Exhibit 99.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated as of the 17th_ day of January, 2002, by
and among Travlang Inc., a Delaware corporation ("TRVL" or the "BUYER"),
Sec2wireless Inc., a Delaware corporation ("S2W" or the "Company") and the
shareholders of S2W, as set forth in Schedule 2.1(a) (collectively, the
"SELLERS," and individually, each a "Seller"). TRVL, S2W and the Sellers are
referred to collectively herein as the "Parties."
WHEREAS, the Sellers own beneficially and of record ___________common
shares consisting of all of the issued and outstanding ordinary shares, par
value $0.001 per share, of the Company (the "COMPANY STOCK") as set forth on
SCHEDULE 2.1, hereto;
WHEREAS, subject to and on the terms and conditions contained herein, the
Sellers desire to sell to the Buyer, and the Buyer desires to purchase from the
Sellers, the Company Stock in exchange for an aggregate of newly issued
unregistered under the Securities Act of 1933 (the "SECURITIES ACT") shares of
the common stock, par value $0.001 per share of TRVL; and
NOW THEREFORE, in consideration of the premises and of the
mutual agreements and covenants hereinafter set forth, the parties hereto agree
as follows:
ARTICLE 1
SALE AND PURCHASE; CLOSING
SECTION 1.1 PURCHASE AND SALE OF THE COMPANY STOCK. Subject to the terms
and conditions set forth herein, at the Closing, the Sellers shall sell,
transfer and deliver to the Buyer, and the Buyer shall purchase, acquire and
accept from the Sellers, free and clear of all liens, encumbrances, charges,
claims, rights, interests, security interests and any other encumbrances
whatsoever, the Company Stock.
SECTION 1.2 PURCHASE PRICE.
(a) ISSUANCE OF TRVL STOCK. Each share of Company Stock owned by a
Seller and all rights existing with respect thereto shall be exchanged for newly
issued unregistered shares of the common stock, par value $0.001 per share, of
TRVL (the "TRVL STOCK"), to be issued as set forth below.
(b) Such amount of shares, representing eighty percent (80%) of
the issued and outstanding share capital of TRVL, shall be issued at the Closing
(as defined herein) to the Sellers in accordance with the allocation set forth
in SCHEDULE 1.2(B) attached hereto. A portion of such shares shall be issued in
Travlang Preferred Stock, which shall have the terms set forth on Schedule 1.2
(b) hereto. The number of shares shall be based on a fully-diluted
capitalization and shall assume that the Company's outstanding convertible
debentures and Series A Preferred Stock are converted at a $6 million valuation.
SECTION 1.3 CLOSING. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Company Stock contemplated hereby (the
"CLOSING")
shall take place at 2:00 p.m., local time, at TRVL's offices in Boca Raton,
Florida on January 25 2002, or if on such date the conditions specified in
Article 5 shall not have been satisfied or waived, a date selected by Buyer not
later than the fifth business day following such satisfaction or waiver (the
"CLOSING DATE").
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS
The Company and the Sellers hereby represent and warrant to the Buyer as
follows:
SECTION 2.1 CAPITALIZATION. SCHEDULE 2.1(A) sets forth a complete list of
the Sellers, in each case indicating the class and number of shares of the
Company's capital stock held by each such Seller. The authorized outstanding
capital stock of the Company consists of 17,200,000 common shares, par value
$0.001 per share and 2,800,000 preferred shares, par value $0.001 per share, of
which ______________(________) shares are issued and outstanding. No shares of
the Company Stock are held in the treasury of the Company. There are no
outstanding options and/or warrants for the purchase of the Company's Common
Stock other than set forth on Schedule 2.1. The Sellers are the record and
beneficial owners of all of the Company Stock and all of such stock is duly
authorized, validly issued, fully paid and non-assessable.
SECTION 2.2 RECEIPT OF TRVL STOCK.
(a) INVESTMENT REPRESENTATIONS. The TRVL Stock being issued
hereunder is being acquired, and will be acquired, by the Sellers for investment
for their own accounts and not with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act or the applicable
state securities law; the Sellers acknowledge that the TRVL Stock constitutes
restricted securities under Rule 144 promulgated by the Commission pursuant to
the Securities Act, and the Sellers agree that no shares of TRVL Stock may be
sold, transferred, assigned, pledged or otherwise disposed of except pursuant to
an effective registration statement or an exemption from registration under the
Securities Act, the rules and regulations thereunder, and under all applicable
state securities laws. Each Seller is an "accredited investor" as that term is
defined in Rule 501 of Regulation D promulgated by the Commission under the
Securities Act. The Sellers have the knowledge and experience in financial and
business matters, are capable of evaluating the merits and risks of the
investment, and are able to bear the economic risk of such investment. Each
Seller has had the opportunity to make inquiries of and obtain from
representatives and employees of TRVL such other information about TRVL as it
deems necessary in connection with such investment.
(b) LEGEND. It is understood that, prior to sale of any shares of
TRVL Stock pursuant to an effective registration, the certificates evidencing
such shares of TRVL Stock shall bear the following (or a similar) legend (in
addition to any legends which may be required in the opinion of TRVL's counsel
by the applicable securities laws of any state), and upon sale of such shares
pursuant to such an effective registration, new certificates shall be issued for
the shares sold without such legends except as otherwise required by law:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE
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SECURITIES ACT OF 1933. THE SHARES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THESE SHARES
UNDER THE SECURITIES ACT OF 1933 OR AN OPINION OF THE COMPANY'S
COUNSEL THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
(c) CERTAIN TRANSFEREES. Except in the case of any transfer of any shares
of TRVL Stock issued pursuant to this Agreement to a person in an open market
transaction subsequent to the effective date of, and pursuant to, any
registration statement covering such shares of TRVL Stock, no Seller shall
transfer any such shares of TRVL Stock to any person or entity unless such
transferee shall have agreed in a writing, in form and substance satisfactory to
TRVL, to be bound by the provisions applicable to the Sellers under this Section
2.2 and such transfer shall be made in accordance with all applicable Federal
and state securities laws.
SECTION 2.3 NO CONFLICTS; CONSENTS. Each of the Company and each Seller
has full power, capacity and authority to execute and deliver this Agreement and
each other transaction document to which each is a party and to consummate the
transactions contemplated hereby and thereby (the "CONTEMPLATED TRANSACTIONS").
The execution, delivery and performance by the Company, and the Sellers of this
Agreement and each other transaction document to which it, he or she is a party,
the consummation of the Contemplated Transactions to which the Company and the
Sellers are parties or the contemplated change of control of the stock ownership
of the Company, will not (i) violate any provision of the articles of
association (or comparable instruments) of the Company, any Company Subsidiary
or any Seller; (ii) require the Sellers or the Company to obtain any consent,
approval or action of or waiver from, or make any filing with, or give any
notice to, any Governmental Body or any other person, except as set forth on
SCHEDULE 2.3 (collectively, the "SELLER REQUIRED CONSENTS"); (iii) violate,
conflict with or result in a breach or default under (after the giving of notice
or the passage of time or both), or permit the termination of, any Contract of a
type required to be listed on SCHEDULE 2.3 to which any Seller, the Company
Subsidiary or the Company is a party or by which any of them or any of their
Assets may be bound or subject, or result in the creation of any Lien upon the
Company or any Company Subsidiary Stock or upon any of the Assets of the Company
or any Company Subsidiary pursuant to the terms of any such Contract; (iv) to
the best of their knowledge, violate any material Law or Order of any
Governmental Body against, or which is binding upon, the Sellers or the Company,
or upon their respective Assets or the Business; or (v) violate or result in the
revocation or suspension of any material permit.
SECTION 2.4 CORPORATE EXISTENCE AND POWER.
(a) The Company and the Company's Subsidiary are duly organized,
validly existing and in good standing as corporations under the laws of Delaware
or other relevant jurisdiction of incorporation, and have all requisite powers
and all material permits required to carry on the business as it is presently
conducted. The Company and Company Subsidiary are duly qualified to do business
as foreign corporations and are in good standing in
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each jurisdiction where the character of the property owned or leased by either
or the nature of its activities makes such qualification necessary.
(b) SCHEDULE 2.4 (B) sets forth the name of each wholly owned
Subsidiary of the Company (collectively, the "COMPANY SUBSIDIARIES or the
"COMPANY SUBSIDIARY"), its jurisdiction of incorporation or other organization,
each jurisdiction in which it is duly qualified to do business as a foreign
entity, the authorized capital stock or other ownership interests of, and the
securities issued by, such Company Subsidiary.
SECTION 2.5 CLAIMS AND PROCEEDINGS. Except as set forth on SCHEDULE 2.5
there are no actions, suits, claims or counterclaims or legal, administrative or
arbitral proceedings or investigations (collectively, "CLAIMS") (whether or not
the defense thereof or Liabilities in respect thereof are covered by insurance),
pending or threatened on the date hereof, against or involving the Company, any
Company Subsidiary or their respective assets or businesses. Except as set forth
on SCHEDULE 2.5, there are no outstanding Orders of any Governmental body
against or involving the Company, any Company Subsidiary or the business.
SECTION 2.6 COMPLIANCE WITH LAWS. Neither the Company nor any Company
Subsidiary is in violation in any material respect of any material order,
judgment, injunction, award, citation, decree, consent decree or writ
(collectively, "ORDERS"), or to the best of the Company's knowledge, any
material law, statute, code, ordinance, rule, regulation or other requirement
(collectively, "Laws"), of any government or political subdivision thereof,
whether federal, state, local or foreign, or any agency or instrumentality of
any such government or political subdivision, or any court or arbitrator
(collectively, "GOVERNMENTAL BODIES") affecting or relating to their respective
assets, or the business or to the employees conducting the Business.
SECTION 2.7 ABILITY TO CONDUCT BUSINESS. As of the Closing, the assets of
the Company will be sufficient and adequate to permit the continued conduct of
the business of the Company and the Company Subsidiaries substantially as it has
been conducted since its incorporation and, assuming all Seller Required
Consents are obtained, the consummation of the transactions contemplated by the
terms of this Agreement will enable the Buyer to conduct the business
substantially as it has been conducted since that date. The Company has all of
the licenses and permits required to conduct its business as it is presently
being conducted, all of which are in full force and effect. No written notice of
a violation of any such license or permit has been received by the Company, or,
to the knowledge of the Company, threatened, and no proceeding is pending or, to
the knowledge of the Company, threatened, to revoke or limit any of them. The
Company has no reason to believe that any of its licenses and permits in effect
on the date hereof will not be renewed or cannot be assumed by the Company at or
after Closing without material interruption in the Company's ability to lawfully
carry on its business after Closing.
SECTION 2.8 FINANCIAL STATEMENTS. The Company has previously furnished to
TRVL true and complete copies of its audited financial statements for the year
ended December 31, 2000 and unaudited financial statements through the most
recent quarter (collectively called the "COMPANY FINANCIAL STATEMENTS"). The
Company Financial Statements fairly represent the financial position of the
Company as of such dates and the results of its operations and changes in
financial position for such periods.
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SECTION 2.9 NO UNDISCLOSED LIABILITIES. Except as set forth in Schedule
2.9, the Company does not have any material liabilities or obligations, whether
absolute, accrued, contingent or otherwise, including, without limitation, any
uninsured liabilities which were not accrued or reserved against in the Company
Financial Statements other than those incurred in the ordinary course of
business or which in the aggregate do not or cannot reasonably be expected to
have a material adverse effect upon the earnings, assets, financial condition or
operations of the Company.
SECTION 2.10 INTELLECTUAL PROPERTY. Schedule 2.10 sets forth a schedule
of the Company's Intellectual Property. The Company owns or is licensed or
otherwise has the right to use all of the intellectual property that is being
used in its business as it is presently being conducted. There is no claim,
suit, action or proceeding, pending or, to the knowledge of the Company,
threatened, against the Company asserting that its use of any intellectual
property infringes the rights of any third party or otherwise contesting the
Company's rights with respect to any intellectual property, and no third party
is known to the Company to be infringing upon the rights of the Company in its
intellectual property. All patents, registrations and certificates issued by any
governmental agency relating to the Company's intellectual property are valid
and subsisting and have been properly maintained.
SECTION 2.11 MATERIAL CONTRACTS. Schedule 2.11 sets forth a complete and
correct list of each material contract of the Company. Except as set forth in
Schedule 2.11, all of the material contracts of The Company are in full force
and effect and to the knowledge of the Company there has not occurred, with
respect to any such material contract, any default or event of default, which,
with or without due notice of with the lapse of time, or both, would constitute
a default or event of default on the part of the Company or, to the knowledge of
the Company, any other party thereto. Complete copies of all the material
contracts of the Company have been delivered to TRVL.
SECTION 2.12 INSIDER INTERESTS. Except as listed in Schedule 2.12 no
officer, director, or affiliate of the Company (i) has any agreement with the
Company, or (ii) has any interest, direct or indirect, in any property, real or
personal, tangible or intangible, including, without limitation, intellectual
property, used in or pertaining to the business of the Company, except as a
stockholder or employee of , or (iii) directly or indirectly owns any interest
in or controls or is an employee, agent, member, principal, officer, director,
or partner of, or participant in, or consultant to any corporation, partnership,
limited liability company, sole proprietorship, limited partnership, joint
venture, association, or other entity which is a competitor, supplier or
customer, of the Company.
SECTION 2.13 INSIDER TRANSACTIONS. Schedule 2.12 sets forth a correct and
complete statement of (a) the amounts and other essential terms of indebtedness
or other obligations, liabilities or commitments (contingent or otherwise) of
the Company to or from any past or present officer, director, employee, partner
or stockholder thereof or any person related to, controlled by or under common
control of any of the foregoing and (b) all transactions, together with their
essential terms, between such persons and the Company.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF TRVL
TRVL hereby represents and warrants to S2W and Sellers as follows:
SECTION 3.1 ORGANIZATION AND STANDING. TRVL is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Delaware.
SECTION 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT. Buyer has full power
and authority to make, execute and deliver and perform this Agreement and each
other transaction document to which it is or, at the Closing, will be a party
and to consummate the Contemplated Transactions.
SECTION 3.3 BINDING EFFECT. This Agreement and all transaction documents
executed by TRVL constitute the valid and binding obligations of such party,
enforceable against TRVL.
SECTION 3.4 ABSENCE OF CONFLICTING AGREEMENTS. Neither the execution or
delivery of this Agreement or any of the other transaction documents by TRVL nor
the performance by TRVL of the transactions contemplated hereby and thereby
conflicts with, or constitutes a breach of, or a default under, (i) the charter
or formation documents of TRVL, or (ii) any law, rule, judgment, order, writ,
injunction, or decree of any court currently in effect applicable to TRVL, or
(iii) any rule or regulation of any administrative agency or other governmental
authority currently in effect applicable to TRVL, or (iv) any agreement,
indenture, contract or instrument to which TRVL is now a party or by which any
of the assets of TRVL is bound.
SECTION 3.5 CLAIMS AND PROCEEDINGS. With the exception of any matter
listed in Schedule 3.5, there are no actions, suits, claims or counterclaims or
legal, administrative or arbitral proceedings or investigations (collectively,
"CLAIMS") (whether or not the defense thereof or Liabilities in respect thereof
are covered by insurance), pending or threatened on the date hereof, against or
involving TRVL or its respective assets or businesses, or any outstanding Orders
of any Governmental body against or involving TRVL.
SECTION 3.6 CAPITALIZATION. SCHEDULE 3.6 sets forth a complete list of
TRVL issued and outstanding share capital as of the date of the Closing. The
authorized capital stock of TRVL consists of Fifty Million (50,000,000) common
shares, par value $0.001 per share and Ten Million (10,000,000) preferred
shares, par value $0.001 per share. No shares of TRVL are held in the treasury
of the Company. The TRVL Stock to be issued as part of the Purchase Price is
validly authorized stock and, when issued and delivered in accordance with this
Agreement, will be validly issued, fully paid and non-assessable and will not be
issued in violation of any preemptive rights, rights of first refusal or other
contractual restrictions of any kind of the shareholders of Buyer, and Sellers
will receive good title to the TRVL Stock free and clear of all Liens.
TRVL will reserve a sufficient number of shares of its unissued preferred
stock and common stock and take any other necessary action to ensure that such
shares are available for issuance to the Sellers in accordance with Section 1.2.
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There are no shares of TRVL Stock or any other equity security of TRVL or
any rights, options, warrants or convertible securities outstanding or other
agreements to acquire shares of TRVL Stock, nor does TRVL have any contractual
obligations to purchase, redeem or otherwise acquire any of its outstanding
shares (warrants?). No shareholder of TRVL is entitled to any preemptive or
similar rights to subscribe for shares of capital stock of TRVL.
SECTION 3.7 CONSENTS. No authorization, consent, approval, license,
exemption by, filing or registration with any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, is or
will be necessary in connection with the execution, delivery and performance of
this Agreement or any of other transaction documents by TRVL.
SECTION 3.8 LIABILITIES. Except as set forth in SCHEDULE 3.8, TRVL shall
have no indebtedness, charges, encumbrances, pledges, duties, responsibilities,
claims or obligations of any nature, whether absolute, accrued, contingent or
otherwise (collectively, "Liabilities"), whether as principal, agent, partner,
co-venturer, guarantor or in any capacity whatsoever.
SECTION 3.9 SEC AND NASD COMPLIANCE. TRVL has timely made or, if not yet
due, will timely make all SEC and NASD filings required to be filed by it on or
before the Closing Date and all such filings are or will be true, correct and
complete; All such filings with the NASD and the SEC will be made available for
S2W's and Sellers' review prior to the Closing.
SECTION 3.10 NO VIOLATION. TRVL is not in violation in any material
respect of any material order, judgment, injunction, award, citation, decree,
consent decree or writ (collectively, "ORDERS"), or any material law, statute,
code, ordinance, rule, regulation or other requirement (collectively, "LAWS"),
of any government or political subdivision thereof, whether federal, state,
local or foreign, or any agency or instrumentality of any such government or
political subdivision, or any court or arbitrator (collectively, "GOVERNMENTAL
BODIES") affecting or relating to its Assets or Business or to the employees
conducting its Business.
SECTION 3.11 FUTURE OBLIGITIONS. Except as set forth in SCHEDULE 3.11,
TRVL does not have any material future obligations (exceeding an aggregate of
$2,000) of whatever content and nature.
SECTION 3.12 NO CONFLICTS; CONSENTS. The execution, delivery and
performance by TRVL of this Agreement and each other transaction document to
which it is or, at the Closing, will be a party and the consummation of the
Contemplated Transactions to which it is or, at the Closing, will be a party do
not and will not (i) require TRVL to obtain any consent, approval or action of
or waiver from, or make any filing with, or give any notice to, any Governmental
Body or any other person, except as set forth in SCHEDULE 3.12 (collectively,
the "BUYER REQUIRED CONSENTS"); (ii) if the Buyer Required Consents are obtained
prior to the Closing, violate, conflict with or result in the breach or default
under (after the giving of notice or the passage of time); or permit the
termination of, any material Contract to which TRVL is a party or by which each
of TRVL or its respective assets may be bound or subject; or (iii) if the Buyer
Required Consents are obtained prior to the Closing, violate any Law or Order of
any Governmental Body, against, or binding upon, the Buyer.
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ARTICLE 4
CONDITIONS TO CLOSING
SECTION 4.1 CONDITIONS TO THE OBLIGATIONS OF THE PARTIES. The obligations
of the Company and the Sellers, on the one hand, and TRVL, on the other, to
consummate the Contemplated Transactions are subject to the satisfaction of the
following conditions:
(a) NO INJUNCTION. No provision of any applicable Law and no Order
shall prohibit the consummation of the Contemplated Transactions.
(b) NO PROCEEDING OR LITIGATION. No claim instituted by any person
shall have been commenced or pending against the Company, the Sellers, the Buyer
or any of their respective Affiliates, officers or directors, which claim seeks
to restrain, prevent, change or delay in any respect the Contemplated
Transactions or seeks to challenge any of the terms or provisions of this
Agreement or seeks damages in connection with any such transactions.
SECTION 4.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AND THE SELLERS.
The obligations of the Company and the Sellers hereunder to consummate the
Contemplated Transactions are subject, at the option of the Company and Sellers,
to the fulfillment prior to or at the Closing of each of the following further
conditions:
(a) DUE DILIGENCE. For a period of ten (10) days following the
execution of this Agreement, the Company and its officers, directors, employees,
affiliates, attorneys, accountants, financial advisers, consultants,
representatives and agents (collectively, the "COMPANY'S AGENTS") shall be
provided reasonable access to undertake a complete investigation of the value of
TRVL, and its business, affairs, operations, properties, assets and liabilities
including, but not limited to, a complete examination of all books and records,
contractual commitments, obligations and assets, and the obligation of the
Company to complete the Contemplated Transactions shall be subject to a
determination by the Company after such investigation that it wishes to
consummate the Contemplated Transactions.
(b) PERFORMANCE. TRVL shall have performed and complied with all
agreements, obligations and covenants required by this Agreement to be performed
or complied with by them at or prior to the Closing Date.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of TRVL contained in this Agreement and in any certificate or other
writing delivered by TRVL pursuant hereto shall be true at and as of the Closing
Date as if made at and as of such time.
(d) BUYER REQUIRED CONSENTS. All Buyer Required Consents shall
have been obtained.
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(e) BOARD OF DIRECTORS. All members of the Board of Directors of
TRVL shall resign from office and shall nominate alternate directors to replace
them. The identity of such alternate directors shall be in the sole discretion
of the Sellers.
(f) DELIVERIES. There shall have been delivered to the Sellers the
following:
(i) a certificate, dated as of the Closing Date, of TRVL,
certifying, among other things, that attached or appended to such certificate
(A) are true and correct copies of the articles of incorporation and by-laws of
TRVL and all amendments, if any, thereto as of the date thereof; (B) is a true
copy of all corporate actions taken by the board of directors of TRVL
authorizing the execution, delivery and performance of this Agreement and each
other transaction document to be delivered by each of them pursuant hereto; and
(C) are the names and signatures of its duly elected or appointed officers who
are authorized to execute and deliver this Agreement and any certificate,
document or other instrument in connection herewith.
(ii) a signed opinion by TRVL's legal counsel, Sachs, Sax &
▇▇▇▇▇, P.A., addressed to the Sellers and S2W, dated as of the Closing Date, in
a form satisfactory to Sellers.
(iii) certificates representing the TRVL Stock;
(g) The resignation letters of all members of the Board of
Directors of TRVL and proper documentation of the appointment of alternate
directors to TRVL's board of directors, the identity of which shall be in the
sole discretion of S2W.
SECTION 4.3 CONDITIONS TO THE OBLIGATIONS OF THE BUYER. All obligations
of the Buyer to consummate the Contemplated Transactions hereunder are subject,
at the option of the Buyer, to the fulfillment prior to or at the Closing of
each of the following further conditions:
(a) DUE DILIGENCE. For a period of ten (10) days following the
execution of this Agreement, the Buyer and its officers, directors, employees,
affiliates, attorneys, accountants, financial advisers, consultants,
representatives and agents (collectively, the "BUYER'S AGENTS") shall be
provided reasonable access to undertake a complete investigation of the value,
patentability and marketability of the S2W IP, and the business, affairs,
operations, properties, assets and liabilities of the Company including, but not
limited to, a complete examination of all books and records, contractual
commitments, obligations and assets, and the obligation of the Buyer to complete
the Contemplated Transactions shall be subject to a determination by the Buyer
after such investigation that it wishes to consummate the Contemplated
Transactions.
(b) PERFORMANCE. The Company and the Sellers shall have performed
and complied with all agreements, obligations and covenants required by this
Agreement to be performed or complied with by it at or prior to the Closing
Date.
(c) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Agreement and in any certificate or
other writing
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delivered by the Company pursuant hereto shall be true at and as of the Closing
Date as if made at and as of such time.
(d) SELLER REQUIRED CONSENTS. All Seller Required Consents shall
have been obtained.
(e) COMPANY STOCK. The Buyer shall have received certificates
representing the Company Stock duly endorsed in blank or accompanied by stock
transfer powers duly executed in blank and in suitable form for transfer by
delivery.
(f) NO PROCEEDING OR LITIGATION. No Claim instituted by any person
(other than the Buyer or its Affiliates), shall have been commenced or be
pending against the Seller, the Company or the Buyer or any of their Affiliates,
partners, officers or directors, which Claim (i) seeks to restrain, prevent,
change or delay in any material respect the transactions Contemplated under the
terms of this Agreement or seeks to challenge any of the material terms or
provisions of this Agreement or seeks material damages in connection with any of
the Contemplated Transactions and (ii) could, in the reasonable opinion of the
Buyer, (x) result in a material adverse effect in the Condition of the business
or (y) delay or otherwise affect, in a manner adverse to Buyer, the transactions
Contemplated under the terms of this Agreement.
(g) DELIVERIES. There shall have been delivered to the Buyer the
following:
(i) A certificate, dated as of the Closing Date, of the
Secretary or Assistant Secretary of the Company, certifying, among other things,
that attached or appended to such certificate (A) is a true copy of all
corporate actions taken by the board of directors of the Company authorizing the
execution, delivery and performance of this Agreement and each other transaction
document to be delivered by the Company pursuant hereto; and (B) are the names
and signatures of its duly elected or appointed officers who are authorized to
execute and deliver this Agreement and any certificate, document or other
instrument in connection herewith.
(ii) Signed stock transfer deeds representing the Company
Stock in favor of Buyer, in proper form for transfer, together with any other
documents that are necessary to transfer to Buyer good and marketable title to
the Company Stock;
ARTICLE 5
TERMINATION
SECTION 5.1 TERMINATION. This Agreement may be terminated and the
Contemplated Transactions may be abandoned at any time prior to the Closing:
(a) By mutual written consent of the of the Parties;
(b) By the Sellers if (i) there has been a material
misrepresentation or breach of warranty on the part of the Buyer in the
representations and warranties contained herein and such material
misrepresentation or breach of warranty, if curable, is not cured within 30 days
after written notice thereof from the Sellers or Company; (ii) the Buyer has
committed a
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material breach of any covenant imposed upon it hereunder and fails to cure such
breach within 30 days after written notice thereof from the Sellers or Company;
(c) By the Buyer, if (i) there has been a material
misrepresentation or breach of warranty on the part of the Company in the
representations and warranties contained herein and such material
misrepresentation or breach of warranty, if curable, is not cured within 30 days
after written notice thereof from the Buyer; (ii) the Company or Sellers have
committed a material breach of any covenant imposed upon it hereunder and fails
to cure such breach within 30 days after written notice thereof from the Buyer;
(d) By the Sellers or by the Buyer, if there shall be any Law that
makes consummation of the Contemplated Transactions illegal or otherwise
prohibited, or if any Order enjoining the Company, the Sellers or the Buyer from
consummating the Contemplated Transactions is entered and such Order shall have
become final and nonappealable;
(e) By the Sellers or by the Buyer, in the event that the Closing
Date does not take place and occur prior to February 8, 2002.
ARTICLE 6
MISCELLANEOUS
SECTION 6.1 SPIN-OFF. Prior to and subsequent to the Closing Date the
Company and TRVL shall cooperate in effecting the spin-off of ▇▇▇▇▇▇▇▇.▇▇▇ and
other assets currently owned by TRVL into a new public company. The spin-off
shall be in the form of a stock dividend or other distribution to the existing
stockholders of the Company. The record date for this transaction shall be
immediately prior to the Closing Date and the Company and the Sellers shall not
be entitled to receive any shares in the new company. If such transaction is not
complete prior to the Closing Date, then TRVL shall cooperate in the completion
of such transaction and the spin-off company shall bear the cost and fees of
such transaction.
SECTION 6.2 ADDITIONAL ISSUANCES; CAPITALIZATION. Until the first
anniversary of the Closing Date, the Company shall not (a) effect a reverse
stock split without the consent of MCG Partners as representative of the
existing TRVL stockholders.
SECTION 6.3 NAME. TRVL shall waive all rights to the "Travlang" name and
associated intellectual property and cooperate in the preparation of any
required documents.
SECTION 6.4 ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits hereto) and the other transaction documents executed in connection with
the consummation of the Contemplated Transactions contain the entire agreement
among the parties with respect to the subject matter hereof and the Contemplated
Transactions and supersede all prior agreements, written or oral, with respect
thereto.
SECTION 6.5 Waivers and Amendments; Non-Contractual Remedies;
Preservation of Remedies. This Agreement may be amended, superseded, cancelled,
renewed or extended only by a written instrument signed by the Company, Sellers
and the Buyer. The provisions hereof may be waived in writing by the Company,
Sellers and the Buyer. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a
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waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, nor any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege. Except as otherwise provided herein, the rights
and remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity.
SECTION 6.6 GOVERNING LAW; JURISDICTION. This Agreement shall be governed
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed within such State, without regard to the
conflict of laws rules thereof.
SECTION 6.7 BINDING EFFECT; NO ASSIGNMENT. This Agreement and all of its
provisions, rights and obligations shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, heirs and legal
representatives. This Agreement may not be assigned (including by operation of
Law) by the Sellers or the Company without the express written consent of the
Buyer and any purported assignment, unless so consented to, shall be void and
without effect. This Agreement may not be assigned (including by operation of
Law) by the Buyer without the express written consent of the Company and any
purported assignment, unless so consented to, shall be void and without effect.
Nothing herein express or implied is intended or shall be construed to confer
upon or to give anyone other than the parties hereto and their respective heirs,
legal representatives and successors any rights or benefits under or by reason
of this Agreement and no other party shall have any right to enforce any of the
provisions of this Agreement.
SECTION 6.8 EXHIBITS. All Exhibits and Schedules attached hereto are
hereby incorporated by reference into, and made a part of, this Agreement.
SECTION 6.9 SEVERABILITY. If any provision of this Agreement for any
reason shall be held to be illegal, invalid or unenforceable, such illegality
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such illegal, invalid or unenforceable provision had never
been included herein.
SECTION 6.10 EXPENSES. Except as otherwise specifically provided in this
Agreement, the Buyer and the Sellers shall bear their respective expenses, and
the Sellers will bear the expenses of the Company, in each case, incurred in
connection with the preparation, execution and performance of this Agreement and
the Contemplated Transaction, including, without limitation, all fees and
expenses of their respective Representatives.
SECTION 6.11 COUNTERPARTS. The Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
SECTION 6.12 THIRD PARTIES. Except as specifically set forth or referred
to herein, nothing herein express or implied is intended or shall be construed
to confer upon or give
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to any person other than the parties hereto and their permitted successors or
assigns, any rights or remedies under or by reason of this Agreement or the
Contemplated Transactions.
SECTION 6.13 FURTHER ASSURANCES. At any time and from time to time after
the Closing Date, upon the request of the Buyer, the Sellers will do, execute,
acknowledge and deliver, or cause to be done, executed, acknowledged or
delivered, all such further documents, instruments or assurances, as may be
necessary, the desirable or proper to carry out the intent and accomplish the
purposes of this Agreement. The Sellers and the Buyer will each, respectively,
bear their or its own costs and expenses incurred in compliance with the first
sentence of this Section 6.10.
IN WITNESS WHEREOF, the undersigned have executed this Stock Purchase
Agreement as of the date set forth above.
BUYER:
TRAVLANG, INC.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
THE COMPANY:
Sec2wireless Inc.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
SELLERS:
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AMENDMENT TO STOCK PURCHASE AGREEMENT
This Amendment, dated as of February 28, 2002, to Stock Purchase
Agreement dated January 21st, 2002 (the "Agreement") by and among Travlang Inc.,
a Delaware corporation ("TRVL" or the "BUYER"), Sec2wireless Inc., a Delaware
corporation ("S2W" or the "Company") and the shareholders of S2W, as set forth
in Schedule 2.1(a) of the Agreement. Terms used herein and not otherwise
defined, shall have the meaning assigned to them in the Debenture.
WHEREAS the parties have entered into the Agreement dated January 21st,
2002.
WHEREAS the parties wish to amend the Agreement, as provided hereinafter.
NOW THEREFORE, it is agreed as follows:
1. The first paragraph of the preamble of the Agreement is hereby
amended so that the words "and the shareholders of S2W" on the
third line of such paragraph are replaced with the following
words:
"and each of the shareholders of S2W, severally,"
2. The preamble of Article 2 of the Agreement is hereby amended so
that the words:
"REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND SELLERS" and the words" The
Company and the Sellers hereby represent and warrant to the Buyer as follows:"
in the preamble of Article 2 are hereby replaced in their entirety with the
following words:
"REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Buyer as follows:"
3. Section 1.1 of the Agreement is hereby replaced in its entirety
with the following Section 1.1:
"1.1 PURCHASE AND SALE OF THE COMPANY STOCK. Subject to the terms
and conditions set forth herein, at the Closing, each of the
Sellers severally, shall sell, transfer and deliver to the Buyer,
and the Buyer shall purchase, acquire and accept from each Seller,
free and clear of all liens, encumbrances, charges, claims,
rights, interests, security interests and any other encumbrances
whatsoever, the Company Stock."
4. Sections 2.2 and 2.3 of the Agreement are hereby amended so that
in every place in Sections 2.2 and 2.3 of the Agreement where the
words "the Sellers" appear, they will be replaced with the words
"each Seller".
5. Section 6.10 of the Agreement is hereby replaced in its entirety
with the following Section 6.10:
"6.10 EXPENSES. Except as otherwise specifically provided in this
Agreement, the Buyer and the S2W shall bear their respective
expenses, in each case, incurred in connection with the
preparation, execution and performance of this Agreement and the
Contemplated Transaction, including, without limitation, all fees
and expenses of their respective Representatives."
6. Section 6.13 of the Agreement is hereby amended so that the words
". The Sellers and the Buyer will each, respectively, bear their
or its own costs and expenses incurred in compliance with the
first sentence of this Section 6.10." are hereby omitted.
IN WITNESS WHEREOF, the undersigned have executed this Amendment to the
Agreement as of the date set forth above.
TRAVLANG, INC.
By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Sec2wireless Inc.
By:
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▇▇▇▇▇▇ Geldzhaler, President