Exhibit 6.6
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement (hereinafter referred to as
"Agreement") is entered into this 11th day of October, 1999 between Xxxxx X.
Xxxxxx and Winthrop Associates (hereinafter collectively referred to as
"Claimants"), BrowseSafe, LLC, XxxxxxXxxx.xxx, Inc. and BrowseSafe Technology,
Inc. (hereinafter collectively referred to as "BrowseSafe") and Xxxx Xxxx Xxxxxx
& Darko, LLP (hereinafter referred to as "Escrow Agent").
RECITALS:
WHEREAS, on or about September 19, 1998, Winthrop Associates,
BrowseSafe, LLC and XxxxxxXxxx.xxx, Inc. executed a Management Consulting
Agreement (referred to as "Consulting Agreement");
WHEREAS, Claimants and BrowseSafe both allege that the other party has
breached the Consulting Agreement;
WHEREAS, each party has denied the allegations; and
WHEREAS, each party is desirous of resolving all claims, damages and
actions relating to or arising from the Consulting Agreement.
NOW THEREFORE, in consideration of the premises and the undertakings of
the parties hereto, the parties hereby agree as follows:
1. Incorporation of Recitals. The Recitals set forth above are
incorporated into and form a part of this Agreement.
2. Payment to Claimants.
(a) XxxxxxXxxx.xxx, Inc. shall pay to Escrow Agent f/b/o Xxxxx
X. Xxxxxx, the sum of Two Hundred Thousand Dollars
($200,000) within One Hundred Twenty (120) days of the
execution of this Agreement.
(b) At the time of execution of this Agreement,
XxxxxxXxxx.xxx, Inc. shall issue Five Hundred Thousand
(500,000) shares of common stock of XxxxxxXxxx.xxx, Inc.
(the "Shares") to Xxxxx X. Xxxxxx and shall deliver the
certificate representing the Shares to Escrow Agent as
security for the payment of the Two Hundred Thousand
Dollars ($200,000). On the One Hundred and Twenty First
(121st) day following execution of this Agreement, Escrow
Agent shall pay the sum of Two Hundred Thousand Dollars
($200,000) to Xxxxx X. Xxxxxx if such funds were
previously paid to Escrow Agent by XxxxxxXxxx.xxx, Inc. If
Escrow Agent has not previously received the sum of Two
Hundred Thousand Dollars ($200,000) from XxxxxxXxxx.xxx,
Inc., on the One Hundred and Twenty First (121st) day
following execution of this Agreement, Escrow Agent
shall deliver the certificate representing the Shares to
Xxxxx X. Xxxxxx. If Escrow Agent has previously received
the sum of Two Hundred Thousand Dollars ($200,000) from
BrowseSafe, com, Inc. and has paid such funds to Xxxxx X.
Xxxxxx, on the One Hundred and Twenty First (121st) day
following execution of this Agreement, Escrow Agent shall
deliver the certificate representing the Shares to
XxxxxxXxxx.xxx, Inc. Upon receipt of the certificate
representing the Shares, XxxxxxXxxx.xxx, Inc. shall cancel
the Shares. The issuance and delivery of the Shares to
Xxxxx X. Xxxxxx shall be in lieu of payment of the unpaid
portion of the sum of Two Hundred Thousand Dollars
($200,000).
(c) The Shares shall be unrestricted shares if a registration
has been completed. If a registration has not been
completed, any of the Shares subject to any restrictions
shall contain the piggyback registration rights more fully
described in Section 5. BrowseSafe and Claimants shall
timely provide the other party with any information
reasonably requested in connection with the registration
or transfer of the Shares hereunder or pursuant to Section
4 or any other provision of this Agreement.
3. Mutual Release of Claims. Claimants and BrowseSafe do hereby release,
acquit and forever discharge one another, their respective agents, servants,
predecessors, successors, assigns, subsidiaries, affiliates, parents, officer
and directors, from any and all claims, actions, causes of action, suits,
damages, demands debts, sums of money, accounts, covenants, contracts,
controversies, agreements, promises, rights, liabilities, costs and judgments
whatsoever, known or unknown, which either Claimants or BrowseSafe ever had, now
have or hereafter may have against the other, from the beginning of the world to
the date of this Agreement, which are in any way related to the Consulting
Agreement or any other services Claimants may have performed for BrowseSafe.
4. Restrictions on Transferability of Securities in Compliance with the
Act. If restricted, the Shares cannot be publicly resold by the holder hereof
without registration under the Securities Act and compliance with the prospectus
delivery requirements thereof, or the availability of an exemption therefrom.
Each certificate representing the Shares, except a new certificate issued for
securities registered under the Securities Act, shall be stamped or otherwise
imprinted with the legend set forth below (in addition to any legend required
under applicable state securities laws) unless in the opinion of counsel
selected by the holder of such certificate and reasonably acceptable to
BrowseSafe, the securities represented thereby need no longer be subject to
restrictions on resale under the Securities Act, or if the securities are
transferred in accordance with Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act.
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. THE OFFERING OF THESE SHARES HAVE NOT BEEN REVIEWED OR APPROVED BY
ANY STATE'S SECURITIES ADMINISTRATOR. THESE SHARES MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED
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UNLESS REGISTERED OR QUALIFIED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL ACCEPTABLE TO
COUNSEL FOR THE CORPORATION STATING THAT REGISTRATION, QUALIFICATION OR OTHER
SUCH ACTIONS ARE NOT REQUIRED UNDER ANY SUCH LAWS.
5. Registration. If restricted, the Shares shall have the following
Registration Rights:
(a) Registration Rights. Whenever BrowseSafe proposes to register
any of its securities under the Securities Act and the registration form
to be used may be used for the registration of the Shares (a "Piggyback
Registration"), BrowseSafe shall give prompt written notice to Claimants
of its intention to effect such a registration and shall include in such
registration the Shares.
(b) Expenses. All of the expenses of registration of the Shares in
connection with such Piggyback Registration shall be paid by BrowseSafe.
(c) Registration Procedures. Whenever any of Claimants Shares are
to be registered as provided herein, BrowseSafe shall use its best
efforts to effect the registration and the sale of such Underlying
Securities in accordance with the intended method of disposition thereof
and pursuant thereto BrowseSafe shall as expeditiously as possible:
(i) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Shares and use
its best efforts to cause such registration statement to become
effective;
(ii) notify Claimants of the effectiveness of each
registration statement filed hereunder and prepare and file with the
Securities and Exchange Commission such amendments and supplements to
such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period of not less than 90 days and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(iii) furnish to Claimants such number of copies of such
registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as Claimants may
reasonably request in order to facilitate the disposition of the Shares;
(iv) use its best efforts to register or qualify the
Shares under such other securities or blue sky laws as reasonably
requested by Claimants and do any and all other acts and things which
may be reasonably necessary to enable Claimants to consummate the
disposition of the Shares.
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(v) notify Claimants at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of
a material fact or omits any fact necessary to make the statements
therein not misleading, and upon such event and at the request of
Claimants, BrowseSafe shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of the
Shares, such prospectus shall not contain an untrue statement of a
material fact or omit to state any fact necessary to make the statements
therein not misleading;
(vi) cause all such Shares to be listed on each securities
exchange on which similar securities issued by XxxxxxXxxx.xxx, Inc. are
then listed;
(vii) provide a transfer agent and registrar for all such
Shares not later than the effective date of such registration statement;
(viii) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
actions in order to expedite the disposition of such Shares;
6. Good Faith Settlement. This Agreement is made in good faith by the
parties in acceptance of a good faith settlement by them of all claims arising
from the issues herein above described.
7. No Admission of Liability. It is understood and agreed that the terms
and conditions of this Agreement are not an admission of liability on the part
of the parties and their liability is hereby expressly denied. It is further
understood that this Agreement is to have a broad construction in order to
effect the full and final release of the matters herein set forth.
8. Understanding of the Parties. The parties hereby represent that they
have read and understand each of the terms and provisions of this Agreement and
are executing it voluntarily and following the opportunity for independent legal
advice and that the respective signers have the authority and capacity to bind
themselves and/or their principals as the case may be.
9. Invalidity; Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be, only as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability,
but all remaining provisions shall remain valid. If any waivers, as set forth
herein, are determined to be contrary to any applicable law or public policy,
such waivers shall be effective only to the extent permitted by law.
10. Entire Agreement. Following full execution, this Agreement shall
reflect the entire agreement between the parties and those statement, promises
or inducements made by or on behalf of either party that are not contained
herein shall not be binding.
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11. Governing Law. This Agreement shall be governed by the laws of the
State of Indiana.
12. Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the parties respective successors and assigns.
13. Effective Date. This Agreement shall be effective as of and after
the date of execution of this Agreement.
14. Miscellaneous. Nothing herein contained shall be deemed to obligate
the Escrow Agent to transfer the Shares hereunder, unless the same shall have
been first received by the Escrow Agent pursuant to the provisions of this
Agreement. In performing any of its duties hereunder, the Escrow Agent shall not
incur liability to anyone for any damages, losses or expenses except for willful
default or negligence and it shall accordingly not incur any such liability with
respect to any action taken or omitted in reliance upon any instrument not only
as to its due execution and validity and effectiveness of its provisions but
also as to the truth and accuracy of any information contained therein which the
Escrow Agent shall in good faith believe to be genuine, to have been signed or
presented by a proper person or persons and to conform with the provisions of
this Agreement.
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"CLAIMANTS" BROWSESAFE"
WINTHROP ASSOCIATES BROWSESAFE, LLC.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx
------------------------ ----------------------
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx XXXXXXXXXX.XXX, INC.
"ESCROW AGENT" By: /s/ Xxxx Xxxxx
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XXXX XXXX XXXXXX & DARKO, LLP
BROWSESAFE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Partner
By: /s/ Xxxx Xxxxx
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