Exhibit 4.7
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT (this "Agreement"), dated as of June 1, 2004, by and
between XXXXXXXXX & XXXXXXXXX, INC. ("Xxxxxxxxx"), 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and DATAWORLD SOLUTIONS, INC. ("DataWorld"), 000X Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, XX 00000.
WHEREAS, DataWorld is indebted to Xxxxxxxxx (without offset, defense or
counterclaim) in the amount of $1,750,000; (the "DataWorld Debt"); and
WHEREAS, the parties hereto have agreed to a settlement of the DataWorld
Debt upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, it is agreed as follows:
1. Xxxxxxxxx hereby agrees to accept in full and complete satisfaction of
the DataWorld Debt the following:
a. one million (1,000,000) shares of common stock, par value $0.001 per
share, of DataWorld ("Common Stock"). Xxxxxxxxx acknowledges that, upon
issuance, such shares of Common Stock shall be "restricted securities" as
defined in Rule 144 of the Securities Act of 1933, as amended (the "Securities
Act"), and until transferred pursuant to an effective registration statement
under the Securities Act and qualified under applicable state securities or blue
sky laws, or otherwise disposed of pursuant to an exemption from the
registration requirements of the Securities Act, the certificate or certificates
representing any such shares of Common Stock shall contain the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"), and
may not be sold, transferred, pledged, hypothecated or otherwise disposed
of in the absence of except pursuant to an effective registration statement
or pursuant to an exemption from the registration requirements of the Act."
b. a promissory note executed by DataWorld in the principal amount of two
hundred fifty thousand dollars ($250,000), substantially in the form and on the
terms of Exhibit A annexed hereto (the "Note"). The Note shall bear interest
from the date thereof at a rate equal to the rate per annum announced publicly
by Citibank, N.A. in New York, New York as Citibank, N.A.'s base rate in effect
from time to time during the period the Note remains unpaid, plus two percent
(or at the default rate, if in effect), and shall be payable as follows:
i. Interest only on the first day of each month, monthly in arrears,
commencing June 1, 2004, and ending December 1, 2004;
ii. Equal monthly principal installments of $5,952.38 commencing January
1, 2005 and ending June 1, 2008; and
iii. interest on the unpaid balance of this Note at the Interest Rate,
payable monthly in arrears commencing January 1, 2005.
c. 100,000 shares of Common Stock from Xxxxxx XxXxxx, which shares shall be
duly authorized, validly issued, fully paid and nonassessable, and shall be free
and clear of any charge, claim, community property interest, condition,
equitable interest, lien, option, pledge, security interest, right of first
refusal or restriction of any kind, including any restriction on use, voting,
transfer, receipt of income or exercise of any other attribute of ownership
("Encumbrance").
2. If Xxxxxxxxx sells the 1,000,000 shares of Common Stock issued to it
pursuant to Section 1(a) for aggregate proceeds of more than $2,000,000, other
than pursuant to privately-negotiated sales at a discount to the market price of
such shares on the date of any such sale, Xxxxxxxxx shall promptly thereafter
return to Xxxxxx XxXxxx the shares of Common Stock transferred to it pursuant to
Section 1(c). If Xxxxxxxxx sells the 1,000,000 shares of Common Stock issued to
it pursuant to Section 1(a) for aggregate proceeds of less than $2,000,000,
Xxxxxxxxx may thereafter sell the shares of Common Stock transferred to it
pursuant to Section 1(c) without restriction.
3. Contemporaneously with the execution and delivery of this Agreement,
Xxxxxxxxx and DataWorld shall enter into a registration rights agreement,
substantially in the form and on the terms of Exhibit B hereto (the
"Registration Rights Agreement").
4. Upon delivery to Xxxxxxxxx of the shares of Common Stock and Note
pursuant to Section 1, the parties agree that: (a) the DataWorld Debt shall be
reduced to the principal amount of the Note (and all other DataWorld Debt shall
be released), (b) the Note shall be secured as provided in Section 5 hereof and
(c) there shall no longer be any personal guaranty by Xxxxxx XxXxxx of any debt
of DataWorld to Xxxxxxxxx.
5. The Financing Agreement, dated August 11, 1998, between Xxxxxxxxx and
DataWorld (the "Financing Agreement") is modified and amended as follows:
a. the security provisions of Section 4.1 and the second sentence of
Section 4.2 of the Financing Agreement, the provisions of the last sentence of
Section 5.4 of the Financing Agreement and the provisions of Section 8.3 of the
Financing Agreement, shall apply to the obligations of DataWorld under the Note
and this Agreement, which shall constitute "Obligations" thereunder.
b. all of the other provisions of the Financing Agreement are
terminated.
6. Xxxxxxxxx represents as follows:
a. It is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York and has all requisite power and
authority to enter into this Agreement and the Registration Rights Agreement;
b. Except for the DataWorld Debt, there is no debt owed by DataWorld to
Xxxxxxxxx;
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c. All action on the part of Xxxxxxxxx necessary for the authorization,
execution, delivery and performance of this Agreement and the Registration
Rights Agreement has been taken;
d. This Agreement and the Registration Rights Agreement have been duly
executed and delivered by Xxxxxxxxx and are the valid and binding agreements of
Xxxxxxxxx, enforceable in accordance with their respective terms; and
e. It is acquiring the shares of Common Stock of DataWorld for
investment purposes only and not with a view to, or for sale in connection with,
any distribution thereof nor with any present intention to sell such shares of
Common Stock, except in compliance with the Securities Act.
7. DataWorld represents as follows:
a. It is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite power and
authority to enter into this Agreement, the Registration Rights Agreement and
the Note;
b. The shares of Common Stock, when issued to Xxxxxxxxx as provided in
Section 1(a) above, will be duly authorized, validly issued, fully paid and
non-assessable, free and clear of any and all Encumbrances, and will be issued
in compliance with (i) all applicable state and federal laws concerning the
issuance of securities and (ii) any applicable preemptive rights, rights of
first refusal or other similar rights;
c. The shares of Common Stock to be transferred by Xxxxxx XxXxxx to
Xxxxxxxxx pursuant to Section 1(c) are owned of record and beneficially by
Xxxxxx XxXxxx, free and clear of all Encumbrances, are duly authorized, validly
issued, fully paid and non-assessable and were not issued in violation of
applicable state or federal laws concerning the issuance of securities.
d. All action on the part of DataWorld necessary for the authorization,
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Note has been taken;
e. This Agreement, the Registration Rights Agreement and the Note have
been duly executed and delivered by DataWorld and are the valid and binding
obligations of DataWorld, enforceable in accordance with their respective terms.
8. DataWorld will indemnify, hold harmless Xxxxxxxxx for, and will pay to
Xxxxxxxxx the amount of, any loss, liability, claim, damage (including
incidental and consequential damages), expense (including costs of investigation
and defense and reasonable attorneys' fees) or diminution of value, whether or
not involving a third-party claim ("Damages"), arising, directly or indirectly,
from or in connection with (i) any breach of any representation or warranty made
by DataWorld in this Agreement, the Registration Rights Agreement or any other
certificate or document delivered by DataWorld pursuant to this Agreement; and
(ii) any breach by DataWorld or Xxxxxx XxXxxx of any agreement, covenant or
obligation in this Agreement or the Registration Rights Agreement. Xxxxxxxxx
will indemnify, hold harmless DataWorld for, and will pay to DataWorld the
amount of, any Damages arising, directly or indirectly, from or in connection
with (i) any breach of any representation or warranty made by Xxxxxxxxx in this
Agreement, the Registration Rights Agreement or any other certificate or
document delivered by Xxxxxxxxx pursuant to this Agreement; and (ii) any breach
by Xxxxxxxxx of any agreement, covenant or obligation in this Agreement or the
Registration Rights Agreement.
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9. DataWorld (for itself and all subsidiaries) does hereby release, remise,
acquit, satisfy and forever discharge Xxxxxxxxx, and every one of its directors,
officers, employees, representatives, agents, legal counsel, parents,
subsidiaries and affiliates (hereinafter collectively referred to as the
"Xxxxxxxxx Releasees"), of and from all "claims" as defined in the United States
Bankruptcy Code, including, without limitation, all obligations, liabilities,
manners of action and actions, causes of action, suits, debts, sums of money,
accounts, covenants, contracts, controversies, agreements, promises, damages,
judgments, executions and demands whatsoever, liquidated or unliquidated,
contingent or fixed, determined or undetermined, known or unknown, foreseen or
unforeseen, at law or in equity, that either DataWorld or any of its successors
or assigns, as applicable, or any one or more of them, has had, now has or may
have against the Xxxxxxxxx Releasees, or any one or more of them, for, upon or
by reason of any matter, cause or thing whatsoever from the beginning of the
world to the date of these presents, arising out of, related to or attributable
to the Financing Agreement, and all related agreements, instruments and
documents, and all actions by or inactions of, the Xxxxxxxxx Releasees related
to the foregoing.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York as they are applied to agreements executed and
delivered in and to be performed entirely within the State of New York, without
regard to conflicts of law principles.
11. All notices and other communications required to be given under this
Agreement shall be valid only if in writing and given by personal delivery or
sent by registered mail, certified mail, Express Mail, return receipt requested,
or by overnight courier with proof of delivery request to the person(s) entitled
thereto at their respective addresses as set forth below:
If to DataWorld:
DataWorld Solutions, Inc.
000X Xxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
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With a copy to:
Xxxxxx & Xxxxxxxx, P.C.
50 Xxxxxxx Xxxxxxxxx Blvd., Ste. 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
If to Xxxxxxxxx:
Xxxxxxxxx & Xxxxxxxxx, Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn:
With a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
or to such other address as a party or its attorney may hereafter designate in
accordance with the notice provisions of this Agreement. All such notices or
other communications shall be properly addressed with appropriate postage/costs
prepaid. All such notices or communications shall be deemed given when delivered
to the proper party unless the intended recipient refuses to accept the same or
the notice is returned as undeliverable because the intended recipient did not
sign the requested receipt or failed to pick up the notice from the office of
the carrier. In such event, such notice or communication shall be deemed given
when such delivery was first attempted to be made on the intended recipient.
12. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and assigns, except that no
party may assign or transfer its rights or obligations under this Agreement
without the prior written consent of the other party hereto.
13. This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. This Agreement
may not be modified or amended other than by an agreement in writing.
14. Each party will execute such additional instruments and take such
actions as may be required to carry out the intended purpose of this Agreement.
15. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
XXXXXXXXX & XXXXXXXXX, INC.
By: ___________________________
Name & Title:
DATAWORLD SOLUTIONS, INC.
By: ___________________________
Name & Title:
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