EXHIBIT 10.216
AMENDMENT TO COMPROMISE AND SETTLEMENT AGREEMENT
This Amendment to Compromise and Settlement Agreement (the "Agreement") is
made and entered into on the date entered below by and between Fidelity Funding,
Inc. ("Fidelity") and Pollution Research and Control Corporation ("Pollution
Research"). Fidelity and Pollution Research are referred to herein singularly as
a "Party" and collectively as the "Parties."
WHEREAS, on or about April 7, 1998 Fidelity filed suit in the 44th Judicial
District Court of Dallas County, Texas against Pollution Research in a case
styled Fidelity Funding, Inc. v. Pollution Research and Control Corporation and
numbered 98-02820-B (the "Lawsuit")' and,
WHEREAS, on or about June 22, 1998 a Default Judgment was entered in the
Lawsuit in favor of Fidelity in the amount of $766,708.77 together with
attorneys' fees in the amount of $1,322.50, pre-judgment interest from and after
June 9, 1998 at the per diem rate of $326.42, costs and post-judgment interest
at the rate of 15% per annum (the "Judgment"); and,
WHEREAS, pursuant to a Compromise Settlement and Release Agreement dated as
of August 12, 1999 certain agreements were reached between the Parties regarding
the Judgment and related matters (the "Original Settlement Agreement"); and
WHEREAS, the Parties are desirous of modifying the Original Settlement
Agreement as set forth herein;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein and for such other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the Parties,
Fidelity and Pollution Research agree as follows:
1. Fidelity and Pollution Research agree and acknowledge that Fidelity has
incurred attorneys' fees from and after February 1, 2000 with its Texas and
California counsel in the aggregate amount not to exceed $5,000.00 (the
"Attorneys Fees"), and Pollution Research agrees to pay the Attorneys' Fees.
2. Fidelity and Pollution Research agree and acknowledge that the total
outstanding amount of the Judgment as of March 23, 2000 is $483,949.27 (the
"Judgment Amount"), and that the outstanding portion of the Judgment Amount
shall accrue interest from and after March 23, 2000 at the rate of 15% per
annum. The Judgment Amount and Attorneys' Fees together with any interest
accruing on the Judgment Amount is referred to herein as the "Settlement
Amount".
3. Contemporaneously with the execution of this Agreement and in no event
later than 5:00 p.m. on March 24, 2000, Pollution Research shall pay to Fidelity
the sum of $200,000.00 to be applied to the Settlement Amount as of the date of
receipt.
4. In consideration for such payment, for a period of 14 days from and
after the date hereof (the "Forbearance Period"), Fidelity shall forbear from
taking any affirmative action to collect and enforce the Judgment including, but
not limited to, execution, levy, garnishment, or attachment. In the event that
the Settlement Sum is not paid in full, immediately upon the expiration of the
Forbearance Period, Fidelity shall be fully entitled to enforce and collect the
unpaid portion of the Judgment and to pursue any and all remedies available to
it under applicable law to collect the unpaid portion of the Judgment and
Attorneys' Fees.
5. Fidelity shall commence efforts to sell the Settlement Consideration
Shares (as that term is defined in the Original Settlement Agreement) and shall
deliver the Settlement Consideration Shares to Xxxx Xxx together with documents
requested by Xxx which are necessary to transfer the shares within three days
from the date hereof and in the event that the Settlement Consideration Shares
are sold during the Forbearance Period for an amount sufficient to satisfy the
outstanding balance of the Settlement Amount, any and all sale proceeds
remaining following the satisfaction of the outstanding balance of the
Settlement Amount and any unsold shares comprising the Settlement Consideration
Shares shall be returned to Pollution Research. If, however, the Settlement
Consideration Shares are sold and the proceeds from the sale are insufficient to
satisfy the outstanding balance of the Settlement Amount, Pollution Research
shall pay the shortfall together with any accrued but unpaid interest thereon.
Further, in the event that the Settlement Consideration Shares are sold
following the expiration of the Forbearance Agreement for an amount in excess of
the Settlement Amount, Fidelity shall be entitled to retain any such excess. For
purposes of this Agreement, the sale shall be deemed to be completed upon a
transfer of the shares provided, however, that the proceeds are distributed to
Fidelity within 10 days of such transfer.
6. The Parties expressly agree and acknowledge that the Warrants (as that
term is defined in the Original Settlement Agreement) are expressly excluded
from the Settlement Consideration Shares. Pollution Research hereby agrees that
unless the Warrants are sold by Fidelity prior to such registration, Pollution
Research shall include the shares represented by the Warrants in its next
registration of shares. Pollution Research shall use its best efforts to
register the shares represented by the Warrants as soon as possible, and in any
event shall cause the shares represented by the Warrants to be registered on or
before the sixth month anniversary of this Agreement. Notwithstanding the
foregoing, Fidelity shall have the right but not the obligation to sell the
Warrants at any time during the six month period or thereafter.
7. Upon payment in full of the Settlement Amount, Fidelity shall execute a
release of the Judgment.
8. This Agreement shall be governed by and construed in accordance with the
laws of the state of Texas.
9. All Parties to this Agreement have had the benefit of counsel of their
choice and have been afforded an opportunity to review this Agreement with their
chosen counsel.
10. This Agreement may be executed in a number of counterparts all of which
together shall for all purposes constitute one agreement, binding on all of the
Parties, notwithstanding that all of the Parties have not signed the same
counterpart, and it shall not be necessary to produce more than one counterpart
of this Agreement for evidentiary purposes.
11. This Agreement may be modified by written instrument only, signed by
all Parties.
SIGNED this 24th day of March, 2000.
FIDELITY FUNDING, INC.
By: /s/ Xxxxx Xxxxxxxx
POLLUTION RESEARCH AND CONTROL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
President
