Exhibit 10.2
DISTRIBUTION AGREEMENT
THIS DISTRIBUTION AGREEMENT is made and entered into as of February 7, 2002,
between TRAVLANG, INC., a Delaware corporation ("TRVL"), XXXXXXXX.XXX, INC., a
Florida corporation to be known as TL Global, Inc. ("TL").
R E C I T A L S
WHEREAS, TRVL has an agreement to acquire Sec2Wireless, Inc. ("Sec2");
and
WHEREAS, the Board of Directors of TRVL has deemed it appropriate and
desirable to:
(a) separate and divide the existing businesses of TRVL so that (i) the
Xxxxxxxx.xxx business and the ownership of certain equity securities will be
owned and conducted directly or indirectly by TL, and (ii) the Sec2 business
will be retained and conducted directly or indirectly by TRVL, which will be
renamed Sec2Wireless, Inc. immediately following the Distribution (as
hereinafter defined); and
(b) distribute, after such separation and division, as a dividend to the holders
of shares of common stock, par value $.01 per share, of TRVL (the "TRVL Common
Stock"), all of the then-outstanding shares of common stock, par value $.01 per
share, of TL (the "TL Common Stock"), and
WHEREAS, each of TRVL and TL has determined that it is necessary and
desirable to set forth the principal corporate transactions required to effect
such separation, division and Distribution and to set forth agreements that will
govern certain other matters before and after the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. General. As used in this Agreement, the following terms
have the following meanings:
"Action" means any action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority or any arbitration
tribunal.
"Affiliate" means, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Agent" means Continental Stock Transfer & Trust Company, or such other
trust company or bank designated by TRVL, who shall act as agent for the holders
of TRVL Common Stock in connection with the Distribution.
"Agreement Date" means the date set forth in the first paragraph of
this Agreement.
"Assets" means assets, properties and rights (including goodwill),
wherever located (including in the possession of vendors or other third parties
or elsewhere), whether real, personal or mixed, tangible, intangible or
contingent, in each case whether or not recorded or reflected or required to be
recorded or reflected on the books and records or financial statements of any
Person, including:
(i) all accounting and other books, records and files;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment, capital and other
spares, furniture, office equipment, automobiles, trucks and other
transportation equipment, special and general tools, test devices,
prototypes and models and other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work- in-process, consigned goods, finished goods, packaging
and all products and product samples;
(iv) all buildings and other improvements to real property;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other Person, all bonds, notes,
debentures or other securities issued by any Subsidiary or any other
Person, all loans, advances or other extensions of credit or capital
contributions to any Subsidiary or any other Person and all other
investments in securities of any Person;
(vi) all license agreements, leases of personal property, open
purchase orders for raw materials, supplies, parts or services,
unfilled orders for the manufacture and sale of products, other sales
or purchase agreements, Distribution arrangements, and other contracts,
agreements or commitments;
(vii) all technical information, data, research and
development information, engineering drawings, operating and
maintenance manuals, and materials and analyses prepared by consultants
and other third parties;
(viii) all Intellectual Property;
(ix) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier lists, customer
and vendor data, correspondence and lists, product literature, artwork,
design, development and manufacturing files, vendor and customer
drawings, formulations and specifications, quality records and reports
and other books, records, studies, surveys, reports, plans and
documents;
(x) all prepaid expenses, trade accounts and other accounts
and notes receivables;
(xi) all rights under contracts, agreements, warranties or
guarantees, all claims or rights or judgments against any Person, all
rights in connection with any bids or offers and all claims, choses in
action, rights of recovery and rights of set-off or similar rights,
whether accrued or contingent, and refunds and deposits;
(xv) all licenses, permits, approvals and authorizations which
have been issued by any Governmental Authority;
(xvi) advertising and marketing materials and other printed or
written materials;
(xvii) employee contracts, including any rights thereunder to
restrict an employee or former employee from competing in certain
respects and personnel and medical files and records; and
(xviii) Cash and Cash Equivalents, bank accounts, lock boxes
and other deposit arrangements.
"Assignee" has the meaning ascribed to such term in Section 2.04(b).
"Books and Records" means all books, records, manuals, agreements and
other materials (in any form or medium), including all mortgages, licenses,
indentures, contracts, financial data, customer lists, marketing materials and
studies, advertising materials, price lists, correspondence, distribution lists,
supplier lists, production data, sales and promotional materials and records,
purchasing materials and records, personnel records, manufacturing and quality
control records and procedures, blue prints, research and development files,
records, data and laboratory books, accounts records, sales order files,
litigation files, computer files, microfiche, tape recordings and photographs.
"Cash and Cash Equivalents" has the meaning ascribed to such term under
GAAP.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Consent" means any approval, consent or waiver required to be obtained
from any Governmental Authority or other third party for the consummation of a
specified transaction, including any option, right of first refusal or other
similar right of a third party triggered by a specified transaction.
"Corporate Reorganization Transactions" means, collectively, each of
the Distribution, transfers, conveyances, contributions, assignments and other
transactions which are intended to separate and divide the existing businesses
of TRVL so that,
(i) the TL Assets, TL Liabilities and TL Business shall be
owned or held, directly or indirectly, by TL; and
(ii) the Sec2 Business, Assets and Liabilities of TRVL that
remain after giving effect to the Distribution, will be owned by TRVL.
"DGCL" means the Delaware General Corporation Law, as amended.
"Disputing Party" has the meaning ascribed to such term in Section
9.03(a).
"Distribution Date" means the date determined by the Board of Directors
of TRVL as of which the Distribution shall be effected.
"Distribution Record Date" means March 13, 2002.
"Effective Time" means 11:59 p.m. Florida time on the Distribution
Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means United States generally accepted accounting principles and
practices, as in effect on the date of this Agreement, as promulgated by the
Financial Accounting Standards Board and its predecessors.
"Governmental Authority" means any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"Intellectual Property" means the intellectual property rights owned,
licensed to or otherwise held throughout the world by any person, including,
without limitation, all of the rights, title and interests in the following:
(i) all United States and foreign patents, patent applications
(including any continuations, continuation-in-part and divisionals),
patent applications under preparation, invention disclosures and
invention disclosures under preparation;
(ii) all United States and foreign registered and unregistered
copyrights and mask works, including applications and applications
under preparation therefor;
(iii) all United States and foreign registered and
unregistered trademarks, trade names, trade dress, service marks,
services names, artwork, logos and other marks, including applications
and applications under preparation therefor;
(iv) all trade secrets, know-how, ideas, concepts,
discoveries, improvements, processes, procedures, methods, recipes,
formulae, data and specifications;
(v) all computer programs and other software (in executable or
source code format), including operating software, applications,
networks software, firmware, middleware, design software, design tools,
test and diagnostic software and systems configurations; and
(vi) all documentation, schematics, drawings, designs,
manuals, reports, records, instructions, studies, surveys, plans, books
or other written materials (whether in hard copy or magnetic form)
relating to or including any of the (i) through (v) above.
"Law" means all laws, statutes, ordinances, regulations, rules, orders
and regulations of any Governmental Authority.
"Liabilities" means any and all debts, liabilities, obligations,
responsibilities, charges, claims, actions, injuries, losses, damages (whether
compensatory, punitive or treble), fines, penalties and sanctions, absolute or
contingent, matured or unmatured, liquidated or unliquidated, foreseen or
unforeseen, joint, several or individual, asserted or unasserted, accrued or
unaccrued, known or unknown, whenever arising, including those arising under or
in connection with any Law (including any Environmental Law), Action, threatened
Action, order or consent decree of any Governmental Authority or any award of
any arbitrator, and those arising under any contract, guarantee, commitment or
undertaking, whether sought to be imposed by a Governmental Authority, private
party or party to this Agreement, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, or otherwise, and
including any costs, expenses, interest, attorneys' fees, disbursements and
expenses of counsel, experts' and consultants' fees and costs related thereto or
to investigating, preparing for or defending or settling any of the foregoing.
"Notice" has the meaning ascribed to such term in Section 7.05.
"Person" means any natural person, corporation, business trust, joint
venture, association, company, partnership, limited liability company or other
entity or any Governmental Authority.
"Registration Statement" means the Registration Statement on Form SB-2
to be filed by TL with the Commission pursuant to the requirements of the
Securities Act and the rules and regulations thereunder in order to register the
TL Common Stock under the Securities Act, including any amendments thereto.
"Representative" means, with respect to any Person, any of such
Person's directors, officers, employees, agents, consultants, advisors,
accountants, attorneys and representatives.
"Sec2 Acquisition" means the acquisition of all of the outstanding
capital stock of Sec2Wireless Inc. by TRVL pursuant to a Stock Purchase
Agreement dated January 21, 2002.
"Sec2 Assets" means, collectively, all the Assets that are owned or
held by Sec2 or any Sec2 Subsidiary as of the Effective Time, including:
(i) the capital stock of, or other ownership interests in, the
Sec2 Subsidiaries;
(ii) all the Assets that are owned or held by Sec2 or any Sec2
Subsidiary as of the Effective Time; and
(iii) all the Assets acquired by TRVL or any of its
Subsidiaries after the date of the Sec2 Acquisition which are owned or
held by Sec2 or any of its Subsidiaries.
"Sec2 Business" means the business that, after giving effect to the
Corporate Reorganization Transactions and the Distribution is conducted by TRVL,
which will primarily be the business of Sec2 prior to the Sec 2 Acquisition.
"Sec2 Liabilities" means, collectively, all the Liabilities of Sec2 and
its Subsidiaries after giving effect to the Corporate Reorganization
Transactions and the Distribution., including:
(i) all the Liabilities of Sec2 on the Sec2 Acquisition date;
and
(ii) all the Liabilities of Sec2 arising or assumed after the
date of the Sec2 Acquisition.
"Sec2 Records" has the meaning ascribed to such term in Section
6.01(c).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Liabilities" means any Liabilities whatsoever that are
assessed, imposed, awarded against, incurred or accrued by a Person arising out
of, relating to or resulting from, in whole or in part, any Action, any
potential or threatened Action or any Third Party Claim (or any potential or
threatened Third Party Claim) by any Governmental Authority or any other Person
that is based on any violations or alleged violations of the Securities Act,
Exchange Act, any of the rules or regulations of the Commission promulgated
under the Securities Act or Exchange Act, or any other securities or other
similar Law, or on any alleged breach of duty by a Person in causing, permitting
or failing to prevent any such violation or alleged violation.
"Security Interest" means any mortgage, security interest, pledge,
lien, charge, claim, option, right to acquire, voting or other restriction,
right-of- way, covenant, condition, easement, encroachment, restriction on
transfer, or other encumbrance of any nature whatsoever.
"Subsidiary" means, with respect to any Person:
(i) any corporation of which at least a majority in interest
of the outstanding voting stock (having by the terms thereof voting
power under ordinary circumstances to elect a majority of the directors
of such corporation, irrespective of whether or not at the time stock
of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of a contingency) is at
the time, directly or indirectly, owned or controlled by such Person or
by such Person and one or more of its Subsidiaries.
"Third Party Claim" has the meaning ascribed to such term in Section
7.07(a).
"TL Assets" means, collectively, all the Assets that are owned or held
by TL or any TL Subsidiary as of the Effective Time, including:
(i) the capital stock of, or other ownership interests in, the
TL Subsidiaries;
(ii) all the Assets relating to the Xxxxxxxx.xxx business;
(iii) ownership of the TargitInteractive and other equity
securities owned by TRVL prior to the Sec2 Acquisition.
"TL Business" means the business that, after giving effect to the
Corporate Reorganization Transactions and the Distribution, is conducted by TL
or the TL Subsidiaries.
"TL Liabilities" means, collectively, all of the Liabilities of TL and
the TL Subsidiaries after giving effect to the Corporate Reorganization
Transactions and the Distribution, including:
(i) all the Liabilities included on the TL financial
statements in excess of $2,000 on the date of the Sec2 Acquisition;
(ii) all the Liabilities of TL arising or assumed after the
date of the Sec2 Acquisition that relate to the TL Business; and
(iii) all the Liabilities expressly assumed or retained by TL
under this Agreement or the Corporate Reorganization Transactions; and
(iv) all Liabilities to persons employed by TRVL or its
Subsidiaries on or before the Sec2 Acquisition date, the services of
whom were primarily dedicated to the TL Business
"TL Claim" has the meaning ascribed to such term in Section 8.01(c).
"TL Common Shares" means the shares of TL Common Stock owned by TRVL
immediately before the Distribution.
"TL Common Stock" has the meaning ascribed to such term in the recitals
to this Agreement.
"Distribution" means the distribution, on the Distribution Date, as a
dividend by TRVL to the TRVL Holders of the TL Common Shares on the basis
provided in Section 3.02.
"TL Records" has the meaning ascribed to such term in Section 6.01(a).
"Transaction Expenditures" means all cash costs, expenses or other
expenditures incurred before or after the date hereof in connection with the
preparation, execution and delivery of this Agreement and the effectuation of
the Corporate Reorganization Transactions and the Distribution, including the
items listed on Schedule 1.03, but excluding (i) taxes, and Liabilities and
expenditures related to the discretionary restructuring of a business.
"TRVL Common Stock" has the meaning ascribed to such term in the
recitals to this Agreement.
"TRVL Holders" means the holders of record of TRVL Common Stock as of
the Distribution Record Date.
Section 1.02. References; Interpretation. References in this Agreement
to any gender include references to all genders, and references to the singular
include references to the plural and vice versa. The words "include," "includes"
and "including" when used in this Agreement shall be deemed to be followed by
the phrase "without limitation." Unless the context otherwise requires,
references in this Agreement to Articles, Sections, Exhibits and Schedules shall
be deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement. Unless the context otherwise requires, the words "hereof,"
"hereby" and "herein" and words of similar meaning when used in this Agreement
refer to this Agreement in its entirety and not to any particular Article,
Section or provision of this Agreement.
ARTICLE II
PRE-DISTRIBUTION TRANSACTIONS;
CERTAIN COVENANTS
Section 2.01. Corporate Reorganization Transactions; Dispositions.
(a) Corporate Reorganization. On or before the Distribution
Date (but in all events before the Distribution), each of TRVL and TL
shall, take such action or actions as is necessary or appropriate to
cause, effect and consummate the Corporate Reorganization Transactions
in with the ratio of one share of TL Common Stock for each share of
TRVL Common Stock. Notwithstanding the foregoing, each of TRVL and TL
agrees that before the Distribution, one or more of the Corporate
Reorganization Transactions may be amended, modified, supplemented or
eliminated by the parties in any manner determined by TRVL in their
mutual agreement to be necessary or appropriate; provided, however,
that no Corporate Reorganization Transaction may be amended, modified,
supplemented or eliminated unless it would not be materially adverse to
the TRVL stockholders.
Section 2.02. Conveyance of Assets. Except as otherwise expressly
provided in this Agreement, on or before the Record Date, TRVL shall transfer or
cause to be transferred to TL all of TRVL's right, title and interest in the
Global Assets.
Section 2.03. Transfer and Assignment of Certain Agreements.
(a) Transfers. Without limiting the generality of Section 2.02
and except as otherwise expressly provided in this Agreement, on or
before the Record Date, TRVL shall (and, if applicable, shall cause any
other Person over which it has direct or indirect control to), assign,
transfer and convey to TL all its (or such other Person's) right, title
and interest in and to the TL Business. TL shall assume and agree to
pay, perform and fully discharge all obligations of the assignor under
such agreement (whether such obligations arose or were incurred before,
on or after the Distribution Date and irrespective of whether such
obligations have been asserted as of the Distribution Date) or, in the
case of a partial assignment, such Assignee's portion of such
obligations.
Section 2.04. Assumption and Satisfaction of Liabilities. Except as
otherwise expressly provided in this Agreement prior to the Effective Time, TL
shall assume, pay, perform and discharge all TL Liabilities in accordance with
their terms, when determinable, and otherwise in accordance with the practice of
the parties before the Distribution;
Section 2.05. Stock Issuance; Dividends. On or before the Distribution
Date (but in all events before the Distribution), TL shall take all necessary
actions so that on the Distribution Date, the number of shares of TL Common
Stock outstanding and held by TRVL is equal to the number of shares of TL Common
Stock to be outstanding on the Distribution Record Date.
Section 2.06. Charters; By-laws. On or before the Distribution Date,
each of TRVL and TL shall take all necessary actions so that as of the Effective
Time the Certificate of Incorporation and By-laws of TL will be substantially in
the forms filed as exhibits to TL's Registration Statement at the time it
becomes effective.
Section 2.07. Directors, Officers and Employees. On or before the
Distribution Date each of TRVL and TL shall take all necessary actions so that
as of the Effective Time the directors and executive officers of TL will be as
set forth in the Registration Statement.
Section 2.08. Operations in Ordinary Course. Except as otherwise
expressly provided in this Agreement, between the Agreement Date and the
Effective Time, each of TRVL and TL shall conduct its business in a manner
substantially consistent with current and past operating practices and in the
ordinary course, including with respect to the payment and administration of
accounts payable and the collection and administration of accounts receivable,
the purchase of capital assets and equipment and the management of inventories.
ARTICLE III
THE DISTRIBUTION
Section 3.01. Record Date and Distribution Date. Subject to the
satisfaction or, if applicable, waiver of the conditions set forth in Section
4.01, the Board of Directors of TRVL shall establish the Distribution Record
Date and the Distribution Date and any appropriate procedures in connection with
the Distribution.
Section 3.02. The Distribution.
(a) On or before the Distribution Date, TRVL shall:
(i) deliver to the Agent the certificates
representing the TL Common Shares, endorsed by TRVL in blank,
for the benefit of the TRVL Holders; and
(ii) instruct the Agent to distribute, on or as soon
as practicable after the Distribution Date, to the TRVL
Holders, one share of TL Common Stock for each ten shares of
TRVL Common Stock.
(b) Duties and Responsibilities of TL. All shares of TL Common
Stock issued in the Distribution shall be duly authorized, validly
issued, fully paid and nonassessable and free of any preemptive (or
similar) rights. As soon as practicable after the Distribution Date,
certificates for shares of TL Common Stock shall be mailed by the Agent
to the TRVL Holders, unless the Agent uses a book entry system of stock
record keeping, in which event no certificates for shares of TL Common
Stock will be used unless a stockholder so requests. If certificates
are used, TL shall provide, or cause to be provided, to the Agent
sufficient certificates representing TL Common Stock in such
denominations as the Agent may request in order to effect the
Distribution.
(c) Unclaimed Stock or Cash. Any shares of TL Common Stock or
any dividends or Distribution, if any, with respect to TL Common Stock
that remain unclaimed 180 days after the Distribution Date shall be
returned to TL subject in each case to applicable escheat or other
abandoned property Laws.
ARTICLE IV
CONDITIONS TO THE DISTRIBUTION
Section 4.01. Conditions Precedent to the Distribution. The obligations
of the parties to consummate the Distribution are subject to the satisfaction or
waiver as determined by TRVL in its sole discretion (except as provided in
Section 4.02 below), of each of the following conditions:
(a) Effective Date of Registration Statement. The Registration
Statement shall have been declared effective by order of the Commission
and no stop order shall have been entered, and no proceeding for that
purpose shall have been initiated or threatened by the Commission with
respect thereto.
(b) Pre-Distribution Transactions. Each of the transactions
and other matters contemplated by Article II (including each of the
Distribution, transfers, conveyances, contributions, assignments or
other transactions included in, or otherwise necessary to consummate,
the Corporate Reorganization Transactions) shall have been consummated
in all material respects.
(c) Covenants. The covenants contained in Article V of this
Agreement that are required to be performed on or before the
Distribution Date shall have been fully performed.
(d) No Prohibitions. No temporary, preliminary or permanent
injunction or other order, decree or ruling issued by a Governmental
Authority and no statute, rule, regulation or executive order
promulgated or enacted by any Governmental Authority shall be in effect
materially restricting, preventing or prohibiting the consummation of
the Distribution.
ARTICLE V
COVENANTS
Section 5.1. Further Assurances; Consents. In addition to the actions
otherwise expressly provided in this Agreement, each party shall use its
commercially reasonable efforts to (a) execute and deliver, or cause to be
executed and delivered, such instruments and documents and take, or cause to be
taken, such further or other actions as any other party may reasonably request
to effectuate the purposes of this Agreement and carry out the terms hereof, and
(b) take or cause to be taken all actions, and to do, or cause to be done, all
things reasonably necessary or appropriate under applicable Laws, agreements or
otherwise to consummate and make effective the transactions contemplated by this
Agreement, including using its commercially reasonable efforts to obtain any
Consents, to enter into amendatory agreements and to make any filings and
applications necessary or appropriate in order to consummate the transactions
contemplated by this Agreement.
Section 5.02. No Representations or Warranties.
(a) General. Each party understands and agrees that, no party
is, in this Agreement or otherwise, making any representation or
warranty whatsoever, including representing or warranting in any way as
to the Assets, businesses or Liabilities retained, transferred or
assumed as contemplated by this Agreement, as to the value or freedom
from Security Interests, or any other matter concerning any Assets or
Liabilities of such party, or as to the absence of any defenses or
right of set- off or freedom from counterclaim with respect to any
claim or other Asset, including any account receivable or any Liability
of any party, or as to the legal sufficiency of any assignment,
document or instrument delivered under this Agreement to convey title
to any Asset or any other thing of value upon the execution, delivery
and filing thereof.
Section 5.03. Receipts after the Distribution Date. From and after the
Distribution Date each party shall promptly transfer to the appropriate other
party, any property it receives that is an Asset of such other party.
Section 5.04. Post-Distribution Audits. TL and TRVL shall cooperate in
the preparation of audited financial statements for the next fiscal year. If
necessary, each party also shall use its reasonable efforts to cause the work
papers of the auditors in respect of its business to be made available to the
other party.
ARTICLE VI
ACCESS TO INFORMATION; CONFIDENTIALITY
Section 6.01. Provision, Transfer and Delivery of Applicable Corporate
Records. Each of TRVL and TL shall as soon as practicable after the Distribution
Date transport (at TL's expense) to TL the Books and Records in its possession
that relate primarily to the TL Business or are necessary to operate the TL
Business (collectively, the "TL Records").
Section 6.02. Retention of Records. Except when a longer period is
required by Law or is expressly provided for in this Agreement, or the retention
policy of TRVL as of the date of this Agreement, each party shall (and shall
cause the members of its Group to) retain, for a period of at least seven years
after the Distribution Date, all material information (including all material
Books and Records) relating to such Group and its operations before the
Distribution Date. Notwithstanding the foregoing, when retention of information
is no longer required by Law or expressly provided for in another Section of
this Agreement or any Ancillary Agreement, any party may offer in writing to
deliver to the other parties all or a portion of such information that relates
to members of the offering party's Group and, if such offer is accepted in
writing within 90 days after receipt thereof, the offering party shall promptly
deliver such information (or copies thereof) to each accepting party (at the
expense of the accepting party). If such offer is not so accepted, the offered
information may be destroyed or otherwise disposed of by the offering party at
any time after expiration of such 90-day period.
ARTICLE VII
MISCELLANEOUS
Section 7.01. Complete Agreement; Construction. This Agreement shall
constitute the entire agreement among the parties with respect to the subject
matter hereof and shall supersede all prior agreements, negotiations,
commitments and writings with respect to such subject matter.
Section 7.03. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute but one and the same Agreement.
Section 7.04. Responsibility for Expenses.
(a) Transaction Expenditures. Except as otherwise expressly
provided in this Agreement, all Transaction Expenditures shall be
charged to and paid by TL.
(b) Expenses Incurred or Accrued after the Distribution Date.
Except as otherwise set forth in this Agreement or any Ancillary
Agreement, each party shall bear its own costs and expenses incurred in
connection with the transactions contemplated by this Agreement.
Section 7.05. Notices. All notices, consents, requests, waivers, claims
or other communications (each a "Notice") required or permitted under this
Agreement shall be in writing and shall be sufficiently given or made (a) if
hand delivered or sent by telecopy (with delivery confirmed by voice or
otherwise), (b) if sent by nationally recognized overnight courier, or (c) if
sent by registered or certified mail, postage prepaid, return receipt requested,
and in each case addressed as follows:
If to TRVL, at:
x/x Xxxx Xxx, Xxx
0 Xxxxxx Xx. Xxx Xxxx, Xxxxxx
Telecopy: 000-0-0000000
If to TL, at:
0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Sachs, Sax & Xxxxx, P.A.
000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
or such other address as shall be furnished by any of the parties in a Notice.
Any Notice shall be deemed to have been duly given or made when the Notice is
received.
Section 7.06. Waivers. The failure of any party to require strict
performance by any other party of any provision in or rights or remedies with
respect to this Agreement shall not waive or diminish that party's right to
demand strict performance thereafter of that or any other provision hereof or
right or remedy.
Section 7.07. Amendments. This Agreement may be amended or
supplemented, or its provisions waived only by an agreement in writing signed by
each of the parties.
Section 7.08. Assignment.
(a) No party to this Agreement shall (i) consolidate with or
merge into any Person or permit any Person to consolidate with or merge
into such party (other than a merger or consolidation in which the
party is the surviving or continuing corporation), or (ii) sell,
assign, transfer, lease or otherwise dispose of, in one transaction or
a series of related transactions, all or substantially all of its
Assets, unless the resulting, surviving or transferee Person expressly
assumes, by instrument in form and substance reasonably satisfactory to
the other parties, all of the obligations of the party under this
Agreement.
(b) Except as expressly provided in paragraph (a) above,
neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assignable, directly or indirectly, by any party
without the prior written consent of the other parties, and any attempt
to so assign without such consent shall be void.
Section 7.09. Successors and Assigns. Subject to Section 7.08, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the successors and permitted assigns of the parties.
Section 7.10. Termination. This Agreement may be terminated and the
Distribution may be abandoned at any time before the Distribution by mutual
agreement of TRVL and TL. In the event of such termination, no party shall have
any Liability of any kind to any other party.
Section 7.11. Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties and their respective successors and permitted
assigns, and should not be deemed to confer upon third parties any remedy,
claim, liability, right of reimbursement, cause of action or other right in
excess of those existing without reference to this Agreement.
Section 7.12. Governing Law. This Agreement, the Ancillary Agreements
and any other agreements entered into in connection with the transactions
contemplated hereby shall be governed by, and construed and enforced in
accordance with, the Laws of the State of Delaware without regard to the
principles of conflicts of Laws thereunder. Notwithstanding the foregoing, the
Federal Arbitration Act, 9 U.S.C. (S)(S)1-15, shall govern the arbitrability of
Agreement Disputes.
Section 7.13. Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined to be invalid,
void or unenforceable in any respect, the remaining provisions hereof, or the
application of such provision to Persons or circumstances other than those as to
which it has been held invalid, void or unenforceable, shall remain in full
force and effect and in no way be affected, impaired or invalidated thereby, so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner adverse to any party.
Section 7.14. Titles and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
Section 7.15. Consent to Jurisdiction. Each party hereby submits to the
exclusive jurisdiction of the courts of Palm Beach County of the State of
Florida and the Federal courts of the United States of America located in
Florida in respect of the transactions contemplated by this Agreement, and
hereby waives, and agrees not to assert, as a defense in any action, suit or
proceeding for the transactions contemplated by this Agreement, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is
not maintainable in such courts or that the Agreement may not be enforced in or
by such courts or that its property is exempt or immune from execution, that the
suit, action or proceeding is brought in an inconvenient forum, or that the
venue of the suit, action or proceeding is improper.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
TRAVLANG, INC.
By /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
TL GLOBAL, INC.
By /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President
