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EXHIBIT 10.6
PNBKB DRAFT 5/19/97
AGREEMENT
THIS AGREEMENT is entered into as of the __ day of ___________, 1997,
by and between 800 TRAVEL SYSTEMS, INC., a Delaware corporation with an address
at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 (the "Company"), and
XXXXX XXXXXXXX, an individual with an address at 00 Xxxxxx Xxxxx, Xxxxx Xxxx,
Xxx Xxxx 00000 ("Stockholder").
R E C I T A L S
Stockholder holds an aggregate 480,000 shares (the "Shares") of the
common stock, par value $.01 per share, of the Company (the "Common Stock"),
380,000 of which were acquired directly from the Company as follows:
a. 200,000 Shares were acquired on or about December 1, 1995 in
connection with the Company's initial capitalization in
partial consideration for $200,000 loaned to the Company's
predecessor;
b. 100,000 Shares were acquired for $200,000 on or about June 1,
1996 (the "Private Placement Shares");
c. 20,000 Shares were acquired on or about June 1, 1996 pursuant
to a transaction in which Stockholder exchanged certain
indebtedness outstanding to him from the Company's predecessor
for such shares; and
d. 60,000 Shares were issued to Stockholder on or about January
22, 1997 in satisfaction of obligations which had accrued as
of June 30 and September 30, 1996.
The Company and Stockholder desire to register a portion of the Shares
upon the terms and conditions and for the consideration set forth herein.
The Company desires to issue, and Stockholder desires to receive,
warrants to purchase 300,000 shares of Common Stock (the "Warrants") upon the
terms and conditions and for the consideration set forth herein.
The Company and Stockholder desire to make arrangements with respect
to certain indebtedness owing from the Company to Stockholder, upon the terms
and conditions and for the consideration set forth herein.
NOW, THEREFORE, in consideration of the premises hereof and the
consideration set forth herein, the parties hereto agree as follows:
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ARTICLE I
REGISTRATION OF THE SHARES
SECTION 1.1. Purchase of Certain Shares. (a) Within five (5) business
days of the date hereof the Company shall redeem from Stockholder (i)
50,000 shares of the Company's Common Stock at a redemption price equal to the
higher of $5.00 or the per share price at which the Company's Common Stock is
initially offered to the public in the IPO (the "IPO Price") and (ii) 200,000
shares of the Company's Common Stock at a redemption price equal to the IPO
Price less $1.25 (collectively, the "Redeemed Shares"). In exchange for the
Redeemed Shares the Company shall issue to Stockholder a promissary note (the
"Redemption Note") payable to the order of Stockholder in the principal amount
of $1,000,000. Such promissary note shall not bear interest and shall be
payable, in full, no later than five days of the closing of the IPO (as defined
herein) by wire transfer of immediately available funds.
(b) If on or prior to September 30, 1997, (i) the IPO has not
closed or (ii) the Redemption Note has not been paid in full, then upon five
(5) days notice by either the Company or Stockholder, the redemption of the
shares provided for herein shall be deemed void ab initio and the Company
shall issue 250,000 shares to the Stockholder and the Stockholder shall return
the Redemption Note to the Company.
SECTION 1.2. Registration of Certain Shares. In connection with the
registration statement (the "Registration Statement") to be filed and declared
effective to effectuate the Company's proposed public offering of its Common
Stock (the "IPO"), which the Company currently contemplates completing with
First London Securities Corporation as its underwriter, the Company shall
exercise its best efforts to cause 210,000 of the shares to be registered for
sale pursuant to the Registration Statement, such 210,000 shares to include
10,000 of the shares issued to Stockholders in January 1997 and 100,000
Private Placement Shares.
SECTION 1.3. Sale of Remaining Shares. With respect to the Private
Placement Shares, Stockholder shall comply with the "Lock-up" provisions
provided for in the Subscription Agreement pursuant to which such shares were
acquired. Notwithstanding any agreement to the contrary previously entered into
by and between the Company and Stockholder and notwithstanding that Stockholder
may be permitted to do so under applicable law, with respect to the remaining
110,000 shares registered on behalf of Stockholder, Stockholder shall not,
directly or indirectly, sell, offer to sell, grant an option for the sale of,
assign, transfer, pledge, hypothecate, or otherwise encumber or dispose of
(collectively, "Sell") more than 10,000 Shares within thirty (30) days of the
closing of the IPO and no more than 20,000 shares during each consecutive 30-day
period thereafter, provided that if Stockholder does not sell all of the Shares
which may be sold by him during any 30-day period, such Shares may be added to
those which may be sold during a subsequent 30-day period. The Company will
respond promptly to any request from Stockholder for the removal of legends
from the certificates representing such Shares to permit their sale as provided
herein.
SECTION 1.4. Registration Obligations. When the Company effects the
registration of Shares pursuant to the provisions of Section 1.2, the Company
shall:
(a) Keep the registration statement pursuant to which the
Shares have been registered (the "Registration Statement") effective for such
period as may be necessary for Stockholder to sell all of the Shares, but in
all events for no more than nine months or until all of the shares are
eligible for sale, in the opinion of counsel to the Company, in transactions
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exempt from the registration or prospectus delivery requirements of the
Securities Act so that all transfer restrictions with respect to such
securities and all restrictive legends on the certificate evidencing the Shares
are or may be removed upon consummation of such sale;
(b) Furnish to Stockholder copies of any prospectus,
subject to completion and final prospectus, in conformity with the requirements
of the Securities Act, in order to facilitate the public sale or other
disposition of the Shares;
(c) Use its best efforts to register or qualify the
Shares under the securities or "blue sky" laws of such jurisdictions as
Stockholder shall reasonably request (provided, however, that the Company shall
not be required to consent to general service of process for all purposes in
any jurisdiction where it is not then qualified) and do any and all other
reasonable acts or things which may be reasonably necessary to enable
Stockholder to consummate the public sale or other disposition in such
jurisdictions of the Shares;
(d) Notify each seller of Shares, at any time within the
nine month period referred to in subparagraph (a), when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which such
statements were made not misleading and at the reasonable request of such
seller, prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
as thereafter delivered to the purchasers of such shares, such prospectus shall
not include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which such statements were made, not
misleading;
(e) Furnish, at the request of Stockholder, on the date
that the Shares are delivered to the underwriters for sale in connection with a
registration pursuant to this Section, if the Shares are being sold through
underwriters, or, if the Shares are not being sold through underwriters, on the
date that the Registration Statement becomes effective, (i) to the underwriter
an opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to Stockholder; and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to Stockholder; and
(f) The Company will be entitled to postpone or interrupt
the effective date of the Registration Statement (and the use of the
prospectus) if it determines, in its reasonable judgment after consultation
with counsel, that such effectiveness would require the premature announcement
of any material financing, acquisition, corporate reorganization or other
material corporate transaction or development involving the Company if, in the
Company's reasonable
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determination, such announcement would be materially detrimental to the
interests of the Company and its stockholders. The postponement or
interruption will be for the minimum period reasonably required to avoid such
premature disclosure. The Company will give prompt notice to Stockholder of
any such postponement or interruption and will use all reasonable efforts to
minimize the length of the postponement or interruption;
(g) Notify Stockholder of (A) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any prospectus,
or of the suspension of the qualification of the Shares for offering or sale in
any jurisdiction, or of the institution or threat of any proceedings for any of
such purposes, and the Company shall take all practicable action necessary (i)
to prevent the entry of any threatened stop order or any threatened suspension
once entered and (B) of the lifting of any such order or suspension or
resolution of any such proceedings that permits the resumption of offers and
sales of the Shares;
(h) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securities holders as promptly as practicable an earnings statement covering a
period of twelve months beginning after the effective date of such Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder; and
(i) Use its best efforts to include the Shares among the
Company's securities listed on such securities exchange or national market
system on which shares of the Company's Common Stock are then principally
traded.
SECTION 1.5. Expenses. All expenses incurred by the Company in
complying with the requirement that the Shares be registered in accordance with
Section 1.2, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the National Association of
Securities Dealers, Inc.), fees and expenses of complying with securities and
"blue sky" laws, printing expenses and fees and disbursements of counsel, and
of the independent certified public accountants (but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company) of the Company shall be paid by the Company to the extent permitted
under applicable federal and state regulations or by federal or state agencies
having jurisdiction over the registration.
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SECTION 1.6. Indemnification.
(a) The Company will indemnify Stockholder, and each
underwriter, if any, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on (i) any untrue statement
(or alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other similar document (including the Registration
Statement) incident to the registration or qualification of Shares in
accordance with Section 1.2, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
under which they were made, or (ii) any violation by the Company of any
federal, state or common law rule or regulation applicable to the Company in
connection with any such registration or qualification, and will reimburse
Stockholder, and each such underwriter, if any, for any legal and any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability or action, as incurred, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on (i) any untrue
statement or omission based upon written information furnished to the Company
by an instrument duly executed by Stockholder or any underwriter for inclusion
in the registration statement, (ii) the failure of Stockholder or any
underwriter to deliver, or cause to be delivered, a prospectus as required by
the Securities Act or (iii) any untrue statement contained in or omission from
any preliminary prospectus, if such deficiency is corrected in the final
prospectus.
(b) Stockholder will indemnify the Company, each of its
directors and officers, each legal counsel and independent accountant of the
Company, each underwriter, if any, of the Company's securities covered by the
Registration Statement, and each person who controls the Company or such
underwriter within the meaning of the Securities Act, against all claims,
losses, damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular or other similar document
(including the Registration Statement, any related notification or the like)
incident to any registration or qualification of the Shares, or any omission
(or alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and will reimburse the
Company, such directors, officers, persons, underwriters or control persons for
any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action,
as incurred, in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission, (or alleged
omission) is made in such Registration Statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by Stockholder.
(c) Each party entitled to indemnification under this
Section 1.6 (the "Indemnified Party") shall give notice to the party required
to provide Indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has received written notice of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
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the defense of any such claim or any litigation resulting therefrom, provided
that counsel for the Indemnifying Party, who shall conduct the defense of such
claim or litigation, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld). The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnified
Party shall bear the expense of such defense of the Indemnified Party if
representation of both parties by the same counsel would be inappropriate due
to actual or potential conflicts of interest. The failure of any Indemnified
Party to give notice as provided herein shall relieve the Indemnifying Party of
its obligations under this Section 1.6 only to the extent that such failure to
give notice shall materially adversely prejudice the Indemnifying Party in the
defense of any such claim or any such litigation. No Indemnifying Party, in
the defense of any such claim or litigation, shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
SECTION 1.7. Information by Stockholder. Stockholder shall furnish
to the Company such information regarding Stockholder and the distribution
proposed by Stockholder as the Company may reasonably request in writing and as
shall be required in connection with any registration, qualification or
compliance referred to in this Article I.
SECTION 1.8. Transfer of Registration Rights. The rights to cause
the Company to register securities granted under Section 1.2 may be assigned or
otherwise conveyed by Stockholder to his family members or a trust for his or
their benefit, to any affiliates of Stockholder, or to any transferee who
acquires all of the Shares held by Stockholder; provided in each case, that (i)
the Company is given written notice by the transferor at the time of or within
a reasonable time after said transfer, stating the name and address of said
transferee, (ii) said transferee agrees in writing to be bound by the
provisions of this Agreement and (iii) the Company receives an opinion of
counsel from Stockholder stating that such transfer was made in compliance with
applicable federal and state securities laws.
SECTION 1.9. Further Assurances. Each party shall cooperate with the
others, and execute and deliver, or cause to be executed and delivered, all
such other instruments, including instruments of conveyance, assignment and
transfer, and take all such other actions as such party may reasonably be
requested to take by the other parties hereto from time to time, consistent
with the terms of this Agreement, in order to effectuate the provisions and
purposes of this Agreement.
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ARTICLE II
ISSUANCE OF WARRANTS
SECTION 2.1. Warrants.
(a) Simultaneously herewith, the Company is issuing and
delivering to Stockholder the Warrants exercisable for an aggregate of 300,000
shares of Common Stock substantially in the form of Exhibit A attached hereto.
The Warrants shall have an exercise price equal to One Hundred and Ten percent
(110%) of the price at which the Common Stock is initially offered to the
public in the IPO (the "IPO Price") or, if the IPO is not consummated on or
before January 1, 1998, Four Dollars and Forty Cents ($4.40). The Warrants
shall be exercisable as to 150,000 shares for a period of four (4) years
commencing on the first anniversary of the earlier to occur of (i) the closing
of the IPO or (ii) January 1, 1998 (such earlier date being referred to herein
as the "Exercise Commencement Date"), and as to the remaining 150,000 shares
for a period of three (3) years commencing on the second anniversary of the
Exercise Commencement Date.
(b) Stockholder shall have the option, exercisable by
giving written notice to the Company any time on or before the first
anniversary of the effective date of the Registration Statement, to exchange
for no additional consideration all, but not less than all, of the Warrants for
warrants exercisable for an aggregate of 300,000 shares of Common Stock
identical to the warrants being sold and issued in the IPO (the "Exchange
Warrants").
SECTION 2.2. Lock-up of Warrants. Stockholder shall not, directly or
indirectly, sell, offer to sell, grant an option for the sale of, assign,
transfer, pledge, hypothecate, or otherwise encumber or dispose of the Warrants
or the Exchange Warrants, as the case may be, for the following periods:
(a) with respect to one-half of the Warrants or the
Exchange Warrants, as the case may be, for a period
of one (1) year from the date hereof; and
(b) with respect to the other half of the Warrants or the
Exchange Warrants, as the case may be, for a period
of two (2) years from the date hereof.
SECTION 2.3. No Obligation to Register. The Company shall not be
obligated to register any of the Warrants or the Exchange Warrants, as the case
may be.
SECTION 2.4. Legends. Each certificate representing the Warrants or
any security issued or issuable upon exercise of the Warrants shall contain a
legend on the face thereof, in form and substance satisfactory to counsel of
the Company, setting forth the restrictions on transfer thereof contained
herein.
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ARTICLE III
COMPANY'S INDEBTEDNESS TO STOCKHOLDER
SECTION 3.1. Extension of Maturity. The Company acknowledges and
agrees that it is indebted to Stockholder in the aggregate principal amount of
Two Hundred Fifty Thousand Dollars ($250,000). No later than July 1, 1997, the
Company shall pay to Stockholder $25,000 to be applied against the outstanding
principal balance of the Notes. Notwithstanding anything to the contrary set
forth in the notes evidencing the amounts due Stockholder (the "Promissory
Notes), except for the principal payments provided for herein, Stockholder
agrees to (i) extend the maturity date of each of the Promissory Notes to July
31, 1997 (the "New Maturity Date") and (ii) change the rate of interest due
under the Promissory Notes to twelve percent (12.0%) per annum for the period
from January 1, 1997, through May 31, 1997, and to eighteen percent (18%)
effective June 1, 1997. Except as provided herein, all amounts of principal
and interest due under the Promissory Notes shall be payable on the New
Maturity Date. Except as provided in this Article III, all other terms and
conditions of the Promissory Notes shall remain in full force and effect and
the Company shall continue to pay interest accrued on the Promissory Notes
monthly.
SECTION 3.2. Default. In the event that the Company shall fail to
pay when due any of its obligations to Stockholder:
(a) the principal amount of the indebtedness under the Promissory
Note shall continue to bear interest at the rate of eighteen
percent (18.0%) per annum with principal and interest payable
in twelve (12) equal monthly installments beginning on
August 1, 1997; and
(b) the Security Agreement attached hereto as Exhibit B creating a
lien on the Company's telephone system in favor of Stockholder
shall become effective and enforceable as of July 1, 1997.
SECTION 3.3. Further Assurances. Each party shall cooperate with the
others, and execute and deliver, or cause to be executed and delivered, all
such other instruments including, without limitation, financing statements, and
take all such other actions as such party may reasonably be requested to take
by the other parties hereto from time to time, consistent with the terms of
this Agreement, in order to effectuate the provisions and purposes of this
Article III.
SECTION 3.4. Method of Delivery of Payment. All payments due
Stockholder hereunder shall be sent by FedEx courier service (or equivalent
courier service) for receipt on the first day of the month, except that
payments of $30,000 or more shall be sent by wire transfer.
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SECTION 3.5. Acceleration. Notwithstanding anything herein to the
contrary, all amounts due Stockholder under the Promissory Notes shall be paid
within five (5) days of the closing of the IPO and, if not timely paid, shall
thereafter bear interest at the rate of twenty-four percent (24.0%) per annum.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties of Stockholder.
Stockholder represents and warrants as follows:
(a) Validity of Agreement. Stockholder has full power and
authority to execute and deliver this Agreement. All necessary proceedings have
been duly taken to authorize the execution, delivery and performance by
Stockholder of this Agreement and all documents and instruments referred to
herein to which Stockholder is a party. This Agreement and such documents and
instruments have been duly executed and delivered by Stockholder, and assuming
due authorization, execution and delivery by the Company, constitute the valid
and binding agreement of Stockholder enforceable in accordance with their
terms.
(b) No Conflict or Violation. No consent, authorization,
approval, order, license, certificate or permit of or from or declaration or
filing with any federal, state, local or governmental authority or any court or
other tribunal is required for the execution, delivery or performance by
Stockholder of this Agreement and the documents and instruments referred to
herein to which Stockholder is a party. No consent of any party to any
contract, agreement, instrument, lease, license, arrangement or understanding
to which such person is a party or to which any of Stockholder's properties or
assets are subject, is required for the execution, delivery or performance of
this Agreement and the documents and instruments referred to herein to which
Stockholder is a party. The execution, delivery and performance of this
Agreement will not violate, result in the breach of, conflict with or (with or
without the giving of notice or the passage of time or both) entitle any party
to terminate or call a default under any such contract, agreement, instrument,
lease, license, arrangement or understanding, or violate or result in a breach
of or conflict with any law, rule, regulation, order, judgment or decree
binding on Stockholder.
(c) Ownership of the Shares and the Promissory Notes.
Stockholder has good, valid and marketable title to the Shares and the
Promissory Notes, all of which are free and clear of all pledges, liens,
claims, charges, options, calls, encumbrances, restrictions and assessments
whatsoever (except any restrictions which may be created by operation of the
Federal and State securities laws). Except for the restrictions contained
herein, there is no agreement outstanding affecting the right of Stockholder to
vote, sell, transfer or otherwise exercise any of the rights attendant to the
Shares owned by Stockholder.
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(d) Private Transaction. Stockholder acknowledges that the
Warrants are being issued in a private transaction exempt from registration
under the Securities Act and accordingly in the absence of such registration,
the Warrants and the shares issuable thereunder may not be sold, hypothecated,
exercised, assigned or transferred, except in accordance with and subject to
the provisions of the Securities Act and the Rules and Regulations promulgated
thereunder.
SECTION 4.2. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) Corporate Organization. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to enter
into this Agreement, to issue the Warrants and to perform its obligations
hereunder and thereunder.
(b) Authorization and Validity of Agreement. The Company
has full power and authority to execute and deliver this Agreement and the
documents and instruments referred to herein to which it is a party and to
perform the transactions herein contemplated. All necessary proceedings have
been duly taken to authorize the execution, delivery and performance by the
Company of this Agreement, the Warrants, the shares issuable thereunder and the
documents and instruments referred to herein to which it is a party. This
Agreement, the Warrants and such other documents have been duly executed and
delivered by the Company and assuming due authorization, execution and delivery
by the other parties hereto, constitute the valid and binding agreements of the
Company enforceable in accordance with their terms.
(c) No Conflict or Violation. No consent, authorization,
approval, order, license, certificate or permit of or from or declaration or
filing with any federal, state, local or governmental authority or any court or
other tribunal is required for the execution, delivery or performance by the
Company of this Agreement and the documents and instruments referred to herein
to which it is a party. No consent of any party to any contract, agreement,
instrument, lease, license, arrangement or understanding to which the Company
is a party or to which any of its properties or assets is subject, is required
for the execution, delivery or performance of this Agreement and the documents
and instruments referred to herein to which it is a party, except for such
consents which have been obtained prior to the date hereof; and the execution,
delivery and performance of this Agreement and such documents and instruments
will not violate, result in the breach of, conflict with or (with or without
the giving of notice or the passage of time or both) entitle any party to
terminate or call a default under any such contract, agreement, instrument,
lease, license, arrangement or understanding, or violate or result in a breach
of any term of the Certificate of Incorporation or By-Laws of the Company or
violate, result in a breach of or conflict with any law, rule, regulation,
order, judgment or decree binding on the Company or to which any of its
operations, businesses, properties or assets are subject or result in the
creation of any mortgage, pledge, lien, charge or encumbrance upon any of the
assets of the Company or the loss of any license or other contractual right
with respect thereto.
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(d) Valid Issuance. Upon issuance in accordance with the
terms hereof the Warrant to be issued to Stockholder will have been duly
authorized and validly issued.
SECTION 4.3. Survival. Each of the representations and warranties
made by the parties in this Article IV shall survive the Closing indefinitely.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Confidentiality. All information given by any party
hereto to any other party shall be considered confidential and shall be used
only for the purposes intended.
SECTION 5.2. Successors and Assigns; No Third-Party Beneficiaries.
This Agreement shall inure to the benefit of, and be binding upon, the parties
hereto and their respective successors and assigns; provided, however, that no
party shall assign or delegate any of the obligations created under this
Agreement without the prior written consent of the other parties. Nothing in
this Agreement shall confer upon any person or entity not a party to this
Agreement, or the legal representatives of such person or entity, any rights or
remedies of any nature or kind whatsoever under or by reason of this Agreement.
SECTION 5.3. Notices. All notices and other communications given or
made pursuant hereto shall be deemed to have been given or made if in writing
and delivered personally, sent by registered or certified mail (postage
prepaid, return receipt requested) or sent by telecopier to the Company and
Stockholder at their respective addresses set forth above, in the case of the
Company a copy to Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx X. XxXxxx, Esq. and, in the case of
Stockholder, a copy to Xxxxx Raysman Xxxxxxxx Xxxxxx & Xxxxxxx LLP, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxx, Esq., or at
such other addresses as shall be furnished by any party by like notice to the
others and such notice or communication shall be deemed to have been given or
made as of the date so delivered or mailed. No change in any of such addresses
shall be effective insofar as notices under this Section 5.3 are concerned
unless such changed address is located in the United States of America and
notice of such change shall have been given to the other parties hereto as
provided in this Section 5.3.
SECTION 5.4. Entire Agreement. This Agreement, together with the
exhibits hereto, represents the entire agreement and understanding of the
parties with reference to the transactions set forth herein and no
representations or warranties have been made in connection with this Agreement
other than those expressly set forth herein or in the exhibits, certificates
and other documents delivered in accordance herewith. This Agreement
supersedes all prior negotiations, discussions, correspondence, communications,
understandings and agreements among the parties relating to the subject matter
of this Agreement, and all prior drafts of this
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Agreement, all of which are merged into this Agreement. No prior drafts of
this Agreement and no words or phrases from any such prior drafts shall be
admissible into evidence in any action or suit involving this Agreement.
SECTION 5.5. Waivers and Amendments. Any party may by written notice
to the others (a) extend the time for the performance of any of the obligations
or other actions of the others; (b) waive any inaccuracies in the
representations or warranties of the others contained in this Agreement; (c)
waive compliance with any of the covenants of the others contained in this
Agreement; (d) waive performance of any of the obligations of the others
created under this Agreement; or (e) waive fulfillment of any of the conditions
to its own obligations under this Agreement. The waiver by any party hereto of
a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any subsequent breach, whether or not similar. This Agreement
may be amended, modified or supplemented only by a written instrument executed
by the parties hereto.
SECTION 5.6. Severability. This entire Agreement shall be void if
any provision of this Agreement is invalid, illegal, unenforceable or
inapplicable to any party or circumstance to which it is intended to be
applicable.
SECTION 5.7. Titles and Headings. The Article and Section headings
contained in this Agreement are solely for convenience of reference and shall
not affect the meaning or interpretation of this Agreement or of any term or
provision hereof.
SECTION 5.8. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
SECTION 5.9. Convenience of Forum; Consent to Jurisdiction. The
parties to this Agreement, acting for themselves and for their respective
successors and assigns, without regard to domicile, citizenship or residence,
hereby expressly and irrevocably elect as the sole judicial forum for the
adjudication of any matters arising under or in connection with this Agreement,
and consent and subject themselves to the jurisdiction of, the courts of the
State of New York located in New York City, and/or the United States District
Court for the Southern District of New York, in respect of any matter arising
under this Agreement. Service of process, notices and demands of such courts
may be made upon any party to this Agreement by personal service at any place
where it may be found or giving notice to such party as provided in Section 5.3
hereof.
SECTION 5.10. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
without giving effect to the choice-of-law provisions thereof.
SECTION 5.11. Advice of Legal Counsel. Each party acknowledges and
represents that, in executing this Agreement, such party has had the
opportunity to seek the advice of legal
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counsel and that such party has read and understood all of the terms and
provisions of this Agreement. Further, this Agreement shall not be construed
against any party by reason of its preparation or having drafted this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
800 TRAVEL SYSTEMS, INC.
By:
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XXXXX XXXXXXXX
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EXHIBIT A
Form of Warrants
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EXHIBIT B
Form of Security Agreement
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