Exhibit 10.17
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT (this "Agreement") is effective as of the first day
of May, 1999, by and among Xxxx-Xxxxx.xxx, Inc. (f/k/a Spectrum Information
Technologies, Inc.), a Delaware corporation ("Siti"), Tropia, Inc., a Delaware
corporation ("Tropia"), Red Hat Productions, Inc., a New York corporation ("Red
Hat"), Xxxxxxxx Xxxxx ("X. Xxxxx"), Xxx Xxxxx ("A. Blank") and Arjun Xxxxxx
("Xxxxxx," and together with Red Hat, J. Blank and A. Blank, the "Individuals").
W I T N E S S E T H:
WHEREAS, Siti and the Individuals, among others, were parties to the
Merger and Business Development Agreement dated as of June, 1999 (the "Merger
Agreement"), in connection with which Siti acquired all of the stock of Tropia,
and the Individuals became stockholders of Siti;
WHEREAS, certain disputes have arisen between Siti and Tropia, on one
hand, and the Individuals, on the other; and
WHEREAS, the parties desire to resolve their disputes as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Return of Stock. J. Blank hereby sells, assigns, transfers, sets over,
conveys and delivers to Siti, for no additional consideration, 50,000 shares of
Siti common stock owned by him (the "Shares"), and hereby delivers to SITI one
or more stock certificates evidencing the Shares and stock powers relating
thereto in favor of Siti. The consideration for the Shares shall be the
execution and delivery of this Agreement by Siti. J. Blank represents that he
owns the Shares free and clear of any and all mortgage, pledge, lien, charge,
encumbrance, security interest, restriction, condition, covenant, exception,
option or other rights of any other person or entity. J. Blank shall be entitled
to retain all other shares of Siti common stock owned by him, including all
other shares he received by gift.
2. Releases.
(a) Individuals Release. Each Individual, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby releases and discharges Siti and each of its Affiliates (including,
without limitation, Tropia) and each of the present and former officers,
directors, shareholders, agents and employees of all of the foregoing, and all
of their respective heirs, successors and assigns (all of the foregoing,
collectively, the "Siti Parties"), from all actions, claims, causes of actions,
suits, debts, obligations and demands whatsoever, in law or equity, known or
unknown (collectively, "Claims or Demands"), which against any of the Siti
Parties such Individual ever had, now has, or hereafter can, shall or may have
for, upon, or by reason of any matter, cause or thing whatsoever from the
beginning of the world to the day of the date of this Agreement (including,
without limitation, any claims which arise out of or relate to the Merger
Agreement or which are associated with such Individual's employment by or other
relationship with Siti or Tropia), except for any obligations under this
Agreement and any obligations of the Individuals under the Merger Agreement
arising or to be performed or observed from or after the date hereof. Without
limiting the generality of the foregoing, except as set forth herein, the
foregoing is intended to and does remise, release and discharge every Siti Party
that is an individual from every Claim and Demand any Individual could make
against such Siti Party individually and/or in such individual's capacity as a
director, officer, employee, general partner or tenant-in-common of any entity.
For purposes of this Agreement, an "Affiliate" of any person or entity is any
other person or entity that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with
such other person or entity.
(b) Siti Release. Each of Siti and Tropia, for valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby releases and discharges each Individual and his heirs, successors and
assigns (collectively, the "Individual Parties"), from all Claims and Demands
which against the Individual Parties it ever had, now has, or hereafter can,
shall or may have for, upon, or by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of the date of this
Agreement (including, without limitation, any claims which arise out of or
relate to the Merger Agreement or which are associated with an Individual's
employment by or other relationship with Siti or Tropia), except for any
obligations under this Agreement and any obligations of Siti or Tropia under the
Merger Agreement arising or to be performed or observed from or after the date
hereof. Without limiting the generality of the foregoing, except as set forth
herein, the foregoing is intended to and does remise, release and discharge
every Individual Party from every Claim and Demand Siti or Tropia could make
against such Individual Party individually and/or in such Individual's capacity
as a director, officer, employee, general partner or tenant-in-common of any
entity.
3. Termination of Merger Agreement and Release of Escrow Shares. The
parties hereto hereby agree to terminate the Merger Agreement and that the
Individuals shall not be entitled to any registration rights thereunder. Subject
to Section 1 above, the Individuals shall be entitled to retain all shares of
Siti common stock delivered to the Individuals under the Merger Agreement prior
to the date hereof (i.e., 56,250 shares to each of A. Blank and Xxxxxx and
45,833 shares to Red Hat (distributed solely to J. Blank on account of his
interest in Red Hat)), and the Individuals shall not be entitled to receive any
additional shares thereunder. The parties hereto hereby authorize the Escrow
Agent (as defined in the Merger Agreement), without the need for further notice
or instruction, to immediately release to Siti
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all shares of Siti common stock held by it pursuant to the Escrow Agreement (as
defined in the Merger Agreement).
4. Non-Disparagement. Each Individual hereby covenants and agrees that he
will not in any way disparage any of the Siti Parties or make or solicit any
comments or statement to any third- party that may be considered to be
derogatory or detrimental to the good name or business reputation of any of the
Siti Parties. Each of Siti and Tropia hereby covenants and agrees that it will
not in any way disparage any Individual or make or solicit any comments or
statement to any third-party that may be considered to be derogatory or
detrimental to the good name or business reputation of any Individual. The
parties hereto shall be entitled to injunctive relief to enforce the foregoing
provisions.
5. Miscellaneous Provisions.
(a) Entire Agreement; Amendments. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof
and will supersede any prior understandings or agreements. No amendment or
modification of this Agreement shall be valid or binding upon the parties hereto
unless made in writing and executed by the party hereto against whom enforcement
is sought.
(b) Counterparts and Faxed Signatures. This Agreement may be
executed via fax and in counterparts, each of which shall be an original, but
which together shall constitute one and the same Agreement.
(c) Severability. If any provision of this Agreement or the
application thereof to any person(s) or entity(ies) or circumstance(s) shall be
invalid or unenforceable to any extent, (a) the remainder of this Agreement and
the application of such provision to other person(s) or entity(ies) or
circumstance(s) shall not be affected thereby; and (b) each such provision shall
be enforced to the greatest extent permitted by law.
(d) No Waiver. No consent or waiver, express or implied, by a party
hereto to or of any breach by the other party in the performance by it or him of
any of its or his obliga tions hereunder shall be deemed or construed to be a
consent or waiver to or of the breach in the performance by such party of the
same or any other obligation of such party hereunder. Failure on the part of any
party hereto to complain of any act or failure to act of the other party or to
declare the other party in default, irrespective of how long such failure
continues, shall not unless otherwise herein provided to the contrary constitute
a waiver by such party of its rights hereunder. All consents and waivers shall
be in writing.
(e) Governing Law; Consent to Jurisdiction; Successors and Assigns.
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York, exclusive of conflicts of laws
provisions. The parties hereto consent to the jurisdiction of the courts of the
State of New York for any dispute arising out of or related
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to this Agreement. This Agreement shall inure to the benefit of, be binding upon
and be enforceable by and against the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
1st day of May, 2000.
XXXX-XXXXX.XXX, INC. (F/K/A
SPECTRUM INFORMATION
TECHNOLOGIES, INC.)
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Chairman and CEO
TROPIA, INC.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Chairman
RED HAT PRODUCTIONS, INC.
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
Title: President
/s/ Xxxxxxxx Xxxxx
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XXXXXXXX XXXXX
/s/ Xxx Xxxxx
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XXX XXXXX
/s/ Xxxxx Xxxxxx
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ARJUN XXXXXX
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