EXHIBIT 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into as of
September 22, 1999, by and between XCEL ASSOCIATES, INC. ("Xcel") and INTEGRATED
SPATIAL INFORMATION SOLUTIONS, INC. f/k/a DCX, INC. ("ISIS"). Each of the
foregoing parties are sometimes referred to as a "Party" and collectively as the
"Parties."
RECITALS
A. On or about February 23, 1999, Xcel initiated an arbitration proceeding
against ISIS under the auspices of the American Arbitration Association and
captioned: XCEL ASSOCIATES, INC. V. INTEGRATED SPATIAL INFORMATION SOLUTIONS,
INC. F/N/A DCX, INC., AAA No. 13-181-00175-99 (New York)(the "Arbitration
Proceeding").
B. In the Arbitration Proceeding, Xcel sought recovery of approximately
$250,000 from ISIS. The Statement of Claim asserted by Xcel alleges claims for:
breach of contract; fraudulent inducement; quantum meruit; common law fraud; and
damage to business reputation. ISIS answered the Statement of Claim and denied
liability. The Arbitration Proceeding is scheduled for hearing on October 4,
1999.
C. The Parties wish to enter into this Agreement to resolve all claims,
allegations and defenses which they had against each other in the Arbitration
Proceeding and arising out of other transactions, communications and other
dealings between the Parties to the date of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
promises, covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. SETTLEMENT STOCK AND WARRANTS. ISIS shall promptly:
(a) Issue or cause to be issued 150,000 shares of ISIS common stock
in the name of Xxxxxx X. Xxxxxx (the "Stock"). The Stock will not be registered
for issuance under the Securities Act of 1933 (the "1933 Act") and would
therefore be "restricted securities" as defined in Rule 144 of the 1933 Act.
Within twenty-one (21) days after execution of this Agreement, ISIS shall file
an S-3 Registration Statement with the United States Securities and Exchange
Commission (the "SEC") registering the Stock for resale by Xxxxxx X. Xxxxxx.
ISIS shall use its best efforts and good faith to cause the S-3 Registration
Statement to become effective and to remain current and effective for a period
of at least nine (9) months. The issuance of the Stock shall be in satisfaction
of services rendered by Xcel to ISIS and relates to Xcel's contract claims
against ISIS.
(b) ISIS shall issue or cause to be issued stock purchase warrants
in the name of Xxxxxx X. Xxxxxx entitling Xxxxxx X. Xxxxxx to purchase up to
30,000 shares of ISIS common stock from ISIS for the price of $1.00 per share
(together, the "$1.00 Warrants"). The $1.00 Warrants shall expire if not
exercised within five (5) years of issuance. Neither the $1.00 Warrants nor the
shares of common stock issuable upon exercise of the $1.00 Warrants (the "$1.00
Warrant Shares") will be registered under the 1933 Act. Within twenty-one (21)
days after execution of this Agreement, ISIS shall file an S-3 Registration
Statement with the SEC registering the $1.00 Warrant Shares for resale by Xxxxxx
X. Xxxxxx as a selling shareholder. ISIS shall use its best efforts and good
faith to cause the S-3 Registration Statement to become effective and to remain
current and effective for a period of at least nine (9) months. The issuance of
the $1.00 Warrants shall be in further satisfaction of services rendered by Xcel
to ISIS and relates to Xcel's contract claims against ISIS.
(c) ISIS shall issue or cause to be issued stock warrants in the
name of Xxxxxx X. Xxxxxx entitling Xxxxxx X. Xxxxxx to purchase up to 20,000
shares of ISIS common stock from ISIS for the price of $1.50 per share
(together, the "$1.50 Warrants"). The $1.50 Warrants shall expire if not
exercised within five (5) years of issuance. Neither the $1.50 Warrants nor the
shares of common stock issuable upon exercise of the $1.50 Warrants (the "$1.50
Warrant Shares") will be registered under the 1933 Act. Within twenty-one (21)
days after execution of this Agreement, ISIS shall file an S-3 Registration
Statement with the SEC registering the $1.50 Warrant Shares for resale by Xxxxxx
X. Xxxxxx as a selling shareholder. ISIS shall use its best efforts and good
faith to cause the S-3 Registration Statement to become effective and to remain
current and effective for a period of at least nine (9) months. The issuance of
the $1.50 Warrants shall be in further satisfaction of services rendered by Xcel
to ISIS and relates to Xcel's contract claims against ISIS.
With respect to the issuance of the Stock, the $1.00 Warrants, $1.50 Warrants,
$1.00 Warrant Shares and $1.50 Warrant Shares, all stock certificates and
warrant certificates representing any such shares of stock or warrants shall
bear the following legend:
The [shares][warrants] represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
are "Restricted Securities" as that term is defined in Rule 144 under the
Act. The [shares][warrants] may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under
the Act or pursuant to an exemption from registration under the Act, the
availability of which is to be established to the satisfaction of the
Company.
The issuance of the Stock, $1.00 Warrants and $1.50 Warrants in the name of
Xxxxxx X. Xxxxxx has been requested by Xcel. Xxxxxx Xxxxx, Jr. consents to all
settlement compensation being issued in the name of Xxxxxx X. Xxxxxx.
2. ADDITIONAL STOCK IF REGISTRATION STATEMENT NOT EFFECTIVE. In the event
that the S-3 Registration Statement with respect to the Stock, $1.00 Warrants,
$1.50 Warrants, $1.00 Warrant Shares and $1.50 Warrant Shares (described in
Paragraph 1 above) does not become effective
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within ninety (90) days of the full execution of this Agreement, then ISIS shall
issue or cause to be issued an additional 15,000 shares of ISIS common stock in
the name of Xxxxxx X. Xxxxxx (the "Additional Stock"). If issued, the Additional
Stock will not be registered for issuance under the 1933 Act and would therefore
be "restricted securities" as defined in Rule 144 of the 1933 Act. The S-3
Registration Statement (described in Paragraph 1) will include the Additional
Stock. The issuance of the Additional Stock shall be in satisfaction of services
rendered by Xcel to ISIS and relates to Xcel's contract claims against ISIS. If
issued, the stock certificates for the Additional Stock shall bear the
restrictive legend set forth in Paragraph 1 above. The issuance of the
Additional Stock in the name of Xxxxxx X. Xxxxxx has been requested by Xcel.
Xxxxxx Xxxxx, Jr. consents to all settlement compensation being issued in the
name of Xxxxxx X.
Xxxxxx.
3. GENERAL RELEASE BY XCEL. Xcel, Xxxxxx Xxxxx, Jr., Xxxxxx X. Xxxxxx and
their affiliates, including without limitation, Xxxxxxx Investments, Inc. and
Hazlet Investors, Inc., for themselves and for their successors, heirs, assigns,
agents, representatives, officers, directors, shareholders and employees
(together, the "Xcel Parties"), hereby completely, unconditionally and forever
release, acquit and discharge ISIS and its successors, heirs, assigns,
representatives, agents, affiliated entities, employees, attorneys, officers,
directors, members, partners and shareholders (the "ISIS Parties"), of and from
any and all actions, causes of action, claims, contracts, debts, demands,
liabilities, losses and damages of every kind and nature whatsoever, whether
known or unknown, including, but not limited to, those which were made, may have
been made or could have been made in the Arbitration Proceeding, or which in any
manner relate to any and all transactions, communications and other dealings
between the Parties prior to the date of this Agreement. ISIS and the ISIS
Parties hereby completely, unconditionally and forever release, acquit and
discharge Xcel and the Xcel Parties of and from any and all actions, causes of
action, claims, contracts, debts, demands, liabilities, losses and damages of
every kind and nature whatsoever, whether known or unknown, including, but not
limited to, those which were made, may have been made or could have been made in
the Arbitration Proceeding, or which in any manner relate to any and all
transactions, communications and other dealings between the Parties prior to the
date of this Agreement. These releases shall be full general releases.
Notwithstanding the foregoing, nothing contained in this Paragraph No. 2 shall
constitute a release of the Parties from complying with the terms and conditions
of this Agreement.
4. DISMISSAL OF ARBITRATION PROCEEDING. Xcel and ISIS shall promptly
dismiss the Arbitration Proceeding, with prejudice.
5. COVENANT NOT TO XXX. Xcel and the Xcel Parties covenant that they will
not initiate any lawsuit or proceeding or otherwise assert against ISIS or the
ISIS Parties any claim which they have released under this Agreement. ISIS and
the ISIS Parties covenant that they will not initiate any lawsuit or proceeding
or otherwise assert against Xcel or the Xcel Parties any claim which they have
released under this Agreement.
6. DISCHARGE AND SURRENDER. Each Party acknowledges that this Agreement
evidences the sole surviving contractual relationship between and among them;
and each Party agrees that,
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except as provided in this Agreement, all existing contracts or agreements, oral
or written, known or otherwise existing between or among the Parties are
discharged and surrendered.
7. ATTORNEYS' FEES. Each Party shall be responsible for its own attorneys'
fees, costs and expenses incurred in connection with the Arbitration Proceeding
and the preparation of this Agreement.
8. NO ADMISSION OF LIABILITY. The Parties' agreement to the terms of this
Agreement shall in no manner be deemed an admission, express or implied, of: (a)
liability by any Party to any other person or entity; (b) any fact, other than
the facts set forth in the Recitals to this Agreement; or (c) the merits of the
position taken by any Party with respect to any matter.
9. EFFECTUATION OF AGREEMENT. Each Party shall execute any and all
documents and to do and perform any and all acts and things necessary or proper
to effectuate or further evidence the terms and provisions of this Agreement.
10. NO ASSIGNMENT OF CLAIMS. Each Party represents and warrants to the
other that it has not heretofore assigned or transferred, or purported to assign
or transfer to any person or entity any claims that it might have against the
other.
11. NO THIRD-PARTY BENEFICIARIES. Except as specifically provided in this
Agreement, nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
Parties, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third person to any Party, nor shall any
provision of this Agreement give any third person any right of subrogation or
action over or against any Party.
12. NO ONGOING BUSINESS RELATIONSHIP. Each Party acknowledges that there is
no ongoing business relationship between Xcel and ISIS (except as set forth in
this Agreement).
13. NON-DISPARAGEMENT. Xcel shall not disparage ISIS to any other person or
entity. ISIS shall not disparage Xcel to any other person or entity. Except to
the extent required by applicable law (including the securities laws of the
United States), neither Party shall discuss or disclose the terms of this
Agreement to any other third party.
14. COMPLETE AGREEMENT; MODIFICATION; AND WAIVER. This Agreement
constitutes the entire agreement between the Parties and supersedes all prior
and contemporaneous agreements, representations, warranties and understandings
of the Parties. No supplement, modification or amendment of this Agreement shall
be binding unless executed in a writing by both Parties. No waiver of any of the
provisions of this Agreement shall be deemed or constitute a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the Party
making the waiver.
15. REVIEW; REPRESENTATION BY COUNSEL; ETC. Each Party acknowledges and
represents that:
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(a) It has fully and carefully read and considered this Agreement
prior to its execution;
(b) It has consulted with or has had the opportunity to consult with
its attorneys regarding the legal effect and meaning of this Agreement and all
terms and conditions hereof, and that it is fully aware of the contents of this
Agreement and its legal effect;
(c) It has had the opportunity to make whatever investigation or
inquiry it deems necessary or appropriate in connection with the subject matter
of this Agreement;
(d) It is executing this Agreement voluntarily and free from any undue
influence, coercion, duress or fraud of any kind; and
(e) It is knowingly and voluntarily waiving and releasing all claims
against the other Party, except as provided in this Agreement.
16. MISCELLANEOUS PROVISIONS.
(a) This Agreement shall be binding upon and shall inure to the benefit
of the Parties and the Parties' respective heirs, legal representatives,
successors and assigns;
(b) If either Party is required to take any action to enforce this
Agreement, the prevailing Party shall be entitled to recover all reasonable
attorneys' fees and costs from the nonprevailing Party;
(c) The paragraph headings used in this Agreement are for purposes of
identification only and shall not be considered in construing this Agreement.
Furthermore, this Agreement shall be deemed to have been prepared with the full
and equal participation of Xcel and ISIS and their respective counsel and shall
not be construed by one Party against the other;
(d) This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado. In the event of a dispute concerning this
Agreement, such dispute shall be submitted to arbitration through the American
Arbitration Association in Denver, Colorado;
(e) By executing this Agreement, each of the undersigned represents and
warrants to the other that each of the undersigned has the full power and
authority to enter into and perform this Agreement in accordance with its terms;
and
(f) This Agreement may be executed in two counterparts, each of which
shall constitute an original, and both of which together shall constitute one
and the same document. The parties shall accept facsimile signatures as original
signatures.
IN WITNESS WHEREOF, Xcel and ISIS have executed this Agreement as of the
day and year first above written.
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XCEL ASSOCIATES, INC.
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By:
Its:
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XXXXXX X. XXXXXX, individually
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XXXXXX XXXXXX, XX., individually
INTEGRATED SPATIAL INFORMATION
SOLUTIONS, INC. f/k/a DCX, Inc.
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By:
Its:
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