SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.39
SETTLEMENT AGREEMENT AND
RELEASE
This Settlement Agreement and Release
(this "Agreement") between Global Resource Corporation, a Nevada Corporation with
its principal executive office located at 0000 Xxxxxx Xxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx
Xxxxxx 00000 ("GRC" or the "Company"), and Xxxx Xxxxx, who resides at 000 Xxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000, for himself and any heirs, executors and administrators
(collectively referred to throughout this Agreement as "Xxxxx") is dated as of
10/02, 2009.
WITNESSETH:
WHERAS, Xxxxx had served as the
Company's Chief Executive Officer and on the Board of Directors of the Company
prior to July 6, 2009.
NOW,
THEREFORE, in
consideration of the mutual covenants and representations contained in this Agreement and
for other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
1. Termination
of Prior Agreements. The Company and Xxxxx hereby agree that all
understandings and agreements, written or oral, between the Company and Xxxxx,
including, without limitation, that certain Summary of Terms of Proposed
Employment Agreement (undated) by and between the Company and Xxxxx, filed as
Exhibit 10.1 to the Company's Current Report on Form 8-K filed on October 2,
2008 (the "Summary of Proposed Terms"), have been terminated and are of no
further force or effect with no further consideration and/or benefits due from
GRC and/or its affiliates to Xxxxx thereunder or otherwise.
2. Consideration.
As consideration for entering into this Agreement and the continued compliance
with the representations, covenants and obligations of Xxxxx hereunder, but
subject to Xxxxx'x continued compliance with the terms of this Agreement, the
Company agrees
that:
|
(a)
|
through
January 6, 2011, the Company shall pay to Xxxxx any bonuses that would
have been payable to Xxxxx pursuant to the section of the Summary of
Proposed Terms entitled "Bonus" as if the Summary of Proposed Terms was
still in effect solely for this purpose and solely for bonuses that may be
earned through January 6,
2011;
|
|
(b)
|
the
Company shall continue to provide to Xxxxx full health insurance benefits
through July 5, 2010 as provided to him prior to the termination of
employment with the Company and shall retroactively reimburse Xxxxx for
any expenses incurred by him from July 6, 2009 through the date hereof
that would have been paid for by the Company pursuant to such health
insurance benefits;
|
|
(c)
|
of
the options previously granted to Xxxxx by the Company to purchase
5,000,000 shares of the Company's Common Stock at an exercise price of
$1.18, (i) Xxxxx shall retain options to purchase 1,000,000 shares of
Common Stock at an exercise price of $1.18 that vested prior to July 6,
2009, (ii) Xxxxx shall retain additional options to purchase 1,000,000
shares of Common Stock at an exercise price of $1.18 that have not yet
vested and which shall fully vest on December 1, 2009, (iii) Xxxxx shall
retain additional options to purchase 1,000,000 shares of Common Stock at
an exercise price of $1.18 that have not yet vested and which shall fully
vest on December 1, 2010 and (iv) the remaining options to purchase
2,000,000 shares of Common Stock at an exercise price of $1.18 are
hereby
cancelled;
|
|
(d)
|
as
soon as legally possible after the execution of this Agreement, but no
later than 5 business days after execution of this Agreement, the Company
shall issue to Xxxxx
600,000 shares of its Common Stock that are registered under the
Securities Act of 1933 pursuant to an effective registration statement on
Form S-8 filed on January 29, 2008 (the "S-8"). For a period of one
hundred eighty (180) days commencing upon execution of this Agreement,
Xxxxx shall refrain from selling more than 35,000 shares of S-8 shares
during any calendar week. The Company has determined that the fair market
value for this issuance of stock with the restrictions placed upon it is
$0.50 per share. The
Company will issue Xxxxx a Form 1099 in the amount
of $300,000.00;
|
|
(e)
|
on
July 1, 2010 and October 6, 2011, the Company shall issue to Xxxxx 600,000
shares of its Common Stock that are registered under the Securities Act of
1933 pursuant to the S-8, for total issuances aggregating 1,800,000 shares
(the "S-8 Shares"), which issuances shall be at the closing price on the
last day of trading preceding the issuance date. The Company will issue
Xxxxx a Form 1099 upon each issuance reflecting the price at issuance. The
shares issued on July 1, 2010 and October 6, 2011 will not be subject to
the restrictions in trading set forth in paragraph
2(d);
|
|
(f)
|
upon
execution, the Company will additionally issue to Xxxxx 450,000 shares of
restricted stock subject to SEC Rule 144;
and
|
|
(g)
|
as
promptly as practicable after the execution of this Agreement, the
Company
shall transfer to Xxxxx the title of ownership of the Company's car
currently in Xxxxx'x possession and provide him a Form 1099 for
approximately $27,000. The Company acknowledges that Xxxxx has obtained
automobile insurance with respect to such car and has provided evidence
thereof to the Company.
|
3. No
Consideration
Absent Execution of this Agreement. The parties understand and agree that
the parties are entering into this Agreement in reliance on the representations,
warranties and covenants contained herein and that either party would not
receive the consideration and benefits specified in this Agreement except for
the party's execution of this Agreement and the party's complete and timely
fulfillment of their respective obligations contained herein.
4. Right of First
Offer.
(a)
If Xxxxx desires to sell any S-8 Shares, excluding the 600,000 shares
issued upon execution of the Agreement, he shall first deliver to the Company a
written notice (the "Offer Notice"), which Offer Notice shall include: (A) the
number of S-8 Shares to be sold (the "Offered Stock"); (B) the purchase price
for the shares of Offered Stock; and (C) an offer to sell such Offered Stock to
the Company (or its assignee or designee) in accordance with this Section 4, at
the purchase price specified in such Offer Notice. The Company and/or its
assignee(s) or designee(s) shall then have the first right and option (but not
the obligation) to purchase all or any of the Offered Stock at the purchase
price stated in the Offer Notice. Such right and option may be exercised by the
Company and/or its assignee or designee by giving written notice of such
election (including the amount of Offered Stock the purchaser desires to
purchase) to Xxxxx within three (3) days following receipt of the of the Offer
Notice if the purchase price is equal to or less than $0.75 per share or within
ten (10) days if the purchase price is greater than $0.75 per share (the
"Acceptance Notice").
(b)
Unless the parties otherwise agree in writing, the closing of any purchase
and sale of Offered Stock pursuant to this Section 4 shall take place on
the tenth (10th) day following delivery of the Acceptance Notice (or the next
succeeding business day if such day is not a business day). In the event
the Company and/or its assignee or designee fails to deliver an Acceptance Notice with respect to all of the
Offered Stock set forth in any Offer Notice within three (3) days
following receipt of the of the Offer Notice if the purchase price is equal to
or less than $0.75 or within ten (10) days if the purchase price is greater than
$0.75, Xxxxx shall have the right
to sell any remaining Offered Stock. Such sale shall close during the calendar
quarter in question. If Xxxxx does not consummate any such sale within
such calendar quarter, then such sale may not be consummated without repetition
of the procedures set forth in this Section 4.
5.
Non-Compete/Non-Solicit. Xxxxx agrees that for a period of two
(2) years following the
date of execution of this Agreement (the "Restricted Period"), Xxxxx
shall not, directly or indirectly, in any manner whatsoever engage or
participate in, either alone or with others (including as an employee,
representative, agent, independent contractor, broker, consultant, partner,
owner, director, trustee or stockholder of any partnership, business trust,
company, corporation or other business entity that engages in), any activity
that in any way competes with any company involved in the business of microwave
resource recovery technology. During the Restricted Period, Xxxxx shall not,
directly or indirectly: (i) contact any Company employee other than the Company's CEO with respect to
any matter (except as explicitly requested by the
Company) or induce or attempt to influence any then current employee of the
Company to leave its employ with the Company or hire an individual who was
employed by the Company within the year
prior to this Agreement; or (ii) contact (except as explicitly- requested
by the Company), solicit or direct any then-existing customer of the Company for
the purpose of competing with the Company, or in any manner attempting to
influence any other person or other entity to cease or alter its business
relationship with the Company, or with respect to any matter relating to the
business or the intellectual property of the Company, or (iii) commit any act
that injures the business or business relationships of the Company or otherwise
has an adverse economic effect on the Company, if such act was committed
intentionally to have such consequence. If a court of competent jurisdiction
explicitly determines in a final judgment that Xxxxx breached his obligations
under this Section 5, then the time periods hereunder shall be extended by the
period of time equal to that period beginning when the activities constituting
such violation commenced and ending when the activities constituting such
violation terminated. It is understood that the provisions of the preceding
sentence shall be in addition to any remedies otherwise available to the Company
hereunder for the breach by Xxxxx of the terms of this Agreement.
6.
Confidential
Information. Xxxxx acknowledges that he had access to information
that is confidential and proprietary to the Company, including without
limitation, business, operational and marketing plans, financial information,
ideas, concepts, processes, business methods, procedures, operations, software,
source, code, object codes, specifications, documentation, trade secrets,
technology, cost, pricing and sales information, lists and files of the Company
in whatever form or media (collectively, "Confidential Information"). Xxxxx
agrees that GRC had no obligation to specifically identify any information as
Confidential Information for it to be entitled to protection as such. Xxxxx
agrees to return to GRC all copies of Confidential Information directly or
indirectly in his possession or control. Xxxxx further agrees not to
disclose to any person, other than his legal representatives and accountants as
necessary, any Confidential Information without the prior written consent of
GRC.
7. Non-Disparagement.
In consideration of the parties' agreements as set forth herein, the parties
agree that they will not make disparaging or defamatory statements, nor will
they take any action which would reasonably have the effect of injuring the
Company, about each other or, as applicable, their past or present officers,
directors, agents and employees, to any third parties, including, without
limitation, to any customer, employee, vendor, stockholder or
client.
8. Amendment
to 8-K. As promptly as practicable after the execution of this Agreement,
the Company shall file a Form 8-K/A amending the Form 8-K filed by the Company
of July 10, 2009, in form and substance as set forth in Exhibit A to this
Agreement.
9. Relief for Breach of this
Agreement.
(a) If
a court of competent jurisdiction explicitly determines in a final judgment that
Xxxxx has materially breached the terms of this Agreement, the Company shall be
forever relieved of all of its obligations under Section 2 (Consideration) of
this Agreement not yet undertaken and Xxxxx shall be prohibited from (i) selling
any S-8 Shares already received by him hereunder of which Xxxxx still owns or
controls, which S-8 Shares shall immediately revert back to the Company and (ii)
exercising any previously unexercised options to purchase shares of the
Company's Common Stock, which options shall be deemed immediately cancelled. It
is understood that the provisions of the preceding sentence shall be in addition
to any remedies otherwise available to the Company hereunder for the breach by
Xxxxx of the terms of this Agreement.
(b)
Each party agrees that it is fair, reasonable and necessary for the
party to make the
covenants and undertakings set forth herein. Each party further agrees that if
such party breaches or attempts to breach or violate any of the provisions, the
other party will be irreparably harmed and monetary damages will not provide an
adequate remedy. Accordingly, it is agreed that each party may seek and shall be
entitled to temporary, preliminary and permanent injunctive relief (without the
necessity of posting a bond or other security) to prevent any breach or
threatened breach of this Agreement or to enforce the provisions hereof, and
each party hereby consents to the granting of such injunctive relief, including
specific performance, without having to prove the inadequacy of the available
remedies at law or actual damages and without the requirement of posting a bond
or other security. It is understood that any such injunctive remedy shall not be
exclusive or waive any rights to seek other remedies at law or in equity, and
each party shall be entitled to commence legal, judicial or other process. Each
party agrees that the covenants and undertakings covered by this Agreement are
reasonable in light of the facts as they exist on the date hereof However, if at
any time, a court having jurisdiction over this Agreement shall determine that
the scope, subject matter or duration of any covenant contained herein is
unreasonable in any respect, it shall be modified as such court determines may
be reasonable so that each party's interests are protected.
10.
General
Release of Claims.
(a)
Xxxxx knowingly and voluntarily releases and forever discharges GRC, including
all present or former affiliates, successors, predecessors, purchasers or
sellers of stock or assets, subsidiaries, divisions, successors, assigns,
insurers, counsel, investors, creditors, representatives and the current and
former employees, stockholders, partners, associates, attorneys, officers,
directors and agents thereof (collectively, "GRC Parties"), from any and all
claims, known to Xxxxx, which Xxxxx has or may have against such GRC Parties as
of the date of
execution of this Agreement, including, without limitation, any and all claims
related to the termination of Xxxxx'x employment with the Company and his
removal from the Company's Board of Directors, as well as the description
thereof contained in the Form 8-K filed by the Company of July 10, 2009, and in any other
Company statements and filings and any claims for slander or libel related
thereto. Xxxxx further covenants and agrees not to xxx the Company or any
current or future officer, director, employee or other representative of the
Company with respect to any matter whatsoever except in relation to the
violation by the Company of this Agreement, or arising from any breach or
alleged breach of any representation, warranty, covenant or obligation of the
Company under the Agreement.
(b)
GRC knowingly and voluntarily releases and forever discharges Xxxxx from any and
all claims, the basis of which are known to GRC and occurred during Xxxxx'x term
of employment, which GRC has or may have against Xxxxx as of the date of
execution of this Agreement; but specifically excluding any claims relating to
(i) acts of fraud or illegality committed by Xxxxx at any time during his term
of employment with Company or (ii) arising from any breach or alleged breach of
any representation, warranty, covenant or obligation of Xxxxx under this
Agreement.
11. Further
Assurances. Xxxxx hereby
agrees to execute and deliver such other instruments
and take such other action as GRC may request in connection with the
transactions contemplated by this Agreement. In addition, (i) upon explicit
written request by the Company, Xxxxx shall reasonably cooperate and assist with
all inquiries from Company
employees, vendors and/or customers at no additional cost or expense to the
Company and without any further consideration to Xxxxx hereunder, and (ii) Xxxxx
agrees to reasonably cooperate with the Company regarding any potential suit,
claim, litigation or demand for damages of any kind or nature
brought by a third party against the Company, without expense or loss of any
type to Xxxxx.
12. Governing
Law and Interpretation. This Agreement shall be governed and conformed
in accordance with the laws of the State of New Jersey, without regard to its
choice or conflict of laws provisions. Any litigation proceeding under
this Agreement shall be confidential in nature
to the fullest extent permitted by applicable law. In any action, lawsuit
or proceeding brought to enforce or interpret the provisions of this Agreement
and/or arising out of or relating to any dispute between the parties, the
prevailing party with respect to each specific issue in a matter shall be
entitled to recover all of his or its costs and expenses relating to such issue
(including without limitation, reasonable attorney's fees and disbursements) in
addition to any other relief to which such party may be entitled.
13.
Notices. Any notice required or
permitted to be given under this Agreement shall be sufficient if in writing,
and if sent by overnight courier service for next day delivery to the address
of such party below (or such other addresses as the party may later specify in a
written notice to the other party sent in accordance with this Notice
provision):
To Xxxxx:
Xxxx
Xxxxx
000
Xxxxxx Xxxxxx
Xxxxxxx
Xxxxx, XX 00000
With a
copy to:
Xxxxxxxxx
& Xxxxxxx, P.C.
Continental
Plaza
000
Xxxxxxxxxx Xxx., 0xx
Xxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxxx, Esq.
To the
Company:
Global
Resource Corporation
0000
Xxxxxx Xxx, Xxxxx 000
Xxxxx
Xxxxxx, XX 00000
Attention:
CEO
With a
copy to:
Xxxxxxxxx
Ball Xxxxxx Xxxxxx & Xxxxxxxxxx, LLP
000 Xxx
Xxxxxxx Xxxx, 0xx
xxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxx, Esq.
All
notices hereunder shall be deemed received the day after being sent by next-day
delivery with a recognized overnight courier service.
Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
15. Headings. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
16. Amendment.
This Agreement may not be modified, altered or changed except in writing, in a
document signed by all parties.
17.
Entire
Agreement. This Agreement sets forth the entire agreement between the
parties hereto, and fully supersedes any prior agreements or understandings
between the parties.
18. Severability.
Any term or provision of this Agreement which is invalid or unenforceable shall
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining rights of the party intended to
be benefited by such provision.
19.
Product
of Negotiation. The terms of this Agreement are the product of
negotiation
and compromise between the parties. The meaning, effect and terms of this
Agreement have been discussed by the parties with their respective counsel and
agreed upon by the parties hereto. In the event of an ambiguity in the
interpretation of this Agreement, no party shall be deemed to have been the
draftsman thereof.
IN
WITNESS WHEREOF, the parties hereto have knowingly and voluntarily executed this
Agreement as of the date first set forth above.
|
/s/ Xxxx
Xxxxx
XXXX XXXXX
|
|
/s/ Xxxx
Xxxxx
XXXX XXXXX
|
GLOBAL
RESOURCE CORPORATION
By: /s/ P.A.
Worthington
Name:
Xxxxx Xxxxxxx Xxxxxxxxxxx
Title:
Acting Chairman
|
|
/s/
Xxxxxxx
Xxx
Name: Xxxxxxx Xxx
Witness
|
/s/ Sandija Bayot
Name: Sandija
Bayot
Witness
|
| On this, the 2nd day of October, 2009, before me a New Jersey Attorney, personally appeared Xxxx Xxxxx and the witness, Xxxxxxx Xxx, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. | On this, the 28th day of September, 2009, before me a notary public, personally appeared Xxxxx Xxxxxxxxxxx and the witness, Sandija Bayot, known to me (or satisfactorily proven) to be the persons whose names are subscribed to the within instrument, and acknowledged that they executed the same for the purposes therein contained. |
|
In
witness hereof, I hereunto set my hand.
/s/
[unreadable]
New Jersey Attorney-at-Law
|
In
witness hereof, I hereunto set my hand and official
seal.
/s/ Xxxxxxx
Xxxxx
Notary Public
|
