EXHIBIT C
FORM OF SETTLEMENT AGREEMENT
WITH CLASS D WARRANTHOLDERS
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is made as of this 9th day of April 1999, by
and between Computer Marketplace, Inc., a Delaware corporation (the "Company")
and (the "Investor").
WHEREAS, in December 1996 the Investor acquired Class D Common Stock
Purchase Warrants (the "Class D Warrants") from the Company and shares (the
"Medical Marketplace Shares") of common stock, par value $.0001 per share, of
Medical Marketplace, Inc., a subsidiary of the Company ("Medical Marketplace"),
from Medical Marketplace; and
WHEREAS, the parties desire to fully and finally terminate and cancel
all controversies, disputes, claims, debts, obligations and matters of whatever
nature existing between them, or which may heretofore have arisen between the
Investor, the Company and Medical Marketplace; and
WHEREAS, this Agreement is executed in compromise and settlement of
potential claims brought by the Investor against the Company and/or Medical
Marketplace in order to avoid the continued uncertainty, expense and
inconvenience of potential litigation.
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants and conditions hereinafter contained, the parties hereto agree as
follows:
1. ISSUANCE OF THE COMPANY SHARES; FORFEIT OF CLASS D WARRANTS
AND MEDICAL MARKETPLACE SHARES; VOTING AGREEMENT.
1.1 Subject to and on the terms and conditions hereof, in reliance
on the representations and warranties contained herein, (i) the Company agrees
to issue on the Closing Date (as hereinafter defined) to the Investor shares of
the Company's unregistered common stock, par value $.0001 per share (the
"Company Shares"), and (ii) the Investor shall deliver to the Company and
Medical Marketplace for cancellation the Class D Warrants and the Medical
Marketplace Shares.
1.2 The Investor hereby grants its/his proxy to vote the Company
Shares to L. Xxxxx Xxxxx, the Company's Chief Executive Officer. Further, the
Investor agrees to sign and deliver on the Closing Date a proxy, a form of which
is attached hereto as Exhibit A. Any third party who acquires the Company Shares
in a private transaction shall be bound by the terms and provisions of this
Section 1.2.
2. GENERAL RELEASE OF THE COMPANY AND MEDICAL MARKETPLACE. The
Investor, and each of its affiliates, as Releasors, hereby and forever discharge
the Company, Medical Marketplace, and each of its affiliates, and their
respective heirs, executors, administrators, successors, assigns, officers,
directors, counsel and stockholders, as Releasees, from any and all claims,
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extent,
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executions, claims, and demands whatsoever, in law, admiralty or equity, which
they, and their heirs, executors, administrators, successors and assigns may
ever have had or may then have for, upon, or by reason of any matter, cause or
thing whatsoever from the beginning of the world to and including the Closing
Date.
3. CLOSING.
3.1 The closing of the transactions provided for herein
(hereinafter referred to as the "Closing") shall be held at the offices of the
Company's legal counsel on the date hereof.
3.2 At the Closing:
(a) the Investor shall deliver to the Company and Medical
Marketplace (i) an executed copy of this Agreement, (ii) an executed
proxy and (iii) certificate(s) evidencing the Class D Warrants the
Medical Marketplace Shares duly endorsed in blank with signature
guaranteed, or with stock power attached, duly endorsed in blank with
signature guaranteed;
(b) the Company shall deliver to the Investor (i) an
executed copy of this Agreement and (ii) certificates evidencing the
number of Company Shares.
4. REPRESENTATIONS AND WARRANTIES OF THE INVESTOR. The Investor
represents and warrants to the Company and Medical Marketplace that the
following are true and correct as at the date hereof:
(a) The Investor is the sole owners of, and has good and
marketable title to, the Class D Warrants and the Medical Marketplace
Shares, free and clear of any and all liens, pledges, charges,
encumbrances, options or claims whether or not of record and have the
absolute and unrestricted right and power, authority and capacity to
consummate the transactions contemplated hereby.
(b) The Investor has the full power and authority to
execute, deliver and perform this Agreement. The Investor is not a
party to any agreement, contract or understanding pursuant to which the
Investor is or may be obligated to sell the Class D Warrants and/or the
Medical Marketplace Shares, and none of the terms, conditions and
provisions hereof conflict with, result in a breach of the terms,
conditions or provisions of, or constitute a default, an event of
default or an event creating rights of acceleration, termination or
cancellation of any agreement, corporate charter or by-law to which the
Investor is a party.
(c) The Investor is acquiring the Company Shares for
investment for such Seller's own account and not as a nominee or agent,
and not with a view to the resale or distribution of any part thereof,
and the Investor has no present intention of selling, granting any
participation in, or otherwise distributing the same. The Investor
further represents that it does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant a
participation to such person or to any third person, with respect to
any of the Company Shares.
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(d) Such Seller understands that the Company Shares are
not registered under the Act on the ground that the sale and the
issuance of securities hereunder is exempt from registration under the
Act pursuant to Section 4(2) thereof, and that the Company's reliance
on such exemption is predicated on such Seller's representations set
forth herein. The Investor is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D under the Act.
(e) The Investor acknowledges that it can bear the
economic risk of its investment, and has such knowledge and experience
in financial and business matters that it is capable of evaluating the
merits and risks of owning the Company Shares.
(f) The Investor has carefully reviewed such information
as the Investor deemed necessary to evaluate the Company Shares. To the
full satisfaction of the Investor, it has been furnished all materials
that it has requested relating to the Company and the issuance of the
Company Shares hereunder, and the Investor has been afforded the
opportunity to ask questions of representatives of the Company to
obtain any information necessary to verify the accuracy of any
representations or information made or given to the Investor.
(g) The Investor understands that the Company Shares may
not be sold, transferred, or otherwise disposed of without registration
under the Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Company Shares or any
available exemption from registration under the Act, the Company Shares
must be held indefinitely. Such Seller is aware that the Company Shares
may not be sold pursuant to Rule 144 promulgated under the Act unless
all of the conditions of that Rule are met. Among the conditions for
use of Rule 144 may be the availability of current information to the
public about the Company.
(h) The Investor acknowledges and understands that
certificates for the Company Shares to be issued and delivered to them
hereunder will bear substantially the following legend:
"The securities represented by this Certificate have been
acquired without registration under the Securities Act of
1933, as amended. No transfer, sale or distribution of these
securities or any interest therein may be made except under an
effective registration statement under said Act covering such
securities unless the Corporation has received an opinion of
counsel satisfactory to it that such transfer or sale does not
require registration under said Act.
The right to vote the securities represented by this
Certificate is subject to the terms and provisions of a
Settlement Agreement and Irrevocable Proxy."
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5. ENTIRE AGREEMENT. This Agreement and any document referred to
herein constitutes the entire Agreement among the parties hereto with respect to
the subject matter hereof and supersedes all prior written or oral warranties,
representations, inducements, understandings, commitments, agreements or
contracts. No amendment to or modification of the terms or conditions hereof
shall be binding unless it is in writing and signed by the party against whom
the amendment or modification is charged.
6. NO ADMISSIONS. This Agreement effects the settlement of
potential claims which are denied, disputed and contested, and nothing contained
herein shall be construed as an admission of wrongdoing by any party hereto or
as an admission of any liability of any kind to any other party. Each of the
Parties hereto denies any liability in connection with any potential claim and
intends merely to avoid the uncertainties of litigation and to buy its peace.
7. LEGAL ADVICE. The Parties hereto received independent legal
advice from their attorneys with respect to the advisability of making this
Agreement.
8. INVESTIGATION. The Parties hereto have made such investigation
of the facts pertaining to this settlement and this Agreement, and of all the
matters pertaining thereto, as they deem necessary.
9. AFTER-ACQUIRED FACTS. The Parties hereto are aware that they
may hereafter discover or become aware of facts, circumstances, or
interpretations thereof in addition to or different from those they now know or
believe to be true with respect to the subject matter hereof. Nevertheless, it
is their intention fully, finally, and forever to settle and release all
matters, claims, and disputes which do now exist, heretofore have existed, or
may hereafter arise between them and any or all of the released parties with
respect to the subject matter of this Agreement, except as provided herein. In
furtherance of this intention, the releases given in this Agreement shall be and
remain in effect as a full and complete release of all such matters,
notwithstanding the discovery or existence of any additional or different claims
or facts relative thereto, except as provided herein.
10. CORPORATE AND PARTNERSHIP AUTHORIZATION. Each corporate and
partnership party to this Agreement represents and warrants that (a) all
corporate or partnership action necessary for the execution, delivery and
performance of this Agreement has been taken and this Agreement constitutes the
valid, binding and enforceable agreement of such party, (b) neither the
execution or delivery of this Agreement nor the performance of its terms will
violate its certificate or articles of incorporation or by-laws or partnership
agreement or any agreement to which such party is a party.
11. GOVERNANCE OF DELAWARE LAW. The laws of the State of Delaware
applicable to contracts made and fully to be performed therein shall govern the
validity, construction, performance, and effect of this Agreement, although
without regard to any choice of law provisions thereof or principles of
conflicts of law as might otherwise be applied by courts applying Delaware law.
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12. NON-ASSIGNABILITY OF AGREEMENT. This Agreement may not be
assigned by any party without the prior written consent of all other parties.
13. NO PRESUMPTION AGAINST ANY PARTY AS DRAFTER. This Agreement
represents the joint product of each of the parties after fully informed and
vigorous arms length negotiation and no presumption may drawn against any party
as the putative drafter of the Agreement.
14. EXCLUSION OF THIRD-PARTY BENEFICIARIES. The provisions of this
Agreement are not intended to and shall not be deemed to confer any rights or to
inure to the benefit of any third-party directly or indirectly, extent as
otherwise set forth herein.
15. BINDING ON SUCCESSORS AND OTHERS. This Agreement and the
covenants and conditions contained herein shall apply to, be binding upon and
inure to the administrators, executors, conservators, trustees, legal
representatives, assignees, successors, agents and assigns of the Parties.
16. FEES AND COSTS. The Parties agree to bear their own costs and
attorneys' fees incurred with respect to the preparation and negotiation of this
Agreement and the settlement herein contained.
17. ATTORNEYS' FEES. In the event any party brings a claims
arising from or relating to this Agreement, the "prevailing party" shall be
entitled to recover all its reasonable attorneys' fees and costs incurred as a
result of such a claim as costs of suit or as damages.
18. FURTHER DOCUMENTS. The Parties shall execute and deliver all
documents and perform all further acts that may be reasonably necessary to
effectuate the provisions of this Agreement.
19. MEANING OF TERMS. When necessary herein, all terms used in the
singular shall apply to the plural, and vice versa, and all terms used in the
masculine shall apply to the neuter and feminine genders, and vice versa. The
headings of paragraphs of this Agreement are inserted solely for convenience of
reference and are not a part of and are not intended to govern, limit or aid in
the construction of any term or provision hereof.
20. COUNTERPARTS. Each party to this Agreement may sign a copy of
this Agreement and each such executed copy shall have the same force and effect
as if each party had signed the original.
21. NOTICES. Any notices under this Agreement shall be personally
served and/or mailed and/or transmitted via facsimile to the Parties and their
counsel as follows:
If to the Company or Medical Marketplace: L. Xxxxx Xxxxx
President
Computer Marketplace, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Investor ___________________________
___________________________
___________________________
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IN WITNESS WHEREOF, the parties have hereunto executed this
Agreement as of the date set forth above.
COMPUTER MARKETPLACE, INC.
By: /s/ L. XXXXX XXXXX
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Name: L. Xxxxx Xxxxx
Title: President
[THE INVESTOR]
By:
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Name:
Title:
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