Exhibit 10.5
AGREEMENT FOR THE PURCHASE AND SALE OF ASSETS
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This is an Agreement for the Purchase and Sale of Assets made this 11th
day of August, 2005, between Vacation and Cruise Resources, Inc. DBA Miami
Cruise Center, a Florida Corporation, (hereinafter referred to as "Seller") and
Joystar, Inc., a California Corporation, (hereinafter referred to as "Buyer"),
whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ with
reference to the following facts:
A. Seller is the owner of certain assets and lessee under a
month to month tenancy used in connection with the operation of a travel agency
known as Miami Cruise Center (hereinafter referred to as the "Business").
B. Seller desires to sell to Buyer and Buyer desires to
purchase from Seller certain assets of the Business (hereinafter referred to as
the "Assets"), subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the promises and the
agreements contained herein the parties agree as follows:
SECTION 1.
PURCHASE AND SALE OF ASSETS
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1. At the Closing, as hereinafter defined, Buyer agrees to purchase
from Seller and Seller agrees to sell to Buyer, on the terms and conditions set
forth herein, the following Assets owned by Seller:
(a) The travel agency businesses known as Vacation and Cruise
Resource, Inc. DBA Miami Cruise Center, located in ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(b) The telephone system and or numbers presently operated by
the travel agency of Seller and used in connection with the Business.
(c) The goodwill of the Business, including without
limitations the names Vacation and Cruise Resource, Inc. DBA Miami Cruise
Center.
(d) All of the office furniture, furnishings, fixtures and
equipment used in the Business located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ as set forth in the inventory attached hereto as Exhibit
"1" and by this reference made a part hereto. Specifically excluded are the
artwork, personal photographs and personal effects that belong to the Seller,
and set out in Exhibit "1".
(e) All leasehold improvements of Seller at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
(f) All customer files, customer lists, existing commercial
accounts and work in process of the Business; the customer list is attached
hereto as Exhibit "2" and by this reference made a part hereto.
(g) All deposits of customers held by the Business and on hand
at the Closing and not yet remitted to travel suppliers, together with
documentation explaining or relating to said deposits, which shall be
transferred to Buyer at Closing.
(h) Seller's CLIA number or other regulatory appointments.
Buyer is not purchasing the right to transfer Seller's ARC number to Buyer.
(i) All miscellaneous office equipment, supplies, including
current subscriptions, located or sent to the Business or premises.
(j) All existing tours, groups or programs developed for sale
to the clients and future clients of the Business.
(k) All correspondence files, research data, reports,
performance history with respect to the business (expect documents and records
which relate to or comprise Seller's accounting and tax records).
(l) The assignment of Seller's rights (to the extent same are
assignable) to all insurance, bonds, licenses, permits in the name of the
Business or by which the business is conducted, subject to the requirement to
make notification of transfer rights. Seller shall use its best efforts to
obtain said assignments.
(m) All electronic and data processing files, programs and
records used in connection with the Business.
(n) All contracts, agreements and arrangements between the
Seller and its various suppliers (including suppliers of service as well as
goods and materials and any override agreements) entered into in connection with
the Business and referenced in Exhibit "3" attached hereto and made a part of
this Agreement.
(o) All reservations and orders for trips, tours, and other
services and programs offered by seller in connection with the Business whether
or not completed prior to Closing.
(p) All assets acquired after the date of this Agreement and
prior to the Closing if such assets would have been a part of the Business.
(q) Seller shall transfer all of the intangible assets,
including but not limited to, trade names, common law or actual trademarks,
service marks and copyrights. Buyer has agreed that Seller shall transfer all of
the presently intangible assets, including but limited to, trade names, common
law or actual trademarks, service marks and copyrights. Buyer and Seller agree
that the Travelmoore name is an asset exclusively owned by Buyer as of the
Closing.
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1.2 The following assets will be excluded from the Asset Purchase and
remain an asset of Seller:
(a) Balances in all existing bank accounts (other than
customer deposits), accounts receivable of the Business as of the date of the
Closing, and tax deposits made by the Business.
SECTION 2.
PURCHASE PRICE
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As full payment for the transfer of the assets, assumption of the
contracts and liabilities as set forth herein, and assignments by Seller to
Buyer, Buyer agrees to pay to Seller the sum of Ninety Three Thousand Seven
Hundred and Fifty dollars ($93,750.00) payable as follows:
(a) A check in the amount of Fifteen Thousand dollars
($15,000.00).
(b) An additional sum of Ten Thousand dollars ($10,000.00)
shall be paid to Seller in two payments of Five Thousand dollars ($5,000.00)
each, 30 days and 60 days of the anniversary of closing. .
(c) One Hundred Thirty Seven Thousand Five Hundred (137,500)
restricted shares of Joystar, Inc.
SECTION 3.
SALES AND USE TAX
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4. Seller shall pay all sales and use taxes arising out of the transfer
of the Assets. Buyer shall not be responsible for any business, occupation,
withholding or similar tax or any taxes of any kind relating to any period prior
to the Closing.
SECTION 4.
ASSUMPTION OF CONTRACTS AND OBLIGATIONS
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5. At the Closing, Buyer will assume the following financial
obligations but will not have the contracts or leases put in Buyer's name unless
Buyer agrees to, in writing, a part of this Agreement.
(a) The payments are the only obligation relating to the CRS
contract as stated hereinabove in Section 1(q).
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(b) The premises at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇. Buyer agrees to pay any financial obligation arising from the
Business residing at that location at the time of closing.
(c) If there are any contracts or obligations that Buyer
specifically will assume these will be listed as an attachment hereto as Exhibit
"4" and by this reference made a part thereof.
SECTION 5.
CLOSING
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6. The Closing shall occur no later than sixty (60) days after the
execution of this Agreement.
(a) Buyer and Seller agree to meet no less than 7 calendar
days shortly before the Closing in order to jointly quantify and inventory all
assets being transferred to Buyer. The Parties hereto agree Seller will transfer
the customer deposits existing at the time of this meeting herein described
along with a list of all deposits currently on hand. Buyer shall acknowledge the
same by written receipt.
(b) Seller shall deliver at the Closing a ▇▇▇▇ of Sale for the
Business along with any and all documents required for Buyer to effect full
possession and control of the Business.
(c) On the Closing date, the Buyer shall begin paying all
costs and expenses necessary for the operation of the Business, including but
not limited to rent, personal property taxes, and other payments made or to be
made by Seller, pursuant to the rental agreement together with all taxes,
special assessments, insurance premiums, bonding costs and expenses, telephone
charges, employees, salaries and miscellaneous expenses. The Parties shall
prorate the cost of such items as of the Closing, and the Buyer charged for the
period thereafter.
(d) All override commissions earned prior to the Closing shall
belong to the Buyer.
(e) All commissions, service fees and payments for services
where deposits were made while Seller owned the Business but final payment has
not been made as of the Close, shall belong to the buyer.
(f) Recalled commissions, credits and refunds to Clients, and
other debits to the business shall be charged to the Buyer and Seller in a
manner determined by the date of the transaction, so that Seller is responsible
for debits on invoices dated prior to the Closing.
(g) Seller shall pay to the employees all accrued vacation
time and medical days off for all employees and any other employee benefits
which accrued prior to the Closing. This is to be paid at the Closing directly
to the employees.
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(h) Seller shall have the right to cancel Seller's agreements
with the utility companies so long as Buyer is provided an opportunity to obtain
the furnishings of such utilities to the premises in Buyer's name without any
interruptions in service. Any refund of deposit for services shall be returned
to Seller.
(i) Seller, at the Closing, shall assign to Buyer any and all
rights to use the names "Vacation and Cruise Resources, Inc. DBA Miami Cruise
Center."
(j) Seller must notify the Attorney General's Office, or other
applicable entity(s) of the sale pursuant to any forum state Seller of Travel
Law.
SECTION 6.
CONDITION TO THE CLOSING
------------------------
7. The obligations of each Party hereto to close the transaction
contemplated by this Agreement at the Closing shall be conditioned upon: 1) the
performance on or before the Closing of the obligations of the other Parties
hereto to be preformed by them on or before the Closing; and 2) the accuracy of
all representations and warranties of the Parties hereto, on, and as if made on
the date of the Closing. Satisfaction of any such condition of the Closing may
be waived by the Party entitled to the satisfaction of such conditions:
(a) At the Closing, Seller shall deliver to Buyer the
following:
1. ▇▇▇▇ of Sale, assignments and such other
instruments of transfer and documents as may be necessary or appropriate to
transfer, convey and assign to Buyer good and marketable title to all assets;
2. Assignments, commitments or documents which Seller
is a Party to on the Closing date;
3. Seller will deliver to Buyer a check payable to
the Buyer for all customer deposits belonging to Buyer after Closing;
4. List of accounts receivable.
(b) At the Closing, the Buyer will deliver to the Seller the
following:
1. A check in the sum of Fifteen Thousand dollars
($15,000.00) as required in section 2(b);
2. Acceptance of agreed to contract assignments and
obligations;
3. Promissory Note for the balance of the purchase
price; per Sec. 2(c)
(c) Seller covenants that from this Agreement until the
Closing:
1. Buyer and its accountants and other
representatives shall have full access during normal
business hours to all data and information concerning the business and finances
of the Agency that may be reasonably requested. Buyer agrees that if for any
reason the transaction contemplated hereby shall not be consummated, it will
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hold in confidence all non-public information it may have learned or obtained
concerning the business and return to Seller all books, records, documents and
other written information obtained by it in the course of any investigation
hereunder.
2. Seller will carry on its business and activities
diligently and in substantially the same manner as it previously has been
carried out, and shall not make or institute any unusual or novel methods or
sale, management or operation that will vary materially from those methods used
by Seller as of the date of the Agreement.
3. Seller will use its best efforts to preserve its
business organization intact, to keep available to Seller its present employees
and to preserve its present relationship with suppliers, customers and other
having a business relationship with it. Seller will not make any personal
changes or adjust any salaries or other compensation or benefits without Buyer's
approval. Seller will not enter into any new contract or amend any existing
contract, agreement or obligation without Seller's knowledge previously to
signing any said obligation.
4. Seller will continue to carry its existing
insurance until Closing, and after when warranted.
SECTION 7.
REPRESENTATION, WARRANTIES, AND COVENANTS OF SELLER AND STOCKHOLDER
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8. Seller and Stockholder, in order to induce Buyer to enter into this
Agreement and to complete the transactions herein contemplated, make the
following representations, warranties, covenants and agreements, jointly and
severally:
(a) Seller is a corporation duly organized and validly
existing and in good standing under the laws of the State of Florida, with full
power, corporate and other, to own its assets and to conduct the Business in
which it is now engaged. Seller does not conduct any portion of the Business
through a subsidiary or in any other form of common enterprise with another
person or entity.
(b) Seller has the full right, power, legal capacity and
authority to enter into this Agreement and to perform its or their respective
obligations hereunder.
(c) At the Closing, Seller shall have good and marketable
title to, and shall have the full right to sell, assign, transfer and convey to
Buyer each item of personal property included in the Business and personal
property is free and clear of any conditional sales contract or encumbrance
against the property.
(d) Seller does not own, use or rely upon any trademarks;
trade names, franchises or related names other than Vacation and Cruise
Resources, Inc. DBA Miami Cruise Center.
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(e) Upon the transfer and assignments of the assets and
Business, Buyer will have acquired good and marketable title to the sale and
exclusive ownership of the assets of the Business free and clear, unless
disclosed in writing to the Buyer in an Exhibit to this Agreement.
(f) All employees of Seller will be terminated at Closing by
Seller. No employee can make a claim for vacation or sick leave to Buyer. There
are no employment agreements to which Seller is a Party or by which Seller is
bound.
(g) Except as set forth in Exhibit "6", there are no bonus,
incentive, profit-sharing, pension, retirement, deferred compensation, or other
employee pension or fringe benefit programs.
(h) Except as set forth in Exhibit "7", to Seller's knowledge
there are no actions, suits, proceedings or claims pending, threatened against
or affecting Seller or any portion of the Business. There are no orders,
judgments or decrees outstanding against Seller.
(i) Seller is in compliance with all laws, ordinances,
requirements, decrees and orders which materially affect the Business.
(j) Exhibit "8" is a complete list of all accounts of the
Business who have purchased travel during the last twelve (12) months. There has
not been a material change in the clients except those already discussed with
Buyer. Seller cannot warrant or represent that Clients will remain after the
Closing but Seller will make all efforts to assure that Clients are maintained
and serviced as previously by the Business.
(k) Seller has filed all taxes within the legal requirements
and has paid said taxes, fees or assets of any nature to anyone which will
affect Buyer's title to the Assets.
SECTION 8.
REPRESENTATIONS AND WARRANTIES OF BUYER
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9. Buyer, in order to induce Seller to enter into this Agreement and to
consummate the transaction herein contemplated, make the following
representations, warranties and agreements:
(a) Buyer is not subject to any corporate restrictions that
would prevent or restrict it from executing and delivering this Agreement or
acquiring the Business and paying the purchase price therefore, in accordance
with the terms hereof.
(b) Buyer represents that it is duly authorized to enter into
this Agreement and perform its obligations hereunder.
(c) Buyer represents that it is a corporation duly organized
and in good standing under the laws of Florida.
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SECTION 9.
INDEMNIFICATION
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12. Seller will protect, defend, indemnify, and hold harmless Buyers
from and against (i) any and all liabilities, obligations, debits or
commitments, of Seller or the Business arising from any action that occurred
prior to the closing and not expressly assumed by Buyer hereunder, and (ii) any
and all demands, claims, recoveries, obligations, losses, damages, deficiencies
and liabilities and all related costs, expenses (including Attorney's fees),
interest and penalties which Buyer shall incur or suffer which arise, result
from or relate to (a) the breach of, or failure to perform or satisfy any of the
representations, warranties, covenants or agreements made by Seller under this
Agreement, (b) any action, suit, proceeding, claims, arbitration or
investigation pending, threatened against or affecting Seller or any portion of
the Business as of the Closing date, in any Court or before any governmental
agency or instrumentality based upon or arising from any act, event, or
transaction involving, or any action taken by Seller which occurred, existed or
was taken on or before the Closing, regardless of when liability therefore shall
be deemed or claimed to arise.
12.1 Buyer will protect, defend, indemnify and hold harmless Seller
from and against any and all demands, claims, recoveries, obligations, losses,
damages, deficiencies and liabilities and all related costs, expenses (including
Attorney's fees), interest and penalties which Seller incur or suffer and arise,
result from, or relate to (a) the breach of, or failure to perform or satisfy,
any of the representations, warranties or covenants made by Buyer in or under
this Agreement or (b) any claim or claims made or threatened against Seller
based upon or arising from any act, event, or transaction involving the conduct
of Buyer, Buyer's employees, contractors or Agents working with or in the
Business after the Closing.
12.2 With respect to those actions described I Sec. 12, 12.1 above,
Buyer shall give Seller, and Seller shall give Buyer, prompt notice of the
assertion or commencement of any action, suit, claim proceeding, arbitration or
investigation, and shall give said Party receiving notice a reasonable
opportunity to defend same as its own expense and with counsel of its own
selection; provided that the Party giving notice shall at all times also have
the right to fully participate in the defense at its own expense. If the Party
receiving notice shall fail to defend in a reasonable time, the Party giving
notice shall have the right but not the obligation to undertake the defense of
the claims on behalf of the other Party. If the claims are against the Seller,
and the Seller is adjudicated at fault and the Buyer has defended the action,
the Buyer has the right to offset the cost of litigation and/or judgment against
the balance due Seller under this Agreement.
SECTION 10.
ENTIRE AGREEMENT
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13. This Agreement including Exhibits constitutes the entire Agreement
between the Parties hereto and supersedes all prior and contemporaneous
Agreements, understanding negotiations, letter of intent and discussions between
the Parties and their counsel, and there are no warranties, representations,
covenants or other agreements between the Parties in connection with the subject
matter except as specified herein. Any modification of this Agreement must be
executed in writing and signed by both Seller and Buyer. No waiver of any of the
provisions of this Agreement shall be deemed or construed as a waiver or any
other provision herein, whether or not similar, nor shall any waiver constitute
a continuing waiver unless expressly provided.
SECTION 11.
ATTORNEY REPRESENTATION
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14. The Parties acknowledge that the Law Office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ has
represented Joystar, Inc. in this transaction and in connection with the
negotiations and has not provided advice to Seller.
SECTION 12.
MODIFICATION OF THE AGREEMENT
-----------------------------
15. The Parties hereto may amend or modify this Agreement in such
manner as may be agreed upon by a written instrument executed by the Parties.
SECTION 13.
SUCCESSORS
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16. This Agreement shall benefit and be binding upon the respective
heirs, executors, administrators, legatees, distributes, devisees,
representatives, assigns and other successors of each Party.
SECTION 14.
EXECUTORY PROVISIONS
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17. The Parties hereto agree to execute and deliver any other
documents, and to take any other actions which may be necessary to carry out the
full intent and purpose of this Agreement.
SECTION 15.
INTERPRETATION
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18. This Agreement has been negotiated by and entered into by and among
the Parties in the County of Orange State of California and this Agreement shall
be construed and interpreted according to the laws of the State of California.
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SECTION 16.
ARBITRATION
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19. Any dispute or claim in law or equity arising out of this agreement
will be decided by neutral binding arbitration in accordance with applicable
state law and not by court action except as provided by California law for
judicial review or arbitration proceedings. Judgment upon the award rendered by
the arbitrator may be entered in any court having jurisdiction. The parties will
have the right to discovery in accordance with applicable state law.
SECTION 17.
ATTORNEY'S FEES
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20. In the event any action or suit commenced between the Parties
hereto relating to this Agreement, the prevailing Party in such litigation shall
be entitled to collect from the other Party all reasonable Attorney's fees and
court costs incurred by such prevailing Party in enforcing the provisions of
this Agreement.
SECTION 18.
NOTES
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21. All notices, requests and communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed, certified or registered, with postage prepaid.
A. To Seller: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o Miami Cruise Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
B. To Buyer: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ c/o Joystar, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
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SELLER: __________________________
BY: __________________________
(______________________)
BUYER: (_______________________)
BY: ___________________________
(___________________)
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