to AMLH that it has the authority to deliver the AMLH Shares
to AMLH and that the shares are being transferred to AMLH, free and
clear of all liens, charges, claims, encumbrances, pledges, security
interests, community property rights, equities, liabilities, debts,
restrictions on transfer or other defects in title of any kind or
nature.
(g) The Put Option will expire and be of no further force and
effect after the occurrence of both of the following events:
(i) Seller is able to sell the AMLH Shares into the existing
public market pursuant to either: (A) an effective registration
statement under the Securities Act of 1933, as amended (the
"Securities Act") covering such shares, or (B) Rule 144 under the
Securities Act; and
(ii) After the fulfillment of the condition set forth in
Section 2.1(g)(i) above, the average closing price of the common
stock of AMLH (as reported by the OTC Bulletin Board or the
principal exchange on which the common stock may then be trading)
for a period of thirty (30) consecutive trading days equals or
exceeds $5.00 per share.
2.2 Guarantee. Upon the execution and delivery of this Agreement,
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Xxxxxxx X. Xxxxxx will execute and deliver to Seller the Guaranty Agreement
in the form of Exhibit C (the "Guarantee"), pursuant to which he will
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guarantee the obligations of AMLH under the Note, the Put Option, and
Section 1.2(b) related to the payment in lieu of title to the condo units.
2.3 Delivery of Documents. Upon the execution and delivery of this
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Agreement, the parties will deliver the following documents:
(a) Seller will deliver to AMLH:
(i) the certificates representing the TDSR Shares, duly
endorsed in blank, or accompanied by duly executed stock powers
in proper form for transfer;
(b) AMLH will deliver to Seller:
(i) the duly executed Note;
(ii) the stock certificate representing the AMLH Shares;
(iii) the duly executed Warrant Agreement; and
(iv) the Guarantee, duly executed by Xxxxxxx X. Xxxxxx.
3. Representations and Warranties of Seller.
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Seller hereby represents and warrants to AMLH as follows:
3.1 Ownership of TDSR Shares. Seller owns the TDSR Shares beneficially
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and of record and will deliver the TDSR Shares to AMLH, free and clear of
all liens, charges, claims, encumbrances, pledges, security interests,
community property rights, equities, liabilities, debts, restrictions on
transfer (other than those in that certain Shareholders Agreement, dated
January 1, 2000, by and between Seller and Arvimex, Inc. as initial
shareholders of TDSR, but which restrictions Arvimex has waived) or other
defects in title of any kind or nature. The TDSR Shares constitute all of
Seller's interest in TDSR or its affiliates.
3.2 Authority to Enter into Agreement; Enforceability. Seller has the
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right, power, legal capacity and authority to enter into and carry out the
terms and provisions of this Agreement and the other agreements to be
entered into by Seller in connection with the consummation of this
Agreement, without obtaining the approval or consent of any party or
authority. This Agreement and such other agreements constitute the legal,
valid and binding agreements of Seller, enforceable against it in
accordance with its terms.
3.3 Compliance with Laws and Other Instruments. Neither the execution
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and delivery of this Agreement or any other agreement to be entered into by
Seller pursuant to this Agreement, nor the consummation of the transactions
contemplated by this Agreement or such other agreements, will conflict
with, or result in a violation or breach of, or constitute a default under,
any term or provision of any order, judgment, injunction, decree, license,
permit, statute, ordinance, rule or regulation of any court or any
governmental or regulatory authority or any indenture, mortgage, deed of
trust, lease, contract, instrument, commitment or other agreement or
arrangement to which Seller is a party or by which he or his properties are
bound.
3.4 Confirmation of Interest in TDSR and Affiliates. After the sale of
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the TDSR Shares to AMLH, Seller will not have any continuing interest in
TDSR, AMLH or any of their affiliates, and none of these persons will have
any contractual or other obligations to Seller except for those obligations
expressly set forth in this Agreement and the exhibits to this Agreement.
4. Representations and Warranties of AMLH. AMLH represents and warrants to
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Seller as follows:
4.1 Authority to Enter into Agreement; Enforceability. AMLH has the
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right, power, legal capacity and authority to enter into and carry out the
terms of this Agreement and the other agreements to be entered into by AMLH
pursuant to the terms of this Agreement without obtaining the approval or
consent of any party or authority. This Agreement and such other agreements
constitute the legal, valid and binding agreements of AMLH enforceable
against AMLH in accordance with their respective terms.
4.2 Compliance with Laws and Other Instruments. Neither the execution
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and delivery of this Agreement or any other agreement to be entered into by
AMLH pursuant to this Agreement, nor the consummation of the transactions
contemplated by this Agreement or such other agreements, will conflict
with, or result in a violation or breach of, or constitute a default under,
any term or provision of the articles of incorporation, bylaws or any
order, judgment, injunction, decree, license, permit, statute, ordinance,
rule or regulation of any court or any governmental or regulatory authority
or any indenture, mortgage, deed of trust, lease, contract, instrument,
commitment or other agreement or arrangement to which AMLH is a party or by
which they or their properties are bound.
5. Survival of Representations, Warranties and Covenants. All
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representations, warranties and agreements made by the parties in this Agreement
will survive the execution, delivery and performance of this Agreement and any
investigations, inspections or examinations made by or on behalf of the parties.
All such representations and warranties will remain in full force and effect
until the expiration of the applicable statute of limitations.
6. Miscellaneous.
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6.1 Expenses. Except as otherwise provided hereby, all legal and other
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costs and expenses incurred in connection with this Agreement and the
transactions contemplated herein will be paid by each party as each such
party incurs such expenses.
6.2 Notices. Any notice or other communication required or permitted
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under this Agreement will be given in writing and will be delivered by hand
or air courier or sent by certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Seller, to:
Harborage Leasing Corporation
c/o 000 Xxxxxxx Xxxxxx
Xxxx 000
Xxxxxx Xxxx, XX 00000
If to AMLH, to:
0000 Xxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Any such notice or communication will be effective and be deemed to have been
given as of the date delivered, if by hand or air courier, or as of the date or
receipt or refusal, if mailed. Any party may change the foregoing address by
giving notice to all of the other parties in the manner provided under this
Section 6.2.
6.3 Entire Agreement. This Agreement and the exhibits to this
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Agreement: (i) constitute the entire and exclusive agreement and
understanding between the parties with respect to the subject matter
hereof; (ii) will inure only to the benefit of the parties hereto, and no
other person will have any rights hereunder, (iii) except as otherwise
provided herein, will be binding upon the respective successors and assigns
of the parties; and (iv) supersede and revoke all prior agreements, oral or
written. All Exhibits hereto will be deemed a part of this Agreement.
6.4 Applicable Law. The validity, enforcement, and construction of
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this Agreement will be governed by the laws of the State of Florida.
6.5 Binding Arbitration. The parties will arbitrate any dispute which
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may arise between them with respect to or in connection with this Agreement
or the prior relationship of the parties. Such dispute will be resolved in
accordance with the then applicable rules of the American Arbitration
Association. The award of the arbitrators will be binding on the parties,
and judgment on such award may be entered in any court of competent
jurisdiction. Arbitration will take place in Miami, Florida.
6.6 Headings. The headings in this Agreement are solely for
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convenience of reference and will not affect its interpretation.
6.7 Counterparts. This Agreement may be executed in as many
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counterparts as may be deemed necessary or convenient, all of which taken
together will constitute one and the same instrument, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
6.8 Gender, Etc. Words used herein, regardless of the number and
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gender specifically used, will be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or
neuter, as the context requires.
6.9 Interpretation. No provision of this Agreement is to be
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interpreted for or against any party because that party or that party's
legal representative drafted such provision.
6.10 Provisions Separable. The provisions of this Agreement are
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independent of and separable from each other, and no provision will be
affected or rendered invalid or unenforceable by virtue of the fact that
for any reason any other provision or provisions may be invalid or
unenforceable in whole or in part.
6.11 Independent Counsel. The parties acknowledge and agree that each
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of them has been represented by its own counsel in connection with the
preparation of this Agreement.
6.12 Amendments; Waivers. This Agreement may be amended or modified,
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and any of the terms, covenants, representations, warranties or conditions
in this Agreement may be waived, only by written instrument executed by the
parties, or in the case of a waiver, by the party waiving compliance. Any
waiver by any party of any condition, or of the breach of any provision,
term, covenant, representation or warranty contained in this Agreement, in
any one or more instances, will not be deemed to be nor construed as a
further waiver of such condition, or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
6.13 Attorney Fees. In the event of any legal proceedings (including
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arbitration) arising out of this Agreement, the prevailing party will be
entitled to recover from the non-prevailing party or parties, reasonable
cost and expenses, including attorneys fees, incurred by such prevailing
party in such proceedings. As used herein, attorneys fees will include,
without limitation, attorneys fees incurred by such party in any
arbitration, judicial, bankruptcy, administrative or other proceedings, in
any appellate proceedings, and in any post-judgment proceedings.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
SELLER:
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Harborage Leasing Corporation
By: /s/ Xx Xxxxxxxxxxxx
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Its: President
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Name: Xx Xxxxxxxxxxxx
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AMLH:
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American Leisure Holdings, Inc.
By:/s/ Xxxxxxx X. Xxxxxx
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Its: CEO
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Name: Xxxxxxx X. Xxxxxx
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