Exhibit 4.2
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This Mutual Release and Settlement Agreement ("Settlement
Agreement") is entered into this 5th day of November, 2001 by and between
Xxxxxx Xxxxxx, individually and Xxxxxx Xxxxxx Corporate Services, Inc.,
("Shapss"or "Consultant") 00 Xxxxxxxxxx Xx., Xxxxxxx, Xxx Xxxx 00000 and
The Major Automotive Companies, Inc. (formerly known as Fidelity Holdings,
Inc.,) ("Major"or "Company") 00-00 Xxxxxxxx Xxxx., Xxxx Xxxxxx Xxxx, Xxx
Xxxx, 00000.
Whereas, during February, 1997, Shapss and Major entered into a letter
agreement regarding consulting services between Shapss and Major a copy of which
is annexed hereto (the "Agreement"); and
Whereas, a dispute has arisen among the parties regarding Shapss'
performance of services and his entitlement to renumeration for such services
pursuant to the Agreement; and
Whereas an action has been commenced entitled Xxxxxx Xxxxxx Corporate
Services, Inc. vs. Fidelity Holdings, Inc. vs Xxxxxx Xxxxxx (Additional
defendant on Counterclaim) Supreme Court of the State of New York, Rockland
County Index No. 003248/1999 (the "Shapss Action") in which claims and
counterclaims have been asserted (the Pleadings):
Whereas, the parties seek to resolve all disputes now existing or which
may hereafter exist regarding the Agreement as set forth in the Pleadings in the
Shapss Action (the "Disputes"):
In consideration of the promises, covenants, representations, and
agreements set forth in this Settlement Agreement, the receipt and sufficiency
of which are expressly acknowledged and confessed, the parties agree as follows:
1. (a) Within five (5) business days of the execution of this Mutual Release and
Settlement Agreement, Major shall hereby issue and deliver to Shapss One Hundred
Seventy Five Thousand (175,000) shares of the common stock of Major (First
Tranche Shares) receipt of which shall be acknowledged by Shapss.
(b) Independent of the First Tranche Shares, the Consultant shall be
entitled to receive an additional 50,000 shares of the Company's Common Stock
(Second Tranche Shares) upon the terms and conditions set forth in paragraphs 2
and 4 herein. Consultant's entitlement to those shares and provisions for the
security for the delivery thereof are set forth in paragraph 2 and 4 of this
Settlement Agreement.
2. Calculation of and Security for Additional Payment.
(a) Within five (5) business days of the execution of this Agreement
the Company shall issue to Consultant Fifty Thousand (50,000) shares of Common
Stock, in one Stock certificate to the Consultant, which shall be delivered to
the law firm of Feder, Kaszovitz, Isaacson, Weber, Xxxxx, Bass & Rhine LLP (the
"Escrow Agent"), to be held in escrow and to be delivered to Consultant in
accordance with the requirements set forth below in this Section.
(b) The certificate held by the Escrow Agent shall be delivered
as follows:
(i) In the event the First Tranche Shares Value as hereinafter
defined as of the close of business on December 31, 2002 is less than Five
Hundred Thousand ($500,000.00) Dollars the Escrow Agent shall deliver the
certificate for the Second Tranche Shares to the Consultant. In the event the
First Tranche Shares Value (as hereinafter defined) as of the close of business
on December 31, 2002 is equal to or greater than Five Hundred Thousand
($500,000.00) Dollars, the Escrow Agent shall deliver the Second Tranche Shares
to the Company. First Tranche Share Value shall be equal to the total of: (a)
The number of First Tranche Shares (175,000) multiplied by an "Average Sales
Price" calculated by (1) adding the sum of all closing sales prices of the
Common Stock (as reported by Nasdaq) for each day Nasdaq was open for trading
during the period October 1, 2002 through and including December 31, 2002 , and
(2) dividing that sum by the number of days Nasdaq was opened for trading during
the period October 1, 2002 through and including December 31, 2002 ; and (b) The
premium if any for which Consultant sold any of the First Tranche Shares at any
time prior to December 31, 2002 above the Average Sales Price.
Solely by way of illustration, and for no other purpose whatsoever,
the following examples shall serve to demonstrate how the "First Tranche Shares
Value" shall be determined:
Example 1
Average Selling Price is $5.00 per share
First Tranche Shares Value is 175,000 x $5.00 per share $875,000.00
The Escrow Agent would return all Second Tranche Shares to the Company.
Example 2
(a) Average Selling Price is $2.00
(b) Consultant Sold 10,000 First
Tranche Shares for $2.50 per share
(c) First Tranche Share Value =
175,000 x $2.00 = $350,000.00
10,000 x($2.50 - $2.00) = + 5,000.00
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$355,000.00
Since the First Tranche Shares Value is only $355,000.00 the Escrow Agent
would deliver the Second Tranche Shares to the Consultant.
Example 3
(a) Average Selling Price is $2.50 per share
(b) Consultant sold 100,000 First
Tranche Shares for $4.00 per share
(c) First Tranche Shares Value =
175,000.00 x $2.50 = $437,500.00
100,000 x($4.00 - $2.50) = +150,000.00
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$587,500.00
Since the First Tranche Shares Value is $, 587,500.00 the Escrow Agent
would return the Second Tranche Shares to the Company.
(iii)(a) Notwithstanding the provisions of (i) of this Section
(3)(b), and the Escrow Agent is hereby authorized to release the Second Tranche
Shares to Consultant at any time prior to December 31, 2002, upon the occurrence
of the following events:
1. The delisting of the Company's Common Stock
by the NASDAQ National Market for failure to
meet the requirements of said listing; and
2. The commencement by Major of any bankruptcy,
reorganization or other case under the
United States Bankruptcy Code, the making of
a general assignment for the benefit of
creditors or the filing of a petition by the
Company for appointment of a custodian,
receiver, trustee or liquidator for Major or
all of its property; or
3. The commencement against Major by others of
any bankruptcy, reorganization or other case
under the United States Bankruptcy Code
which is not dismissed within sixty (60)
days of filing, or the granting of an
application by others for appointment of a
custodian, receiver, trustee or liquidator,
for Major and/or all of its property which
is not vacated or stayed within sixty (60)
days of entry; or
4. The Sale of substantially all of the
Company's Assets or a majority of its Common
Stock pursuant to an agreement which results
in a First Tranche Share Value of less than
$500,000.00. For the purpose of this
provision, the calculation of First Tranche
Share Value shall be modified to delete the
average sales price referred to in paragraph
5(a)(i)(a) and substitute therefore the
value per share on the effective date of
said Sale.
5. The breach by the Company of its obligation to
register shares pursuant to this agreement or
any other obligation set forth in this agreement
which breaches are not cured within ten (10)
days of delivery of a written notice of default
and if said default cannot be cured within ten
(10)days, the failure to commence to cure
default within that ten (10) day period and the
diligent continuation of said action to cure
until completion.
3. (a) Major hereby undertakes to provide to Shapss all documentation reasonably
requested by Shapss, including, without limitation, opinions of counsel,
necessary to permit the Consultant to transfer, sell, assign or otherwise
dispose of the shares of Common Stock held thereby as permitted by the
securities and blue sky laws of the United States and its states territories and
protectorates, including without limitation, Rule 144 of the Securities Act of
1933 as amended (The Act). The Company and Shapss hereby agree that the holding
period required by Rule 144(d) under the Act for all securities issued to the
Shapss hereunder begins to run from October 1, 2001.
(b) Major hereby grants Shapss "piggyback"
registration rights by which Major shall register at its own cost and expense
the within shares at such time it files to register any other shares pursuant to
a registration procedure for which these shares qualify. Major shall notify
Shapss in writing at least thirty (30) days prior to its filing of any
registration statement so as to afford Shapss the right to have the within
shares included within said registration statement.
(c) (i) In addition to "piggyback" rights Shapss is hereby
granted demand registration rights by which Shapss may at any time demand
registration of the within shares whereupon Major, shall use its best efforts to
prepare and file a registration statement under Form S-8, to remove the
restrictions with respect to these shares.
(ii) Said demand shall be accompanied by an
opinion of counsel satisfactory to Xxxxxxx, Knooks & Xxxx, P.C., Major's
counsel, that these shares will qualify for S-8 registration. Upon approval of
said opinion by Xxxxxxx, Knooks & Xxxx, P.C., Major shall engage Feder,
Kasovitz, Isaacson, Weber, Xxxxx, Bass & Rhine, LLP, as attorneys to prepare the
necessary filing. It is agreed and understood that Major shall be responsible
for the legal fees therefore provided said fees do not exceed $7,500.00. Major
shall have no obligation to register said shares unless Shapss agrees to pay any
legal fees in excess of $7,500.00and Feder, Kasovitz, Isaacson, Weber, Xxxxx,
Bass & Rhine, LLP, agree to look only to Shapps for payments in excess of
$7,500.00.
4. Procedure for Delivery of Shares.
(a) The Consultant shall notify the Escrow Agent in writing as
to if and when it is entitled to be issued shares in accordance with Section
3(b) hereof, stating in reasonable detail the circumstances giving rise to such
entitlement of issuance. A copy of the notice shall be delivered to the Company.
The Escrow Agent is hereby directed to inquire of the Company if it disputes the
Consultant's entitlement to the delivery of the shares. The Company shall have
five (5) business days to dispute the Consultant's entitlement to the shares. It
is expressly agreed that said dispute may only be based on the issue of
calculation of the shares and compliance with the covenants specified in
paragraph 5. Should a dispute be filed as to the calculation of the value of the
shares as provided herein, the parties' agree that an arbitrator selected
through the rules of JAMS EndDispute, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx shall be the final arbitrator of the correctness of that final calculation
and the Escrow Agent may rely on a certification of said arbitrator as to the
valuation of any shares in the performance of his duties All escrowed shares not
delivered by the Escrow Agent to the Consultant hereunder shall be returned to
the Company.
(b) In the event a merger consolidation, reorganization, stock
split, or other transaction which requires the surrender of the stock held in
escrow and issuance of new stock, the Escrow Agent shall be authorized to tender
the certificates in escrow and take back into escrow the newly issued shares.
The value of said newly issued shares, including the value of any newly issued
shares obtained for the First Tranche Shares shall be used for the purpose of
calculation of First Tranche Share Value as defined in this agreement.
5. Prohibitions.
(a) Schapss shall be prohibited from the making of any short
sales of the Common Stock through and including December 31, 2002.
(b) Consultant represents and warrants that it will not
directly engage in any trading activity or the dissemination of false or
misleading information concerning the Company which is intended to and which
shall in fact negatively influence the value of the
Company's stock so as to increase the likelihood of the delivery of the Second
Tranche Shares to Consultant.
(c) The provisions of this paragraph of the Agreement apply
not only to the Consultant, but also to Xxxxxx Xxxxxx.
(d) Consultant agrees not to transfer, pledge, hypothecate or
otherwise encumber the First Tranche Shares until the earlier of (1) the
registration of said shares or (2) one year from the issuance thereof. The
Consultant shall not transfer, hypothecate Second Tranche Shares until they are
released from escrow.
6. Escrow Agent.
(a) Duties Limited. The Escrow Agent shall perform only the
duties expressly set forth herein, and shall refer solely to this Agreement in
performing its duties hereunder.
(b) Reliance. The Escrow Agent may rely upon, and
shall be protected in acting or refraining from acting upon, any written notice,
instruction or request furnished to it hereunder and believed by it to be
genuine and to have been assigned or presented by the proper party or parties.
(c) Good Faith. The Escrow Agent shall not be
liable for any action taken by it hereunder except for the Escrow Agent's gross
negligence or willful misconduct. The parties hereto shall jointly and severally
indemnify the Escrow Agent and hold it harmless against any loss, liability or
expense incurred without bad faith or gross negligence on its part, arising out
of or in connection with this Escrow Agreement, including costs and expenses
incurred in defending any such claim of liability. The Escrow Agent may consult
with its own counsel, and shall have full and complete authorization and
protection for any action taken or suffered in good faith and in accordance with
the opinion of such counsel. The Consultant shall be responsible for the cost of
said counsel but shall be entitled to recovery therefor from Major if said
consultation was made necessary by Major's actions in violation of this
agreement.
(d) Resignation. The Escrow Agent may resign at any time
upon providing written notice to such effect to the other parties hereto.
Thereafter, the Escrow Agent shall have no further obligation hereunder except
to hold the escrowed shares as depositary, deliver them to a court of competent
jurisdiction or, pursuant to the joint written instructions of both of the
parties hereto, otherwise dispose of the escrowed shares.
(e) Termination. The parties hereto may together terminate
the appointment of the Escrow Agent hereunder the joint written notice of such
termination specifying the date upon which such termination shall take effect.
(f) Surrender of Escrowed shares. Upon (i) disbursing and
disposing of the escrowed shares held by the Escrow Agent in the manner provided
on this Agreement, (ii) the delivery of the escrowed shares to a court of
competent jurisdiction or (iii) in the event of the appointment of a successor
escrow agent, upon the delivery of the escrowed shares to such
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successor escrow agent, the Escrow Agent shall be released, discharged, and
acquitted of all obligations and liabilities hereunder and any claims or
surcharges made by or on behalf of any party to this Agreement.
(g) Representation of Consultant. The Company acknowledges
that the Escrow Agent has acted as the Consultant's counsel in connection with
the Action, this Agreement and various other matters and hereby consents to the
Escrow Agent representing the Consultant in any further matters, including,
without limitation, proceedings arising out of any dispute under this Agreement,
whether or not the Escrow Agent is in possession of the escrowed shares and
continues to act as Escrow Agent hereunder. The parties also agree that the
Escrow Agent may represent the Company in connection with the S-8 registration
statement and waive any claim of conflict by reason thereof.
7. Shapss Release of Major.
Shapss has released and does hereby release, acquit, and
forever discharge
Major , its agents, officers, directors, servants, employees, and
representatives of and from any and all liabilities arising out of the Disputes
or the Agreement, from any and all claims, demands, damages, costs, losses,
expenses, causes of action, or chooses in action of whatsoever nature, which he
may now have or claim to have, or might hereafter have or claim to have, whether
known or unknown, or in any way arising or resulting from, or to arise or result
in the future by reason of the Disputes or the Agreement.
8. Major Release of Shapss.
Major has released and does hereby release, acquit, and
forever discharge Shapss and his agents, officers, servants, employees, and
representatives of and from any and all liabilities arising out of the Disputes
or the Agreement, from any and all claims, demands, damages, costs, losses,
expenses, causes of action, or chooses in action of whatsoever nature, which it
may now have or claim to have, or might hereafter have or claim to have, whether
known or unknown, or in any way arising or resulting from, or to arise or result
in the future by reason of the Disputes or the Agreement.
9. Dispute Resolution.
Any and all disputes, including but not limited to dispute,
concerning the performance, enforcement, and/or interpretation of this
Agreement, which arise out of this Mutual Release and Settlement Agreement shall
be resolved pursuant to the arbitration conducted pursuant to the arbitration
rules of JAMS EndDispute, 00 Xxxxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx The
arbitrators shall award reasonable attorneys fees and reasonable costs and
expenses to the prevailing party in such arbitration.
10. Each party to this Settlement Agreement hereby warrants and
represents that he or it is the sole owner of each and every claim, cause of
action, or chose in action relating to the Disputes or the Agreement.
11. It is further expressly agreed and understood that this
document sets forth the entire consideration for this Settlement Agreement and
the consideration for this Settlement Agreement is contractual and not a mere
recital. Neither this Settlement Agreement nor any part thereof shall be
construed or used as an admission on the part of any party. This Settlement
Agreement is entered into in compromise and settlement and to avoid the trouble
and expense of further investigation and litigation. Pursuant to this agreement,
all consideration paid hereunder shall be deemed to be fully paid as of the
April 1999 date Shapss attempted to exercise his options.
It is further expressly warranted by the parties hereto that
no promise or inducement has been offered except as set forth herein. This
Settlement Agreement is executed without reliance upon any statement or
representation of any party or person released, or their representatives. Each
party hereto acknowledges and agrees that acceptance of the consideration set
forth herein is in full accord and satisfaction of the Disputes and the
Agreement.
12. Miscellaneous.
(a) Notices. Any notice or demand required or permitted to be
given or made hereunder to or upon any party hereto shall be deemed to have been
duly given or made for all purposes if (a) in writing and sent by (i) messenger
or an overnight courier service against receipt, or (ii) certified or registered
mail, postage paid, return receipt requested, or (b) sent by telegram, telecopy
(confirmed orally), telex or similar electronic means, provided that a written
copy thereof is sent on the same day by postage-paid first-class mail, to such
party at the addresses set forth above, with a copy to:
If to Consultant Xxxxx, Kaszovitz, Isaacson, Xxxxx
or Xxxxxx Xxxxxx: Xxxxx, Bass & Rhine LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
If to the Company: Birbrower, Montalbano, Xxxxxx & Xxxxx, P.C.
00 Xxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx, Esq.
Fax: (000) 000-0000
or such other address as any party hereto may at any time, or from time to time,
direct by notice given to the other parties in accordance with this Section.
Except as otherwise expressly provided herein, the date of giving or making of
any such notice or demand shall be, in the case
of clause (a) (i), the date of the receipt; in the case of clause (b), the
business day next following the date such notice or demand is sent.
(b) Amendment. Except as otherwise provided herein, no amendment of
this Agreement shall be valid or effective, unless in writing and signed by or
on behalf of the parties hereto.
(c) Waiver. No course of dealing or omission or delay on the part of
any party hereto in asserting or exercising any right hereunder shall constitute
or operate as a waiver of any such right. No waiver of any provision hereof
shall be effective, unless in writing and signed by or on behalf of the party to
be charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
(d) Governing Law. This Agreement shall be governed by, and
interpreted and enforced in accordance with, the laws of the State of New York
without regard to principles of choice of law or conflict of laws.
(e) Jurisdiction. Each of the parties hereto hereby irrevocably
consents and submits to the jurisdiction of the Supreme Court of the State of
New York in connection with any proceeding arising out of or relating to this
Agreement, waives any objection to venue in the County of Rockland, State of New
York, and agrees that service of any summons, complaint, notice or other process
relating to such proceeding may be effected in the manner provided by Section
12(a) (ii) .
(f) Severability. The provisions hereof are severable and in the
event that any provision of this Agreement shall be determined to be invalid or
unenforceable in any respect by a court of competent jurisdiction, the remaining
provisions hereof shall not be affected, but shall, subject to the discretion of
such court, remain in full force and effect, and any invalid or unenforceable
provision shall be deemed, without further action on the part of the parties
hereto, amended and limited to the extent necessary to render the same valid and
enforceable.
(g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and which together shall constitute
one and the same agreement.
(h) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is not intended, and shall not be deemed, to
create or confer any right or interest for the benefit of any person not a party
hereto. The parties agree that each of them have been represented by Counsel who
jointly participated in the drafting of this Agreement and that in the
interpretation of this agreement, there should be no inference drawn against any
party based on the drafting of this Agreement
(i) Proxy. Shapss shall deliver to the Company a proxy permitting management to
vote the Second Tranche held by the Escrow Agent until said shares are released
from escrow. Shapss shall also deliver to the Escrow Agent the necessary stock
powers to permit the Company to transfer the Second Tranche back to the Company
in the event that the Escrow Agent is obligated to return the shares to the
Company pursuant to this Agreement. The Escrow
Agent shall deliver those stock proxies and stock certificate to whichever party
is entitled to delivery of the shares.
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Corporate Services,Inc.
by: /s/____________________________________
Xxxxxx Xxxxxx, President
The Major Automotive Companies, Inc.
(formerly known as Fidelity Holding, Inc.)
by: /s/___________________________________
Xxxxx Xxxxxxx, President
On the 7th day of November in the year 2001 before me, the undersigned, a
notary public in and for said state, personally appeared Xxxxxx Xxxxxx,
President, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
/s/
---------------------------------
NotaryPublic
On the 5th day of November in the year 2001 before me, the undersigned, a
notary public in and for said state, personally appeared Xxxxx Xxxxxxx,
President, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
/s/
---------------------------------
Notary Public
