TERMINATION AND SETTLEMENT AGREEMENT
This Termination and Settlement Agreement ("Agreement") is entered into as
of the 31st day of July, 2000 by and between Global Technologies, Ltd., a
Delaware corporation ("GTLL"), The Network Connection, Inc., a Delaware
corporation ("TNCX"), Ocean Castle Partners LLC, a Delaware limited liability
company ("Ocean Castle"), Xxxxx X. Xxxxx ("Xxxxx") and Xxxx Xxxxx
("Consultant"):
RECITALS
WHEREAS, Ocean Castle and Consultant, entered into an Agreement (the
"Consulting Agreement") dated as of September 30, 1998, which Consulting
Agreement was assigned by Ocean Castle to Interactive Flight Technologies, Inc.
("IFT");
WHEREAS, GTLL is the successor by merger to the obligations of IFT under
the Consulting Agreement;
WHEREAS, subsequent to the signing of the Consulting Agreement, Consultant
asserted certain claims against GTLL and Gross; and
WHEREAS, the parties desire to settle and compromise all claims between
them in order to avoid the cost and distraction of litigation, without admitting
the merit of the other's position regarding such claims and terminate the
Consulting Agreement.
NOW, THEREFORE, in consideration and mutual covenants and promises herein
contained, the parties agree as follows:
1. PAYMENT
(a) Within three (3) business days after execution and delivery of this
Agreement by all the parties hereto, GTLL agrees to issue and deliver to
Consultant, 96,083 shares of the Class A Common Stock of GTLL (the "Initial
Shares"), which, subject to the terms of this Agreement, are being delivered, in
full and complete settlement of all claims that Consultant has against GTLL,
IFT, TNCX, Ocean Castle and Gross. The number of Initial Shares to be delivered
to Consultant has been determined on the basis of a negotiated settlement
payment of $552,478. The number of Initial Shares was calculated by (i)
determining the average of the closing "bid" and "asked" prices of GTLL Class A
Common Stock on The NASDAQ Stock Market ("NASDAQ") on each of the ten (10)
trading days ending two (2) trading days prior to the date of this Agreement
(the "Initial Average") and (ii) dividing $552,478 by the Initial Average. The
number of Initial Shares to be issued shall be rounded to the nearest whole
share.
(b) The parties agree to adjust the number of Initial Shares delivered to
Consultant by (i) determining the average of the closing "bid" and "asked"
prices of GTLL Class A Common Stock on NASDAQ on each of the ten (10) trading
days ending two (2) trading days prior to the Effective Date, as hereinafter
defined, (the "Final Average") and (ii) dividing $552,478 by the Final Average.
(The number of shares of GTLL Class A Common Stock so determined is herein
referred to as the "Final Shares"). The number of Final Shares to be issued
shall be rounded to the nearest whole share. In the event that the difference
between the number of Final Shares and the number of Initial Shares, is more
than 100 shares, then GTLL shall promptly deliver to Consultant, or the
Consultant shall promptly return to GTLL, as the case may be, the number of
shares representing said difference.
2. REGISTRATION OF SHARES
Promptly after the date hereof, GTLL shall:
(a) prepare and file with Securities and Exchange Commission (the "SEC")
(and the appropriate state securities authorities) a Registration Statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act"), with respect to the number of Initial Shares, or amend any Registration
Statement then on file with the SEC in order to include the Initial Shares in
such Registration Statement, and use its best efforts to cause such Registration
Statement to become and remain effective for such period as may be reasonably
necessary to effect the sale of such Initial Shares by Consultant, provided that
such period need not extend beyond the date on which all the Initial Shares
become permanently eligible for sale under Rule 144(k) under the Act (the
"Registration Termination Date"). (As used herein, the term "Registration
Statement" includes a registration statement filed for the purpose described
herein and an amendment of any registration statement previously filed by GTLL,
in order to include the Initial Shares);
(b) prepare and file with the SEC such amendments to such Registration
Statement and supplements to the prospectus contained therein as may be
necessary to keep such Registration Statement effective for such period as may
be reasonably necessary to effect the sale of such Initial Shares by Consultant
but not beyond the Registration Termination Date;
(c) furnish to Consultant such reasonable number of copies of the
Registration Statement, preliminary prospectus, final prospectus and such other
documents as he may reasonably request in order to facilitate the public
offering of the Initial Shares;
(d) use its best efforts to register or qualify the Initial Shares covered
by such Registration Statement under such state securities or blue sky laws of
such jurisdictions as Consultant may reasonably request in writing within five
(5) days following the original filing of such Registration Statement, in the
event any such registration or qualification is necessary in order for
Consultant to be able to sell the Initial Shares in any jurisdiction without
restriction, except that GTLL shall not for any purpose be required to execute a
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified or otherwise
required to be qualified;
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(e) notify Consultant promptly after it shall receive notice thereof, of
the time when such Registration Statement has become effective (the "Effective
Date") or a supplement to any prospectus forming a part of such Registration
Statement has been filed;
(f) notify Consultant promptly of any request by the SEC for the amending
or supplementing of such Registration Statement or prospectus or for additional
information;
(g) prepare and file with the SEC, promptly upon the request of Consultant,
any amendments or supplements to such Registration Statement or prospectus
which, in the opinion of counsel for Consultant (and concurred in by counsel for
GTLL), is required under the Act or the rules and regulations thereunder in
connection with the distribution of the Initial Shares by Consultant;
(h) prepare and promptly file with the SEC and promptly notify Consultant
of the filing of such amendment or supplement to such Registration Statement or
prospectus as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to the Initial Shares is required to be
delivered under the Act, any event shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances in which they
were made, not misleading; and
(i) advise Consultant, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such Registration Statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should
be issued.
3. EXPENSES
With respect to the registration pursuant to Section 2 hereof, all fees,
costs and expenses of, and incidental to, such registration including, without
limitation, printing expenses and fees and disbursements of counsel and
accountants for GTLL and Consultant shall be borne by GTLL. Notwithstanding
anything to the contrary contained herein, GTLL shall not be responsible for (i)
any discounts or commissions payable of any underwriter or broker-dealer with
respect to the Initial Shares, (ii) any stock transfer taxes incurred in
connection with the resale of the Initial Shares, and (iii) professional fees,
costs or expenses of any kind related in any way to review of and comments on
the Registration Statement in excess of $500.
4. INDEMNIFICATION
(a) GTLL shall indemnify and hold Consultant harmless from and against, and
shall reimburse Consultant with respect to, any and all loss, damage, liability,
cost and expense (including reasonable attorney's fees and disbursements) to
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which Consultant may become subject under the Act or otherwise, insofar as such
losses, damages, liabilities, costs or expenses are caused by (i) any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement, any prospectus contained therein or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading; provided, however, that GTLL shall not be liable
in any such case to the extent that any such loss, damage, liability, cost or
expenses arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by Consultant in writing specifically for use in the preparation
thereof; or (ii) any breach of any representation, warranty, covenant or
agreement of Consultant contained in this Agreement.
(b) Consultant shall indemnify and hold GTLL harmless from and against, and
shall reimburse GTLL with respect to, any and all loss, damage, liability, cost
and expense (including reasonable attorney's fees and disbursements) to which
GTLL may become subject under the Act or otherwise, insofar as such losses,
damages, liabilities, costs or expenses are caused by (i) any untrue statement
or alleged untrue statement of any material fact contained in such Registration
Statement, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
so made in conformity with written information furnished by or on behalf of
Consultant specifically for use in the preparation thereof or (ii) any breach of
any representation, warranty, covenant or agreement of Consultant contained in
this Agreement. Notwithstanding anything to the contrary herein provided, the
maximum liability of Consultant under this Agreement shall be the amount of the
net proceeds received by Consultant pursuant to the sale of the Initial Shares
pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraph (a) or (b) of this Section 4 of notice of the assertion
of any claim or the commencement of any action involving the subject matter of
the foregoing indemnity provisions, such indemnified party shall, if a claim
thereof is to be made against the indemnifying party pursuant to the provisions
of said paragraph (a) or (b), promptly notify the indemnifying party in writing
of the commencement thereof; provided, however, that the failure to so notify
the indemnifying party shall not relieve the indemnifying party of any liability
hereunder except to the extent that the indemnifying party is materially
prejudiced thereby. In case such claim or action is brought or asserted against
any indemnified party and it notifies the indemnifying party of the assertion or
commencement thereof, the indemnifying party shall have the right to participate
in, and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or in addition to those available to the indemnifying party, or if there is
a conflict of interest which would prevent counsel for the indemnifying party
from also representing the indemnified party, the indemnified party or parties
have the right to select separate counsel to participate in the defense of such
action on behalf of such indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
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party pursuant to the provisions of said paragraph (a) or (b) for any legal or
other expense subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation, unless (i) the
indemnified party shall have employed counsel in accordance with the provisions
of the preceding sentence, (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after the notice of the commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. No settlement of any
claim or action against an indemnified party shall be made without the prior
written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
(d) The indemnification provided for under this Agreement shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director, stockholder, member, partner,
controlling person, attorney or representative of such indemnified party and
shall survive the transfer of the Initial Shares. If the indemnification
provided for in this Section 4 is unavailable to an indemnified party in respect
of any expense, loss, claim, damage or liability (including reasonable
attorneys' fees) referred to therein, then each indemnified party, in lieu of
indemnification from such indemnifying party, shall be entitled to contribution,
except to the extent that contribution is not permitted under Section 11(f) of
the Act, or any equivalent provisions of other applicable foreign securities
laws. In determining the amount of contribution to which the respective parties
are entitled, there shall be considered the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission, and
any other equitable consideration appropriate under the circumstances.
GTLL and Consultant agree that it would not be just and equitable if
contribution pursuant to this subdivision (d) were determined by pro rata
allocation or by any other method of allocation that does not take account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim.
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Notwithstanding the provisions of this subdivision (d), Consultant shall
not be required to contribute any amount in excess of the amount of (i) the net
proceeds received by Consultant from the sale of such Initial Shares pursuant to
such Registration Statement or (ii) the amount of any damages that Consultant
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission, whichever is less. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act or any
equivalent provisions of other applicable foreign securities law) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Any indemnification (or contribution) required by this Section 4 shall
be made by periodic payments during the course of the investigation or defense,
as and when bills are received, or as and when expense, loss, damage or
liability is incurred.
5. TERMINATION OF CONSULTING AGREEMENT
Subject to the terms of this Agreement, the Consulting Agreement shall be
terminated effective as of the Effective Date of the Registration Statement
referred to in Section 2, and thereafter neither GTLL, TNCX, Ocean Castle, IFT,
Gross nor Consultant shall have any further rights, obligations or liabilities
under the Consulting Agreement.
6. RELEASES
(a) In consideration of the covenants, terms and provisions of this
Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, effective as of the
Effective Date of the Registration Statement referred to in Section 2,
Consultant, for himself, his predecessors and successors in interest, partners
(past and present), attorneys, parent corporations, subsidiaries, affiliates,
assigns, agents, servants, associates, principals, officers, stockholders,
directors, employees, members, managers, insurers and representatives, if any,
(collectively, the "Consultant Entities"), hereby absolutely and fully and
forever release and discharge GTLL, TNCX, IFT, Ocean Castle and Gross, their
predecessors and successors in interest, partners (past and present), attorneys,
parent corporations, subsidiaries, affiliates, assigns, agents, servants,
associates, principals, officers, stockholders, directors, employees, members,
managers, insurers and representatives, if any, (collectively, the "GTLL
Entities"), from any and all actions, debts, liabilities, demands, damages,
obligations, promises, acts, agreements, costs and expenses (including without
limitation, attorney's fees), rights, claims, counterclaims, and causes of
action, of whatever kind or nature, whether known or unknown, suspected or
unsuspected, vested or contingent, xxxxxx or inchoate, that any of the
Consultant Entities have or could have asserted against the GTLL Entities in
connection with the Consulting Agreement and, except as set forth herein, the
Consultant Entities, agree never to institute any suit or action against the
GTLL Entities with respect to the Consulting Agreement; provided, however, that
the obligations of the GTLL Entities under this Agreement are not released.
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(b) In consideration of the covenants, terms and provisions of this
Agreement, and for other good and valuable consideration, receipt of which is
hereby acknowledged, and intending to be legally bound, effective on the
Effective Date of the Registration Statement referred to in Section 2, the GTLL
Entities hereby absolutely and fully and forever release and discharge the
Consultant Entities, from any and all actions, debts, liabilities, demands,
damages, obligations, promises, acts, agreements, costs and expenses (including
without limitation, attorney's fees), rights, claims, counterclaims, and causes
of action, of whatever kind or nature, whether known or unknown, suspected or
unsuspected, vested or contingent, xxxxxx or inchoate, that the GTLL Entities
have or could have asserted against the Consultant Entities in connection with
the Consulting Agreement and the actions of the Consultant Entities with
relation to the GTLL Entities and/or its personnel, confidential information,
and all matters directly or indirectly claimed or alleged between the parties in
connection therewith or in any way related thereto; and, except as set forth
herein, the GTLL Entities agree never to institute any suit or action against
the Consultant Entities with respect to the Consulting Agreement; provided,
however, that the obligations of the Consultant Entities under this Agreement
are not released.
7. REPRESENTATIONS AND WARRANTIES OF GTLL.
GTLL represents and warrants to Consultant as follows:
(a) Organization, Good Standing and Qualification. GTLL 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 carry
on its business as now conducted and as proposed to be conducted. GTLL is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure so to qualify would have a material adverse effect on its
business or properties.
(b) Authorization. All corporate action on the part of GTLL, its officers,
directors and stockholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of GTLL hereunder
and the authorization, issuance and delivery of the Initial Shares and Final
Shares have been taken. This Agreement, when executed and delivered by GTLL,
shall constitute a valid and legally binding obligation of GTLL, enforceable in
accordance with its terms, subject to the laws of general application relating
to bankruptcy, insolvency and the relief of debtors and the rules of laws
governing specific performance, injunctive relief or other equitable remedies.
(c) Valid Issuance of Shares. The Initial Shares and Final Shares when
issued and delivered in accordance with the terms hereof, will be duly and
validly issued, fully paid and non-assessable.
(d) Compliance with Other Instruments. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby by GTLL, will not result in any violation of or be in
conflict with or constitute a default or violation under the Certificate of
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Incorporation or By-laws of GTLL or any judgment, order, writ, or decree, or any
material provision of any instrument or contract to which GTLL is a party or by
which it is bound.
8. NO ADMISSION OF LIABILITY
This Agreement settles claims (present and possible) pursuant to the
Consulting Agreement, all of which are denied and contested, and nothing
contained herein shall be construed as an admission by any party of any
liability of any kind to any other party, all such liabilities being expressly
denied, except for obligations which are set forth in this Agreement.
9. CONFIDENTIALITY; NON-DISPARAGEMENT
Except for the fact of the existence of this Agreement, the Consultant
Entities, and the GTLL Entities, each agree to keep and maintain the terms and
provisions and details of this Agreement confidential and not disclose them to
any third party except for counsel and accountants for each of the parties, and
then only to the extent necessary and with the instructions to keep such matters
confidential, or pursuant to court order or as otherwise required by law. The
parties agree that neither will disparage or comment critically on the business,
operations, services, or integrity of the other.
10. TIME OF THE ESSENCE; DEFAULT
(a) The parties agree that time is of the essence of this Agreement.
(b) In the event that (i) the Initial Shares are not delivered to
Consultant by the date specified in Section 1; or (ii) the Registration
Statement covering the Initial Shares is not declared effective by August 15,
2000; or (iii) the Final Shares are not delivered to Consultant within five (5)
business days after the number thereof is determined; or (iv) if for any reason
other than due solely to the fault of Consultant, the Registration Statement
does not remain effective such that the Initial Shares may be sold pursuant
thereof until the date when all the Initial Shares become freely transferable
pursuant to Rule 144(k) promulgated by the SEC; provided, however, that
temporary ineffectiveness of the Registration Statement for a period not in
excess of three (3) consecutive days during any ten (10) day period during the
time the Registration Statement must be kept effective, or an aggregate of ten
(10) days during such period of time, shall not be deemed a violation of this
clause (iv), then GTLL shall be in default and Consultant shall have the right
in his sole discretion, by written notice to GTLL, to terminate this Termination
and Settlement Agreement and reinstate the Consulting Agreement. Upon such
reinstatement all rights and obligations of all parties to the Consulting
Agreement shall automatically be reinstated in accordance with the terms of the
Consulting Agreement.
(c) Upon such termination and reinstatement of the Consulting Agreement, if
Consultant has not sold any of the Initial Shares or Final Shares then (i)
Consultant shall return all Initial Shares and Final Shares to GTLL; (ii) GTLL
shall within three (3) business days after the return of such shares pay to
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Consultant the total amount of all cash payments then due under the Consulting
Agreement for the period from May 1, 2000 through the month in which such shares
were returned (it being agreed that the last cash payment under the Consulting
Agreement received by Consultant was for the month of April 2000 and that there
are 42 payments of $15,254 that remain to be paid, a total of $640,678); and
(iii) Ocean Castle and/or Gross shall within three (3) business days after the
return of such shares, post the security required by Section 5(c) of the
Consulting Agreement. If GTLL or Ocean Castle or Gross fail in a timely manner
to fulfill the requirements of subsection (ii) and/or (iii) above, in addition
to any other remedies at law or equity to which Consultant may be entitled to
pursue including but not limited to those specified under Section 5(d) of the
Consulting Agreement, then all monthly payments due or to become due in the
future under the Consulting Agreement shall automatically be accelerated and
become due and payable.
(d) Upon such termination and reinstatement of the Consulting Agreement, if
Consultant has sold any of the Initial Shares or Final Shares then (i)
Consultant shall return to GTLL all of the Initial Shares and Final Shares that
he has not sold; (ii) the total amount of all payments due to Consultant
pursuant to the Consulting Agreement (namely $640,678) shall be reduced by the
value of the Initial Shares and Final Shares sold by Consultant, which value
shall be determined in accordance with Sections 1(a) and (b); and the difference
between $640,678 and the value of the Initial Shares and Final Shares sold by
Consultant determined as described above shall become immediately due and
payable to Consultant.
(e) GTLL agrees to pay to Consultant the amount determined to be due to
Consultant pursuant to Section 10(c) or 10(d) within three (3) business days
after demand, by wire transfer of immediately available funds together with
interest, computed from the expiration of the third day after demand to the date
of payment, at 3% in excess of the prime interest rate as reported in The Wall
Street Journal until said amount is paid.
11. RESALE OF SHARES
The parties agree that at any time after the Effective Date, Consultant
shall have the right to sell 40% of such Initial Shares and Final Shares. After
the end of the month in which such sale takes place, Consultant covenants and
agrees that he shall not sell more than 15,000 of the Initial Shares and/or
Final Shares during each subsequent calendar month, on a cumulative basis, until
all Initial Shares and/or Final Shares have been sold. The foregoing covenant
shall apply only to the Initial Shares and/or Final Shares and not to any other
shares of GTLL stock currently owned by Consultant or any GTLL stock that may be
owned by Consultant or any Consultant Entities in the future as a result of the
exercise of any GTLL stock options owned by the Consultant or any Consultant
Entity. In the event of a breach of the provisions of this Section 11 by
Consultant or any Consultant Entity, GTLL shall, in addition to any other
remedies to which it may be entitled, be entitled to injunctive relief.
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12. ATTORNEY'S FEES
(a) GTLL agrees to promptly pay or reimburse Consultant for all of the
attorney's fees and disbursements paid or incurred by Consultant in connection
with the investigation, negotiation and execution of this Agreement.
(b) In the event that either party shall bring any action, suit,
arbitration or other proceeding against the other party, concerning any matter
herein, or contesting the validity or enforceability of this Agreement, or any
provision hereof, or attempting to rescind, negate, modify or reform this
Agreement or any of the terms or provisions thereof, or in the event that any
action, suit or other proceeding is instituted to remedy, prevent or obtain
relief from a breach of this Agreement, or arising out of a breach of this
Agreement, the prevailing party shall be entitled to recover all of such party's
costs and expenses, including reasonable attorneys' fees and disbursements,
incurred in each and every such action, suit or other proceeding, including any
and all appeals or petitions therefrom.
13. INTEGRATION
(a) This Agreement constitutes a single integrated written contract
expressing the entire agreement between the parties hereto relating to the
subject matter hereof. This Agreement supersedes all previous agreements,
understandings, prior discussions, and negotiations.
(b) Each of the undersigned parties acknowledges that no other party
hereto, nor any agent or attorney of any such party has made any promises,
representations, or warranties whatever, expressed, implied, or statutory, which
are not contained herein concerning the subject matter hereof to induce any of
the undersigned parties to execute this Agreement, and they acknowledge that
they have not executed this Agreement in reliance of any such promise,
representation, or warranty not contained herein. Each of the undersigned
parties acknowledges that it has been represented and advised by its own
attorneys in connection with this Agreement, and that each of the parties has
entered into this Agreement based on its own independent judgment.
14. WARRANTY AND INDEMNITY
The GTLL Entities and the Consultant Entities each represent and warrant to
the other that it is the owner of the claims referred to respectively above, and
that it has not assigned or transferred, or purported to assign or transfer, any
claim or cause of action which it has or might have against the other arising
out of, connected with or relating to any of the matters released in Section 6
of this Agreement, and agrees to defend, indemnify and hold the other party
harmless (including attorney's fees and costs) from and against any claim,
demand, cause of action, or action based on, in connection with, or arising out
of any assignment or transfer or purported or claimed assignment or transfer.
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15. BINDING
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective affiliates, partners, principals, officers,
directors, stockholders, members, managers, employees, heirs, successors, and
assigns of the parties hereto.
16. COUNTERPARTS
This Agreement may be executed in counterparts. When each party has signed
and delivered at least one counterpart, each counterpart shall be deemed an
original, and, when taken together, the counterparts shall constitute the
Agreement, which shall be binding upon all parties.
17. DRAFTING
Each party has cooperated in the drafting and preparation of this
Agreement. This Agreement shall not be construed against any party by reason of
the fact that it drafted any particular provision construed.
18. GOVERNING LAW; DISPUTE RESOLUTION
(a) This Agreement shall be governed by and interpreted in accordance with
the law of the State of New York without regard to its choice of law rules.
(b) In the event that the parties hereto cannot resolve any dispute
(whether arising in contract, tort or any other legal theory; and whether based
on federal, state or local statutes or common law; and regardless of the
identity of any other defendant) that in any way relates to or arises out of
this Agreement, then such dispute shall be settled by arbitration in New York
City, New York, in accordance with the then prevailing Commercial Arbitration
Rules of the American Arbitration Association. The decision so rendered shall be
binding upon the parties hereto and the award resulting therefrom may be entered
in any court of competent jurisdiction. Either party may commence such an
arbitration, the costs of which shall be borne by the party who is ruled
against.
19. AUTHORITY
Each of the parties represents and warrants that it has the power and
authority to execute and deliver this Agreement and to carry out the transaction
contemplated thereby, and the Agreement has been duly executed and delivered and
constitutes its legally binding obligation.
20. NOTICES
Any notice required or desired to be given to any party hereto shall be
given in writing and shall be addressed to the parties at the addresses set
forth on the signature page hereof or to such other address as that party may
hereafter designate in writing, and shall be deemed given on the day delivered,
if made by actual delivery, on the date faxed, if transmitted via facsimile
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device, with confirmation of transmission produced by the transmitting facsimile
device, or three (3) days after the date posted, if mailed by certified mail,
postage prepaid, return receipt requested.
21. MODIFICATIONS
None of the terms or provisions hereof shall be modified or waived, and
this Agreement may not be amended or terminated, except by a written instrument
signed by the party against which any modification, waiver, amendment or
termination is to be enforced. No waiver of any one provision hereof shall be
considered a waiver of any other provision and the fact that an obligation or
right is waived for a period of time or in one instance shall not be considered
to be a continuing waiver.
22. MISCELLANEOUS.
This Agreement is one of two agreements being entered into by GTLL as of
the date hereof, one with Xxxxxx X. Xxxxxxx and one with Xxxx Xxxxx. The parties
agree that any default by GTLL under the agreement with either Xx. Xxxxxxx or
Xx. Xxxxx, shall be deemed to be a default under the agreement with the other
such individual.
[Signature Page Follows This Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written.
GLOBAL TECHNOLOGIES, LTD.
By:
-------------------------------------
Name:
Title:
Address:
THE NETWORK CONNECTION, INC.
By:
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Name:
Title:
Address:
OCEAN CASTLE PARTNERS, LLC
By:
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Name:
Title:
Address:
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Xxxxx X. Xxxxx
Address:
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Xxxxxx X. Xxxxxxx
Address:
