Exhibit 10.9
SETTLEMENT AGREEMENT
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This Settlement Agreement (the "Agreement") is entered into as of the 20th day
of September, 2001 by and among CyPost Corporation, a Delaware corporation with
its office at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx X0X
0X0 ("CyPost"); Xxxxx Xxxxx Xxxxxxxxx, an individual with an address at X.X. Xxx
000, Xxxxx Xxx, Xxxxxxx Xxxxxxxx, Xxxxxx VON 3EO ("KSM"); and Pacific Gate
Capital Corporation, a corporation with an address at X.X. Xxx 000, Xxxxx Xxx,
Xxxxxxx Xxxxxxxx, Xxxxxx VON 3EO ("PGCC").
WHEREAS, several shareholders of CyPost have through their respective counsels,
requested that CyPost investigate whether KSM has engaged in transactions in
violation of Section l6(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and
WHEREAS, CyPost has conducted such an investigation with full cooperation of
KSM, who has supplied CyPost with among other things, brokerage statements and
accountant's statements; and
WHEREAS, for the purposes of determining KSM's beneficial ownership of CyPost
common stock during the period September 20, 1999 (the date on which CyPost
became fully reporting under the Exchange Act) through June 15,2001 (the
"Recovery Period"), KSM is deemed to be the beneficial owner of all CyPost
shares owned by (i) KSM, (ii) KSM's wife, and (iii) PGCC, a corporation owned by
KSM.
WHEREAS, at all times during the Recovery Period, KSM was the beneficial owner,
directly or indirectly, of more than 10% of CyPost's common stock; and
WHEREAS, during the Recovery Period, KSM and those persons whose ownership of
CyPost common stock is attributable to KSM for purposes of Section 16(b) of the
Exchange Act, made numerous purchases and sales of CyPost common stock; and
WHEREAS, CyPost determined that numerous violations of Section 16(b) had taken
place and, unable to resolve the matter in a timely fashion, CyPost filed a
Summons and Complaint against KSM in the United States District Court for the
Southern District of New York seeking recovery of KSM's short swing during the
Recovery Period (CyPost Corporation x. Xxxxx Xxxxx Xxxxxxxxx, 01 Civ. (5447)
(the "Litigation"); and
WHEREAS, CyPost and KSM have subsequently agreed that the amount of the short
swing profits realized by KSM including persons who beneficial ownership of
CyPost common stock is attributable to KSM for Section 16(b) purposes, during
the Recovery Period is $2,498,449.46 (the "Recoverable Amount"); and
WHEREAS, KSM has made no purchases or sales of CyPost common stock, directly or
indirectly, subsequent to the Recovery Period; and
WHEREAS, KSM as the assignee of Monet Management Group Ltd., is the payee on an
8% demand note dated June 19,2001 issued by CyPost in the principal amount of
$1,302,496.30 plus interest accrued until September 20,2001 in the amount of
$26,476.97 (the "KSM Note"); and
WHEREAS, KSM has agreed to cancel the KSM Note in partial satisfaction of his
Section 16(b) liability to CyPost; and
WHEREAS, various individuals (the "Noteholders") are the payees on demand notes
dated June 19, 2001 issued by CyPost in the aggregate principal amount of
$1,017,291.94 together with $15,906.63 in interest accrued on the principal
amount from June 19,2001 until September 20,2001 (the "Noteholders Notes"); and
WHEREAS, the Noteholders have assigned their right under the Noteholder Notes to
KSM who has agreed to cancel the Noteholders Notes in partial satisfaction of
his Section 16(b) liability to CyPost; and
WHEREAS, PGCC is the payee on 8% demand notes dated August 25, 2000 and
September 11, 2000, respectively, issued by CyPost in the aggregate principal
amount of $25,000 plus accrued interest until September 20,2001 in the amount of
$2,066.67 (the "PGCC Notes"); and
WHEREAS, PGCC has agreed to cancel the PGCC Notes in partial satisfaction of
KSM's Section 16(b) liability to CyPost; and
WHEREAS, KSM has agreed to pay the balance of the Recoverable Amount by issuing
to CyPost, KSM's $109,210.95, 5 year, 5% note and CyPost has agreed to accept
the same in accordance with the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt of sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1.
Cancellation of KSM Note.
KSM hereby returns the KSM Note for cancellation and authorizes CyPost to apply
the $1,328,973.27 due thereunder to the satisfaction of KSM's Section 16(b)
liability to CyPost.
2.
Cancellation of Noteholders Notes.
KSM hereby returns the Noteholders Notes for cancellation and authorizes CyPost
to apply the $1,033,198.57 due thereunder to the satisfaction of KSM's Section
16(b) liability to CyPost.
3.
Cancellation of PGCC Notes.
PGCC hereby returns the PGCC Notes for cancellation and authorizes CyPost to
apply the $27,066.67 due thereunder to the satisfaction of KSM's Section 16(b)
liability to CyPost.
4.
Issuance of the Note to CyPost.
To satisfy the $109,210.95 balance of KSM's Section 16(b) liability to CyPost,
KSM hereby issues his $109,210.95, 5 year, 5% promissory note (the "Balance
Note") to CyPost in the form attached hereto as Exhibit A.
5.
Withdrawal of Lawsuit.
In consideration of the Cancellation of the KSM Note, the Noteholders Notes, and
the XXXX X0xxx and KSM's delivery to CyPost of the Balance Note and upon due
execution and delivery to CyPost of all documents called for by paragraphs 1
through 4 above, CyPost will promptly file a Notice of Voluntary Dismissal of
the Litigation, without prejudice, pursuant to Rule 41(a) of the Fral Rules of
Civil Procedure. In the event of KSM's default under the Balance Note, in
addition to its rights and remedies thereunder, CyPost shall be entitled to
reinstate or refile the Litigation and pursue such additional remedies as may be
available to it therein. It is agreed that the statute of limitations applicable
to the claim(s) asserted by CyPost in the Litigation shall be tolled pending
payment in full of the Balance Note.
6.
Release.
Effective upon KSM's payment in full of the Balance Note, CyPost releases and
discharges KSM, his administrators, heirs, successors and assigns from all
actions, cause of action, suits, debts due, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, damages, judgments, claims and demands in law or in equity,
which against KSM, CyPost or its successors or assigns ever had, now has, or
hereafter can, shall or may have for, upon, or by reason of KSM's liability to
CyPost pursuant to Section 16(b) of the Exchange Act, directly or through PGCC
or KSM's wife, in any way from the beginning of the world through June 15,2001.
7.
Advice of Counsel.
CyPost has had the benefit of the advice of counsel of it own choice in the
negotiating, drafting and execution of this Settlement Agreement. Said counsel,
Xxxxxx Gottbetter & Xxxxxxxx, LLP, represented solely CyPost in connection
herewith. KSM and PGCC have acted for themselves without the benefit of advice
of counsel. KSM and PGCC have been advised by CyPost and its counsel that they
are entitled to obtain, and that their best interest would be served by, advice
and representation by their own, independent, counsel and have been urged by
CyPost and its counsel to retain their own counsel for this purpose, and KSM and
PGCC had full opportunity to do so. Notwithstanding the foregoing, KSM and PGCC
have elected not to retain their own counsel, but rather to represent themselves
in connection with this Agreement. Such election, and KSM's and PGCC's execution
of this Settlement Agreement, were made knowingly and voluntarily. This
Agreement is the result of arms-length negotiations between the parties.
Accordingly, neither the entire Agreement nor any provision contained herein
shall be deemed to have been proposed or drafted by any party or construed
against any party. This Agreement shall be construed as a whole according to its
plain meaning.
8.
Further Action.
CyPost, KSM, and PGCC hereby agree to execute and deliver any and all documents
and to take any and all actions necessary to effect the transactions
contemplated hereby.
9.
Sever ability.
If one or more of the provisions of this Agreement shall be determined by a
court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect, the portion of such provision not so held, and the remaining provisions
of this Agreement shall be construed as if such invalid, illegal or
unenforceable provision were not included in them.
10.
Amendments, Modifications and Waivers.
No provision of this Agreement may be waived, modified or amended except in a
written instrument signed by the party again whom such waiver, modification or
amendment is sought to be enforced. No waiver of any provision hereto shall be
deemed to be a waiver of any other provision or to imply any future waiver of
the same provision.
11.
Successors and Assigns.
The provisions hereof shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
12.
Governing Law.
This Agreement shall be governed, and construed in accordance with, the laws of
the Province of British Columbia. The parties agree to submit any dispute under
this Agreement to the exclusive jurisdiction of the courts of the Province of
British Columbia.
13.
Counterparts.
This Agreement may be executed in one or more counterparts which, when taken
together, shall comprise one and the same document.
IN WITNESS WHEREOF, the undersigned have set their respective hands as of the
date first written.
CyPost Corporation
/s/ Xxxxxx Sendoh
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Xxxxxx Sendoh
Chairman of the Board
CyPost Corporation
/s/ Xxxxx Xxxxx Xxxxxxxxx
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Xxxxx Xxxxx Xxxxxxxxx
PACIFIC GATE CAPITAL CORPORATION
/s/ Xxxxx Xxxxx Xxxxxxxxx
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Name:
Title:
