Exhibit D
SETTLEMENT AGREEMENT
WITH VICTORIA HOLDINGS, INC.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is made as of this 9th day of April 1999, by
and between Computer Marketplace, Inc., a Delaware corporation (the "Company")
and VICTORIA HOLDINGS, INC. ("Victoria Holdings").
WHEREAS, in December 1996 the Company issued an Option to Purchase
1,000,000 shares of the Company's common stock, par value $.0001 per share (the
"Option"); and
WHEREAS, the parties desire to fully and finally terminate and cancel
all controversies, disputes, claims, debts, obligations and matters of whatever
nature existing between them, or which may heretofore have arisen between
Victoria Holdings, the Company and Medical Marketplace; and
WHEREAS, this Agreement is executed in compromise and settlement of
potential claims brought by Victoria Holdings against the Company in order to
avoid the continued uncertainty, expense and inconvenience of potential
litigation.
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants and conditions hereinafter contained, the parties hereto agree as
follows:
1. ISSUANCE OF THE COMPANY SHARES; FORFEIT OF OPTION;
REGISTRATION RIGHTS.
1.1 Subject to and on the terms and conditions hereof, in reliance
on the representations and warranties contained herein, (i) the Company agrees
to issue on the Closing Date (as hereinafter defined) to Victoria Holdings
250,000 shares of the Company's unregistered common stock, par value $.0001 per
share (the "Company Shares"), and (ii) Victoria Holdings shall deliver to the
Company for cancellation the Option.
1.2 The Company agrees to include the Company Shares in the first
registration statement filed with the Securities and Exchange Commission
following the Closing Date, other than registration statements filed on Forms
X-0, X-0 ("Registration Statement"), at no cost or expense to Investors (other
than such Investor's legal fees). In the event that the offering covered by the
Registration Statement is underwritten by a registered broker/dealer (the
"Underwriter"), and such Underwriter informs the Company in writing that the
inclusion of the Company Shares in the Registration Statement will result in the
inability to effect the Registration Statement or qualify the Registration
Statement in one or more states which the Underwriter, in its sole discretion,
deems necessary for such offering to proceed, the Investor shall agree to
withhold some or all of the Company Shares from registration in accordance with
the instructions of such Underwriter. In such event, the Company shall file not
more than one registration statement with the Securities and Exchange Commission
for the purpose of registering the Company Shares as soon as practicable after
the closing date of such offering at no cost or expense to the Investor.
2. GENERAL RELEASE OF THE COMPANY. Victoria Holdings, and each of
its affiliates, as Releasors, hereby and forever discharge the Company, and its
affiliates, and their respective heirs, executors, administrators, successors,
D-1
assigns, officers, directors, counsel and stockholders, as Releasees, from any
and all claims, actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments,
extent, executions, claims, and demands whatsoever, in law, admiralty or equity,
which they, and their heirs, executors, administrators, successors and assigns
may ever have had or may then have for, upon, or by reason of any matter, cause
or thing whatsoever from the beginning of the world to and including the Closing
Date.
3. CLOSING.
3.1 The closing of the transactions provided for herein
(hereinafter referred to as the "Closing") shall be held at the offices of the
Company's legal counsel on the date hereof.
3.2 At the Closing:
(a) Victoria Holdings shall deliver to the Company (i) an
executed copy of this Agreement, (ii) an executed proxy and (iii) the
Option;
(b) the Company shall deliver to Victoria Holdings (i) an
executed copy of this Agreement and (ii) certificates evidencing the
number of Company Shares.
4. REPRESENTATIONS AND WARRANTIES OF VICTORIA HOLDINGS. Victoria
Holdings represents and warrants to the Company and Medical Marketplace that the
following are true and correct as at the date hereof:
(a) Victoria Holdings is the sole owners of, and has good
and marketable title to, the Option, free and clear of any and all
liens, pledges, charges, encumbrances, options or claims whether or not
of record and have the absolute and unrestricted right and power,
authority and capacity to consummate the transactions contemplated
hereby.
(b) Victoria Holdings has the full power and authority to
execute, deliver and perform this Agreement. Victoria Holdings is not a
party to any agreement, contract or understanding pursuant to which
Victoria Holdings is or may be obligated to sell the Company Shares,
and none of the terms, conditions and provisions hereof conflict with,
result in a breach of the terms, conditions or provisions of, or
constitute a default, an event of default or an event creating rights
of acceleration, termination or cancellation of any agreement,
corporate charter or by-law to which Victoria Holdings is a party.
(c) Victoria Holdings is acquiring the Company Shares for
investment for such Seller's own account and not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof,
and Victoria Holdings has no present intention of selling, granting any
participation in, or otherwise distributing the same. Victoria Holdings
further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant a
participation to such person or to any third person, with respect to
any of the Company Shares.
D-2
(d) Victoria Holdings understands that the Company Shares
are not registered under the Act on the ground that the sale and the
issuance of securities hereunder is exempt from registration under the
Act pursuant to Section 4(2) thereof, and that the Company's reliance
on such exemption is predicated on such Seller's representations set
forth herein. Victoria Holdings is an "accredited investor" as that
term is defined in Rule 501(a) of Regulation D under the Act.
(e) Victoria Holdings acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of owning the Company Shares.
(f) Victoria Holdings has carefully reviewed such
information as Victoria Holdings deemed necessary to evaluate the
Company Shares. To the full satisfaction of Victoria Holdings, it has
been furnished all materials that it has requested relating to the
Company and the issuance of the Company Shares hereunder, and Victoria
Holdings has been afforded the opportunity to ask questions of
representatives of the Company to obtain any information necessary to
verify the accuracy of any representations or information made or given
to Victoria Holdings. Further, the Investor understands that the
Company is presently exploring opportunities to acquire one or more
entities engaged in business on the world wide web.
(g) Victoria Holdings understands that the Company Shares
may not be sold, transferred, or otherwise disposed of without
registration under the Act or an exemption therefrom, and that in the
absence of an effective registration statement covering the Company
Shares or any available exemption from registration under the Act, the
Company Shares must be held indefinitely. Such Seller is aware that the
Company Shares may not be sold pursuant to Rule 144 promulgated under
the Act unless all of the conditions of that Rule are met. Among the
conditions for use of Rule 144 may be the availability of current
information to the public about the Company.
(h) Victoria Holdings acknowledges and understands that
certificates for the Company Shares to be issued and delivered to them
hereunder will bear substantially the following legend:
"The securities represented by this Certificate have been
acquired without registration under the Securities Act of
1933, as amended. No transfer, sale or distribution of these
securities or any interest therein may be made except under an
effective registration statement under said Act covering such
securities unless the Corporation has received an opinion of
counsel satisfactory to it that such transfer or sale does not
require registration under said Act."
5. ENTIRE AGREEMENT. This Agreement and any document referred to
herein constitutes the entire Agreement among the parties hereto with respect to
the subject matter hereof and supersedes all prior written or oral warranties,
D-3
representations, inducements, understandings, commitments, agreements or
contracts. No amendment to or modification of the terms or conditions hereof
shall be binding unless it is in writing and signed by the party against whom
the amendment or modification is charged.
6. NO ADMISSIONS. This Agreement effects the settlement of
potential claims which are denied, disputed and contested, and nothing contained
herein shall be construed as an admission of wrongdoing by any party hereto or
as an admission of any liability of any kind to any other party. Each of the
Parties hereto denies any liability in connection with any potential claim and
intends merely to avoid the uncertainties of litigation and to buy its peace.
7. LEGAL ADVICE. The Parties hereto received independent legal
advice from their attorneys with respect to the advisability of making this
Agreement.
8. INVESTIGATION. The Parties hereto have made such investigation
of the facts pertaining to this settlement and this Agreement, and of all the
matters pertaining thereto, as they deem necessary.
9. AFTER-ACQUIRED FACTS. The Parties hereto are aware that they
may hereafter discover or become aware of facts, circumstances, or
interpretations thereof in addition to or different from those they now know or
believe to be true with respect to the subject matter hereof. Nevertheless, it
is their intention fully, finally, and forever to settle and release all
matters, claims, and disputes which do now exist, heretofore have existed, or
may hereafter arise between them and any or all of the released parties with
respect to the subject matter of this Agreement, except as provided herein. In
furtherance of this intention, the releases given in this Agreement shall be and
remain in effect as a full and complete release of all such matters,
notwithstanding the discovery or existence of any additional or different claims
or facts relative thereto, except as provided herein.
10. CORPORATE AND PARTNERSHIP AUTHORIZATION. Each corporate and
partnership party to this Agreement represents and warrants that (a) all
corporate or partnership action necessary for the execution, delivery and
performance of this Agreement has been taken and this Agreement constitutes the
valid, binding and enforceable agreement of such party, (b) neither the
execution or delivery of this Agreement nor the performance of its terms will
violate its certificate or articles of incorporation or by-laws or partnership
agreement or any agreement to which such party is a party.
11. GOVERNANCE OF DELAWARE LAW. The laws of the State of Delaware
applicable to contracts made and fully to be performed therein shall govern the
validity, construction, performance, and effect of this Agreement, although
without regard to any choice of law provisions thereof or principles of
conflicts of law as might otherwise be applied by courts applying Delaware law.
12. NON-ASSIGNABILITY OF AGREEMENT. This Agreement may not be
assigned by any party without the prior written consent of all other parties.
D-4
13. NO PRESUMPTION AGAINST ANY PARTY AS DRAFTER. This Agreement
represents the joint product of each of the parties after fully informed and
vigorous arms length negotiation and no presumption may drawn against any party
as the putative drafter of the Agreement.
14. EXCLUSION OF THIRD-PARTY BENEFICIARIES. The provisions of this
Agreement are not intended to and shall not be deemed to confer any rights or to
inure to the benefit of any third-party directly or indirectly, extent as
otherwise set forth herein.
15. BINDING ON SUCCESSORS AND OTHERS. This Agreement and the
covenants and conditions contained herein shall apply to, be binding upon and
inure to the administrators, executors, conservators, trustees, legal
representatives, assignees, successors, agents and assigns of the Parties.
16. FEES AND COSTS. The Parties agree to bear their own costs and
attorneys' fees incurred with respect to the preparation and negotiation of this
Agreement and the settlement herein contained.
17. ATTORNEYS' FEES. In the event any party brings a claims
arising from or relating to this Agreement, the "prevailing party" shall be
entitled to recover all its reasonable attorneys' fees and costs incurred as a
result of such a claim as costs of suit or as damages.
18. FURTHER DOCUMENTS. The Parties shall execute and deliver all
documents and perform all further acts that may be reasonably necessary to
effectuate the provisions of this Agreement.
19. MEANING OF TERMS. When necessary herein, all terms used in the
singular shall apply to the plural, and vice versa, and all terms used in the
masculine shall apply to the neuter and feminine genders, and vice versa. The
headings of paragraphs of this Agreement are inserted solely for convenience of
reference and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
20. COUNTERPARTS. Each party to this Agreement may sign a copy of
this Agreement and each such executed copy shall have the same force and effect
as if each party had signed the original.
21. NOTICES. Any notices under this Agreement shall be personally
served and/or mailed and/or transmitted via facsimile to the Parties and their
counsel as follows:
If to the Company or Medical Marketplace: L. Xxxxx Xxxxx
President
Computer Marketplace, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Victoria Holdings: Xxxxxx Xxxxxxxxxxx
0000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
D-5
IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement as of the date set forth above.
COMPUTER MARKETPLACE, INC.
By: /s/ L. XXXXX XXXXX
--------------------------------------
Name: L. Xxxxx Xxxxx
Title: President
VICTORIA HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
D-6
