AGREEMENT
This Agreement made this 2nd day of February, 2003 between THE
XXXXXXX CORPORATION, 000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(hereinafter known as "TQC") and XXXXXXXXX FINANCIAL, LLC, 000 Xxxxxxx Xxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter known as "XXXXXXXXX".
WHEREAS, XXXXXXXXX FINANCIAL, LLC became the owner of certain
Warrants in The Xxxxxxx Corporation exercisable at $6.50 per share, $8.50 per
share, and $11.50 per share; and
WHEREAS, XXXXXXXXX exercised all of its Warrants at $6.50 per share
but to date has not exercised the Warrants at $8.50 per share or the Warrants at
$11.50 per share; and
WHEREAS, certain disputes arose between the parties relative to the
issuance of the Warrants, the exercise of the Warrants by XXXXXXXXX and other
matters relating to the parties' relationship; and
WHEREAS, XXXXXXXXX after due diligence, investigation, and informal
discovery has come to the conclusion that it has no claim against TQC; and
WHEREAS, TQC wishes to continue its relationship with XXXXXXXXX by
extending the Warrants exercisable on March 7th for a period of one year and
issuing XXXXXXXXX additional Warrants for 250,000 shares at $9.50 per share
exercisable for a period of one year to finance its Xxxxxxx Pharma Division,
Inc. Patent and Prescription Drug Development Program; and
WHEREAS, the parties wish to terminate all actions each may have
against the other as a result of their relationship from January 1, 2002 to
date.
NOW, THEREFORE, in consideration of the mutual covenants made herein
and other good and valuable consideration, the parties agree as follows:
1. Xxxxxxxxx will dismiss with prejudice the praecipe it filed in the Court of
Common Pleas in Bucks County, Case No. ___________.
2. The Parties will execute a mutual general release of all claims, known and
unknown, etc., which they have or may have against each other, on the form
attached as Exhibit "A" hereto.
3. Xxxxxxx will extend Xxxxxxxxx'x 250,000 existing warrants with an $8.50
strike price, until at least March 7, 2004. Such warrants shall be subject to
all additional terms and conditions under the existing Warrant Agreement between
the Parties.
4. Xxxxxxx will extend Xxxxxxxxx'x 250,000 existing warrants with an $11.50
strike price, until at least March 7, 2004, and issue a replacement certificate
in place of these 250,000 existing warrants with an $11.50 strike price.
x. Xxxxxxxxx has informed Xxxxxxx that it intends to
transfer these warrants to its designee, Gold Fund LLC.
The Company agrees that the replacement warrant
certificate evidencing the 250,000 existing warrants
with an exercise price of $11.50 per share will be
issued to Gold Fund LLC.
x. Xxxxxxxxx represents to the Company that Gold Fund LLC
is not a registered broker dealer or an investment
advisor and is not otherwise involved in the securities
business.
c. Upon the issuance of such replacement warrant
certificate, Gold Fund LLC will have the rights and
obligations of a Holder under the warrant agreement,
including without limitation, (i) the obligation to
deliver a proxy for the voting rights of the Common
Stock acquired by Gold Fund LLC upon the exercise of the
Warrants, which proxy will be irrevocable so long as
Gold Fund LLC holds such shares, (ii) the right to have
the Common Stock issuable upon exercise of said Warrant
Certificate by Gold Fund LLC to be covered by an
effective registration statement of the Company to
permit the public offering and sale of such Common
Stock, and (iii) the warrants shall be subject to all
additional terms and conditions under the existing
Warrant Agreement between the Parties.
5. Xxxxxxx will issue an additional 250,000 warrants with a $9.50 strike price,
with an expiration date no earlier than March 7, 2004. The Parties shall execute
a Warrant Agreement which maintains the essential terms and conditions as in the
existing Warrant Agreement between the Parties.
6. Xxxxxxxxx will pay to Xxxxxxx the amount of $.25 for each of the 750,000
warrants listed above, for a total of $187,500. This amount is to be tendered in
the form of an unsecured promissory note by Xxxxxxxxx on the form attached as
Exhibit "B" hereto, which shall mature on the latest expiration date of any of
its Xxxxxxxxx warrants, and in any event not before March 7, 2004. All Xxxxxxxxx
payments on the note in favor of the Xxxxxxx shall be credited,
dollar-for-dollar, and applied to the purchase price of Xxxxxxx common stock
shares received in return for exercise of Xxxxxxxxx'x warrants.
7. Xxxxxxxxx agrees that upon the exercise of any portion of the
Warrants described above by Xxxxxxxxx (or the transferees of such Warrants), the
Xxxxxxx or its designees shall have the right to vote the shares of Common Stock
acquired upon such exercise for so long as Xxxxxxxxx (or such transferees)
otherwise have the power to direct the voting of such shares of Common Stock,
and the Warrant Agreement shall be revised to provide for such conveyance of
voting rights by means of a voting agreement, irrevocable proxy or otherwise.
Agreed to this 2nd day of February, 2003:
THE XXXXXXX CORPORATION
February 2, 2003 By:/s/ Xxx X. Xxxxxxx
--------------------- --------------------------------------
Date Xxx Xxxxxxx
President and Chief Executive Officer
and
February 2, 2003 By:/s/ Xxxxxx X. Xxxxx
--------------------- --------------------------------------
Date Xxxxxx Xxxxx
Chief Financial Officer
XXXXXXXXX FINANCIAL, LLC
February 2, 2003 By:/s/ Xxx Xxxxxx
--------------------- --------------------------------------
Date Xxx Xxxxxx
Managing Member
Page 1 of 1
MUTUAL GENERAL RELEASE
This Mutual Release (the "Release") is made as of February 2, 2003
among XXX XXXXXX and XXXXXXXXX FINAINCIAL, LLC, a New Jersey corporation,
(together, "Xxxxxxxxx"), on the one hand, and XXX XXXXXXX and THE XXXXXXX
CORPORATION (together, "XXXXXXX"), on the other hand (referred to collectively
as "THE PARTIES").
PREAMBLE
--------
The parties have entered into that certain Agreement dated , 2003
(the "AGREEMENT"). The Agreement requires the parties to enter into a mutual
general release.
RELEASE
-------
In consideration of the mutual promises herein contained and in the
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, with the intent to be
legally bound agree as follows:
1. RELEASE OF XXXXXXX. In consideration of the undertakings and representations
herein, Xxxxxxxxx finally and forever release and discharges Xxxxxxx and its
shareholders, officers, directors, representatives, employees and agents from
any and all legal and equitable claims, demands, actions, suits, damages and
expenses of any and every nature whatsoever arising in any way, whether arising
under federal, state or local statute, law, ordinance or regulation, or under
common law, including without limitation breach of contract, securities
violation(s), breach of fiduciary duties, fraud, conversion, defamation,
intentional infliction of emotional distress, and negligence.
2. DEFENSE. Xxxxxxxxx understands that this Agreement may be pleaded as a
complete defense and bar to any claims it may bring against Xxxxxxx arising in
any way prior to its execution of the Agreement.
3. Representation by Counsel. Xxxxxxxxx is represented by legal counsel and by
its execution hereof it acknowledges that it has been offered a reasonable
amount of time to consult with its
Exhibit A
Page 1 of 8
attorney(s) concerning the terms of this Release and the effect of its
acceptance and signing of this Release.
4. EFFECT OF RELEASE. By signing this Release, Xxxxxxxxx acknowledges that it
understands this Release and enters into it voluntarily, that this is a complete
release and that there are no written or oral understandings or agreements which
are not set forth herein or in the Agreement.
5. RELEASE OF XXXXXXXXX. In consideration of the undertakings and
representations herein, Xxxxxxx finally and forever release and discharges
Xxxxxxxxx and its shareholders, officers, directors, representatives, employees
and agents from any and all legal and equitable claims, demands, actions, suits,
damages and expenses of any and every nature whatsoever arising in any way,
whether arising under federal, state or local statute, law, ordinance or
regulation, or under common law, including without limitation breach of
contract, securities violation(s), breach of fiduciary duties, fraud,
conversion, defamation, intentional infliction of emotional distress, and
negligence.
6. DEFENSE. Xxxxxxx understands that this Agreement may be pleaded as a complete
defense and bar to any claims it may bring against Xxxxxxxxx arising in any way
prior to its execution of the Agreement.
7. REPRESENTATION BY COUNSEL. Xxxxxxx is represented by legal counsel and by its
execution hereof it acknowledges that it has been offered a reasonable amount of
time to consult with its attorney(s) concerning the terms of this Release and
the effect of its acceptance and signing of this Release.
8. EFFECT OF RELEASE. By signing this Release, Xxxxxxx acknowledges that it
understands this Release and enters into it voluntarily, that this is a complete
release and that there are no written or oral understandings or agreements which
are not set forth herein or in the Agreement coverage for defense and/or
indemnification for such claims.
9. MISCELLANEOUS. The parties shall from time to time do and perform such
additional acts and execute and deliver such additional documents and
instruments as may be reasonably requested by any party to establish, maintain
or protect its rights and remedies or to effect the intents and purposes of this
Release. The invalidity or unenforceability of any provision of this Release
shall in no way affect the validity or enforceability of any other provision.
This Release,
Page 2 of 8
together with the Agreement, embodies the entire agreement among the parties
with respect to the subject matter hereof and supersedes any and all prior oral
or written, and any and all contemporaneous oral, understandings, negotiations
or communications made on behalf of such parties with respect to the subject
matter hereof. This Release may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Release is executed in and shall be governed
by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to Pennsylvania conflicts law. This Release may not
be assigned by any party without the prior written consent of the other parties.
This Release shall inure to the benefit of the parties, and their respective
heirs, successors, permitted assigns and personal representatives.
Page 3 of 8
SIGNATURE PAGE TO MUTUAL RELEASE
ATTEST: THE XXXXXXX CORPORATION.
/s/ Xxxxxx X. Xxxxx By:/s/ Xxx X. Xxxxxxx
---------------------- ------------------------------
Name: Xxx Xxxxxxx
Title: President and CEO
WITNESS:
/s/ Xxxxxxx X. Philips /s/ Xxx X. Xxxxxxx (SEAL)
---------------------- ------------------------------
XXX XXXXXXX
WITNESS: XXXXXXXXX FINANCIAL, LLC
/s/ Xxxx Xxxxxx /s/ Xxx Xxxxxx (SEAL)
---------------------- ------------------------------
Name: Xxx Xxxxxx
Title: Managing Member
WITNESS:
/s/ Xxxx Xxxxxx /s/ Xxx Xxxxxx (SEAL)
---------------------- ------------------------------
XXX XXXXXX
Page 4 of 8
ACKNOWLEDGMENT:
By signing this Release, I acknowledge that I have had the
opportunity to review this Release carefully, including with an attorney of my
choice, that I understand the terms of this Release, and that I voluntarily
agree to them with the intent to be legally bound.
THE XXXXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxx
----------------------------
Title: President and CEO
Page 5 of 8
ACKNOWLEDGMENT:
By signing this Release, I acknowledge that I have had the
opportunity to review this Release carefully, including with an attorney of my
choice, that I understand the terms of this Release, and that I voluntarily
agree to them with the intent to be legally bound.
/s/ Xxx X. Xxxxxxx
---------------------------------
XXX XXXXXXX
Page 6 of 8
ACKNOWLEDGMENT:
By signing this Release, I acknowledge that I have had the
opportunity to review this Release carefully, including with an attorney of my
choice, that I understand the terms of this Release, and that I voluntarily
agree to them with the intent to be legally bound.
XXXXXXXXX FINANCIAL, LLC
By: /s/ Xxx Xxxxxx
---------------------------
Managing Member
Page 7 of 8
ACKNOWLEDGMENT:
By signing this Release, I acknowledge that I have had
the opportunity to review this Release carefully, including with an attorney
of my choice, that I understand the terms of this Release, and that I
voluntarily agree to them with the intent to be legally bound.
/s/ Xxx Xxxxxx
-----------------------------
XXX XXXXXX
Page 8 of 8
PROMISSORY NOTE
U.S.$187,500.00 Woodmere, New York
February 3, 2003
FOR VALUE RECEIVED, the undersigned, Xxxxxxxxx Financial, LLC
("Maker"), promises to pay to the order of The Xxxxxxx Corporation ("Holder"),
on the Maturity Date (as defined below), in immediately available funds, the
principal sum of one hundred eighty seven thousand five hundred U.S. Dollars
(U.S.$187,500.00) (as the same may be reduced by prepayments, the "Principal
Amount"), without interest.
1. This Note is being issued by the Maker in consideration of (i)
the extension to March 7, 2004 of the expiration date of 250,000 Warrants for
the Holder's Common Stock, exercisable at $8.50 per share, currently held by the
Maker, (ii) the extension to March 7, 2004 of the expiration date of 250,000
Warrants for the Holder's Common Stock, exercisable at $11.50 per share,
currently held by the Maker, and (iii) the issuance by the Holder to the Maker
of 250,000 Warrants for the Holder's Company Stock, exercisable at $9.50 per
share and expiring on March 7, 2004 (collectively, the "Warrants").
2. This Note shall not bear any interest.
3. The Principal Amount shall be due and payable on March 7, 2004
(the "Maturity Date").
4. Notice of demand for payment of the Principal Amount on the
Maturity Date shall be given by Holder to Maker in writing. Such notice shall be
sent by hand delivery, against acknowledgement of receipt, or by a recognized
overnight courier service to the Maker's principal office and shall be deemed to
have been given when received by the Maker.
5. Maker is permitted to prepay all or any portion of the Principal
Amount at any time prior to the Maturity Date without penalty.
6. This Note and the payment of the Principal Amount is unsecured.
7. All payments of the Principal Amount by the Maker shall be
automatically credited against and applied to the exercise cost of the first
Warrants exercised by Maker (or its transferees).
8. Maker shall not be deemed to be in default under this Note for
any purpose unless and until the Holder shall have first given written notice of
such default to the Maker and Maker fails to cure such default within thirty
(30) days after Maker receives such notice. However, this provision shall not
apply to default of payment of the Principal Amount on or after the latest
expiration date of any of the Warrants.
Exhibit B
Page 1 of 2
9. This Note and the rights and obligations of the parties hereto
shall for all purposes be governed by and construed and enforced in accordance
with the substantive law of the State of Pennsylvania without giving effect to
the principles of conflict or choice of laws.
10. In the event any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Note, and this Note shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
11. The Holder shall not sell, assign, transfer or convey this Note
to any third party (whether directly or indirectly, by sale of the Holder's
business or assets, by sale of a majority of the Holder's outstanding voting
stock, by merger of the Holder into a third party or otherwise) without the
written consent of the Maker. Subject to the preceding sentence, this Note shall
bind Maker, and the successors and assigns of Maker, and the benefits hereof
shall inure to the benefit of Holder and Holder's successors and assigns. All
references herein to "Maker" shall be deemed to apply to Maker and the
successors and assigns of Maker and all references to "Holder" shall be deemed
to apply to Holder and Holder's successors and assigns.
IN WITNESS WHEREOF, Maker, intending to be legally bound, has
executed this Note on the day and year first above written with the intention
that this Note shall constitute a sealed instrument.
XXXXXXXXX FINANCIAL, LLC
By: /s/ Xxx Xxxxxx
----------------------
Name: Xxx Xxxxxx
Title: Managing Member
Acknowledged and Agreed,
Intending to be Legally Bound
THE XXXXXXX CORPORATION
By:/s/ Xxx X. Xxxxxxx
-----------------------
Name: Xxx X. Xxxxxxx
---------------------
Title: President and CEO
--------------------
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