SETTLEMENT AND GENERAL RELEASE AGREEMENT
THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT (the "Agreement") is
made and entered into as of the 28th day of September, 2001 between
XxxxxXxxxXxxxxxx.xxx, Inc., f/k/a Southeast Research Partners, Inc., a Delaware
corporation ("EBC"), and Vizacom Inc., a Delaware corporation (the "Company",
and together with EBC, the "Parties").
WHEREAS, pursuant to a Financial Advisory and Investment Banking
Agreement (the "Consulting Agreement") dated October 23, 1998, the Company
engaged EBC as a consultant for a term of two (2) years;
WHEREAS, pursuant to the terms of the Consulting Agreement, the
Company issued to EBC warrants (the "Warrants") to purchase up to 150,000
shares of the Company's common stock, par value $.001 per share (the "Common
Stock"), at an exercise price of $0.86 per share;
WHEREAS, by letter dated December 6, 1999, the Company purported to
terminate the Consulting Agreement and the Warrants;
WHEREAS, by Statement of Claim dated February 9, 2000, filed by EBC
with the American Arbitration Association, EBC alleged various complaints
against the Company in connection with such purported termination, seeking,
among other things, damages and attorneys' fees as a result thereof;
WHEREAS, the matter is currently before the American Arbitration
Association under Case No. 13-113-00144-00-02 (the "Arbitration Claim");
WHEREAS, the Parties now desire to settle fully and finally the
Arbitration Claim, and any and all additional claims EBC may have against
the Company, and any and all claims that the Company may have against EBC.
NOW, THEREFORE, in consideration of the premises and mutual promises
herein contained, it is agreed as follows:
1. Non-Admission of Liability or Wrongdoing.
This Agreement shall not be construed in any way as an admission
by the Parties that either of them has acted wrongfully with respect to the
other or any other person or that any one of them has any rights whatsoever
against the other.
2. Consideration to EBC. The Company shall issue to EBC 130,000
shares (the "Shares") of the Company's Common Stock. The Company shall
deliver to EBC or to its designees set forth on Schedule A (the "EBC Designees")
certificates evidencing ownership of the Shares no later than 30 days after the
date hereof. The Shares shall be deemed issued, and shall be dated, as of
September 28, 2001.
3. Voting. EBC shall vote all of the Shares in favor of all
stockholder proposals relating to the proposed acquisition by the Company
of SpaceLogix, Inc. made at any meeting of stockholders held from the date of
this Agreement through December 31, 2002, on terms approved by the board of
directors of the Company.
4. Investment Representations of EBC.
(a) Investment Intent. EBC is acquiring the Shares for its own
account, for investment only and not with a view to, or for sale in
connection with, a distribution thereof, within the meaning of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, or any applicable state securities or blue-sky laws;
(b) Investor Status. EBC is an accredited investor as such term is
defined under Rule 501 of Regulation D promulgated pursuant to the
Securities Act ("Regulation D");
(c) Intent to Transfer. EBC is not a party or subject to or bound
by any contract, undertaking, agreement or arrangement with any person to
sell, transfer or pledge any of the Shares, or any part thereof, to any person
or entity, and has no present intention to enter into such a contract,
undertaking, agreement or arrangement, other than the EBC Designees;
(d) Receipt of Disclosures. EBC acknowledges receipt of copies of
all relevant Company filings (the "Company Filings") under the Securities
Exchange Act of 1934 with the Securities and Exchange Commission, and EBC has
read and understands the contents thereof.
(e) Offering Exempt from Registration; Company's Reliance. The
Company has advised EBC, and EBC acknowledges and agrees, that:
(i) None of the Shares have been registered under the
Securities Act or under the laws of any state on the basis that the
issuance thereof is exempt from such registration;
(ii) The Company's reliance on the availability of such
exemption is, in part, based upon the accuracy and truthfulness of EBC's
representations contained herein;
(iii) As a result of such lack of registration, none of the
Shares may be resold or otherwise transferred or disposed of without
registration pursuant to, or an exemption therefrom available under, the
Securities Act and such state securities laws; and
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(iv) In furtherance of the provisions of this Paragraph
4(e), all of the certificate(s) representing the Shares shall bear a
restrictive legend substantially in the following form:
"THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THESE SHARES
HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
APPLICABLE STATE SECURITIES LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE ISSUER OF THESE SHARES TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED
UNDER SUCH ACT AND SUCH STATE SECURITIES LAWS;"
(f) Sophistication of EBC. EBC has evaluated the merits and risks
of acquiring the Shares and has such knowledge and experience in financial
and business matters that EBC is capable of evaluating the merits and risks of
such acquisition, is aware of and has considered the financial risks and
financial hazards related thereto, and is able to bear the economic risk
thereof, including the possibility of a complete loss with respect thereto;
(g) Access to Information. EBC has had access to such information
regarding the business and finances of the Company, the receipt and careful
reading of which is hereby acknowledged by EBC, and has been provided the
opportunity to (i) obtain any additional information which the Company possesses
or can acquire without unreasonable effort or expense that is necessary to
verify the accuracy of information contained in the Company Filings, and (ii)
discuss with the Company's management the business, affairs and financial
condition of the Company, including, without limitation, pursuant to a meeting
and/or discussions with management of the Company;
(h) No Guarantees. It has never been represented, guaranteed or
warranted to EBC by the Company, or any of its officers, directors, agents,
representatives or employees, or any other person, expressly or by implication,
that:
(i) any gain will be realized by EBC from EBC's investment
in the Shares;
(ii) there will be any approximate or exact length of time
that EBC will be required to remain as a holder of the Shares; or
(iii) the past performance or experience on the part of the
Company, its predecessors or of any other person, will in any way indicate
any future results of the Company;
(i) No Other Representations, Warranties, Covenants or Agreements
of the Company. Except as set forth in this Agreement, the Company has not made
any representation, warranty, covenant
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or agreement with respect to the matters contained herein, and EBC has not
and will not rely on any representation, warranty, covenant or agreement except
as set forth in this Agreement;
(j) High Degree of Investment Risk. The investment in the Shares
involves a high degree of risk and may result in a loss of the entire
amount invested; there is no assurance that the Company's operations will be
profitable in the future; and there is no assurance that a public market for
shares of Common Stock will continue to exist;
(k) No Purchaser Representative. EBC has not authorized any
person or institution to act as its "purchaser representative" (as such
term is defined in Rule 501 of Regulation D) in connection with EBC's investment
in the Shares; and
(l) No General Solicitation. EBC has not received any general
solicitation or general advertising regarding the purchase of any of the Shares;
and
(m) No Xxxxxxx Xxxxxxx. EBC will not engage in any transaction
with respect to securities of the Company at any time if at the time of
such transaction EBC is aware of any material non- public information relating
to the Company or its securities.
5. Piggy-Back Registration Rights.
(a) If, at any time on or after the date of this Agreement and
on or prior to three years from the date of this Agreement, the Company proposes
to file a registration statement under the Securities Act with respect to
an offering by the Company or any Company security holders of any shares of the
Common Stock (other than a registration statement on Form S-4 or S-8 or any
successor form or a registration statement filed solely in connection with an
exchange offer, a business combination transaction or an offering of securities
solely to the existing stockholders or employees of the Company), then the
Company, on each such occasion for as long as EBC or any EBC Designee is then a
holder of any unregistered Shares, shall give written notice (each, a "Vizacom
Piggy-Back Notice") of such proposed filing to EBC and any EBC Designee at least
20 days before the anticipated filing date of such registration statement, and
such Vizacom Piggy-Back Notice also shall be required to offer to EBC and any
EBC Designee the opportunity to register such number of the Shares as EBC or any
EBC Designee may request. EBC and any EBC Designee shall have the right,
exercisable for the 10 days immediately following the giving of Vizacom
Piggy-Back Notice, to request, by written notice (each, an "EBC Notice") to the
Company, the inclusion of all or any portion of the Shares in such registration
statement. The Company shall use reasonable efforts to cause the managing
underwriter(s) of a proposed underwritten offering to permit the inclusion of
the Shares which were the subject of the EBC Notice in such underwritten
offering on the same terms and conditions as any shares of the Common Stock of
the Company included therein. Notwithstanding anything to the contrary contained
in this Section 5, if the managing underwriter(s) of such underwritten offering
or any proposed underwritten offering delivers a written opinion to EBC and any
EBC Designee that the total amount of the shares of the Common Stock which EBC
or any EBC Designee, the Company and any other person or persons intend to
include in such offering is such as to materially and adversely affect the
success of such offering, then the amount of the shares to be offered for the
account of EBC and any EBC Designee and persons other than the Company shall be
eliminated or reduced pro rata (based on the amount of the shares of the Common
Stock owned
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by EBC and any EBC Designee and other persons which carry registration
rights) to the extent necessary to reduce the total amount of the shares of the
Common Stock to be included in such offering to the amount recommended by such
managing underwriter(s) in its written opinion.
(b) Number of Piggy-Back Registrations; Expenses. The registration
obligations of the Company under this Section 5 shall cease when (A) a
registration statement under the Securities Act covering the Shares has been
declared effective and (i) the Shares have been disposed of pursuant to such
effective registration statement, or (ii) such registration statement has
remained effective for 270 consecutive days, (B) the Shares are distributed to
the public pursuant to the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act, including, but not limited to,
Rules 144 and 144A promulgated under the Securities Act, or (C) the Shares have
been otherwise transferred and the Company, in accordance with applicable law
and regulations, has delivered new certificates or other evidences of ownership
for such securities which are not subject to any stop transfer order or other
restriction on transfer. The Company will pay all registration expenses in
connection with any registration of the Shares effected pursuant to this Section
5, but the Company shall not be responsible for the payment of any underwriter's
discount, commission or selling concession in connection with the Shares being
registered or any out-of-pocket expenses of EBC or any EBC Designee or the
agents who act on their behalf.
(c) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything to the contrary contained in this Section 5, the
Company shall have the absolute right, whether before or after the giving of a
Vizacom Piggy-Back Notice or EBC Notice, to determine not to file a registration
statement to which EBC or any EBC Designee shall have the right to include the
Shares therein pursuant to this Section 5, to withdraw such registration
statement or to delay or suspend pursuing the effectiveness of such registration
statement. In the event of such a determination after the giving of a Vizacom
Piggy-Back Notice, the Company shall give notice of such determination to EBC
and any EBC Designee and, thereupon, (A) in the case of a determination not to
register or to withdraw such registration statement, the Company shall be
relieved of its obligation under this Section 5 to register any of the Shares in
connection with such registration, and (B) in the case of a determination to
delay the registration, the Company shall be permitted to delay or suspend the
registration of the Shares pursuant to this Section 5 for the same period as the
delay in the registration of such other securities.
(d) Obligations of EBC or any EBC Designee. In connection with any
registration of the Shares pursuant to this Section 5, the Company may
require that EBC or any EBC Designee furnish to it such information regarding
the distribution of such Shares and EBC or any EBC Designee as the Company may
from time to time reasonably request in writing, including, without limitation,
on a selling security holder questionnaire.
(e) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, EBC and
any EBC Designee, their officers and directors and each person who controls EBC
or any EBC Designee (within the meaning of the Securities Act), if any, and any
agent thereof against all claims arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in the
light of the circumstances
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under which they were made) not misleading, except insofar as the same
arise out of or are based upon, any such untrue statement or omission based upon
information with respect to EBC or any EBC Designee furnished in writing to the
Company by EBC or any EBC Designee expressly for use therein.
(f) Indemnification by EBC or any EBC Designee. In connection with
any registration statement in which EBC or any EBC Designee is
participating, EBC and any EBC Designee will be required to furnish to the
Company in writing such information with respect to EBC or any EBC Designee as
the Company reasonably requests for use in connection with any such registration
statement or prospectus, and EBC and any EBC Designee agrees to the extent they
are a holder of Shares included in such registration statement to indemnify, to
the full extent permitted by law, the Company and its subsidiaries and each of
their respective directors, officers, employees, agents, successors and assigns,
and each person who controls the Company (within the meaning of the Securities
Act) against any claims incurred by such party pursuant to any actual or
threatened suit, action, proceeding or investigation arising out of or based
upon any untrue or alleged untrue statement of a material fact, or any omission
or alleged omission of a material fact necessary to make the statements therein
(in the case of a prospectus, in the light of the circumstances under which they
are made) not misleading, to the extent, but only to the extent, that such
untrue statement or omission is based upon information relating to EBC or any
EBC Designee furnished by EBC or any EBC Designee in writing to the Company
expressly for use therein.
6. Complete Release.
(a) As a material inducement to the Company to enter into this
Agreement, EBC and its subsidiaries hereby irrevocably and unconditionally
waive, release and discharge the Company, its subsidiaries and their respective
officers, directors, stockholders, employees, agents, attorneys, servants,
successors, insurers, affiliates and their successors and assigns, from any
liability under the Arbitration Claim and the Consulting Agreement, and any and
all manner of action, claims, liens, demands, liabilities, causes of action,
charges, complaints, suits (judicial, administrative or otherwise), damages,
debts, obligations of any nature, past or present, known or unknown, whether in
law or in equity, whether founded upon contract (expressed or implied), tort
(including, but not limited to, defamation), statute or regulation (State,
Federal or local), common law and/or any other theory or basis, from the
beginning of the world to the date hereof, including, but not limited to, any
claim that EBC has asserted, now asserts or could have asserted, but not
including any claim for the enforcement of this Agreement.
(b) As a material inducement to EBC to enter into this Agreement,
the Company and its subsidiaries hereby irrevocably and unconditionally
waive, release and discharge EBC, its subsidiaries and their respective
officers, directors, stockholders, employees, agents, attorneys, servants,
successors, insurers, affiliates and their successors and assigns, from any
liability under the Arbitration Claim and the Consulting Agreement, and any and
all manner of action, claims, liens, demands, liabilities, causes of action,
charges, complaints, suits (judicial, administrative or otherwise), damages,
debts, obligations of any nature, past or present, known or unknown to the
Company, whether in law or in equity, whether founded upon contract (expressed
or implied), tort (including, but not limited to, defamation), statute or
regulation (State, Federal or local), common law and/or any other theory or
basis, from the beginning of the world to the date hereof, including, but not
limited to, any claim that the Company has asserted, now asserts or could have
asserted, but not including any claim for the enforcement of this Agreement.
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(c) It is understood and agreed by the Parties that the facts and
respective assumptions of law in contemplation of which this Agreement is
made may hereafter prove to be other than or different from those facts and
assumptions now known, made or believed by them to be true. The Parties
expressly accept and assume the risk of the facts and assumptions to be so
different, and agree that all terms of this Agreement shall be in all respects
effective and not subject to termination or reclusion by any such difference in
facts or assumptions of law.
7. Delivery of Certificates; Dismissal of Arbitration.
If the Company fails to deliver the certificates representing the
Shares within sixty (60) days after the date hereof, EBC may, at its
election, enforce the terms of this Agreement in order to obtain the Shares or
proceed with the Arbitration Claim; provided, however, that upon delivery to EBC
of the certificates representing the Shares, the Arbitration Claim shall be
dismissed and/or withdrawn with prejudice.
8. No Representations.
The Parties represent that in signing this Agreement, they do not rely
on nor have they relied on any representation or statement not specifically
set forth in this Agreement by the Parties or by any of the Parties' agents,
representatives or attorneys with regard to the subject matter, basis or effect
of this Agreement or otherwise.
9. Successors.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective administrators, representatives, executors,
successors and assigns, whether by reason of merger, consolidation, and/or
purchase or acquisition of substantially all of the Company's or EBC's assets or
otherwise.
10. Governing Law.
This agreement is made and entered into in this State of New York, and
shall in all respects be interpreted, enforced and governed under the laws
of the State of New York.
11. Proper Construction.
(a) The language of all parts of this Agreement shall in all cases
be construed as a whole according to its fair meaning, and not strictly for or
against any of the Parties;
(b) As used in this Agreement, the term "or" shall be deemed
to include the term "and/or" and the singular or plural number shall be deemed
to include the other whenever the context so indicates or requires; and
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(c) The paragraph headings used in this Agreement are intended
solely for convenience of reference and shall not in any manner amplify,
limit, modify or otherwise be used in the interpretation of any of the
provisions hereof.
12. Severability.
Should any of the provisions of this Agreement be declared or be
determined to be illegal or invalid, the validity of the remaining parts,
terms or provisions shall not be affected thereby and said illegal or invalid
part, term or provision shall be deemed not to be a part of this Agreement.
13. Entire Agreement.
This Agreement sets forth the entire agreement between the Parties,
and fully supersedes any and all prior agreements or understandings between
the Parties pertaining to the subject matter hereof. All other contracts,
agreements or understandings between the Parties are null and void.
14. Counterparts.
This Agreement may be executed in counterparts. Each counterpart shall
be deemed an original, and when taken together with the other signed
counterpart, shall constitute one fully executed Agreement.
15. Further Assurances.
From and after the date hereof, the parties hereto shall take all
actions, including the execution and delivery of all documents, necessary
to effectuate the terms hereof.
16. Survival.
All obligations of the Parties as set forth herein shall survive the
execution and delivery hereof.
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PLEASE READ CAREFULLY. THIS SETTLEMENT AND GENERAL RELEASE AGREEMENT
INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
28th day of September, 2001.
EARLY BIRD XXXXXXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Chairman
VIZACOM INC.
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: CFO
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