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EXHIBIT 10.9
SETTLEMENT, RELEASE AND OPTION AGREEMENT
THIS AGREEMENT entered into this 14th day of December, 1994, between W.
XXXXXXX XXXXXX, hereinafter referred to as "Xxxxxx," and AMERISHOP, INC., a
Delaware corporation, f/k/a/ Michigan Ventures, Inc. (hereinafter referred to
as "Amerishop").
WHEREAS, Xxxxxx has previously been employed by Amerishop in positions which
are regarded by the Company as involving the handling of proprietary
information; and
WHEREAS, Xxxxxx has resigned his positions with Amerishop to pursue
opportunities with a competitor; and
WHEREAS, Amerishop has contended that this activity by Xxxxxx has usurped a
corporate opportunity and involves the transmission of proprietary or other
confidential information belonging to Amerishop to a competitor for which it is
entitled to compensation or injunctive relief; and
WHEREAS, Xxxxxx has disputed such assertions but is willing to resolve the
matter with Amerishop without litigation;
NOW, THEREFORE, in consideration of the premises and the terms and conditions
hereinafter set forth, the parties agree as follows:
1. OPTION. Xxxxxx hereby grants to Amerishop the option to purchase 275,000
shares of the common stock of Amerishop currently represented by Certificate
No. 244 on the terms and conditions hereinafter set forth.
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1.1. PRICE. The per share purchase price under said option shall be
$2.00 per share.
1.2 EXERCISE. This option shall be exercisable in whole or in part at
any time and at one or more times during a three (3) year period
subsequent to the date hereof and, with respect to 137,500 shares, for an
additional one (1) year period, by delivering to Xxxxxx at the address
set out below, or such other address as he shall specify in a writing
received by Amerishop hereafter, a written notice designating the number
of shares for which it is being exercised.
1.3 LAPSE. Notwithstanding any other provisions of this Agreement to
the contrary, no portion of the option granted hereby shall be exercised
after four (4) years from the date hereof. To the extent this option has
not been exercised prior to such expiration, it shall lapse.
1.4 CLOSING. Within ten (10) days after delivery of the notice as
provided above, Xxxxxx shall deliver to Amerishop a certificate or
certificates for the number of shares being purchased, duly endorsed, and
free and clear of all other claims or encumbrances whatsoever. Upon such
delivery, Amerishop shall pay the aggregate purchase price by regular
corporate check and shall reissue a certificate for shares covered by the
delivered certificates and which are not being purchased hereunder in the
name of Xxxxxx and subject to such other restrictions as may then apply.
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1.5 RESTRICTION ON DISPOSITION OF SHARES. Xxxxxx shall deliver to
Amerishop a certificate or certificates for 275,000 shares of Amerishop
registered in his name and free and clear of all claims or encumbrances
whatsoever. Amerishop shall place a legend on such certificates to the
effect that no sale or transfer may be made of said shares without the
written consent of Amerishop, which consent shall not be withheld for
transfers permitted hereunder so long as sufficient shares are retained
by Xxxxxx to enable him to satisfy the options granted herein. Amerishop
shall place a stop transfer instruction with respect to the sale of such
shares, such restriction to apply during the four (4) year period of this
option and to such issued certificates as may occur subsequent to the
exercise of an option hereunder. Such legend and stop transfer shall be
removed with respect to all shares no longer subject to an option
hereunder.
1.6 MERGERS AND RECAPITALIZATIONS AND LIQUIDATION. In the event the
outstanding shares of common stock of Amerishop are increased, decreased,
changed into or exchanged for a different number or kind of shares or
securities of Amerishop or any other corporation, or shares of a
different par value or without par value, through merger, reorganization,
recapitalization, reclassification, stock dividend, stock split, or
similar transaction, then, to the extent this option is not yet
exercised, an appropriate adjustment shall be made in the number or kind
of securities allocated to this option pursuant to the provisions of such
transaction. In the event of a
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dissolution or liquidation of Amerishop, Amerishop shall be entitled,
prior to the effective date of any such dissolution or liquidation, to
purchase the full number of shares under this option which would
otherwise have been entitled to be purchased during the remaining term of
this option.
2. PROXY. Xxxxxx hereby constitutes and appoints the President of
Amerishop, Xxxxxx X. Xxxxxxx, or any successor to such office, with full power
of substitution to vote all of the stock of Amerishop which from time to time
the undersigned would otherwise be entitled to vote at any meeting of, or
written consent by, the shareholders of the Company during the four (4) year
term of the option provided above. Xxxxxx hereby acknowledges that this power
is coupled with an interest in such corporation in the shares subject to this
option and the death or incapacity of Xxxxxx or Xx. Xxxxxxx shall not effect
the existence of such proxy which shall inure to and be exercisable by any
person occupying the office of President of the corporation, either permanently
or temporarily by action of the board or effect of the bylaws of the
corporation. In the event that Xxxxxx shall transfer in a bona fide sale to an
unrelated third party shares of capital stock in Amerishop not subject to the
option hereunder, this proxy shall be extinguished with respect to such shares
transferred on the effective date of such shares on the books of Amerishop.
3. MUTUAL RELEASE.
3.1 Xxxxxx hereby waives and releases for himself, his heirs and
assigns forever, any and all claims, rights or causes of action he may
have against Amerishop for any reason whatsoever and existing whether
known or unknown on the date hereof, except as may arise out of this
agreement, and agrees to indemnify and hold Amerishop harmless
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therefrom against any and all claims, costs, expenses or liabilities it
may pay or be put to arising out of any such indemnified claim.
3.2 Amerishop hereby waives and releases for itself and its successors
and assigns forever any and all rights, claims or causes of action it may
have against Xxxxxx pursuant to that certain Employment Agreement dated
October 27, 1987 between Amerishop and Xxxxxx or otherwise arising out of
his resignation from employment of Amerishop and acceptance of employment
with QVC, Inc. and agrees to indemnify and hold Xxxxxx harmless from and
against any and all claims, costs, expenses or liabilities he may pay or
be put to as a result of Amerishop asserting any rights in respect
thereof.
4. MISCELLANEOUS.
4.1 CAPTIONS AND HEADINGS. The paragraph headings throughout this
Agreement are for convenience and reference only and shall in no way be
deemed to define, limit or add to the meaning of any provision of this
Agreement.
4.2 NO ORAL CHANGE. This Agreement and any provision hereof may not
be waived, changed, modified or discharged orally, but it can be changed
by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
4.3 NON-WAIVER. Except as otherwise expressly provided herein, no
waiver of any covenant, condition or provision of this Agreement
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shall be deemed to have been made unless expressly made in writing and
signed by the party against whom such waiver is charged; and (i) the
failure of any party to insist in any one or more cases upon the
performance of any of the provisions, covenants or conditions of this
Agreement or to exercise any option herein contained shall not be
construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of performance
of anything required by this Agreement to be performed with knowledge of
the breach or failure of a covenant, condition or provision hereof shall
not be deemed a waiver of such breach or failure, and (iii) no waiver by
any party of one breach by another party shall be construed as a waiver
with respect to any other or subsequent breach.
4.4 TIME OF ESSENCE. Time is of the essence of this Agreement and of
each and every provision hereof.
4.5 ENTIRE AGREEMENT. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes all prior
agreements and understandings.
4.6 CHOICE OF LAW. This Agreement and its application shall be
governed by the laws of the State of Michigan.
4.7 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an
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original, but all of which together shall constitute one and the same
instrument.
4.8 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to
whom notice is to be given, or on the day of mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed as follows:
Amerishop
Amerishop, Inc.
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
0000 Xxxxxxx Xxxxx Xxxxx, X.X.
Xxxxx Xxxxxx, XX 00000-0000
W. Xxxxxxx Xxxxxx
W. Xxxxxxx Xxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
4.9 BINDING EFFECT. This Agreement shall inure to and be binding upon
the heirs, executors, personal representatives, successors and assigns of
each of the parties to this Agreement.
4.10 MUTUAL COOPERATION. The parties hereto shall cooperate with each
other to achieve the purpose of this Agreement and shall execute such
other and further documents and take such other and
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further actions as may be necessary or convenient to effect the
transaction described herein.
4.11 EXPENSES. Each party will pay its own legal, accounting and any
other out-of-pocket expenses reasonably incurred in connection with this
transaction, whether or not the transaction contemplated hereby is
consummated.
IN WITNESS WHEREOF, the parties hereto have caused this Option
Agreement to be executed as of the day, month and year first above written.
/s/
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W. Xxxxxxx Xxxxxx
AMERISHOP, INC.,
a Delaware corporation
/s/
By: ------------------------------
Xxxxxx X. Xxxxxxx, C.E.O.
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