Exhibit 12.0
RELEASE AGREEMENT
RELEASE made as of the ___ day of October, 1998 by Scangraphics, Inc., a
Pennsylvania corporation (COMPANY) and Xxxxx X. Xxxxxxx (hereinafter
individually and collectively referred to as RELEASEE).
WHEREAS, during December 1996, RELEASEE signed one promissory note numbered
PN-108 (DEBT) payable to the COMPANY, copy of which is attached;
WHEREAS, the COMPANY'S Board of Directors has determined that it would be
appropriate, all things considered, to provide RELEASEE with a plan to cancel
the DEBT and accrued interest in return for cancellation of the underlying
shares and issuance of new options and/or warrants at an exercise price of $2.00
in a number equal to 10% of the shares associated with the aforementioned DEBT;
WHEREAS, COMPANY and RELEASEE, have now completed satisfactory negotiations to
terminate the DEBT for valuable consideration as outlined above, the receipt and
sufficiency of which is hereby acknowledged, and expressly intending to be
legally bound hereby, COMPANY and RELEASEE hereby agree as follows:
1. COMPANY does hereby remise, release and forever discharge RELEASEE from any
and all claims, demands, actions, debts, loans, judgments, obligations,
damages, and liabilities, of any nature whatsoever, known or unknown,
whether now existing or hereafter arising, whether or not heretofore
asserted, including without limitation claims for contribution or
indemnification, which against RELEASEE, COMPANY ever had, now has, or may
in the future have, in any way or manner arising out of, relating to, or
based upon, in whole or in part, any facts, transactions, occurrences,
representations, acts, or omissions arising out of the above referenced
DEBT.
2. The RELEASEE knowingly, willingly and voluntarily forever irrevocably and
unconditionally releases and discharges the COMPANY, or any of its
officers, directors, shareholders, agents, employees, legal
representatives, predecessors, successors or assigns from any and all
claims, charges, complaints, liabilities, obligations, premises,
agreements, remedies, controversies, damages, costs, expenses (including
attorneys' costs and expenses), right and suits of any nature whatsoever,
known or unknown, accrued or not yet accrued, asserted or unasserted,
whether in law or in equity, made, to be made, or which might have been
made in connection with, arising out of, relating to, or as a consequence
of, the creation or termination of above referenced DEBT. The RELEASEE, by
entering into this Agreement, accepts the benefits herein provided in full
and complete satisfaction of any and all claims against the COMPANY.
Without limiting the foregoing in any manner whatsoever, the RELEASEE
knowingly, willingly and voluntarily forever irrevocably and
unconditionally releases and discharges the COMPANY from any and all
obligations arising under the DEBT herein referenced.
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3. THE RELEASEE HEREBY ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT CONSISTING
OF TWO PAGES; THAT HE HAS HAD A REASONABLE PERIOD OF TIME WITHIN WHICH TO
CONSIDER THIS AGREEMENT AND FULLY UNDERSTANDS, ACKNOWLEGES AND ACCEPTS ALL
OF ITS TERMS OF HIS OWN VOLUNTARY FREE WILL; THAT NO PROMISES OR
REPRESENTATIONS HAVE BEEN MADE OTHER THAN AS EXPRESSLY STATED IN THIS
AGREEMENT; THAT HE HAS BEEN ADVISED TO CONSULT WITH COUNSEL AND/OR OTHER
ADVISORS AND HAS HAD AN ADEQUATE OPPORTUNITY TO DISCUSS THE DOCUMENT WITH
COUNSEL AND/OR OTHER ADVISORS AND HAS DONE SO OR HAS VOLUNTARILY ELECTED
NOT DO SO; AND BY EXECUTING THIS AGREEMENT AND ACCEPTING THE CONSIDERATION
OUTLINED HEREIN FROM THE COMPANY, HE WILL ABIDE BY THE TERMS, AGREEMENTS,
AND PROMISES SET FORTH IN THIS AGREEMENT.
OFFERED: ACCEPTED:
By: /s/ Xxxxxxxx X. Xxxxxxxxx By: /s/ Xxxxx Xxxxxxx
------------------------- ------------------------
Date: 10/27/98 Date: 10/22/98
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Note No: PN-108
PROMISSORY NOTE
$ 36,250.00 Dated: December 30, 1996
FOR VALUE RECEIVED, Xxxxx X. Xxxxxxx, (herein after referred to as "Maker"),
promises to pay to the order of Scangraphics, Inc., (hereinafter referred to as
"Payee" or "Company"), the principal amount of Thirty Six Thousand Two Hundred
Fifty Do11ars ($36,250.00) in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, at the principal office of the Company, together with
interest on the unpaid principal balance. Interest on this Promissory Note
("Note") will be calculated at the rate of 8.25% per annum.
This Note was issued to the Payee as payment for the exercise of certain Common
Stock Purchase Warrants and/or Options (the "Wts/Options"). The 20,000 shares of
Common Stock that were issued upon exercise of the Wts/Options are to be held in
"Escrow" by the Payee's law firm, Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxxx, the "Escrow
Agent", and such shares shall not be released to the Maker until or unless the
following conditions have been satisfied:
Vesting Schedule: These Escrowed shares may not be released for trade or
transfer until the earlier of January 1, 1998 or in increments according to the
schedule below, provided that the pro-rata portion of the principal amount of
this Note relating to the vested share increments, and all related interest due
thereupon, has been paid to the Payee:
SHARES (*) RESTRICTIONS - IF - COMPANY ANNUAL - OR - STOCK (**)
VESTING LAPSE ON REVENUES EXCEED PRICE
-------- -------- --------------- -----
20,000 Jan. 1, 1998 N/A N/A
Note:
(*) Total of 20,000 shares from the exercise of Option S0050.
(**) Trades at or over this price for any 30 day period during prior 12
months.
These Escrowed shares will be forfeited in the event of voluntary termination of
services to the Payee by the Maker. These shares will not be forfeited due to
involuntary termination of Maker or in the event the Maker is terminated due to
inability to provide services to the Payee for reasons of health. In the event
of death of the Maker all restrictions will lapse, and the then vested shares
will accrue to the estate and/or heirs of the Maker. In the event of "change of
control" of the Company, all restrictions will lapse.
Payment of Note and Release of Shares from Escrow: The Maker shall pay the
pro-rata portion of the principal amount of the Note relating to the vested
share increments, and all related interest due thereupon, to the Company within
three months of the vesting of shares as per the Vesting Schedule above. Thus,
in the event all shares vest as per the Vesting Schedule, the Note and related
interest are due in one installment of principal of $36,250.00, with accrued
interest, on or before April 1, 1998.
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In addition, in the event the conditions of vesting provided for in the Vesting
Schedule are not met in any given year, but the vesting conditions are
subsequently met in the following year, the shares from the prior year will then
become vested, Further, any and all shares that may not have vested prior to
January 1, 1998, shall become vested as of this date as provided for in the
Vesting Schedule.
Upon receipt of such payments, the Company will then direct the Escrow Agent to
immediately release the vested shares to the Maker, free of any restrictive
legend.
Vesting: Grossly exceeding the "Company Annual Revenue" or "Stock Price" targets
as of any of the annual target measurement dates, as detailed in the above
Vesting Schedule, will not cause an acceleration of the vesting of these shares.
The market price of the Company's shares shall not be a cause for default of
payment of this Note by the Maker.
All payments shall be made to Payee at address below or at such other place as
the Payee may from time to time designate. Any payments on account of principal
and interest shall be applied first to interest as aforesaid and the remainder
thereof shall be applied to principal.
Maker shall have the privilege of paying the principal in whole or in part at
any time, and such payments may be made without penalty or premium; provided,
however, that each payment shall be accompanied by any accrued interest then
due.
Presentment for payment or acceptance, and notice of dishonor of payment or
acceptance, notice of protest and notice of any renewal, extension, modification
or change of time, manner, place or terms of payment, are hereby waived by Maker
or any endorsers, sureties and guarantors hereof.
Any failure or delay of Payee to exercise any right hereunder shall not be
construed as a waiver of the right to exercise the same or any other right at
any other time or times. The waiver by Payee of a breach or default of any
provisions of this Note shall not operate or be construed as a waiver of any
subsequent breach or default thereof. Maker agrees to reimburse Payee for all
costs and expenses, including reasonable attorneys' fees, incurred by Payee to
enforce the provisions hereof and collect Maker's obligations hereunder.
This Note shall be construed according to, and shall be governed by the laws of
the Commonwealth of Pennsylvania. The provisions of this Note shall be deemed
severable, so that if any provisions hereof is declared invalid under the laws
of any state where it is in effect, or of the United States, all other
provisions of this Note shall continue in full force and effect.
This Note shall be binding upon the successors and assigns of the Maker, and
shall inure to the benefit of and be enforceable by the heirs, personal
representatives, successors and assigns of Payee or any other Payee thereof.
Notices: Any notice or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telegraphed or sent by
certified, registered, or express mail, postage prepaid, and shall be deemed
given when so delivered personally, telegraphed or, if mailed, five days after
the date of deposit in the United States mails, as follows:
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(i) if to the Maker, to: Xxxxx X. Xxxxxxx
c/o Opton Handler Xxxxxxxx Xxxxxx & Xxxx
00 Xxxxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
(ii) if to the Holder, to: Scangraphics, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Governing Law: This Note shall be governed in accordance with the internal laws
of the Commonwealth of Pennsylvania, without giving effect to conflict of laws
principles.
Successors and Assigns: All the covenants, stipulations, promises and agreements
in this Note contained by or on behalf of the Maker shall bind its successors
and assigns, whether or not so expressed.
IN WITNESS WHEREOF, the Maker has caused this Note to be signed in its name and
to be dated as of the date first above written.
ATTEST: MAKER:
By:
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Xxxxx X. Xxxxxxx
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The following LEGEND shall be affixed to the appropriate Stock Certificate
representing the shares of Common Stock covered by this Note:
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LEGEND:
These shares shall be held in Escrow by the Company's Escrow Agent and not be
released for trade or transfer until the earlier of January 1, 1998 or in
increments according to the Vesting Schedule that is detailed in Promissory Note
No. PN-108 (the "Note"), provided the principal amount of this Note relating to
the vested share increments, and all related interest due thereupon, has been
paid to Scangraphics, Inc. (the "Payee").
These Escrowed shares will be forfeited in the event of voluntary termination of
services to the Payee by the Shareholder. These shares will not be forfeited due
to involuntary termination of the Shareholder or in the event the Shareholder is
terminated due to inability to provide services to the Payee for reasons of
health. In the event of death of the Shareholder all restrictions will lapse,
and the then vested shares will accrue to the estate and/or heirs of the
Shareholder. In the event of "change of control" of Scangraphics, Inc., all
restrictions will lapse.
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