EXHIBIT 10.31.7 Termination of Pledge and Security Agreement, dated May 22,
2003, between Eurotech, Ltd., Xxxxxxxx, LLC and Xxxxxxx &
Prager LLP.
TERMINATION AGREEMENT AND RELEASE
This TERMINATION AGREEMENT AND RELEASE (this "AGREEMENT") is made and
entered into as of the 22nd day of May, 2003, by and between Eurotech, Ltd., a
District of Columbia corporation having an address at 00000 Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx, XX 00000 (collectively, with its parent companies, subsidiaries,
divisions, affiliates, stockholders, officers, directors, employees, agents and
representatives and their respective successors and assigns, the "COMPANY"),
Xxxxxxxx LLC, a Cayman Islands company (collectively, with its parent companies,
subsidiaries, divisions, affiliates, equityholders, officers, directors,
managers, employees, agents and representatives and their respective successors
and assigns, the "SECURED PARTY") and Xxxxxxx & Xxxxxx, LLP, a New York limited
liability partnership, as agent for the Secured Party ("AGENT"). The Company,
the Secured Party and the Agent are collectively referred to herein as the
"PARTIES."
WHEREAS, the Parties are parties to that certain Pledge and Security
Agreement, dated as of December 19, 2002 (the "PLEDGE AGREEMENT"), pursuant to
which the Company granted to the Secured Party a security interest (the
"SECURITY INTEREST") in 239,927,344 shares of common stock (the "PLEDGED
SHARES") of Xxxxxxxx Technologies, Inc., a Florida corporation, to secure, among
other things, the Obligor's obligations to the Secured Party under Section 3 of
the Pledge Agreement;
WHEREAS, the Company and the Secured Party are also parties to two
separate Exchange Agreements, dated as March 27, 2003, in each cash by and
between the Company and the Secured Party (the "EXCHANGE AGREEMENTS");
WHEREAS, as a condition precedent to consummation of the transactions
contemplated by, and the mutual benefits to be gained by the Parties pursuant
to, the Exchange Agreements, the Parties have agreed that it is in their mutual
best interests to terminate the Pledge Agreement and to abide by the terms of
this Agreement, as a final and complete resolution of all matters, whether now
known or unknown, arising out of the Pledge Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and the
premises and mutual agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. TERMINATION OF PLEDGE AGREEMENT. The Parties hereby unconditionally
terminate the Pledge Agreement and agree that no Party thereto shall hereinafter
have any rights or obligations thereunder. As of the date hereof, the Secured
Party shall execute and deliver to the Company a proper instrument or
instruments (including Uniform Commercial Code termination statements on Form
UCC-3) acknowledging the satisfaction and termination of the Pledge Agreement
(the filing of which will be done at the Company's expense), and will duly
assign, transfer and deliver to the Company (without recourse and without
representation or warranty) such of the Collateral (as defined in the Pledge
Agreement) as may be in the possession of the Secured Party or the Agent and as
has not thereto been sold or otherwise applied or released pursuant to the
Pledge Agreement.
2. RELEASE. Each of the Company and the Secured Party, in exchange for
(i) the benefits to be received by each party under the Exchange Agreements and
(ii) other good and valuable consideration, including the termination of the
Security Interest, hereby discharges and releases the other party from any and
all claims, losses, costs, debts, dues, sums of money, accounts, judgments,
executions, demands, damages, liabilities, covenants, contracts, controversies,
promises, grievances, suits, actions, and causes of action, administrative,
court or otherwise, known or unknown, in law or in equity (any or all of the
foregoing, "CLAIMS"), which the Company and the Secured Party, respectively,
have, had, may have had, or may have against the Agent, the other party and such
other party's parent companies, subsidiaries, divisions, affiliates,
stockholders, officers, directors, employees, agents and representatives and
their respective successors and assigns, and which Claims, directly or
indirectly, arise out of or are in any way connected with (a) the Pledge
Agreement, (b) Pledged Shares or the Security Interest or (c) any agreements or
understandings between the parties relating to any acquisition by the Secured
Party of any shares of capital stock of the Company.
3. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
4. GOVERNING LAW; JURISDICTION.
(a) This Agreement shall be governed by the laws of the State
of New York without giving effect to conflict of laws principles thereof.
(b) The Parties agree (i) to submit to personal jurisdiction
of any Federal or state court of competent jurisdiction located in the State of
New York, County of New York in any action or proceeding arising out of this
Agreement and, in furtherance of such agreement, the Parties hereby agree and
consent that, without limiting other methods of obtaining jurisdiction, personal
jurisdiction over the Parties in any such action or proceeding may be obtained
by service of process within or outside of the jurisdiction of any such courts
and (ii) that service of all process in any such action or proceeding shall be
effective if personally delivered to the applicable Party hereto at its last
know address or as otherwise served upon either such Party in accordance with
New York law.
5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by facsimile, all of which taken together shall constitute one
and the same instrument and any of the Parties hereto may execute this Agreement
by signing any such counterpart.
6. SEVERABILITY. If all or any portion of any provision of this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, then such invalidity, illegality or unenforceability shall not
affect any other provision hereof, but this Agreement shall be construed as if
such invalid, illegal or unenforceable provision or portion thereof were not
contained herein.
7. REVIEW OF AGREEMENT. EACH OF THE PARTIES ACKNOWLEDGES THAT (A) IT
HAS THOROUGHLY READ AND REVIEWED THE TERMS AND PROVISIONS OF THIS AGREEMENT, (B)
IT IS FULLY FAMILIAR WITH THE TERMS OF THIS AGREEMENT, AND THE TERMS AND
PROVISIONS CONTAINED HEREIN ARE CLEARLY UNDERSTOOD BY IT, (C) IT HAS HAD FULL
BENEFIT AND ADVICE OF COUNSEL OF ITS OWN SELECTION IN REGARD TO UNDERSTANDING
THE TERMS, MEANING AND EFFECT OF THIS AGREEMENT, (D) ITS EXECUTION OF THIS
AGREEMENT IS DONE FREELY, VOLUNTARILY, WITH FULL KNOWLEDGE, AND WITHOUT DURESS,
(E) IN EXECUTING THIS AGREEMENT, IT IS NOT RELYING ON ANY OTHER REPRESENTATIONS
EITHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, MADE TO IT BY THE OTHER PARTY
HERETO, AND (F) THE CONSIDERATION RECEIVED BY IT HEREUNDER HAS BEEN ACTUAL AND
ADEQUATE.
8. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
between the parties hereto relating to the subject matter thereof and supersedes
all prior agreements, representations and understandings, if any, relating to
the subject matter thereof.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed on its behalf by its duly authorized representative, as applicable, all
as of the date first above written.
EUROTECH, LTD.
By: /s/ Xxx X. Xxxxxxxxx
-----------------------------------
Name: Xxx X. Xxxxxxxxx
Title: President
XXXXXXXX LLC
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx, for Navigator
Management Ltd.
Title: Director
XXXXXXX & PRAGER, LLP
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Partner
