EXHIBIT 10.21(a)
SETTLEMENT AGREEMENT
This Settlement Agreement is entered into as of
December 8, 1995 between Quadrax Corporation, a Delaware
Corporation ("Quadrax") and Xxxxxxx X. Xxxxxx, an individual
domiciled in Rhode Island ("Xxxxxx").
Whereas, Quadrax and Xxxxxx have entered into a
Severance Agreement dated September 30, 1994, a copy of
which is attached hereto as Exhibit A ("the Severance
Agreement"); and
Whereas, Quadrax and Xxxxxx have entered into a
Consulting Agreement dated October 1, 1994, a copy of which
is attached hereto as Exhibit B (the "Consulting
Agreement"), such Severance and Consulting Agreements
collectively referred to herein as the "Service Agreements";
and
Whereas, Quadrax and Xxxxxx have entered into a
Non-Competition Agreement, dated October 1, 1994, a copy of
which is attached hereto as Exhibit C; and
Whereas, Quadrax executed and delivered to Xxxxxx on
February 13, 1995 a promissory note in the original
principal amount of $750,000, a copy of which is attached
hereto as Exhibit D (the "Note"); and
Whereas, Quadrax and Xxxxxx and Xxxxx X. Xxxxxxx, as
trustee, have entered into an Agreement dated July 13, 1995
which, among other things, modified various provisions of
the Note, a copy of which is attached hereto as Exhibit E
(the "Repayment Agreement"); and
Whereas, Quadrax and Xxxxxx wish to terminate the
Service Agreements, amend the Repayment Agreement, establish
an escrow to secure the payment of various Quadrax
obligations to Xxxxxx, and to enter a Security Agreement to
further secure such obligations, all on the terms and
conditions set forth herein.
Now, therefore, for good and valuable consideration,
the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Payment of Consulting Fees and Severance Benefits
Through December 31, 1995.
(a) Quadrax agrees to pay Xxxxxx, without deduction,
consulting fees under the Consulting Agreement ("Fees") and
severance benefits under the Severance Agreement
("Benefits") for the period December 4, 1995 through
December 31, 1995.
(b) Quadrax and Xxxxxx agree that the remaining amount
of Fees for the period December 4, 1995 through December 31,
1995 is $11,538, of which $5,769 under Quadrax payroll
policies is payable on January 5, 1996.
(c) Quadrax and Xxxxxx agree that the remaining
Benefits for the period December 4, 1995 through December
31, 1995 are approximately $8,200, which includes (but is
not limited to) premium payments due to Northwestern Mutual
Life Insurance Company ("NML") of approximately $5,082 with
respect to five life insurance policies and $606 with
respect to two disability policies.
2. Termination of Service Agreements.
(a) Subject to the performance in full by Quadrax of
this Settlement Agreement, the Repayment Agreement, as
amended hereby, and the Escrow Agreement of even date
herewith, a copy of which is attached hereto as Exhibit F
and made a part hereof (the "Escrow Agreement"), the
obligations of Quadrax and Xxxxxx under each of the Service
Agreements are terminated and discharged, effective (other
than as provided in 8) January 1, 1996.
(b) In consideration of the termination of Quadrax's
obligations to Xxxxxx under the Service Agreements, as of
the date hereof Quadrax shall (i) pay Xxxxxx $108,000 in
cash, and (ii) deposit $73,650 in cash in the escrow account
("Escrow Account") as established by the Escrow Agreement.
(c) For purposes of 2 (a), "performance in full by
Quadrax of . . . the Escrow Agreement" shall mean (i)
Quadrax issues to Xxxxxx or his designee fully registered
and freely transferable shares of Quadrax common stock
computed in the manner set forth in, and as required by, 1
(d) of the Repayment Agreement, as amended by 4 hereof, or,
in the event that such shares of Quadrax common stock are
not issued to Xxxxxx, (ii) the escrow agent disburses to
Xxxxxx $373,650 in cash plus interest at the rate of $65.75
per day for the period October 16, 1995 until the date such
disbursement is made, inclusive.
(d) Quadrax agrees to execute all insurance forms,
releases and assignments which may be required by NML to
carry out the purposes of this Agreement.
3. Stock Option.
(a) Quadrax hereby confirms under the Non-Qualified
Stock Option Agreement for 250,000 shares of common stock
("options") effective as of August 9, 1994 between Quadrax
and Xxxxxx ("Option Grant"), a copy of which is attached
hereto as Exhibit G, that:
(i) The purchase price under 1 of the Option Grant is
$1.81 per share; and
(ii) The options are fully exercisable under 2
(b) of the Option Grant, i.e., the options are
fully vested; and
(iii) 250,000 shares of Quadrax common stock are
reserved under the Quadrax Corporation 1993 Stock
Plan for the options under the Option Grant; and
(iv) The options shall be exercisable in whole or in
part under 2 (d) of the Option Grant until 5 p.m.,
Eastern Standard Time, on December 31, 1997.
(b) Xxxxxx and Quadrax agree that Quadrax shall not be
required to extend any financing to Xxxxxx in connection
with Xxxxxx'x exercise of the options under the Option
Grant.
(c) Except as modified hereby, the Option Grant shall
remain in full force and effect.
4. Amendment of Repayment Agreement; Deposit into
Escrow.
(a) 1 (c) of the Repayment Agreement is deleted in its
entirety.
(b) 1 (d) of the Repayment Agreement is amended by
deleting, in the first sentence, "January 7, 1996" and
substituting therefor "5 p.m. February 7, 1996," and by
adding in the first sentence after the parenthetical
"(computed as provided in clause 1(b) above)" a "," followed
by the words "plus $73,650".
(c) The last sentence of 1 (d) of the Repayment
Agreement is deleted in its entirety and replaced by the
following sentence:
"No later than the first business day after the
Effective Date, Quadrax shall instruct its transfer
agent by facsimile transmission to deliver such stock
certificate to Xxxxxx or his designee. Quadrax shall
provide Xxxxxx a copy of such instructions by facsimile
transmission."
Such letter shall be substantially in the form attached
hereto as Exhibit H.
(d) Quadrax shall deposit as of the date hereof
$307,496 (consisting of $300,000 of principal and $7,496
representing the maximum amount of interest payable at the
rate of $65.75 per day with respect to the unpaid balance of
the Note through February 7, 1996) in cash in the Escrow
Account as provided in the Escrow Agreement. All cash
deposited in the Escrow Account (including pursuant to 2
(b) hereof) shall be disbursed by the escrow agent solely in
accordance with the provisions of the Escrow Agreement.
5. Registration Statement. Quadrax agrees that,
through its chief financial officer, it will provide Xxxxxx,
upon Xxxxxx'x oral or written requests from time to time,
periodic reports as to the status of the Registration
Statement (as defined in the Repayment Agreement). Quadrax
agrees that it will notify Xxxxxx immediately by telephone
with written facsimile confirmation (i) when the
Registration Statement is declared effective by the
Securities and Exchange Commission, (ii) if the Registration
Statement is abandoned or withdrawn by Quadrax, or (iii) if
the Securities and Exchange Commission makes a written
determination to Quadrax that it will not declare the
Registration Statement effective.
6. Offsetting Obligations under Non-Competition
Agreement and Certain Xxxxxx Notes; Amendment of Notes;
Continuing Obligations under the Non-Competition Agreement.
(a) Quadrax and Xxxxxx agree that, for purposes of this
Agreement, the payment obligation (including interest) of
Quadrax to Xxxxxx under the Non-Competition Agreement as
evidenced by an Unsecured Promissory Note ("Non-Competition
Note") dated October 1, 1994 in the principal amount of
$675,000, and the payment obligations (including interest)
of Xxxxxx to Quadrax as evidenced by various Unsecured
Promissory Notes executed in connection with the exercise by
Xxxxxx of options to purchase Quadrax common stock ("Stock
Notes") in the aggregate principal amount of $673,068, shall
be treated as fully offsetting and that neither party will
pay cash to the other under the Non-Competition Note and the
Stock Notes. For tax purposes, Quadrax will continue to
report the payments made under the Non-Competition Agreement
on a periodic basis as provided therein.
(b) The original of the Non-Competition Note and the
original of each of the Stock Notes shall be amended by
adding the following sentence to each page thereof: THIS
PROMISSORY NOTE IS NON-TRANSFERABLE AND NON-NEGOTIABLE.
Quadrax shall furnish Xxxxxx with a copy of each Stock Note,
as so amended, and Xxxxxx shall furnish Quadrax with a copy
of the Non-Competition Note, as so amended.
(c) Xxxxxx reaffirms his continuing obligations under
1 and 2 of the Non-Competition Agreement.
7. Ownership of Certain Equipment and Furniture.
Quadrax agrees to convey to Xxxxxx ownership of certain
equipment and furniture which are in Xxxxxx'x possession by
delivery of the General Conveyance, Assignment and Xxxx of
Sale which is attached hereto as Exhibit I.
8. Vehicle Lease. Quadrax agrees to assign, and Xxxxxx
agrees to assume, the lease for one Jeep Grand Cherokee
vehicle pursuant to the Assignment and Assumption attached
hereto as Exhibit J and made a part hereof, effective as of
the date the first payment is required to be made to the
lessor under such lease in January 1996. Xxxxxx will
thereafter hold Quadrax harmless from any obligations under
such lease.
9. COBRA Benefits. Quadrax will extend to Xxxxxx the
right under COBRA to continue the health insurance coverage
that is currently being paid for by Quadrax on behalf of
Xxxxxx under 9 of the Severance Agreement.
10. Tax Filings. Quadrax agrees that it will disclose
to Xxxxxx the content of each report of a payment or
payments to Xxxxxx which Quadrax proposes to file with
federal or state tax authorities and will afford Xxxxxx the
opportunity, in advance of the filing of any such report, to
discuss the content thereof with Quadrax's firm of
independent auditors. Quadrax's obligation under this 10
shall extend to proposed reports under the Service
Agreements, the Non-Competition Agreement, the Repayment
Agreement, the Note, the Escrow Agreement and this
Agreement.
11. Disclosures to Stockholders and Securities
Regulators; Other Public Statements.
(a) Quadrax represents and warrants that disclosures to
stockholders and securities regulators which pertain to
Xxxxxx will be made in accordance with its legal obligations
and otherwise in a prudent and conscientious manner.
(b) Neither party shall make any public statements,
press releases or announcements (collectively, a "statement"
or "statements") regarding the other party unless it or he
reasonably determines that such statement is required by
law, provided however, that if a party does make any such
statement, the other party shall be entitled to respond to
it. For purposes of this 11 (b), a statement about Quadrax
shall include its directors, officers and employees, and a
statement about Xxxxxx shall include (but shall not be
limited to) a statement about the performance of management
of Quadrax during the period March 1986 through September
1995.
12. Mutual Releases. The parties shall execute mutual
releases in the form attached hereto as Exhibit K.
13. Security Agreement. To further secure the
obligations of Quadrax to Xxxxxx under this Settlement
Agreement and the Repayment Agreement, as amended hereby,
Quadrax shall execute a Security Agreement in the form
attached hereto as Exhibit L
.
14. Board of Directors and Compensation Committee
Approval. Quadrax represents and warrants that this
Agreement, the Escrow Agreement and the Security Agreement
have been approved by the unanimous consent of its directors
or by the directors at a meeting properly noticed and called
for that purpose. Quadrax further represents and warrants
that the Compensation Committee of the Board of Directors
has approved the amendment of the Option Grant as set forth
in 3 hereof. No later than five business days after the
date herreof, Quadrax shall provide Xxxxxx with an executed
copy of a Secretary's Certificate with respect to such Board
of Directors and Compensation Committee approvals.
15. Provisions of General Application.
(a) Amendments and Supplements. This Settlement
Agreement may not be amended, modified or supplemented by
the parties hereto in any manner, except by instrument in
writing signed on behalf of each of the parties hereto by
their duly authorized officers or representatives.
(b) Waivers. No term of provision of this Agreement
shall be deemed waived by either party and no breach or
default shall be deemed excused by either party unless such
waiver or consent shall be in writing ad signed by such
party. The failure of either party to enforce at any time
any of the provisions of this Agreement shall in no way be
construed to be a waiver of any such provision, nor in any
way to affect the validity of this Agreement or any part
hereof or the right of such party thereafter to enforce each
and every such provision. No waiver of any breach of or
noncompliance with this Agreement shall be held to be a
waiver of any other or subsequent breach or noncompliance.
(c) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given (i)
three business days after posting with the United States
Postal Service when mailed by certified mail, return receipt
requested, properly addressed and with the correct postage,
(ii) one business day after pick-up by a courier service
when sent by overnight courier, properly addressed and
prepaid, or (c) one business day after the date of the
sender's electronic confirmation of receipt when sent by
facsimile transmission. Such notices and other
communications shall be sent to the addresses or facsimile
numbers set forth below, unless either party notifies the
other in writing, in accordance with this 13 (c), of an
address or facsimile change.
To Quadrax: Quadrax Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to: Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
To Xxxxxx: Xxxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to: Flanders & Xxxxxxxx
Xxx Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
(d) Construction. The headings in this Agreement are
included only for convenience and shall not in any way
affect the meaning or interpretation of this Agreement.
Except as otherwise indicated, references to a section or
refer to such section of this Agreement. The words "herein"
and "hereof" and other words of similar import refer to this
Agreement as a whole and not to any particular part of this
Agreement.
(e) Disputes. Quadrax and Xxxxxx agree than any
dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this
Settlement Agreement shall be settled by arbitration to be
held in Providence, Rhode Island in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association before a single arbitrator who shall have
experience in the area of the matter in dispute or
controversy. The arbitrator may grant relief in the nature
of injunctions or other relief in such dispute or
controversy. The decision by the arbitrator shall be final,
conclusive and binding on the parties. Judgment may be
entered on the arbitrator's behalf in any court having
jurisdiction. Each party shall pay that percentage of the
total costs and expenses of such arbitration, including fees
of legal counsel for both parties, equal to the percentage
of the total amount in controversy awarded by the arbitrator
to the other party.
(f) Conveyance of Rights; Binding Effect. This
Settlement Agreement (i) is not intended to confer upon any
person other than the parties hereto any rights or remedies
hereunder, and (ii) shall be binding upon, and inure to the
benefit of, both parties and their respective successors and
assigns, including any person or entity with which, or into
which, Quadrax may be merged or consolidated or which may
succeed to its assets or business.
(g) Validity. The invalidity or unenforceability of
any provisions of this Agreement shall not affect the
validity or enforceability of any other provisions of this
Agreement, each of which shall remain in full force and
effect.
(h) Counterparts. This Settlement Agreement may be
executed in counterparts, each of which shall be deemed an
original but all of which together shall constitute one and
the same instrument.
(i) Governing Law. This Settlement Agreement shall be
governed by the laws of the State of Rhode Island.
In Witness Whereof, Quadrax and Xxxxxx have executed,
or caused to be executed, this instrument under seal as of
the date first set forth above.
Quadrax Corporation
By: /s/Xxxxx X. Xxxxxxx
_____________________
Xxxxx X. Xxxxxxx
Chairman of the
Board and Chief
Executive Officer
/s/Xxxxxxx X. Xxxxxx
____________________
Xxxxxxx X. Xxxxxx
EXHIBIT 10.21(a) Continued
ESCROW AGREEMENT
This Agreement is entered into as of December 8, 1995
between Quadrax
Corporation, a Delaware Corporation ("Quadrax"), Xxxxxxx X.
Xxxxxx, an
individual domiciled in Rhode Island ("Xxxxxx") and Fried, Frank,
Harris,
Xxxxxxx & Xxxxxxxx as escrow agent ("Escrow Agent").
Whereas, Quadrax and Xxxxxx have entered into an agreement
of even date
herewith ("Settlement Agreement") with respect to the settlement
of payment
obligations of Quadrax to Xxxxxx under various agreements and
instruments
("Payment Obligations"), including a promissory note in favor of
Xxxxxx in the
original principal amount of $750,000 (the "Note"), a copy of
which is attached
hereto as Exhibit 1;
Whereas, the Note was amended by an Agreement dated July
13, 1995 by and
among Quadrax, Xxxxxx and Xxxxx X. Xxxxxxx, as trustee, a copy of
which is
attached hereto as Exhibit 2, which agreement was amended by the
Settlement
Agreement (such agreement, as so amended by the Settlement
Agreement, herein
the "Amended Repayment Agreement"); and
Whereas, pursuant to the terms of the Settlement Agreement,
Quadrax has
agreed to deposit cash in an escrow account for purposes of
securing Quadrax's
Payment Obligations in the event that a registration statement
which Quadrax
has filed with the Securities and Exchange Commission ("SEC") is
not declared
effective by a date certain; and
Whereas, the Settlement Agreement further provides that all
cash deposited
pursuant to the terms thereof in the Escrow Account shall be
disbursed by the
escrow agent solely in accordance with the provisions of Escrow
Agreement.
Now, therefore, for good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
1. Establishment of Escrow Account. As security for the
performance by
Quadrax of the Payment Obligations, the parties hereby establish
an escrow
account (the "Escrow Account") with the Escrow Agent.
2. Deposit into the Escrow Account by Quadrax. Quadrax
hereby deposits,
and the Escrow Agent hereby accepts, $381,146 in cash ("the
"Escrow Fund").
Escrow Agent shall certify promptly to Xxxxxx that it has
received the Escrow
Fund in good funds.
3. Deposit into the Escrow Account by Xxxxxx. Xxxxxx
hereby deposits, and
the Escrow Agent hereby accepts, the Note.
4. Investments. Escrow Agent shall deposit the Escrow Fund
in an
interest-bearing federally insured (subject to applicable limits)
client trust
fund account. Income from any such investment shall be held by
Escrow Agent,
shall be reinvested in accordance with this 4 and, provided
that the Escrow
Agent has distributed the full of the amount of cash required to
be distributed
to Xxxxxx pursuant to 5 (a), shall be payable, upon termination
of the Escrow
Account, to Quadrax.
5. Disbursements from Escrow Account. Disbursements of
cash from the
Escrow Account in the amounts set forth below shall be made by
Escrow Agent
solely upon the occurrence of the following conditions:
(a) The sum of $373,650 and the product of $65.75 and the
number of days
that have elapsed between October 16, 1995 and the date of
disbursement,
inclusive, shall be disbursed by wire transfer to Xxxxxx, and the
balance of
any funds in the Escrow Account shall be disbursed by wire
transfer to Quadrax:
(i) if the registration statement on Form SB-2 or equivalent
filed by Quadrax
with the SEC registering the number of shares to which Xxxxxx is
entitled under
1 (d) of the Amended Repayment Agreement ("Registration
Statement") has not
been declared effective by 5:00 p.m. Eastern Standard Time on
February 7,1996;
or (ii) if the Registration Statement has been declared effective
by 5:00 p.m.
Eastern Standard Time on February 7,1996 , if Quadrax has not
issued to Xxxxxx
the number of shares of Quadrax common stock to which Xxxxxx is
entitled
pursuant to 1 (d) of the Amended Repayment Agreement by 5:00
p.m. Eastern
Standard Time on February 14,1996;
(b) All of the funds in the Escrow Account shall be
disbursed by wire
transfer to Quadrax in the event that the Registration Statement
has been
declared effective by 5:00 p.m. Eastern Standard Time on February
7,1996, and
Quadrax has issued to Xxxxxx the number of shares of Quadrax
common stock to
which Xxxxxx is entitled pursuant to 1 (d) of the Amended
Repayment Agreement
by 5:00 p.m. Eastern Standard Time on February 14,1996;
(c) Xxxxxx shall provide instructions under oath in the
form of Exhibit
3-A to the Escrow Agent regarding the disbursement of funds in
the Escrow
Account following satisfaction of the conditions to disbursement
set forth in
5 (a) above. Quadrax shall provide instructions under oath in
the form of
Exhibit 3-B to the Escrow Agent regarding the disbursement of
funds in the
Escrow Account following satisfaction of the conditions to
disbursement set
forth in 5 (b) above. The Escrow Agent shall have no
responsibility for
determining whether any conditions to disbursement set forth
above have been
satisfied. The Escrow Agent shall disburse funds in strict
compliance with
instructions provided by Xxxxxx or Quadrax, as the case may be.
In the event
that Xxxxxx and Quadrax provide conflicting instructions, the
Escrow Agent
shall take no action until the dispute has been resolved.
(d) The Escrow Agent shall disburse the Escrow Fund in
strict compliance
with the instructions provided by Quadrax or Xxxxxx and shall not
refuse or
fail to disburse the Escrow Fund for any reason not specifically
set forth
herein, including, but not limited to, any right of set-off that
any party may
assert.
6. Termination. The Escrow Account shall terminate upon
the disbursement
of the Escrow Fund as directed by 5 hereof.
7. Rights and Liabilities of Escrow Agent.
(a) Quadrax and Xxxxxx agree that the Escrow Agent's duties
hereunder are
only as specifically provided herein and are purely ministerial
in nature.
Quadrax and Xxxxxx agree that the Escrow Agent will incur no
liability to
either of them or otherwise except for willful misconduct.
(b) The Escrow Agent may consult with counsel and will be
protected fully
in any action taken or omitted in good faith in accordance with
the advice of
such counsel. The Escrow Agent will have no responsibility for
verifying the
genuineness or validity of any certificate, document or other
items deposited
with or delivered to it, including any instructions from Quadrax
or Xxxxxx, and
the Escrow Agent will be fully protected in acting upon any
written document,
certificate or other item which the Escrow Agent in good faith
believes to be
genuine and what it purports to be.
(c) Quadrax and Xxxxxx agree that they are responsible for
providing
written instructions to the Escrow Agent and that the Escrow
Agent's
responsibilities hereunder will not require the Escrow Agent to
act other than
in the ordinary course of business. The Escrow Agent will not be
liable in any
manner whatsoever for any failure by the Escrow Agent to invest,
withdraw or
transfer any of the funds on any specific date as a result of the
Escrow
Agent's failure to receive such instructions in a timely fashion
that would
allow the Escrow Agent to take such action in the ordinary course
of business.
Subject to the foregoing, in the event Quadrax and Xxxxxx desire
that specific
action be taken on a specific date, they will be required to
provide such
instructions to the Escrow Agent no later than 11:00 a.m. on such
date.
(d) Quadrax agrees to indemnify the Escrow Agent against,
and hold the
Escrow Agent harmless from, any claim, liability, cost or
reasonable expense,
in any manner arising out of, or in connection with, the
performance of the
Escrow Agent's undertakings under this Escrow Agreement, except
as a result of
the Escrow Agent's own willful misconduct.
(e) Quadrax and Xxxxxx each acknowledge that the Escrow
Agent has acted as
counsel to Quadrax in connection with the negotiation and
documentation of the
settlement arrangements to which this Escrow Agreement is a part.
Quadrax and
Xxxxxx each agrees that it and he will not challenge the validity
or
enforceability of this Escrow Agreement, or the appointment of
Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx as Escrow Agent, on the ground that
such firm has
acted as counsel for Quadrax.
8. Fees of Escrow Agent. Any fees of the Escrow Agent
shall be paid by
Quadrax, and the Escrow Agent shall not seek to satisfy its fees
from the
Escrow Fund.
9. Provisions of General Application.
(a) Amendments and Supplements. This Agreement may not be
amended,
modified or supplemented by the parties hereto in any manner,
except by
instrument in writing signed on behalf of each of the parties
hereto by their
duly authorized officers or representatives.
(b) Waivers. No term of provision of this Agreement shall
be deemed
waived by either party and no breach or default shall be deemed
excused by
either party unless such waiver or consent shall be in writing ad
signed by
such party. The failure of either party to enforce at any time
any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any
such provision, nor in any way to affect the validity of this
Agreement or any
part hereof or the right of such party thereafter to enforce each
and every
such provision. No waiver of any breach of or noncompliance with
this
Agreement shall be held to be a waiver of any other or subsequent
breach or
noncompliance.
(c) Notices. All notices and other communications
hereunder shall be in
writing and shall be deemed given (i) three business days after
posting with
the United States Postal Service when mailed by certified mail,
return receipt
requested, properly addressed and with the correct postage, (ii)
one business
day after pick-up by a courier service when sent by overnight
courier, properly
addressed and prepaid, or (c) one business day after the date of
the sender's
electronic confirmation of receipt when sent by facsimile
transmission. Such
notices and other communications shall be sent to the addresses
or facsimile
numbers set forth below, unless either party notifies the other
in writing, in
accordance with this 13 (c), of an address or facsimile change.
To Quadrax: Quadrax Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to: Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
To Xxxxxx: Xxxxxxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
With a copy to: Flanders & Xxxxxxxx
Xxx Xxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxx
To the Escrow Agent:Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X 00000-0000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxxxxx
(d) Construction. The headings in this Agreement are
included only for convenience and shall not in any way
affect the meaning or interpretation of this Agreement.
Except as otherwise indicated, references to a section
refer to such section of this Agreement. The words "herein"
and "hereof" and other words of similar import refer to this
Agreement as a whole and not to any particular part of this
Agreement.
(e) Disputes. Quadrax and Xxxxxx agree than any
dispute or controversy arising out of or relating to any
interpretation, construction, performance or breach of this
Escrow Agreement shall be settled by arbitration to be held
in Providence, Rhode Island in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association before a single arbitrator who shall have
experience in the area of the matter in dispute or
controversy. The arbitrator may grant relief in the nature
of injunctions or other relief in such dispute or
controversy. The decision by the arbitrator shall be final,
conclusive and binding on the parties. Judgment may be
entered on the arbitrator's behalf in any court having
jurisdiction. Each party shall pay that percentage of the
total costs and expenses of such arbitration, including fees
of legal counsel for both parties, equal to the percentage
of the total amount in controversy awarded by the arbitrator
to the other party.
(f) Validity. The invalidity or unenforceability of
any provisions of this Agreement shall not affect the
validity or enforceability of any other provisions of this
Agreement, each of which shall remain in full force and
effect.
(g) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
(h) Governing Law. This Agreement shall be governed by
the laws of the State of Rhode Island.
In Witness Whereof, Quadrax, Xxxxxx and the Escrow
Agent have executed, or caused to be executed, this
instrument under seal as of the date first set forth above.
Quadrax Corporation
/s/Xxxxx X. Xxxxxxx
By: __________________________
Xxxxx X. Xxxxxxx
Chairman of the Board and
Chief
Executive Officer
/s/Xxxxxxx X. Xxxxxx
__________________________
Xxxxxxx X. Xxxxxx
Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx,
as Escrow Agent
By: __________________________
Authorized Signature
