Exhibit 10.33
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Settlement Agreement" or this
"Agreement") dated as of March 7, 2000, is entered into by and among (i)
Questron Distribution Logistics, Inc., a Delaware corporation (the "QDL"), (ii)
Questron Technology, Inc., a Delaware corporation (the "Company" or "Questron")
and (iii) Xxxxx X. Xxxxxxxxx (the "Seller").
RECITALS
WHEREAS, the parties hereto and Capital Fastners, Inc.
("CFI"), entered into that certain Stock Purchase Agreement dated June 26, 1999,
as amended (the "Stock Purchase Agreement") pursuant to which Questron purchased
all of the capital stock of CFI (the "Acquisition");
WHEREAS, as of the date hereof Questron has a certain payment
obligation to the Seller in connection with the Acquisition, which on the date
hereof is approximately $261,575 (the "Obligation");
WHEREAS, pursuant to the terms and conditions set forth below,
the Seller and Questron wish to settle, fully and finally, all obligations of
Questron to the Seller in connection with the Acquisition.
NOW, THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. SETTLEMENT. At the Settlement Closing, Questron agrees to issue and
deliver 26,158 shares of Questron's common stock, par value $0.001 per share, to
the Seller (the "Settlement Shares"). The Settlement Shares shall be restricted
securities under Rule 144 of the Act of 1933, as amended (the "Act"), will not
have been registered under the Act and may not be sold or transferred absent
such registration or unless an exception from registration is available and the
certificates evidencing such shares shall bear an appropriate legend restricting
transfers under the Act. The Seller agrees to accept the Settlement Shares
issued and delivered to him/her in full and final settlement and satisfaction of
the Obligation. "Settlement Closing" means the closing of the transactions
contemplated by this paragraph 1. The Settlement Closing shall take place on
March 7, 2000 at 12:00 p.m. Eastern Time, at the offices of Questron located at
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx 00000, or at such other
time and place as the parties may mutually agree.
2. REGISTRATION OF SETTLEMENT SHARES. (a) Within 90 days of the
Settlement Closing, Questron shall prepare and file under the Act with the
Securities and Exchange Commission a registration statement with respect to the
Settlement Shares, (the
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"Registrable Shares") and use its reasonable best efforts to cause such
registration statement to become effective. (b) Questron shall notify the Seller
of the effectiveness of the 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 180 days and comply with the provisions of the 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 Seller set forth in such registration statement. (c) Questron
will use its reasonable best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as
Seller reasonably requests (provided Questron shall not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction). (d) Questron shall notify the Seller at any
time when a prospectus relating thereto is required to be delivered under the
Act as amended, 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, at the request of the Seller, Questron shall prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable 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. (e) Questron shall cause the Registrable
Shares to be listed on each securities exchange on which similar securities
issued by Questron are then listed. (f) Questron may postpone or suspend for up
to 180 days the filing or the effectiveness of a registration statement if the
Questron's board of directors determines in its reasonable good faith judgment
that such filing or effectiveness would reasonably be expected to have a
material adverse effect on any proposal or plan by Questron or any of its
subsidiaries to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer, reorganization
or similar transaction or any financing transaction.
3. REGISTRATION EXPENSES. All expenses incident to the Questron's
performance of or compliance with this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, and fees and disbursements of counsel for
Questron and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other persons retained by Questron,
shall be borne by Questron. All brokerage commissions or similar selling
expenses in connection with the sale by the Seller of the Registrable Shares
shall be borne by the Seller.
4. INDEMNIFICATION. (a) Questron agrees to indemnify, to the extent
permitted by law, the Seller against all losses, claims, damages, liabilities
and expenses caused by any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or
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supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to Questron by the Seller expressly for use
therein or by the Seller's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after Questron
has furnished the Seller with a sufficient number of copies of the same. (b) the
Seller shall furnish to Questron in writing such information and affidavits as
Questron reasonably requests for use in connection with the registration
statement or prospectus and, to the extent permitted by law, shall indemnify the
Questron, its directors and officers and each person who controls the Questron
(within the meaning of the Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by the Seller; provided that the obligation to indemnify
shall be limited to the net amount of proceeds received by the Seller from the
sale of Registrable Shares pursuant to such registration statement. (c) Any
party entitled to indemnification hereunder shall (i) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification (provided that the failure to give prompt notice shall not
impair any party's right to indemnification hereunder to the extent such failure
has not prejudiced the indemnifying party) and (ii) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party shall not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim.
5. REPRESENTATIONS AND WARRANTIES.
(A) The Seller,
(i) represents and warrants that the Settlement
Shares to be issued to him/her are being acquired as an investment and
not with a view to the distribution thereof;
(ii) understands that none of the Settlement Shares
have been registered under the Act, in reliance on an exemption
therefrom, and that none of the Settlement Shares have been approved or
disapproved by the United States Securities and Exchange Commission or
by any other Federal or state agency;
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(iii) understands that none of the Settlement Shares
can be sold, transferred or assigned unless registered by pursuant to
the Act and any applicable state securities laws, or unless an
exemption therefrom is available, and, accordingly, it may not be
possible for any Seller to liquidate its investment in the Settlement
Shares, and agrees not to sell, assign or otherwise transfer or dispose
of the Settlement Shares unless such securities have been so registered
or an exemption from registration is available;
(iv) acknowledges that all documents, records and
books pertaining to Questron and its business, including, but not
limited to, the following documents which have been provided to, and
reviewed by, each of Sellers: (a) Questron's Annual Reports on Form
10-KSB for the fiscal years ended December 31, 1997 and 1998, (b)
Questron's Quarterly Reports on Form 10-QSB for the quarterly periods
ended March 31, 1999, June 30, 1999 and September 30, 1999, (c)
Questron's Proxy Statement, dated October 1, 1999, relating to its
Annual Meeting of ShareSellers, and (d) Questron's Form 8-K and Form
8-K/A dated July 14, 1999 and August 13, 1999, respectively, have been
made available to the Seller and the Seller's attorney and/or
accountant and/or representative. The Seller has had an opportunity to
ask questions and receive answers from Questron concerning the business
and assets of Questron and all such questions have been answered to the
full satisfaction of the Seller;
(v) represents and warrants that the Seller is an
accredited investor, as that term is defined in Regulation D under the Act; and
(vi) represent and warrants that the Seller has not
assigned, transferred or conveyed any of its rights under the Note.
(B) Questron represents and warrants to the Seller that all
Settlement Shares delivered to the Seller pursuant to this Settlement Agreement,
when issued as contemplated hereby, will be duly authorized, fully paid and
non-assessable.
6. NOTICES . All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given: (i) if to Questron and the
QDL upon receipt of hand delivery; certified or registered mail, return receipt
requested or telecopy transmission with confirmation of receipt addressed to
Questron Technology, Inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxxxx
00000, telecopier (000) 000-0000, telephone (000) 000-0000, attention: Xxxxxxx
X. Xxxxxxxx, with copy to Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC, 0000 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopier (000) 000-0000, telephone (212)
000-0000, attention: Xxxxxxx X. XxXxxxxx, Esq.; and (ii) if to the Seller to
Xxxxx X. Xxxxxxxxx, 000 Xxxxxxx Xxxxx, Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000,
telecopier (000) 000-0000, telephone (000) 000-0000, with copy Xxxxx Early
Xxxxxx & Xxxxxxx, X.X. Xxxxxx 0000, Xxxx Xxxxx, Xxxxx Xxxxxxxx 00000, telecopier
(000) 000-0000, telephone (000) 000-0000, attention: Xxxxxxx X. Xxxx, Esq.
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7. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein, embodies the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
8. AMENDMENT AND MODIFICATION . This Agreement may be amended or
modified only by written agreement of the parties hereto.
9. BINDING EFFECT; BENEFITS . This Agreement shall inure to the benefit
of and be binding upon the parties hereto; nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto.
10. CHOICE OF LAW. This Agreement shall be governed by the laws of the
State of New York, exclusive of its principles concerning conflicts of law.
11. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
QUESTRON TECHNOLOGY, INC.
By ___________________________________
Xxxxxxx X. Xxxxxxxx
Chairman and
Chief Executive Officer
QUESTRON DISTRIUBTION LOGISITIC, INC.
By ___________________________________
Xxxxxxx X. Xxxxxxxx
Chairman and
Chief Executive Officer
SELLER:
_____________________________
Xxxxx X. Xxxxxxxxx,
Trustee of Xxxxx X. Xxxxxxxxx
Revocable Trust Under Agreement
Dated June 25, 1999
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