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AMENDED AND RESTATED SETTLEMENT AGREEMENT
This Amended and Restated Settlement Agreement ("Agreement") is by and
among Xxxxxxx X. Xxxxxxxx, a citizen and resident of the State of Florida, High
Speed Net Solutions, Inc., a Florida corporation with its principal place of
business at Suite 2120, 000 Xxxxxxxxxxxx Xx. Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx
00000, and Xxxxxxx Xxxxxx, a citizen and resident of the State of Florida
(collectively the "parties").
Under the terms and conditions stated below, the parties desire to
resolve the Litigation (as defined below), and any other claims between or among
any of the parties that are related to the Litigation or the August 13, 1999
Agreement between Xxxxxxx X. Xxxxxxxx and High Speed Net Solutions, Inc.
I. DEFINITIONS.
The terms set forth below shall have the following meanings in this
Agreement:
A. Execution Date
The "Execution Date" of this agreement is the last date that
appears on the execution page of this Agreement such that all parties have
executed this Agreement on or before such Execution Date.
B. The Litigation
The "Litigation" refers to the lawsuit filed in the Miami-Dade
County Circuit Court, captioned Xxxxxxxx v. High Speed Net Solutions, Inc. (Case
No. 00-2229-CA 11).
C. HSNS
"HSNS" means High Speed Net Solutions, Inc., the corporation
that is the defendant in the Litigation, and all subsidiaries, related entities,
and successors, including but not limited to J S J Capital Corp., Inc. A
"successor" includes any company that is the survivor of any merger with HSNS,
any company that, as a result of a share exchange with HSNS, becomes HSNS's
parent, and any company that acquires as a result of any transaction all or
substantially all of the assets of HSNS.
X. Xxxxxxxx
"Xxxxxxxx" means Xxxxxxx X. Xxxxxxxx, his assigns,
successors-in-interest, or any other entity of whatever form or characteristic
which is now entitled to, or which shall
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subsequently succeed to, the rights and obligations of Xxxxxxx X. Xxxxxxxx.
E. Registrable Shares
"Registrable Shares" shall mean the following shares of common
stock of HSNS to be registered by HSNS pursuant to this Agreement:
(i) 350,000 shares, which the parties agree that
Xxxxxxxx currently holds; plus
(ii) the 150,000 shares to be delivered to Xxxxxxxx
pursuant to paragraph II.A.; plus
(iii) the shares to be delivered to Xxxxxxxx pursuant to
paragraph II.B. below; plus
(iv) the shares, if any, determined by the calculation in
paragraph II.D. below; minus
(v) the number of Registrable Shares, if any, sold by
Xxxxxxxx pursuant to SEC Rule 144 before the effective date of the registration
statement.
F. Restricted Securities
"Restricted Securities" shall refer to shares of stock that
may be resold without registration under the Securities Act of 1933 only in
certain limited circumstances, including without limitation, Securities and
Exchange Commission (SEC) Rule 144, as presently in effect.
X. Xxxxxx
"Xxxxxx" or "Xxxxxxx Xxxxxx" means the past chairman and
president of HSNS, who signed the August 13, 1999 Agreement between Xxxxxxx X.
Xxxxxxxx and High Speed Net Solutions, Inc., on behalf of HSNS, which agreement
is the subject of the Litigation between Xxxxxxxx and HSNS, his assigns,
successors-in-interest, or any other entity of whatever form or characteristic
which is now entitled to, or which shall subsequently succeed to, the rights and
obligations of Xxxxxxx Xxxxxx.
II. TERMS OF SETTLEMENT
A. HSNS shall deliver to Xxxxxxxx on or before the fifth (5th)
business day following the Execution Date One Hundred Fifty Thousand (150,000)
Registrable Shares, unencumbered with any restrictions, covenants, loans,
mortgages, security interests or
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other devices or conditions; provided, however, that Xxxxxxxx acknowledges that
these 150,000 Registrable Shares will be issued to Xxxxxxxx as Restricted
Securities under the federal securities laws.
B. HSNS shall also deliver additional Registrable Shares,
unencumbered with any restrictions, covenants, loans, mortgages, security
interests or other devices or conditions (except that Xxxxxxxx acknowledges that
these shares will be issued to Xxxxxxxx as Restricted Securities under the
federal securities laws), commencing with a first delivery of stock on the
Execution Date, and continuing each month thereafter on the monthly anniversary
of the Execution Date, in such amount of shares each month as described in
paragraphs II.B(i) and II.B(ii) below. HSNS' obligation to deliver shares under
this paragraph II.B shall terminate upon HSNS fulfilling its obligation under
paragraph II.C to cause an effective registration statement to be available for
the Registrable Shares of HSNS stock that enables Xxxxxxxx to sell the
Registrable Shares.
(i) During the period commencing on the Execution Date
and ending on the day before the first monthly anniversary following January 1,
2001, the number of additional Registrable Shares delivered to Xxxxxxxx per
month under this paragraph II.B shall be 25,000.
(ii) During the period commencing on the first monthly
anniversary following January 1, 2001, and continuing thereafter, the number of
additional Registrable Shares delivered to Xxxxxxxx per month under this
paragraph II.B shall be 50,000 shares. The number of additional Registrable
Shares delivered to Xxxxxxxx per month under this paragraph II.B shall remain at
the amount of 50,000 shares until HSNS has delivered an effective registration
statement for the Registrable Shares.
C. On or before July 1, 2000, HSNS shall file a registration
statement with the SEC for all Registrable Shares owned by, or due and owing to,
Xxxxxxxx, and shall thereafter use all reasonable efforts and dispatch,
including but not limited to responding to SEC comments and filing amendments to
the registration statement, to enable the SEC to declare the registration
statement effective at the earliest possible date. All costs and expenses of the
registration process, including but not limited to professional fees for
preparing the registration statement and assisting HSNS during the registration
process, shall be borne by HSNS.
D. If on the effective date of the registration statement, the
ten-day moving average closing price for HSNS stock is less than $23 per share,
then HSNS shall increase the number of
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Registrable Shares covered by the registration statement to make up the
difference between (a) the product obtained by multiplying $23 by the sum of
400,000 plus any additional shares delivered pursuant to paragraph II.B., and
(b) the product obtained by multiplying the ten-day moving average closing price
for HSNS stock as of the effective date of the registration statement by the sum
of 450,000 plus any additional shares delivered pursuant to paragraph II.B
(hereinafter, the "Difference"). The number of Registrable Shares to be included
to make up the Difference shall be computed by dividing the Difference by the
ten-day moving average closing price for HSNS stock as of the effective date of
the registration statement. HSNS shall deliver this number of additional shares
to Xxxxxxxx on the effective date of the registration statement.
E. It shall be deemed a material breach of this Agreement by HSNS
if for any reason the registration statement has not been declared effective by
the SEC by January 1, 2001. In that event, Xxxxxxxx shall have the right but not
the obligation immediately to commence arbitration proceedings, as hereunder
described, against HSNS, provided that no delay by Xxxxxxxx in commencing such
proceedings shall be deemed a waiver of any rights that Xxxxxxxx has under this
Agreement.
F. To the extent permitted by law, Xxxxxxxx shall be free, but
not obligated, to sell any Registrable Shares of HSNS common stock under SEC
Rule 144. Any such shares sold by Xxxxxxxx under SEC Rule 144 shall be
subtracted from the calculation of Registrable Shares as prescribed above.
G. HSNS shall pay Xxxxxxxx Twelve Thousand Seven Hundred Fifty
Dollars ($12,750) on the Effective Date of this Agreement.
H. HSNS shall pay Xxxxxxxx Twelve Thousand Seven Hundred Fifty
Dollars ($12,750) each month on or before the monthly anniversary of the
Effective Date during the period commencing on the first monthly anniversary
after the Execution Date and ending on the last day of the month in which the
registration statement for the Registrable Shares is declared effective by the
SEC.
I. The parties agree that the provisions of paragraphs II.B, II.
G, and II.H are not a penalty and that they represent a reasonable attempt to
remedy the economic harm accruing to Xxxxxxxx from delays in resolving the
controversies surrounding HSNS' compliance with the August 13, 1999 Agreement.
J. HSNS shall require Xxxx Xxxxxxxxxx to sign a non-compete
agreement whereby he is unable to compete with HSNS through, and including, the
effective date of the registration statement for the Registrable Shares.
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X. Xxxxxxxx shall not allow any HSNS stock owned by him to be
shorted on or before the effective date of a registration statement.
X. Xxxxxxxx shall have "piggyback" registration rights should the
shares of any entity be registered under the Securities Act by HSNS prior to the
effective date of the registration statement for the Registrable Shares.
III. SATISFACTION OF JUDGMENT OR DISMISSAL OF THE LITIGATION
X. Xxxxxxxx shall contemporaneously with the execution of this
Agreement execute either the Satisfaction of Judgment (attached as Exhibit A and
incorporated by this reference) or the Stipulation of Dismissal (attached as
Exhibit B and incorporated by this reference) as necessary.
IV. RELEASE OF CLAIMS
A. Release by Xxxxxxxx
Xxxxxxxx hereby releases HSNS, together with each of its
officers, directors, agents, employees, attorneys, and representatives, for any
and all claims, actions, causes of action, or liabilities of any sort or
character, whether known or unknown, arising from the beginning of time to the
Execution Date of this Agreement which were asserted in the Litigation or could
have been asserted in the Litigation.
B. Release by HSNS
HSNS, together with its officers, directors, agents,
employees, attorneys, and representatives, hereby releases Xxxxxxxx for any and
all claims, actions, causes of action, or liabilities of any sort or character,
whether known or unknown, arising from the beginning of time to the Execution
Date of this Agreement which were asserted in the Litigation or could have been
asserted in the Litigation.
C. No Release of Obligations under this Agreement
Nothing herein shall constitute a release by any party of any
person of his or its obligations under this Agreement.
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V. CONFIDENTIALITY
A. Confidentiality Obligation
The terms and conditions of this Agreement shall be kept
confidential by the parties, and shall not be disclosed to any third party
except as required by law (including SEC disclosure requirements) or as
otherwise provided herein. This Agreement may be provided to a party's attorney,
accountant, or financial advisor, subject to such party's agreement to maintain
the confidentiality of the agreement and its terms and conditions. This
Agreement may also be provided to a governmental authority or the public when
there is a legal obligation to provide the document to such authority. Except as
required by law, the parties shall make no comment to any third party, including
but not limited to any press release, about the settlement of the Litigation
other than stating that the claims in the Litigation have been dismissed with
prejudice and that the dispute has been settled to the mutual satisfaction of
all parties.
B. Third-Party Requests
In the event that the terms or conditions of this Agreement
shall be requested by a third party in a legal proceeding, by subpoena, document
request, or otherwise, the party receiving the request shall provide notice to
the other party pursuant to the notice provisions of this Agreement in
sufficient time to allow the other party the opportunity to intervene and limit
or prevent the disclosure in that legal proceeding. In any case, the producing
party shall make all reasonable efforts to obtain confidential treatment of the
Agreement or its terms and conditions in any legal proceeding.
VI. ARBITRATION
A. Controversies to be Arbitrated
Any dispute, controversy, or claim under this Agreement shall
be finally resolved by arbitration in Miami, Florida, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association and
enforced by a single arbitrator who shall be an attorney experienced in
securities law matters and selected by the parties. If the parties are unable to
agree upon an attorney, an attorney experienced in securities law matters shall
be appointed by the American Arbitration Association in accordance with its
rules.
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B. Arbitration Award.
The award of the arbitration shall be final and enforceable in
any court of competent jurisdiction and may include the cost of arbitration and
reasonable attorney's fees.
VII. NOTICE
Any notice provided for under this agreement shall be made in writing
via overnight delivery. If the notice is directed to Xxxxxxxx, the notice shall
be addressed as follows:
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxxxx, P.A.
Xxxxx 000, 00 XX Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
If the notice is directed to HSNS, the notice shall be addressed as follows:
High Speed Network Solutions, Inc.
Suite 2120, 000 Xxxxxxxxxxxx Xx. Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: President
With a copy to:
Xxx Xxxxxxxx
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
If the notice is directed to Xxxxxx, the notice shall be addressed as follows:
Xxxxxxx X. Xxxxxx
0000 X. Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
With a copy to:
Xxxx Xxxx, Esq.
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
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The addresses for delivery of notice may be changed by any party by
providing written notice in the manner set forth above.
VIII. ACKNOWLEDGMENTS
The parties previously entered into a Settlement Agreement, dated May
4, 2000 (the "Original Settlement Agreement"). The parties have agreed to amend
and restate the Original Settlement Agreement because certain provisions of the
Original Settlement Agreement became impossible to perform due to the discovery
of a published SEC interpretation regarding an issue about which HSNS was
required to deliver a legal opinion. Without the legal opinion the original
Settlement Agreement could not be fully performed and the parties have therefore
negotiated new terms and conditions as expressed in this Agreement.
The parties acknowledge and agree that: (i) no stock or consideration
was issued by HSNS to Xxxxxxxx under the Original Settlement Agreement; (ii) any
transfers of possession or ownership of any HSNS shares owned by Xxxxxxx Xxxxxx
in partial performance of the Original Settlement Agreement are rescinded and
Xxxxxxxx shall use his best efforts to unwind, rescind, and reconvey such
transferred shares; and (iii) that this Agreement replaces entirely the Original
Settlement Agreement and the parties shall have no obligations whatsoever
arising from the Original Settlement Agreement.
Xxxxxx is a party to this Agreement solely for the purposes of this
Section VIII. Xxxxxx agrees, acknowledges and affirms that the Original
Settlement Agreement is rescinded and is null and void. Xxxxxx agrees,
acknowledges and affirms that the letter agreement dated May 2, 2000 between
Xxxxxx and HSNS is rescinded and is null and void. Xxxxxx warrants and
represents that there are no understandings or agreements of any kind or nature
between Xxxxxx and HSNS or between Xxxxxx and Xxxxxxxx arising from or relating
to the Litigation or the Original Settlement Agreement.
This Agreement supersedes in full any and all previous conversations,
understandings, tentative agreements or actual agreements resolving or
attempting to resolve the Litigation.
IX. MISCELLANEOUS
A. Binding Nature of Agreement
This Agreement shall be binding on HSNS (as defined above),
Xxxxxxxx (as defined above), and Xxxxxx (as defined above) and their respective
successors and assigns.
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B. Application of Florida Law
This Agreement shall be construed in accordance with the laws
of the State of Florida without giving effect to principles of conflict of laws.
C. No Admission of Liability
This Agreement constitutes a compromise of disputed claims,
and is entered into to avoid the costs and uncertainties of litigation. By
entering into this Agreement, no party hereto admits any liability whatsoever,
and any such liability is expressly denied.
D. Severability
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
E. Entire Agreement
This Agreement and its exhibits hereto contain the entire
agreement of the parties. They are intended to supersede and replace any prior
or contemporaneous agreement of the parties with respect to the subject matter
of this Agreement and its exhibits, which includes, but is not necessarily
limited to, the settlement of the Litigation. No party has relied on any oral
representations whatsoever in entering into this Agreement or its exhibits, and
the only written representations that are or have been relied on are those
expressly made in this Agreement. This Agreement and its exhibits shall be
modified only in a writing executed by all parties thereto which specifically
and expressly refer to this Agreement.
F. Neutral Construction
This Agreement has been drafted with the cooperation and
participation of all parties and their attorneys. Accordingly, no part of this
Agreement shall be construed in favor of or against any party.
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G. Additional Steps and Procedures
From time to time after the execution of this Agreement, each
of the parties hereto hereby agrees to use all reasonable efforts to take, or
cause to be taken, all action and to do, or cause to be done, all things
necessary, proper and advisable under applicable laws, rules and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including using its best efforts to obtain all necessary waivers, consents and
approvals. In case at any time after the execution of this Agreement further
action is necessary or desirable to carry out the purposes of this Agreement,
the proper officers and directors of each of the parties shall take all such
necessary action.
H. Warranty of HSNS
HSNS warrants that, prior to the execution of this Agreement
by Xxxxxxxx, it has made public disclosure, by a disseminated press release, of
all material information concerning the status and terms of any negotiations and
discussions between HSNS and any other person or representative of any other
person concerning any merger, share exchange, or sale of all or substantially
all of HSNS's assets.
I. Execution in Counterparts
This Agreement may be executed in multiple counterparts, each
constituting an original document for all purposes for which an original
document may be required.
(the remainder of this page is left intentionally blank)
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THIS AGREEMENT EXECUTED by the parties as of this __ day of June 2000.
XXXXXXX X. XXXXXXXX HIGH SPEED NET SOLUTIONS, INC.
/s/ XXXXXXX X. XXXXXXXX By: /s/ Xxxx X. Xxxxxxxxxx
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Printed Name:
Xxxx X. Xxxxxxxxxx
Title:
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
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EXHIBIT A
IN THE CIRCUIT COURT
OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Case No. 00-2229-CA 11
GENERAL JURISDICTION DIVISION
XXXXXXX X. XXXXXXXX, )
Plaintiff, )
v. )
HIGH SPEED NET SOLUTIONS, INC., )SATISFACTION OF JUDGMENT
Defendant. )
)
)
)
)
)
)
)
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The undersigned owner and holder of a Final Judgment against HIGH SPEED
NET SOLUTIONS, INC. recorded in Official Records Book ___, page ____, of the
Public Records of Miami-Dade County, Florida, acknowledges that full payment
thereof has been received and by this instrument does satisfy such Final
Judgment.
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XXXXXXX X. XXXXXXXX
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this ___ day of _____, 2000,
by XXXXXXX X. XXXXXXXX, who is personally known to me/who has produced his
driver's license as identification and who did/did not take an oath.
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Notary Public
State of Florida at Large
Prepared by (and return to):
Xxxx X. Xxxxxxxxx, Esq.
000 Xxxxx xx Xxxx Xxxx., Xxxxx 0000
Xxxxx Xxxxxx, XX 00000
Tel: (000)000-0000
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EXHIBIT B
IN THE CIRCUIT COURT
OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
Case No. 00-2229-CA 11
GENERAL JURISDICTION DIVISION
XXXXXXX X. XXXXXXXX, )
Plaintiff, )
v. )
HIGH SPEED NET SOLUTIONS, INC., )
Defendant. )STIPULATION OF DISMISSAL
)WITH PREJUDICE
)
)
)
)
)
)
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Pursuant to Florida Rule of Civil Procedure 1.420(a), Plaintiff Xxxxxxx X.
Xxxxxxxx herewith dismisses, with prejudice, any and all claims which are now,
or which at any time in the past were, asserted herein. Each party shall bear
its own costs and attorneys fees. This ____ day of June, 2000.
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Xxxxxxx X. Xxxxxxx Xxxx Xxxxxxxxx
XXXXXXX X. XXXXXXX, P.A. XXXXXXXXXX XXXXXXXX XXX
Xxx. Xxx Xx. 000000 Xxx. Bar No. 312541
00 XX Xxxxxx Xxxxxx 999 Xxxxx de Xxxx Xxxxxxxxx
Xxxxx 000 Xxxxx 0000
Xxxxx, Xxxxxxx 00000 Xxxxx Xxxxxx, Xxxxxxx 00000
(000) 000-0000 (000) 000-0000
Attorneys for Plaintiff Attorneys for Defendant
Xxxxxxx X. Xxxxxxxx High Speed Net Solutions, Inc.
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