AGREEMENT OF SETTLEMENT
This Agreement of Settlement (the "Agreement") is entered into this
14th day of August 2006 (the "Closing Date"), by and between Stronghold
Technologies, Inc. (the "Company") and AC Trust ("AC Trust").
WITNESSETH:
WHEREAS, on September 30, 2002, the Company entered into a loan
agreement with AC Trust Fund to borrow an amount up to $375,404 (the "Loan");
WHEREAS, as of the date hereof, the total amount payable, including
interest, in connection with the Loan was $497,691 (the "Debt");
NOW, THEREFORE, in consideration of the mutual covenants, payments,
and agreements set forth in this Agreement, the Company and AC Trust intending
to be legally bound hereby and thereby, and each warranting to the other that
each has the capacity and, in the case of the Company, the authority to execute
this Agreement, it is agreed between the undersigned parties, that all of the
claims asserted (or which could have been asserted) by AC Trust or the Company
against AC Trust are hereby settled and compromised on the following terms and
conditions, to wit:
(1) SETTLEMENT.
(a) AC Trust hereby:
(i) waives all rights and claims relating to the Debt; and
(ii) releases the Company pursuant to the terms of the
"release" set forth in Section 2 below; and
(b) The Company shall:
(i) The Company shall issue to AC Trust 2,502 Series D
Preferred Shares that shall have the rights, designations and
preferences as set forth in the Certificate of Designation attached
hereto as Exhibit A in the initial face amount of $497,691; and
(ii) grant to AC Trust the release contained in Section 2
below.
(c) Each party shall bear its own costs and attorneys' fees incurred
in connection with the preparation of this Agreement. No actions taken to
consummate this Agreement shall be deemed to have occurred until all have
occurred, and when all have occurred they shall be deemed to have occurred
simultaneously.
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(2) RELEASE.
(a) AC Trust for itself and on behalf of its agents, affiliates,
administrators, successors, insurers, or assigns (collectively, the "AC
Trust Parties"), hereby release the Company and its directors, officers,
partners, past and present employees, agents, administrators, holding
company, parent company, subsidiaries, successors, insurers, assigns,
principals and past and present control persons (collectively, the
"Company Parties"), from all actions, cause of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, extents, executions, claims, and demands whatsoever,
in law, admiralty or equity (collectively, "Claims"), which against the
Company or the Company Parties, AC Trust or the AC Trust Parties ever had,
now have or hereafter can, shall or may, have for, upon, or by reason of
any matter, cause or thing that has or may have arisen from the beginning
of the world to the day of the date of this Agreement.
(b) The Company for itself and on behalf of the Company Parties,
hereby release AC Trust and the AC Trust Parties from all Claims, which
against AC Trust or the AC Trust Parties, the Company or the Company
Parties ever had, now have or hereafter can, shall or may, have against,
for, upon, or by reason of any matter, cause or thing that has or may have
arisen from the beginning of the world to the day of the date of this
Agreement.
(3) BINDING AGREEMENT. The terms of this Agreement are binding upon and inure
to the benefit of each of the parties hereto, their respective successors,
assigns, dependents, and all other related persons, affiliates or
associates.
(4) HEADINGS. The captions of the paragraphs and sections of this Agreement
are provided solely for convenience, and are not intended to, and in fact,
shall not affect the substance or meaning of this Agreement.
(5) REPRESENTATION. Each of the parties hereto represents that each has read
and fully understands each of the provisions as contained herein, and has
been afforded the opportunity to review same with his attorney of choice;
and further that each of the parties hereto represents that each and every
one of the provisions contained in this Agreement is fair and not
unconscionable to either party.
(6) COUNTERPARTS/EXECUTION/FURTHER ACTION. This Agreement may be executed in
any number of counterparts and by the different signatories hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument. This Agreement may be executed by facsimile signature and
delivered by facsimile transmission. In order to carry out the terms and
conditions of this Agreement, including the Note, the parties agree to
execute promptly, upon reasonable request, any and all further documents
and instruments necessary to effectuate the terms of this Agreement and
the Note.
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(7) ENTIRE AGREEMENT/WAIVER/ASSIGNMENT. This Agreement and other documents
delivered in connection herewith represent the entire agreement between
the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by all parties. No breach of any
provision hereof can be waived unless the waiver is set forth in writing.
Waiver of any one breach of any provision hereof shall not be deemed to be
a waiver of any other breach of the same or any other provision hereof.
Neither the Company nor AC Trust have relied on any representations not
contained or referred to in this Agreement and the documents delivered
herewith. Except as expressly set forth herein, no right or obligation of
either party shall be assigned by that party without prior notice to and
the written consent of the other party, which will not be unreasonably
withheld.
(8) LAW GOVERNING THIS AGREEMENT. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without
regard to principles of conflicts of laws. Any action brought by either
party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the state courts of New York or in the
federal courts located in the state of New York. The parties and the
individuals executing this Agreement and other agreements referred to
herein or delivered in connection herewith on behalf of the Company agree
to submit to the jurisdiction of such courts and waive trial by jury. The
prevailing party shall be entitled to recover from the other party its
reasonable attorney's fees and costs. In the event that any provision of
this Agreement or any other agreement delivered in connection herewith is
invalid or unenforceable under any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed modified to conform with such
statute or rule of law. Any such provision which may prove invalid or
unenforceable under any law shall not affect the validity or
enforceability of any other provision of any agreement.
(9) CONFIDENTIALITY. The parties represent, warrant and agree that all matters
relating to this Agreement, are intended to be and shall be kept
confidential and shall not be disclosed to anyone by the parties or by any
of their respective agents or attorneys, unless such disclosure is plainly
required by law or is plainly compelled by legal process or court order.
However, prior to either party making such disclosure, the other party
shall be notified in order to have an opportunity to prevent the
disclosure. For avoidance of doubt, the parties may disclose (1) the terms
of the settlement to a court of competent jurisdiction if ordered to do so
or in an action to enforce the Agreement, (2) the terms and amount of the
settlement to tax authorities and to each party's respective tax advisors,
accountants and attorneys on an as-needed basis, so long as those
advisors, accountants and attorneys are advised as to the confidential
nature of this Agreement and agree to maintain confidentiality with
respect to its existence and content and (3) the terms of the settlement
on a Form 8-K Current Report to be filed with the Securities Exchange
Commission.
(10) INDEMNIFICATION. Each Party represents and warrants to the other that it
has not assigned all or any portion of any Claim pertaining to their
respective releases set forth in Section 2 hereto to any person or entity.
In the event any claims are made by any third persons or entities based
upon any purported assignment, then the party which has breached or
allegedly breached its representation or warranty contained in this
paragraph agrees to indemnify and hold harmless the other party from any
such claims being made.
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(11) AUTHORITY. Each person signing this Agreement on behalf of a corporate or
other business entity represents and warrants that he or she is authorized
and empowered to do so and thereby binds his or her respective
corporation, partnership, or other business entity and further represents
and warrants that no further approval, whether by corporate board vote,
resolution or otherwise, is required to validate this Agreement or, if so
required, has been obtained.
(12) SURVIVAL. The representations, warranties and covenants contained in this
Agreement, including the Note, are deemed to, and shall, survive the
execution and delivery of this Agreement by the parties.
IN WITNESS WHEREOF, the parties have read and executed this
Agreement as of the date and year first above written.
STRONGHOLD TECHNOLOGIES, INC. AC TRUST FUND
By: /s/Xxxxxx Xxxxxxxxxx /s/Xxxx Xxxxx
-------------------- ----------------
Name: Xxxxxx Xxxxxxxxxx Name: Xxxx Xxxxx
Title: President Title: Trustee
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EXHIBIT A
CERTIFICATE OF DESIGNATION
SERIES D PREFERRED STOCK
Xxxxxx Xxxxxxxxx certifies that he is the President and Secretary of
Stronghold Technologies, Inc., a Nevada corporation (hereinafter referred to as
the "Corporation") and that pursuant to the Corporation's Certificate of
Incorporation, as amended, and Section 78.1955 of the Nevada General Corporation
Law, the Board of Directors of the Corporation adopted the following resolutions
effective on August 14, 2006, and that none of the shares of Series D Preferred
Stock referred to in this Certificate of Designation have been issued.
1. Designation; Number of Shares; Stated Value.
The designation of said series of Preferred Stock shall be Series D
Preferred Stock (the "Series D Preferred Stock"). The number of shares of Series
D Preferred Stock shall be 10,000. The shares of Series D Preferred Stock shall
be issued as full shares and shall have a par value of $.01 per share and a
Stated Value of $198.92 per share. 5% interest shall accrue on the Stated Value
per annum.
2. Conversion.
Conversions at the Option of the Holder. Each share of Series D Preferred
Stock shall be convertible into shares of common stock determined by dividing
the Stated Value of such share by the closing bid price on the day immediately
before such conversion (the "Set Price"), at the option of the holder, at any
time and from time to time from. Holder shall effect conversions by providing
the Corporation with the form of conversion notice. Each Notice of Conversion
shall specify the number of shares of Series D Preferred Stock to be converted,
the number of shares of Series D Preferred Stock owned prior to the conversion
at issue, the number of shares of Series D Preferred Stock owned subsequent to
the conversion at issue and the date on which such conversion is to be effected,
which date may not be prior to the date the holder delivers such Notice of
Conversion to the Corporation by facsimile (the "Conversion Date"). If no
Conversion Date is specified in a Notice of Conversion, the Conversion Date
shall be the date that such Notice of Conversion to the Corporation is deemed
delivered hereunder. The calculations and entries set forth in the Notice of
Conversion shall control in the absence of manifest or mathematical error.
3. Number of Shares.
The Board of Directors reserves the right, by subsequent amendment of this
resolution, from time to time to decrease the number of shares which constitute
the Series D Preferred Stock (but not below the number of shares thereof then
outstanding) and, subject to anything to the contrary set forth in the
Certificate of Incorporation applicable to the Preferred Stock, to subdivide the
number of shares, the stated value per share and the liquidation value per share
of the Series D Preferred Stock and in other respects to amend, within the
limitations provided by law, this resolution and the Certificate of
Incorporation.
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4. Liquidation Rights.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of shares of Series D Preferred Stock
then outstanding shall be entitled to be paid out of the assets of the
Corporation available for distribution to its stockholders on parity with other
shares of preferred stock, after and subject to the payment in full of all
amounts required to be distributed to the holders of any senior securities, but
before any payment shall be made to the holders of junior securities by reason
of their ownership thereof, an amount equal to the Stated Value. If upon any
such liquidation, dissolution or winding up of the Corporation the remaining
assets of the Corporation available for distribution to its stockholders shall
be insufficient to pay the holders of shares of Series D Preferred Stock the
full amount to which they shall be entitled, the holders of shares of Series D
Preferred Stock and any class or series of stock ranking on liquidation on a
parity with the Series D Preferred Stock shall share ratably in any distribution
of the remaining assets and funds of the Corporation in proportion to the
respective amounts which would otherwise be payable in respect of the shares
held by them upon such distribution if all amounts payable on or with respect to
such shares were paid in full.
5. Voting Rights.
The holders of the Series D Preferred Stock shall not be entitled to vote.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation of Series D Preferred Stock to be duly executed by its Chief
Executive Officer and attested to by its Secretary this 14th day of August,
2006, who, by signing their names hereto, acknowledge that this Certificate of
Designation is the act of the Corporation and state to the best of their
knowledge, information and belief, under the penalties of perjury, that the
above matters and facts are true in all material respects.
STRONGHOLD TECHNOLOGIES, INC.
_____________________________
Xxxxxx Xxxxxxxxx,
President and Secretary
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