SETTLEMENT AGREEMENT AND RELEASE
TI-HS SETTLEMENT AGREEMENT AND RELEASE (this "Agreement") is
dated as of December 31, 1999 by and among xxxxxxxx.xxx, a Nevada
corporation (the "Company"); MicroFinanciaL Inc., a Massachusetts corporation
("MicroFinancial"); Leasecomm Corp., a wholly-owned subsidiary of
MicroFinancial "Leasecomm"); Xxxxxx X. Xxxxxx ("Xxxxxx"); and Xxxxxxx Xxxxxxxx
and Xxxxxxx Xxxx Xxxxxxxx (together, the "Trapassos"). As used herein, the
term "Company" shall include Elective Investments, unless the context
otherwise requires, and the term MicroFinancial shall include Leasecomm,
unless the context otherwise requires.
WHEREAS, the Company has a collateral shortfall under a credit fine
("Credit Line") extended by MicroFinancial (the "Shortfall");
WHEREAS, pursuant to an outstanding note payable to MicroFinancial
dated April 14, 1998, the Company owes MicroFinancial certain amounts as of
December 31, 1999 (the "Demand Note");
WHEREAS, pursuant to the terms of the Credit Line, the Company owes
MicroFinancial certain other amounts as of December 31, 1999 (the "Other
Debt");
WHEREAS, pursuant to various loans, the Company owes Xxxxxx and the
Trapassos certain amounts of December 31, 1999; and
WHEREAS, the parties hereto desire to settle fully and finally all
claims and outstanding obligations upon the terms and subject to the
conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing premises, and
for other good and variable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
A.Settlement
I . MicroFinancial hereby expressly assumes and agrees to
perform, and the Company assigns to MicroFinanciaL all of the Company's
rights, relating to the underlying contracts/collateral among under the
Credit Line; MicroFinancial shall assume any and all billing, accounting and
collection obligations with respect to any such contracts/collateral, and
irrevocably release the Company from any obligation or liability to make
any payment of principal or interest with respect thereto. The Company
hereby assigns to MicroFinancial all of its right, title and interest in
and to any proceeds of any such contracts/collateral. The Company represents
and warrants that the contracts relating to the undergo collateral are
valid, legally enforceable and are in accordance with all local, state and
federal laws.
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2. Xxxxxx hereby agrees to pay $12,805 to MicroFinancial and to
assume, and MicroFinancial agrees to assign to Xxxxxx all its right, title and
interest under the Demand Note, without recourse. Not withstanding the mutual
releases set forth below, the purchase of the Demand Note by Xxxxxx, or any
other provision hereof shall not relieve Xxxxxx of any personal guarantees
that he may have made, from time to time, to MicroFinancial.
3. MicroFinancial expressly assumes and agrees to perform and
the Company hereby assigns to MicroFinancial, the purchase and sale
agreement, dated August 20, 1999, between the Company and Pilot Financial
without recourse to the Company. MicroFinancial shall perform any and all
obligations of the Company related to any of the foregoing. The Company hereby
pays to MicroFinancial $3,789.60, representing all payments received by the
Company after September 15, 1999 and before the date hereof with respect to
such agreement.
4. ALL of the re debt obligations owed by the Company to
Leasecomm or MicroFinancial shall be converted in full, final and complete
settlement of such obligations as follows:
a. The Company hereby issues to MicroFinancial its
Convertible Subordinated Debenture, in the form attached hereto, in the
initial principal amount of $1,873,297 (the "Debenture").
b. The Company hereby issues to MicroFinancial 503,723
shares of its Common Stock. To the extent that the Company is required to
adjust the number of shares of its Common Stock issuable under the
Debenture, the Company shall issue to MicroFinancial an additional number of
shares equal to the additional number of shares for which the Debenture
would be convertible by reason of such adjustments, calculated on the
assumption that the initial principal amount of the Debenture was $503,723.
All such shares, when issued, will be duly authorized, fully paid and
non-assessable by the Company.
5. The Company hereby issues to Xxxxxx 226,118 shares of its
Common Stock, in exchange for the forgiveness and release of all of the
Company's indebtedness to Xxxxxx including, without limitation, all interest,
principal and other amounts due pursuant to the Demand Note, any other term or
demand notes the Company to Xxxxxx and any other obligations the Company
may have to Xxxxxx with respect to borrowed money as of December 31, 1999.
Xxxxxx acknowledges that such shares are not registered, do not carry any
registration rights and shall bear a restrictive legend as set forth in
Section C(l)(h).
6. The Company hereby issues to Xxxxxxx Traspasso 27,628
shares of its Common Stock, in exchange for the forgiveness and release of
all of the Company's indebtedness to him, including, without limitation all
interest, principal and other amounts due pursuant to any term or demand
notes the Company issued to him, and any other obligation the Company may
have to him with respect to borrowed money as of December 31, 1999. Xxxxxxx
Traspasso acknowledges that such shares are not registered, do not carry any
registration rights and shall bear a restrictive legend as set forth in
Section C(l)(h).
7. The Company shall notify MicroFinancial within five (5)
business days following a vote of the Board of Directors with respect to
any Capital-Related Transaction (as defined below). Such notification shall
include a copy of the minutes from the Board meeting
Settlement Agreement and Release Page 2 of 13
wherein a vote was taken upon such transaction. In addition, the Company
shall notify MicroFinancial within ten (IO) business days following any cash
payments in excess of $5,000 made by the Company in any fiscal quarter to any
member of
the Company's Board of Directors, their immediate families or other
entities over which such member or their families have control whether
direct or indirect. The term "Capital-Related Transaction" shall mean the
issuance of any equity or debt securities by the Company (other than
pursuant to the exercise of options previously granted).
B. Release
I . Subject to and upon the date of this Agreement,
MicroFinancial and Leasecomm hereby release, remise, and forever discharge
the Company, Xxxxxx and the Trapassos and their respective current and
former administrators, assigns, predecessors, successors, employees,
shareholders, agents, servants, officers, directors, parents, affiliates
and subsidiaries, of and from any and all debts, demands, actions, causes of
action, suits, damages, costs, claims and liabilities whatsoever of every
name and nature, whether known or unknown, fixed or contingent, accrued or
unaccrued, that MicroFinancial and Leasecomm or any of their subsidiaries,
affiliates, officers, directors or shareholders now have or ever had or may
in the future have against any of the foregoing arising out of or relating to
any action or omission occurring prior to the date hereof including,
without limitation, all obligations under the Credit Line, Demand Note, Other
Debt and the Shortfall (but excluding any claims arising out of or pursuant
to this Settlement Agreement and the Debenture).
2. Subject to and upon the date of this Agreement, the
Company, Xxxxxx and the Trapassos hereby release,remise, and forever discharge
MicroFinancial and Leasecomm and their respective current and former
administrators, assigns, predecessors, successors, employees, shareholders,
agents, servants, officers, directors, parents, affiliates and
subsidiaries, of and from any and all debts, demands, actions, causes of
action, damages, costs, claims and liabilities whatsoever of every form and
nature, whether known or unknown, fixed or contingent, accrued or unaccrued
that the Company, Xxxxxx and the Trapassos or any of their subsidiaries,
affiliates, officers, directors or shareholders now have or ever had or may
in the future have against MicroFinancial and Leasecomm arising out of or
relating to any action or omission occurring prior to the date hereof (but
excluding any claims arising out of or pursuant to this Settlement Agreement
and the Debenture).
3. Notwithstanding the mutual releases contained herein,
MicroFinancial and Leasecomm do not release the Company from and the Company
shall remain obligated to MicroFinancial and Leasecomm with respect to its
obligations under the Dealer Agreement dated August 1998 to repurchase
consumer loans sold to MicroFinancial and or Leasecomm in the past or future
specifically but not limited to wherein the borrower to make the first
payment on the loans ("First Payment Default"), and the Company does not
release MicroFinancial and Leasecomm with respect to such agreement. The
rights and obligations of the parties under the Dealer Agreement shall
remain in full force and effect.
Representations and Warranties
Settlement Agreement and Release Page 3 of 13
1. MicroFinancial, Leasecomm Xxxxxx and the Trapassos
(collectively, the "Investors") acknowledge that the issuance of the
Debenture and the shares of the Company's Common Stock (the "Securities")
pursuant to this Agreement is intended to be exempt from registration under
the 1933 Act by virtue of Section 4(2) of the 1933 Act and a comparable
exemption from qualification under the applicable state securities laws. In
accordance therewith and in furtherance thereof the Investors makes the
following representations to the Company and acknowledge that the Company's
reliance on federal and state securities law exemptions from registration
and qualification is predicated, in substantial part, upon the accuracy of
these representations. The Investors severally and not jointly represent
and warrant to the Company that:
a. The Investors are acquiring Securities solely for
their respective accounts, for investment purposes only, and not with a
view to or for sale in connection with any unregistered distribution.
b. In evaluating the merits and risks of an investment
in the Securities, the Investors have and will rely upon the advice of
their own legal counsel tax advisors and/or investment advisors.
C. The Investors are knowledgeable about the Company and
have a preexisting personal or business relationship with the Company. As a
result of this relationship, the Investors are with, among other things,
the Company's business and financial circles and have access on a regular
basis to or may request information material to the Company's business,
financial condition and operations. By accepting the Securities, the Investors
agree to maintain the confidentiality of any and all information of the
Company in connection with either the services rendered by the Investors or
the Securities.
d. The Investors understand and acknowledge that the
Securities are non-transferable and may be of no practical value. The
Investors other understand and acknowledge that their investment in the
Company involves a high degree of risk and is suitable only for investors
of substantial means who have no immediate need for liquidity of the amount
invested, and that such investment involves a risk of loss of all or a
substantial part of such investment.
e. The Investors under that, under existing laws and
circumstances, the Securities acquired are "restricted securities under
the federal securities laws and that under such laws and applicable
regulations the Securities may not be resold without registration under the
1933 Act except as provided herein and in certain limited, other circumstances
and after satisfaction of a minimum holding period requirement. The
Investors acknowledge receiving a copy of Rule 144 promulgated under the
1933 Act, as presently in effect, and represent that they are familiar with
and will comply with the conditions of Rule 144 and the resale limitations
imposed thereby, by the 1933 Act and by applicable Pennsylvania or other
securities laws, as well as other restrictions in this Agreement.
f At no time was an oral representation made to the
Investors relating to the issuance of the Securities hereunder or the value
of the Securities, and the
Settlement Agreement and Release Page 4 of 13
investors were not presented with any promotional material or solicited at
any promotional meeting relating to the Securities.
9- The Investors have no need for liquidity in this
investment and have the ability bear the economic risk of this investment.
h. The Investors understand and acknowledge that any
certificate evidencing the Securities (or evidencing any other securities
issued with respect thereto pursuant to any stock split, stock dividend,
merger or other form of reorganization or recapitalization)if and when
issued shall bear, in addition to any other legends which may be required by
any other applicable securities laws, the following legends:
"OWNERSHIP OF TI-HS CERTIFICATE, THE SHARES EVIDENCED BY THIS
CERTIFICATE AND ANY INTEREST THEREIN ARE SUBJECT TO SUBSTANTIAL
RESTRICTIONS ON TRANSFER UNDER APPLICABLE LAW AND UNDER AGREEMENTS WITH THE
COMPANY, INCLUDING RESTRICTIONS ON SALE, ASSIGNMENT, TRANSFER, PLEDGE OR
OTHER DISPOSITION."
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES ACT OF 1933, AS AMENDED "ACT"), NOR HAVE
THEY BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE.
NO TRANSFER OF SUCH SECURITIES WILL BE PERMITTED UNLESS A REGISTRATION
STATEMENT UNDER THE ACT IS IN EFFECT AS TO SUCH TRANSFER, THE TRANSFER IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR IN THE OPINION OF
COUNSEL TO THE COMPANY, REGISTRATION UNDER THE ACT IS UNNECESSARY IN ORDER
FOR SUCH TRANSFER TO COMPANY WITH THE ACT AND WITH APPLICABLE STATE
SECURITIES LAWS."
2. The Investors further severally and not jointly represent
and warrant to the Company that:
a. The Investors have the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement
and perform their obligations hereunder and to transfer and convert the
outstanding debts owed to them by the Company as contemplated by this
Agreement.
b. This Agreement has been duly authorized, executed and
delivered by the Investors and constitutes as their legal valid and binding
obligation, enforceable against each of them in accordance with its terms.
C. This Agreement and the transactions contemplated
hereby do not conflict with or constitute a breach of or a default under
(i) any applicable Certificate of Incorporation or By-Laws of the Investors,
(ii) any applicable law or any applicable rule, judgment, order, writ,
injunction or decree of any court, (iii) any applicable rule or regulation
of any administrative agency or other governmental authority or (iv) any
applicable agreement, indenture, contract or instrument to which the Investors
are a party or by which they are bound.
Settlement Agreement and Release Page 5 of 13
3. The Company represents and warrants to the Investors that:
a. The Company has the corporate power and authority to
execute,
deliver and perform this Agreement and to execute, deliver and perform all
other documents and instruments required to be delivered by the Company.
b. This Agreement and the Debenture have been duly
authorized, executed and delivered by the Company. This Agreement and the
Debenture are, and when executed and delivered by the Company will be, the
legal valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms.
C. Neither the execution or delivery of this Agreement
or the Debenture by the Company, nor the performance by the Company of the
transactions contemplated hereby and thereby, conflicts with, or constitutes a
breach of or a default under (i) the Certificate of Incorporation or
By-Laws of the Company, (ii) any applicable law or any applicable rule,
judgment, order, writ, injunction or decree of any court, (iii) any
applicable rule or regulation of any administrative agency or other
governmental authority or (iv) any applicable agreement, indenture,
contract or not to which the Company is a party or by which it is bound.
d. The shares of Common Stock to be issued by the Company
pursuant to this Agreement, when issued as contemplated herein, shall be
duly and validly authorized, fully paid and non-assessable.
D. Transfer Restrictions: Registration Rights
I. MicroFinancial shall have the following registration rights:
a. If the Company shall at any time prepare and file a
registration statement under the Securities Act of 1933, as amended (the
"1933 Act"), with respect to the public offering of any shares of Common
Stock Share:) which is intended to yield the Company net proceeds of $ 1
0,000,000 or more and which is not a registration to implement an employee
benefit plan, dividend reinvestment plan or a transaction to which Rule 145
(as promulgated under the 0000 Xxx) is applicable, the Company shall give 30
days prior written notice thereof to MicroFinancial and shall upon the written
request of MicroFinancial and subject to the other provisions of this
Agreement, include in the registration statement such number of Shares as
MicroFinancial may request. In the event the Company fails to receive a
written inclusion request from MicroFinancial within 20 days after the mailing
of its written notice, then the Company shall have no obligation to include
any such Shares in the offering. Any offering pursuant to this paragraph D(l)
shall be in accordance with the terms and procedures of subparagraphs
D(l)(c)-(h) below; provided however, these provisions shall be inoperative
to the extent provided in subparagraph D(l)(i) herein.
b. At any time, after December 31, 2001, MicroFinancial
may request that the Company effect a registration under the 1933 Act of
Shares then beneficially owned by MicroFinancial. Company shall not be
required
to register any Shares pursuant to this subparagraph D(l)(b) on more than
one occasion within any twelve-month period. A request for registration
pursuant to this subparagraph D(l)(b) shall specify the approximate number of
Shares
Settlement Agreement and Release Page 6 of 13
requested to be registered and the anticipated per share price range for such
offering. If MicroFinancial intends to distribute such shares by number of an
underwriting, it shall so advise the Company in its request; provided that
the underwriter selected shall be acceptable to the Company. In the event
such registration is underwritten, the right of any other persons who have
"piggybacked" registration rights to participate shall be conditioned on
such persons participation in such underwriting. Thereupon, the Company
shall: (i) file a registration statement and related documents with the
Securities and Exchange Commission, and all other applicable securities
agencies or exchanges, for the public offering and sale of all or a portion
of the Shares as requested; and (ii) use reasonable commercial efforts to
cause such registration statements to be decided effective as soon as
practicable after the request is received from MicroFinancial. Any offer
pursuant to this subparagraph D(l)(b) shall be in accordance with the terms
and procedures of subparagraphs D(l)(c)-(h) below.
C. The Company will keep such registration statement(s)
effective and current under the 1933 Act permitting the sale of
MicroFinancial's shares included therein for the same period that the
registration is maintained effective in respect of Shares of other persons
(including the Company), but not less than 180 days in the case of
subparagraph D(l)(b) if requested by MicroFinanciaL In any underwritten
offering
of Common Stock, such Shares to be included will be sold at the same time
and the same per-share price as the Company's Shares. In connection with
any registration statement or subsequent amendment or similar document filed
and
subject hereto, the Company shall take all reasonable steps to make
MicroFinancial's Shares covered thereby eligible for public offering and sale
under the securities or Blue Sky laws of such jurisdictions as may be
specified
by MicroFinancial by the effective date of such registration statement;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not so qualified at the time of
filing such documents, or to take any action which would subject it to service
of process in any jurisdiction where it is not so subject at such time. The
Company shall keep such Blue Sky filings current for the length of time it
must keep any registration statement, post-effective amendment, prospectus or
offering circular effective pursuant hereto.
d. In connection with any registration statement or
other filing described herein, and in connection with making and keeping such
filings effective as provided herein, the Company shall bear all the
expenses and professional fees of the Company of the registration,
including printing, filing and registration fees. The Company shall also
provide MicroFinancial with such number of printed copies of the prospectus,
offering circulars and/or supplemental or amended prospectuses in final and
preliminary form as MicroFinancial may reasonably request. The Company
consents to the use of each such prospectus or offering circular in connection
with the
sale of the Shares.
e. The Board of Directors may postpone or terminate any
registration under subparagraph D(l)(a) in its sole discretion. If the
Board of Directors of the Company, in its good faith judgment, determines that
any registration of Shares under subparagraph D(l)(b) should not be made or
continued because it would materially interfere with any material
financing, acquisition, corporation reorganization, or merger, involving
the Company or any of its subsidiaries (a Valid Business Reason), (i) the
Company may postpone filing a registration statement relating to a
registration
under subparagraph D(l)(b) until such Valid Business Reason no longer
exists, and (ii) in case a registration statement has been filed relating
to a registration
Settlement Agreement and Release Page 7 of 13
under subparagraph D(l)(b), the Company may cause such registration
statement to be withdrawn and its effectiveness terminated or tiny postpone
amending or supplementing such registration statement until the earlier of
90 days or when such Valid Business Reason no longer exists; provided that
in the event of a postponement or withdrawal under this subparagraph
D(l)(e), MicroFinancial shall not be charged with a piggyback registration
request or demand registration request, as applicable.
f It shall be a condition precedent to the obligations of
the Company to take any action under this paragraph D(l) with respect to
MicroFinancial's Shares that MicroFinancial shall furnish to the Company such
information regarding itself, the Shares held by it, and the intended method
of disposition of such Shares as shall be reasonably requested to effect the
registration of such securities. MicroFinancial agrees that, upon receipt
of any notice from the Company that the registration materials must be
supplemented or amended, MicroFinancial will forthwith discontinue
disposition of such Shares pursuant to such registration statement until
Microfinancial's receipt of copies of a supplemented or amended prospectus
covering such Shares, and, if so directed by the Company, MicroFinancial
will deliver to the Company (at the Company's expense and as soon as
possible) all copies, other than permanent file copies then in
MicroFinancial's possession, of the prospectus covering such Shares current
at the time of its receipt of such notice. MicroFinancial also agrees, upon
request of the Companyany, not to sell any unregistered securities of the
Company for a period of 14 days before and 180 days following the effective
date of registration statement of the Company.
9- Certain offerings revolving an underwriter shall be
subject to the following conditions:
(i) If requested by the underwriters for any
underwritten offering by MicroFinancial pursuant to a registration
requested under subparagraph D(l)(b), the Company agrees to enter into an
underwriting agreement with such underwriters for such offering, such
agreement
to be reasonably customary in substance and form, and to contain such
representations and warranties by the Company and MicroFinancial and such
other terms as are customary in agreements of that type, including without
limitation, customary provisions with respect to indemnification by the
Company
of the underwriters of such offering. MicroFinancial will cooperate with
the Company in the negotiation of the underwriting agreement and will give
consideration to the reasonable suggestions of the Company regarding the
form and substance thereof MicroFinancial shall be a party to such
underwriting agreement. MicroFinancial shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
itself, its Shares, its intended method of destination and any other
representations or warranties required by law or custom given by selling
shareholders in an underwritten public offering;
(ii) If (A) the Company proposes to register any of
its Shares of Common Stock under the 1933 Act as contemplated by
subparagraph D(l)(a), (B) MicroFinancial is permitted by subparagraph I (a) to
participate in such registered offering of securities and is not prohibited
from doing so by subparagraph D(l)(1), and (C) such shares are to be
distributed by or through one or more underwriters, subject to the provisions
of subparagraph
I (h) the Company will if requested by MicroFinancial for such underwriters
to include all of the Shares to be offered and sold by MicroFinancial among
the securities of the Company to
Settlement Agreement and Release Page 8 of 13
be distributed by such underwriters. MicroFinancial shall become a party to
the underwriting agreement negotiated between the Company and such
underwriters. MicroFinancial shall not be required to make any representations
or warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements regarding MicroFinanciaL its
Shares and its intended method of dilution or any other representations or
warranties required by law or customarily given by selling shareholders in
an underwritten public offering.
h. If any registration under subparagraph D(l)(a)
involves an underwritten offering and the imaging underwriter of such
offering shall advise the Company that, in its view, the number of
securities requested to be included in such registration exceeds the
largest number (the "Amount") that can be sold in an orderly number in
such offerings, within a price range acceptable to the Company, the Company
shall include in such registration: first, all Shares that the Company
proposes to register for its own account (the "Company Securities"); and,
thereafter, to the extent that the number of Company Securities is less
than the Maximum Amount, MicroFinancial's Shares requested by MicroFinancial
to be included in the registration statement provided that if MicroFinancial
has
requested registration of a number of Shares with respect to which the
anticipated net proceeds exceed $2,377,020, the Shares requested to be
registered in excess of such number shall only be included, pro rata,
together with Shares proposed to be registered by the Holder(s) of the
Company's Warrants to Purchase Common Stock originally issued as of
December 31, 1999, subject to the limitations stated therein, based on the
number of such other Shares requested to be registered. Without
MicroFinancial's prior written consent, there shall not be included in any
registration statement filed pursuant to subparagraph D(l)(a) any Shares owned
by Xxxxxx or the Trapassos if such inclusion would reduce the number of
Shares sought to be registered by MicroFinancial hereunder. If any regulations
under subparagraph D(l)(b) involves an underwritten offering and the
managing underwriter of such offer shall advise MicroFinancial that, in its
view, the number of securities requested to be included in such
registration exceeds the Maximum Amount that can be sold in an orderly manner
in
such offering within a price range acceptable to MicroFinancial the Company
shall include in such registration: first, all Shares requested to be included
in the registration by MicroFinancial; and second, to the extent that the
number of such Shares to be included by MicroFinancial is less than the
Maximum Amount, Shares that the Company proposes to register.
i. As to any particular Shares, such securities shall
cease to be subject to registration under the Debenture when (i) a
registration statement with respect to the sale of such securities shall have
become effective under the 1933 Act and such securities shall have
been offered in accordance with such registration statement, (ii) they
shall have been sold as permitted by Rule 144 (or any successor provision)
under the 1933 Act, or (iii) they shall have ceased to be outstanding.
2. Except as provided herein, MicroFinancial shall not
directly or indirectly transfer assign, pledge, mortgage or convey the Shares,
the Debenture or any Shares issuable pursuant to the Debenture prior to the
second anniversary of the date hereof without the Company's prior written
consent.
E. Miscellaneous
Settlement Agreement and Release Page 9 of 13
l. The representations and warranties made by the parties to
this Agreement and the Debenture delivered hereto shall survive the
consummation of the transactions contemplated herein. Anything in this
Agreement to the contrary notwithstanding, the representations and
warranties of the Company and the Investors shall not be affected by any
investigation made by or on behalf of any party hereto.
2. All notices or other communications permitted or required
under this Agreement shall be in writing and shall be sufficiently given if
and when hand-delivered to the persons set forth below or if sent by
document overnight delivery service or registered or certified mail
postage prepaid, receipt acknowledged, or by facsimile, addressed as set forth
below or to such other person or persons and/or at such other address or
addresses as shall be furnished in writing by any party hereto to the
others. Any such notice or communication shall be deemed to have been given
as of the date received, in the case of personal delivery, or on the date
shown on the receipt or confirmation there for in all other cases.
If to MicroFinancial or Leasecomm:
MicroFinanciaL Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx XX 00000
Attn: Xx. Xxxxx X xxx Xxxxxxxxx
If to the Company
xxxxxxxx.xxx Inc.
000 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
)With copies to: F. Xxxxxxx Xxxxxxx, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
If to Xxxxxx:
Xxxxxx X. Xxxxxx
c/o xxxxxxxx.xxx, Inc.
21 0 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxx, XX 00000
If to the Xxxxxxxx:
Xxxxxxx Xxxxxxxx
Settlement Agreement and Release Page 10 of 13
Xxxxxxx Xxxx Xxxxxxxx
c/o xxxxxxxx.xxx, Inc.
2 1 0 X. Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxxxxxxxx, XX 00000
3. Any party hereto shall not assign this Agreement, or any
rights hereunder, or delegate any obligations hereunder, without the prior
written consent of all parties hereto.
4. This Agreement shall not be construed as giving any
person, other than the parties hereto and their permitted successors and
assigns, any legal or equitable right, remedy or claim under or in respect
of this Agreement or any of the provisions herein contained, this Agreement
and all provisions and conditions hereof being intended to be, and being,
for the sole and exclusive benefit of such parties, and permitted successors
and assigns for the benefit of no other person or entity.
5. The parties hereto may amend or modify this Agreement in
any respect only with the prior written consent of each party hereto. Any such
amendment, modification, extension or waiver shall be in writing. The waiver
by a party of any breach of any provision of this Agreement shall not
constitute or operate as a waiver of any other breach of such provision or of
any provision hereof nor shall any failure to enforce any provision hereof
operate as a waiver of such provision or of any other provision hereof
6. Each party hereto shall use best efforts to comply with
all requirements used hereby on such party and to cause the transactions
contemplated hereby to be consummated as contemplated hereby and shall,
from time to time and without further consideration, either before or after
the execution and delivery of this Agreement, the closing, execute such
further instruments and take such other actions as any other party hereto
shall reason request in order to fulfill its obligations under this
Agreement and to effectuate the purposes of this Agreement. Each party
shall promptly notify the other parties of any event or circumstance known
to such party that could prevent or delay the consummation of the
transactions contemplated hereby or which would indicate a breach or
non-compliance with any of the terms, conditions, representations, warranties
or
agreements of any of the parties to this Agreement.
7. The parties agree that this Agreement shall be considered to
be a Massachusetts contract and shall be deemed to have been made in the
Middlesex County, Waltham Massachusetts, regardless of the order in which the
signatures of the parties shall be affixed hereto, and shall be interpreted,
and the rights and liabilities of the parties hereto determined, in accordance
with Massachusetts law, and any suit brought shall be brought exclusively in
the federal or state courts within the Commonwealth of Massachusetts. The
undersigned hereby consents and submits to the jurisdiction of the courts
of the Commonwealth of Massachusetts for the purpose of any suit, action or
other proceeding arising out of the undersigned obligations hereunder, and
expressly waives any objection to venue in any such courts. The parties
further agree that MicroFinancial and Leasecomm Corporation are located within
the venue of Middlesex County. However, prior to any legal suits being
filed, the Chief
Settlement Agreement and Release
Page II of 13
Executive Officers of each company or their authorized designee will confer
and make reasonable efforts to resolve the problem.
8.The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning and interpretation of this
Agreement. Except as otherwise indicated, an agreements defined herein refer
to the same as from time to time amended or supplied or the terms thereof
waived
or modified in accordance herewith and therewith.
9. The invalidity or unenforceability of any particular
provision, or part of any provision, of this Agreement shall not affect the
other provisions or parts hereof and this Agreement shall be construed in
all respects as if such invalid or unenforceable provisions or parts were
omitted.
10. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an ongoing; and any person may
become a party hereto by executing a counterpart hereof but all of such
counterparts together shall be deemed to be one and the same instrument It
shall not be necessary in making proof of this Agreement or any counterpart
hereof to produce or account for any of the other counterparts.
11. This Agreement constitutes the entire agreement between the
parties hereto and supersedes all prior writings and understandings between
or among the parties.
Settlement Agreement and Release
Page 12 of 13
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed the foregoing Settlement Agreement and Release this 31
st day of December, 1999.
XXXXXXXX.XXX INC
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
MICROFINANCIAL
By: /s/Xxxxx X. xxx Xxxxxxxxx
Xx. Xxxxx X. xxx Xxxxxxxxx
LEASECOMM
By: /s/Xxxxx X. xxx Xxxxxxxxx
Xx. Xxxxx X. xxx Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Trapassp
/s/ Xxxxxxx Xxxx Xxxxxxxx
Xxxxxxx Xxxx Xxxxxxxx
Settlement Agreement and Release Page 13 of
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