SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement ("This Agreement") is made and
entered into this 5th day of March, 1998, by and among LANXIDE CORPORATION, a
Delaware corporation ("Lanxide"), LANXIDE PERFORMANCE MATERIALS, INC., a
Delaware Corporation ("Lanxide Performance"), XXXX X. XXXXXXX, an individual
residing in Delaware, COMMODORE ENVIRONMENTAL SERVICES, INC., a Delaware
corporation ("COES"), COMMODORE APPLIED TECHNOLOGIES, INC., a Delaware
corporation ("Commodore Applied") and other individuals and companies for whose
benefit and on whose behalf this Agreement is made, as more fully set forth
hereinafter.
RECITALS:
WHEREAS, Lanxide's subsidiary, Lanxide Performance, is a party to and
borrower under (i) a Line of Credit Agreement with Commodore Applied, as Lender,
dated August 30, 1996 in the amount of $1.5 Million (the "$1.5 Million Credit
Agreement"), (ii) a Line of Credit Promissory Note dated August 30, 1996 in the
amount of $1.5 Million (the "$1.5 Million Note"), and (iii) a Security Agreement
dated August 30, 1996 in the amount of $1.5 Million (the "$1.5 Million Security
Agreement"); Lanxide is a guarantor of the aforementioned $1.5 Million Credit
Agreement and $1.5 Million Note (the "$1.5 Million Guaranty"); the $1.5 Million
Credit Agreement, Note, Security Agreement and Guaranty Agreement are
hereinafter collectively referred to as the "Lanxide Performance $1.5 Million
Loan Documents");
WHEREAS, Lanxide Performance is a party to and borrower under a certain
Line of Credit Agreement with COES, as Lender, dated November 13, 1996 in the
amount of $3 Million (the "$3 Million Credit Agreement"), a Line of Credit
Promissory Note dated November 13, 1996 (the "$3 Million Note"), a corresponding
Security Agreement dated November 13, 1996 (the "$3 Million Security
Agreement"); Lanxide guaranteed the aforementioned $3 Million Credit Agreement,
the $3 Million Note and $3 Million Security Agreement (the "$3 Million
Guaranty"); the aforementioned $3 Million Credit Agreement, the $3 Million Note,
the $3 Million Security Agreement and the $3 Million Guaranty are hereinafter
collectively referred to as the "Lanxide Performance $3 Million Loan
Documents");
WHEREAS, Lanxide and COES are parties to a Securities Purchase
Agreement dated the third day of July, 1997 (the "Securities Purchase
Agreement") pursuant to which, inter alia, Lanxide granted to COES a warrant
entitling COES or the holder to purchase up to 250,000 shares of Lanxide Series
F Preferred Stock at an exercise price of $100 per warrant (the "Original
Warrant");
WHEREAS, certain individual stockholders of Lanxide (the "Subject
Lanxide Stockholders") entered into a "Voting Agreement" with Bentley X. Xxxx
("Xxxx"), Xxxx X. Xxxxxxxxx ("Xxxxxxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx
Xxxxx ("Xxxxx") and Xxxxxxx Xxxxxxx ("Xxxxxxx") (collectively the "Proxy
Holders") pursuant to which the Subject Lanxide Stockholders granted a proxy to
the Proxy Holders to vote their shares in Lanxide;
WHEREAS, the parties hereto and the parties for and on whose behalf
this Agreement is made desire to settle certain disputes which have arisen
relating to the Lanxide Performance $1.5 Million Loan Documents, the Lanxide
Performance $3 Million Loan Documents, the Securities Purchase Agreement, the
Voting Agreement and other miscellaneous agreements, and those same parties
desire to release each other from claims arising out of the foregoing
agreements;
NOW, THEREFORE, in consideration of the foregoing Recitals and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, it is hereby agreed as follows:
1. Voting Trust Agreement. The parties hereto acknowledge and agree
that the Voting Agreement was terminated on February 5, 1998 and that from and
after that date, was no longer and is no longer of any force or effect
whatsoever.
2. Amendment to Securities Purchase Agreement. Lanxide and COES hereby
agree to amend the Securities Purchase Agreement and agree that they shall,
contemporaneously herewith, execute and deliver an AMENDMENT TO SECURITIES
PURCHASE AGREEMENT in the form of Exhibit A annexed hereto and made a part
hereof.
3. The $3 Million Loan. COES hereby agrees that any and all obligations
and liabilities of Lanxide Performance and/or Lanxide arising under or related
to the Lanxide Performance $3 Million Loan Documents, including, but not limited
to, the liability of Lanxide Performance to make any payment pursuant to, or to
repay any amount of money which it borrowed (including any interest thereon) in
respect to the Lanxide Performance $3 Million Loan Documents, and any duty of
Lanxide to guarantee that repayment (including any interest thereon) or make
that repayment (including any interest thereon), are hereby terminated.
Contemporaneously with the execution and delivery of this Agreement and as
consideration for this Agreement (including the releases herein contained) and
the License Agreement (as such term is defined in paragraph 5 hereof), COES
will return to Lanxide Performance and Lanxide the original $3 Million Note and
$3 Million Guaranty marked cancelled.
4. The $1.5 Million Loan. COES hereby agrees that any and all
obligations and liabilities of Lanxide Performance and/or Lanxide arising under
or related to the Lanxide Performance $1.5 Million Loan Documents, including,
but not limited to, the liability of Lanxide Performance to make any payment
pursuant to or to repay any amount of money which it borrowed (including any
interest thereon) in respect to the Lanxide Performance $1.5 Million Loan
Documents, and any duty of Lanxide to guarantee that repayment (including any
interest thereon) or make that repayment (including any interest thereon), are
hereby terminated. Contemporaneously with the execution and delivery of this
Agreement and as consideration for this Agreement (including the releases herein
contained) and the License Agreement, Commodore Applied will return to Lanxide
Performance and Lanxide the original $1.5 Million Note and $1.5 Million Guaranty
marked cancelled.
5. The Ceraset(TM) Business, Trademark and License. Lanxide shall cause
its subsidiary, Lanxide Technology Company, L.P., contemporaneously herewith, to
execute and deliver to Commodore Polymer Technologies, Inc., a Delaware
corporation and an affiliate of
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Commodore Applied and COES ("Polymer"), a license agreement (the "License") to
use Lanxide Technology Company, L.P.'s Ceraset(TM) technology and trademark,
which license agreement shall be in the form of Exhibit "B" annexed hereto and
made a part hereof (the "License Agreement"). Lanxide hereby agrees to transfer
to Polymer all aspects of Lanxide's Ceraset business that relate to the License,
including but not limited to customer lists, prospective contracts, and names
and addresses of former employees (whom Polymer is authorized to attempt to
hire). Lanxide further agrees to assign any agreements that it has that relate
exclusively to the rights being granted in the license to Polymer. In the event
of any conflict between the provisions of this paragraph 5 and the License
Agreement, the provisions of the License Agreement shall control.
6. Release.
A. Lanxide, for itself and all of its subsidiaries, including, without
limitation, Lanxide Performance, and Xxxx X. Xxxxxxx (collectively the "Lanxide
Releasors") for and on behalf of themselves and their respective heirs,
administrators, executors, predecessors, successors and assigns hereby
unconditionally and forever fully release, remise, quit claim, settle and
discharge any and all claims, demands, liabilities, actions, choses-in-action,
causes-in-action, whether known or unknown, legal or equitable, absolute,
contingent or vested, which any or all of the Lanxide Releasors may have had,
have or may hereafter acquire against (i) COES and any of its subsidiaries or
affiliates, including without limitation, Commodore Applied, and their
respective past or present Board members and corporate officers (the "Commodore
Group"), (ii) the Lanxide stockholders identified on Schedule A to the Voting
Agreement, to wit, Bentley X. Xxxx, Xxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxx Xxxxxxxxx,
Xxxx X. Xxxxxxxxx, Xxxx X. Xxxxxxx and Xxx Xxxx Xxxxxxxxx (the "Subject Lanxide
Shareholders"), (iii) the Proxy Holders identified in the Voting Agreement, to
wit, Bentley X. Xxxx, Xxxx X. Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx Xxxxx and
Xxxxxxx Xxxxxxx (the "Lanxide Proxy Holders"), and (iv) those former members of
the Lanxide Board of Directors, to wit, Xxxxxxx X. Xxxxxxxx, Esquire and Xxxxxxx
X. Xxxxxx (the "Former Lanxide Directors"), and all of their respective heirs,
administrators, executors, predecessors, successors, assigns, privies, and
attorneys-at-law or other legal or financial advisors, which relate to, or arise
from, actions taken or agreements made prior to the date hereof. Without in any
way intending to limit the generality of the foregoing, the Lanxide Releasors
hereby, releases COES, Commodore Applied, the Subject Lanxide Shareholders and
the Proxy Holders, and Former Lanxide Directors, and their respective heirs,
administrators, executors, predecessors, successors and assigns from any and all
claims the Lanxide Releasors may have had or have as of the date hereof arising
out of the Voting Agreement including any vote of Lanxide shares undertaken by
or omitted by the Proxy Holders and for any breaches by COES under the
Securities Purchase Agreement.
X. XXXX and Commodore Applied, for and on behalf of themselves and all
of their subsidiaries (collectively, the "Commodore Releasors") and their
respective predecessors, successors and assigns, hereby unconditionally and
forever fully, release, remise, quit claim, settle and discharge any and all
claims, demands, liabilities, actions, choses-in-action, causes-in-action,
whether known or unknown, legal or equitable, absolute, contingent or vested,
which any or all of the Commodore Releasors may have had, have or may hereafter
acquire against the Lanxide Releasors and all of their respective past or
present board members, and corporate officers, heirs, administrators, executors,
predecessors, successors,
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assigns, privies, and attorneys-at-law or other legal or financial advisors,
which relate to, or arise from, actions taken or agreements made prior to the
date hereof. Without intending to limit the generality of the foregoing, each of
the Commodore Releasors hereby releases the Lanxide Releasors and all of their
respective past or present board members, and corporate officers, heirs,
administrators, executors, predecessors, successors, assigns, privies, and
attorneys-at-law or other legal or financial advisors, from and against any and
all liabilities and obligations arising under or related to the Lanxide
Performance $1.5 Million Loan Documents, the Lanxide Performance $3 Million Loan
Documents and the Securities Purchase Agreement.
C. Nothing in this section is intended to release any party hereto from
any breach or default under this Agreement, the Amendment to Securities Purchase
Agreement or the License Agreement from and after the date hereof
7. Representation and Warranties.
Each party hereto represents and warrants to each other party as follows:
7.1 Corporate Organization, Standing. It is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
7.2 Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by it and, subject to the due authorization,
execution and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of it, enforceable in accordance with its terms, except
that (i) the enforceability hereof may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (ii) the remedy of specific performance and
injunctive and other terms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereto and the fulfillment and
compliance with the terms and conditions hereof do not and will not after the
giving or notice, or the lapsed of time, or otherwise: (a) violate any
provisions of any judicial or administrative order, award, judgment or decree
applicable to it, or (b) conflict with any of the provisions of the Articles or
Certificate of Incorporation or By-Laws of it, or (c) conflict with, result in a
breach of or constitute a default under any agreement or instrument to which it,
is a party or by which it is bound, except for any of the foregoing that,
individually or in the aggregate, would not have a material adverse effect on
the financial condition, operations or businesses of such party and its
subsidiaries, taken as a whole.
7.3 Disclosure. No representation, warranty or covenant in this
Agreement nor any Schedule, statement, list or certificate furnished or to be
furnished to Sellers pursuant thereto, or in connection with the transactions
contemplated hereby, contains any untrue statement of a material fact, or omits
to state a material fact required to be stated therein or necessary to make the
statements contained therein not misleading.
8.1 Notices. All notices, requests, demands and other communications
under or in respect of this Agreement or any transactions hereunder shall be in
writing (which may include telegraphic or telecopied commununication) and shall
be personally delivered, sent by
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overnight courier, mailed (registered or certified mail, return receipt
requested), telegraphed or telecopied by facsimile transmission to the
applicable party at its address or telecopier number indicated below.
If to COES:
Commodore Environmental Services, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Atten: Xxxxxxx X. Xxxxxxxx, Esquire
Senior Vice President and General Counsel
Chief Financial and Administrative Officer
Telecopier No.: (000) 000-0000
If to Commodore Applied:
Commodore Applied Technologies, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Atten: Xxxxxxx X. Xxxxxxxx, Esquire
Senior Vice President and General Counsel
Chief Financial and Administrative Officer
Telecopier No.: (000) 000-0000
If to the Lanxide Companies:
Lanxide Corporation
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000-0000
Atten: Xx. Xxxx X. Xxxxxxx, President
Telecopier No.: (000) 000-0000
8.2 Entire Agreement. This Agreement (including the Exhibits and
Schedules) contains the entire agreement among the parties with respect to the
subject matter contained herein and supersedes all prior arrangements or
understandings, written or oral, with respect thereto.
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8.3 Amendments. Any term or condition of this Agreement may be amended
or modified in whole or in part at any time, to the extent authorized by
applicable law, by an agreement in writing, authorized and executed in the same
manner as this Agreement by the parties hereto. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power of privilege hereunder, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which any party may otherwise have at law or in equity. The
rights and remedies of any party arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or breach may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Agreement (or
in any other agreement between the parties) as to which there is no inaccuracy
or breach.
8.4 Severability. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be.
8.5 Execution and Delivery. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Delivery of a counterpart
shall be deemed effective upon receipt by the other party of telefaxed signature
page to this Agreement, provided that such party shall nonetheless transmit its
original executed signature page to the other party.
8.6 Exhibits. The Exhibits and other documents attached to or delivered
herewith are hereby incorporated and made a part of this Agreement as if set
forth in full herein.
8.7 Drafting. No presumption shall operate in favor of or against any
party in the construction or interpretation of this Agreement as a consequence
of a party's responsibility for drafting this Agreement.
8.8 Recitals. The recital clauses of this Agreement are incorporated
herein to the body as though set forth at length.
8.9 Attorney and Professional Fees. Each party will pay his/her own
attorney or professional fees in connection with this Agreement or settlement
discussions leading to this Agreement.
8.10 Captions. The captions of Sections hereof are for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
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8.11 Controlling Law. The parties hereto agree that this Agreement
shall be governed and construed by the internal, substantive laws of the State
of New York (without regard to that state's choice of law rules or doctrines)
and, if applicable, the substantive law (statutory, administrative or common
law) of the United States (without regard to its choice of law, rules or
doctrines) Sellers hereby consent to personal jurisdiction in the State of New
York for the purposes of any matter of or related to this Agreement or any other
agreement between the parties hereto executed and delivered on or about the date
hereof, including for purposes of any amendments hereto or thereto. The parties
hereto further agree that venue for any dispute arising under this Agreement or
for any other agreement between the parties hereto which are executed on or
about the date hereof shall be proper in the United States District Court for
the Southern District of New York. The parties also expressly waive trial by
jury and the right to request a transfer of venue.
8.12 Binding Effect. This Agreement shall be binding and inure to the
benefit of the named parties hereto, all of their wholly or partially-owned
subsidiaries, the parties on whose behalf and for whose benefit it is made and
their respective heirs, administrators, executors, successors and assigns.
8.13 Confirmation of Effectiveness of Earlier Granted Licenses. Nothing
contained herein shall affect in any manner any license granted by Lanxide or
any of its affiliates to Commodore Applied or any of its affiliates as
consideration in whole or in part for and in connection with the loans made
pursuant to the Lanxide Performance $1.5 Million Loan Documents and the Lanxide
Performance $3 Million Loan Documents, including without limitation that
certain License Agreement dated as of August 29, 1996 by and among Lanxide
Technology Company L.P., Commodore Applied and Lanxide, a copy of which is
attached hereto as Exhibit D.
(remainder of page intentionally left blank]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties have
hereto executed this Agreement on the day and date first above written,
Attest: LANXIDE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxx, its President
LANXIDE PERFORMANCE MATERIALS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxx, its President
COMMODORE ENVIRONMENTAL SERVICES, INC.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxxxx, its President
COMMODORE APPLIED TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxxxx, its CEO
/s/ Xxxx X. Xxxxxxx
------------------------- -----------------------------
Xxxx X. Xxxxxxx
[Signature page to Settlement and Release Agreement]
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Exhibit List
Exhibit
Amendment to Securities Purchase Agreement A
License Agreement B
List of Third Party Ceraset(TM) Licenses C
August 29, 1996 License Agreement D
