EXHIBIT 10.68
SETTLEMENT AGREEMENT
____________________
Settlement Agreement, dated as of January 30, 1997, entered into among
Lanxide Corporation, a Delaware corporation (the "Company"), the plaintiffs
listed on Exhibit A hereto (the "Plaintiffs") and Bentley X. Xxxx, a director
and principal stockholder of the Company ("Xxxx").
WHEREAS, the Plaintiffs commenced an action in the U.S. District Court
for the District of Colorado entitled BANBURY FAMILY TRUST, et al. v. LANXIDE
CORPORATION, Civil Action No. 96-B-1722 (the "Litigation");
WHEREAS, the Plaintiffs and the Company now desire to avoid the
expense, disruption and uncertainty of further litigation by settling fully and
finally all differences or disputes that have arisen or might have arisen
between Plaintiffs and the Company or any of its parents, subsidiaries,
predecessors, successors or affiliates;
WHEREAS, the Plaintiffs have agreed to dismiss the Litigation and the
Company has agreed to pay the Plaintiffs $200,000 pursuant to the terms set
forth herein and in the Lanxide Note attached hereto as Exhibit B (the "Lanxide
Note");
WHEREAS, Xxxx, who beneficially owns 46.6% of the common stock, par
value $.01 per share, of the Company, desires to have the Litigation dismissed
and, in order to induce Plaintiffs to enter into the Settlement Agreement,
agrees to execute and deliver to the Plaintiffs a note in the amount of
$200,000, substantially in the form attached hereto as Exhibit C (the "Xxxx
Note"), the payments of which will be due only if the Company fails to make
payments when due under the Lanxide Note.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Section 1. Dismissal of Litigation and General Release.
____________________________________________
The Plaintiffs hereby agree to dismiss with prejudice all claims
asserted in the Litigation. Immediately following the execution of this
Settlement Agreement, the Plaintiffs and the Company shall execute and file with
the U.S. District Court for the District of Colorado a Stipulation,
substantially in the form attached hereto as Exhibit D.
The Plaintiffs and the Company hereby mutually release and forever
discharge each other, including each other's respective affiliates, directors,
officers, employees, agents and stockholders and each of their respective
affiliates and each of their respective heirs, executors, administrators,
successors, assigns, agents and employees (such persons being hereinafter
referred to collectively as the "Releasee"), from all actions, causes of action,
suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extends, executions, claims and
demands whatsoever, in law or equity, (collectively, "Claims"), which the
Plaintiffs or the Company, or their respective heirs, executors, administrators,
successors, assigns, stockholders, partners, agents and employees now have or
hereafter can, shall or may have for, upon, or against any of the Releasee,
whether known or unknown, by reason of any matters, cause or thing whatsoever
from the beginning of the world to the date hereof relating to or arising out of
the Litigation, the letter agreement dated March 5, 1996 between Xxxxxx Xxxxxxx
and Xxxxxxx X. Xxxx (the "Letter Agree- ment"), or the Recapitalization Plan,
the Merger, the Rights Offering and the transactions contemplated thereby (as
such terms are defined in the Company's Proxy Statement/Prospectus, dated
October 11, 1995); PROVIDED, HOWEVER, that nothing herein shall release the
Plaintiffs or the Company from their obligation to comply with the terms of this
Settlement Agreement.
The Company and each Plaintiff, severally and not jointly, represent
and warrant that there have been no assignments or other transfers of any
interest in any Claim which he, she or it may have against any of the Releasee
pursuant to this Section 1, and the Company and each Plaintiff, severally and
not jointly, agrees to indemnify and hold the Releasee harmless from any
liability, Claims, demands, damages, costs, expenses and attorneys' fees
incurred by any of the foregoing as a result of any person asserting any such
assignment or transfer, or any rights or Claims under any such assignment or
transfer. It is the intention of the Plaintiffs and the Company that this
indemnity does not require payment by any Releasee as a condition precedent to
recovery against them under this indemnity.
Each Plaintiff agrees that if their heirs, executors, administrators,
successors, assigns, agents or employees hereafter make any Claim against any of
the Releasee arising out of the matters released hereunder, each Plaintiff
shall, severally and not jointly, indemnify and hold harmless the party against
whom such Claim is made from any loss, liability, cost or expense arising
therefrom, including, but not limited to, the attorneys' fees and costs incurred
in defending against such Claim.
The Company agrees that if its heirs, executors, administrators,
successors, assigns, agents or employees hereafter make any Claim against any of
the Releasee arising out of the matters released hereunder, the Company shall
indemnify and hold harmless the party against whom such Claim is made from any
loss, liability, cost or expense arising therefrom, including, but not limited
to, the attorneys' fees and costs incurred in defending against such Claim.
Section 2. Payment of Settlement Amount.
_____________________________
The Company agrees to pay to Plaintiffs an aggregate of $200,000 by
executing and delivering the Lanxide Note to Xxxxxx Xxxxxxx, as authorized
representative of the Plaintiffs ("Banbury").
Section 3. Xxxx Note.
__________
Xxxx shall execute and deliver to Banbury the Xxxx Note, the terms of
which shall be the same as the terms of the Lanxide Note, except that Xxxx shall
have no obligations under the Xxxx Note unless the Company fails to make
payments when due under the Lanxide Note.
Section 4. Surrender of Stock.
___________________
Within 30 days of the execution of this Settlement Agreement, each
Plaintiff shall surrender to the Company stock certificates representing the
shares of stock of the Company held by such Plaintiff as set forth in Exhibit A.
Such shares shall be canceled for all purposes and the holders thereof shall
not be entitled to any consideration therefor other than a portion of the
proceeds of the Lanxide Note. Each Plaintiff hereby acknowledges and agrees
that he, she or it has no right to receive any shares of capital stock or other
property of the Company upon surrender of the stock certificates. In the event
any of the foregoing stock certificates have been lost or damaged, such
Plaintiff shall execute a certificate provided by the Company and shall agree to
indemnify the Company for any losses resulting from Plaintiff's loss or
destruction of such stock certificate; PROVIDED, HOWEVER, that such Plaintiff
shall not be required to purchase a bond in connection with such
indemnification.
Section 5. Distribution of Note Payments.
______________________________
Banbury, as authorized representative of the Plaintiffs, shall be
responsible for distributing to each Plaintiff his portion of each payment made
by the Company pursuant to the Lanxide Note or by Xxxx pursuant to the Xxxx
Note.
Section 6. Expenses.
_________
Each party hereto shall be responsible for its own attorneys' fees and
expenses.
Section 7. Entire Agreement; Amendments, etc.
__________________________________
This Settlement Agreement represents the entire understanding and
agreement among the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements or understandings, whether written or oral.
Neither this Settlement Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, except by a statement in writing
authorized as aforesaid and signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
Section 8. Successors.
___________
This Settlement Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their successors and assigns.
Section 9. Section Headings.
_________________
The section headings contained in this Settlement Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Settlement Agreement.
Section 10. Applicable Law.
_______________
This Settlement Agreement shall be governed by, construed and enforced
in accordance with the substantive laws of the State of Colorado, without
reference to or application of principles of conflicts of laws. Parties agree
to jurisdiction and venue in Colorado.
Section 11. Severability.
_____________
If at any time subsequent to the date hereof, any provision of this
Settlement Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such provision shall be of no force and effect,
but the illegality or unenforceability of such provision shall have no effect
upon and shall not impair the enforceability of any other provision of this
Settlement Agreement.
Section 12. Counterparts.
_____________
This Settlement Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
Section 13. Notices.
________
All notices, requests, demands and other communications under this
Settlement Agreement shall be in writing and shall be deemed to have been duly
given (i) on the date of service if served personally on the party to whom
notice is to be given, or if given by facsimile transmission to the number
indicated below, or (ii) on the third day after 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:
(a) If to Plaintiffs:
Xxxxxx Xxxxxxx
Four Writer Square
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Facsimile No. (000) 000-0000
with a copy sent to:
Berenbaum, Weinshienk & Xxxxx, PC
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: X. Xxxxxx Banbury, Esq.
Facsimile No. (000) 000-0000
(b) If to the Company:
Lanxide Corporation
0000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: President
Facsimile No. (000) 000-0000
with a copy sent to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Delaware)
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No. (000) 000-0000
(c) If to Xxxx:
Bentley X. Xxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
or to such other address as any party shall have specified by notice in writing
given to the other parties.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Settlement Agreement as of the day and year first written above.
LANXIDE CORPORATION
By:/s/ Xxxx X. Xxxxxxx
_______________________________
Xxxx X. Xxxxxxx
President and Chief
Executive Officer
THE PLAINTIFFS
/s/ Xxxxxx Xxxxxxx
__________________________________
Xxxxxx Xxxxxxx
/s/ C.O. XxXxxxxxxx
__________________________________
C.O. XxXxxxxxxx
/s/ Xxxx Xx Xxxxxxx
__________________________________
Banbury Children's Trust
By Xxxx Xx Xxxxxxx, as Trustee
/s/ Xxxx Xx Xxxxxxx
__________________________________
Banbury Family Trust
By Xxxx Xx Xxxxxxx, as Trustee
/s/ Xxxx Xx Xxxxxxx
__________________________________
Xxxx Xx Xxxxxxx
/s/ Xxxxxxxx Xxxxxxx
__________________________________
Xxxxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx, III
__________________________________
Xxxxxxx X. Xxxxxxx, III
/s/ Xxxxxxx X. Xxxxxxx, Xx.
__________________________________
Xxxxxxx X. Xxxxxxx, Xx.
/s/ Xxxxx Xxxx
__________________________________
Xxxxx Xxxx
/s/ Xxxx XxXxx
__________________________________
Xxxx XxXxx
/s/ Xxxx XxXxx
__________________________________
Xxxx XxXxx
/s/ Xxxxxxx Xxxxxx
__________________________________
Xxxxxxx Xxxxxx
/s/ Xxxxx XxXxx
__________________________________
Xxxxx XxXxx
BENTLEY X. XXXX
/s/ Bentley X. Xxxx
__________________________________
Bentley X. Xxxx
EXHIBIT A
Plaintiff NO. OF SHARES
_________ OF OLD COMMON STOCK
___________________
Xxxxxx Xxxxxxx 19,971
C. O. XxXxxxxxxx 4,000
Banbury Children's Trust
By Xxxxxx Xxxxxxx, as Trustee 42,733
Banbury Family Trust
By Xxxxxx Xxxxxxx, as Trustee 12,000
Xxxx Xx Xxxxxxx 47,000
Xxxxxxxx Xxxxxxx 1,000
Xxxxxx X. Xxxxxxx 500
Xxxxxx X. Xxxxxxx 000
Xxxxxxx X. Xxxxxxx, III 000
Xxxxxxx X. Xxxxxxx, Xx. 9,500
Xxxxx Xxxx 2,325
Xxxx XxXxx 3,000
Xxxx XxXxx 3,500
Xxxxxxx Xxxxxx 1,500
Xxxxx XxXxx 1,500
Exhibit B
This Note has not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or under the provisions of any applicable state securities
laws, but has been acquired by the registered holder hereof for purposes of
investment and in reliance on statutory exemptions under the 1933 Act, and under
any applicable state securities laws. This Note may not be sold, pledged,
transferred or assigned except in a transaction which is exempt under provisions
of the 1933 Act and any applicable state securities laws or pursuant to an
effective registration statement.
PROMISSORY NOTE
$200,000 January 30, 1997
FOR VALUE RECEIVED, the undersigned, LANXIDE CORPORATION, a Delaware
corporation (the "Company"), hereby promises to pay to Xxxxxx Xxxxxxx, an
individual residing in the State of Colorado, as authorized representative of
the plaintiffs in the Litigation (as defined below), (including any subsequent
holders of this Note, the "Holder"), the principal sum of Two Hundred Thousand
Dollars ($200,000), plus all accrued interest thereon in lawful money of the
United States of America, payable as follows: (i) on July 1, 1997, $50,000 of
the principal amount, plus accrued interest thereon; and (ii) on the first day
of each month, commencing August 1, 1997 and ending October 1, 1998, $10,000
plus accrued but unpaid interest on the outstanding balance. Simple interest
shall accrue on the unpaid principal amount of this Note at a rate equal to 10%
per annum, commencing January 11, 1997 and continuing until the entire principal
amount of and accrued interest on this Note have been paid in full.
If the date for payment of principal or interest hereunder is a
Saturday, Sunday or legal holiday, then such payment shall be made on the next
succeeding business day. Unless otherwise specified in writing to the Company
and Xxxx (as defined below), all payments due under this Note shall be made by
check or by wire transfer payable to Xxxxxx Xxxxxxx delivered on or prior to the
due date thereof at NBD Bank, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000,
Attention: Xxxxxx Xxxxxxx, Checking Account No. 002007672658, or to such other
location as Holder specifies in writing at least ten days prior to any payment
date.
This Note has been delivered in accordance with the terms of a
Settlement Agreement (the "Agreement"), dated January 30, 1997, among the
Company, the plaintiffs listed in Exhibit A thereto (the "Plaintiffs"), and
Bentley X. Xxxx, a director and principal stockholder of the Company ("Xxxx").
Pursuant to the Agreement, (i) the Plaintiffs agreed, among other
things, to dismiss, with prejudice, the civil action entitled BANBURY FAMILY
TRUST, et al. v. LANXIDE CORPORATION, Civil Action No. 96-B-1722 (the
"Litigation"), filed in the U.S. District Court for the District of Colorado,
(ii) the Company agreed to execute and deliver to the Plaintiffs this Note and
(iii) Xxxx agreed to execute a note (the "Xxxx Note") pursuant to which Xxxx
agreed to make any payments pursuant to this Note which are not made by the
Company when due.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
This Note is subject to the following further terms and conditions:
1. PREPAYMENT. The Company may, at its option, prepay this Note, in
whole or in part, at any time or from time to time without penalty or premium.
Any prepayment of any portion of the principal amount of this Note shall be
accompanied by payment of all interest accrued and unpaid through the date of
prepayment. Upon final payment of principal and interest on this Note, it shall
be surrendered to the Company for cancellation.
2. EVENTS OF DEFAULT. Upon the occurrence of any of the following
events ("Events of Default"):
(a) failure to pay any principal of or accrued interest on this
Note within 10 days following the date on which such payment is due, PROVIDED,
HOWEVER, that if, pursuant to the Xxxx Note, Xxxx makes the payment which is due
within 10 days of the date of written notice from Holder of the Company's
failure to pay, then no Event of Default shall have occurred; or
(b) the appointment of a receiver for any part of the Company's
property; the making by the Company of an assignment for the benefit of
creditors; or
(c) the filing by the Company of a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization, or an arrangement
with creditors; or
(d) the entering against the Company of a court order approving
a petition filed against it under the federal bankruptcy laws, which order shall
not have been stayed, vacated or set aside or otherwise terminated within 60
days; or
(e) the refinancing of (i) the Company's Revolving Credit Line
Note for $5,970,000 in favor of Bank of Delaware, dated February 24, 1993 or
(ii) the Loan and Security Agreement between Kanematsu Corporation and the
Company, dated April 29, 1994; or
(f) the merger, consolidation, recapitalization or public
offering of securities by the Company; PROVIDED, HOWEVER, that the following
shall not constitute an Event of Default: any other issuance of securities by
the Company, provided that the Company pay to the Plaintiffs up to 20% of the
net proceeds of any such issuance to reduce any outstanding balance on this
Note;
then, and in any event, the Holder may declare, by notice of default given to
the Company, the entire principal amount of this Note to be forthwith due and
payable, whereupon the entire principal amount of this Note outstanding and all
accrued and unpaid interest hereunder shall become due and payable without
presentment, demand, protest, notice of dishonor and all other demands and
notices of any kind, all of which are hereby expressly waived. If an Event of
Default shall occur, interest shall accrue at a rate of 18% per annum from the
date of such Event of Default on any outstanding balance.
No delay or failure by the Holder in the exercise of any right or
remedy shall constitute a waiver thereof, and no single or partial exercise by
the Holder of any right or remedy shall preclude other or future exercise
thereof or the exercise of any other right or remedy.
3. PAYMENT BY XXXX. Any amount paid by Xxxx to the Holder
pursuant to the Xxxx Note shall reduce the outstanding balance of this Note by
such amount.
4. ATTORNEYS' FEES. The Company agrees to pay the Holder's
reasonable attorneys' fees if judicial enforcement of this Note is required.
5. NOTICE OF TRANSFER. The Holder shall provide to the Company and
Xxxx immediate written notice of any sale, assignment, transfer, pledge or other
disposition of this Note or the right to receive payments hereunder.
6. MISCELLANEOUS.
(a) The provisions of this Note shall be governed by and
construed and enforced in accordance with the laws of the State of Colorado
without regard to the conflicts of law principles thereof.
(b) All notices and other communications hereunder shall be in
writing and shall be delivered or mailed in accordance with the Agreement.
(c) The headings contained in this Note are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the provisions hereof.
(d) This Note may not be modified, terminated or discharged nor
shall any waiver hereunder be effective unless in writing and signed by the
party against whom the same is asserted.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Company on the date first above written.
LANXIDE CORPORATION
By:________________________
Xxxx X. Xxxxxxx
President
Witness:
___________________
Exhibit C
This Note has not been registered under the Securities Act of 1933, as amended
(the "1933 Act"), or under the provisions of any applicable state securities
laws, but has been acquired by the registered holder hereof for purposes of
investment and in reliance on statutory exemptions under the 1933 Act, and under
any applicable state securities laws. This Note may not be sold, pledged,
transferred or assigned except in a transaction which is exempt under provisions
of the 1933 Act and any applicable state securities laws or pursuant to an
effective registration statement.
PROMISSORY NOTE
$200,000 January 30, 1997
FOR VALUE RECEIVED, the undersigned, Bentley X. Xxxx ("Xxxx"), a
director and principal stockholder of Lanxide Corporation, a Delaware
corporation (the "Company), hereby promises to pay to Xxxxxx Xxxxxxx, an
individual residing in the State of Colorado, as authorized representative of
the plaintiffs in the Litigation (as defined below), (including any subsequent
holders of this Note, the "Holder"), the principal sum of Two Hundred Thousand
Dollars ($200,000), plus all accrued interest thereon in lawful money of the
United States of America, payable as follows: (i) on July 1, 1997, $50,000 of
the principal amount, plus accrued interest thereon; and (ii) on the first day
of each month, commencing August 1, 1997 and ending October 1, 1998, $10,000
plus accrued but unpaid interest on the outstanding balance; PROVIDED, HOWEVER,
that no payments shall be due under this Note unless the Company fails to make
any payment within ten days of when due pursuant to the promissory note, dated
January 30, 1997, made by the Company in favor of the Plaintiffs (the
"Lanxide Note") and until Holder provides written notice to Xxxx of the
Company's failure to pay. Simple interest shall accrue on the unpaid principal
amount of this Note at a rate equal to 10% per annum, commencing January 11,
1997 and continuing until the entire principal amount of and accrued interest on
this Note have been paid in full.
If the date for payment of principal or interest hereunder is a
Saturday, Sunday or legal holiday, then such payment shall be made on the next
succeeding business day. Unless otherwise specified in writing to Xxxx and the
Company, all payments due under this Note shall be made by check or by wire
transfer payable to Xxxxxx Xxxxxxx delivered on or prior to the due date thereof
at NBD Bank, 0000 Xxxxxx Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx
Xxxxxxx, Checking Account No. 002007672658, or to such other location as the
Holder specifies in writing at least ten days prior to any payment date.
This Note has been delivered in accordance with the terms of a
Settlement Agreement (the "Agreement"), dated January 30, 1997, among the
Company, the plaintiffs listed in Exhibit A thereto (the "Plaintiffs") and Xxxx.
Pursuant to the Agreement, (i) the Plaintiffs agreed, among other
things, to dismiss, with prejudice, the civil action entitled BANBURY FAMILY
TRUST, et al. v. LANXIDE CORPORATION, Civil Action No. 96-B-1722 (the
"Litigation"), filed in the U.S. District Court for the District of Colorado;
(ii) the Company agreed to execute and deliver to the Plaintiffs the Lanxide
Note; and (iii) Xxxx agreed to execute and deliver to the Plaintiffs this Note.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
This Note is subject to the following further terms and conditions:
1. NOTICE. Holder shall provide immediate written notice to Xxxx of
any Event of Default by the Company pursuant to the Lanxide Note.
2. REDUCTION OF PRINCIPAL AMOUNT. Each payment of principal and/or
interest made by the Company to the Holder pursuant to the Lanxide Note shall
reduce the outstanding balance of this Note by the amount of such payment.
3. PREPAYMENT. Xxxx may, at his option, prepay this Note, in whole
or in part, at any time or from time to time without penalty or premium. Any
prepayment of any portion of the principal amount of this Note shall be
accompanied by payment of all interest accrued and unpaid through the date of
prepayment. Upon final payment of principal and interest on this Note, it shall
be surrendered to Xxxx for cancellation.
4. EVENTS OF DEFAULT. Ten days after the date of the notice
provided by Holder pursuant to Section 1 above of the occurrence of any of the
following events ("Events of Default"):
(a) failure to pay any principal of or accrued interest on this
Note following the date on which such payment is due; or
(b) the appointment of a receiver for any part of the Company's
property; the making by the Company of an assignment for the benefit of
creditors; or
(c) the filing by the Company of a voluntary petition in
bankruptcy or a petition or an answer seeking reorganization, or an arrangement
with creditors; or
(d) the entering against the Company of a court order approving
a petition filed against it under the federal bankruptcy laws, which order shall
not have been stayed, vacated or set aside or otherwise terminated within 60
days; or
(e) the refinancing of (i) the Company's Revolving Credit Line
Note for $5,970,000 in favor of Bank of Delaware, dated February 24, 1993 or
(ii) the Loan and Security Agreement between Kanematsu Corporation and the
Company, dated April 29, 1994; or
(f) the merger, consolidation, recapitalization or public
offering of securities by the Company; PROVIDED, HOWEVER, that the following
shall not constitute an Event of Default: any other issuance of securities by
the Company, provided that the Company pay to the Plaintiffs up to 20% of the
net proceeds of such issuance to reduce any outstanding balance on the Lanxide
Note;
then, and in any event, the Holder may declare, by notice of default given to
Xxxx, the entire principal amount of this Note to be forthwith due and payable,
whereupon the entire principal amount of this Note outstanding and all accrued
and unpaid interest hereunder shall become due and payable without presentment,
demand, protest, notice of dishonor and all other demands and notices of any
kind, all of which are hereby expressly waived. If an Event of Default shall
occur, interest shall accrue at a rate of 18% per annum from the date of such
Event of Default on any outstanding balance.
No delay or failure by the Holder in the exercise of any right or
remedy shall constitute a waiver thereof, and no single or partial exercise by
the Holder of any right or remedy shall preclude other or future exercise
thereof or the exercise of any other right or remedy.
5. ATTORNEYS' FEES. The Company agrees to pay the Holder's
reasonable attorneys' fees if judicial enforcement of this Note is required.
6. NOTICE OF TRANSFER. The Holder shall provide to the Company and
Xxxx immediate written notice of any sale, assignment, transfer, pledge or other
disposition of this Note or the right to receive payments hereunder.
7. MISCELLANEOUS.
(a) The provisions of this Note shall be governed by and
construed and enforced in accordance with the laws of the State of Colorado
without regard to the conflicts of law principles thereof.
(b) All notices and other communications hereunder shall be in
writing and shall be delivered or mailed in accordance with the Agreement.
(c) The headings contained in this Note are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the provisions hereof.
(d) This Note may not be modified, terminated or discharged nor
shall any waiver hereunder be effective unless in writing and signed by the
party against whom the same is asserted.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by
the Company on the date first above written.
__________________________
Bentley X. Xxxx
Witness:
______________________
Exhibit D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
________________________________________________________________________________
Civil Action No. 96-B-1722
BANBURY CHILDRENS TRUST, Xxxx Xx Xxxxxxx, Trustee, BANBURY FAMILY TRUST, Xxxx Xx
Xxxxxxx, Trustee, XXXX XX XXXXXXX, XXXXXX XXXXXXX, XXXXXXXX XXXXXXX, C.O.
XXXXXXXXXX, XXXXXX X. XXXXXXX, XXXXXX X. XXXXXXX, XXXXXXX X. XXXXXXX, III,
XXXXXXX X. XXXXXXX, XX., XXXXX XXXX, XXXX LE VAN, XXXX LE VAN, XXXXXXX XXXXXX
and XXXXX LE VAN
Plaintiffs,
v.
LANXIDE CORPORATION, a Delaware corporation,
Defendant.
________________________________________________________________________________
STIPULATION OF DISMISSAL
The parties hereby stipulate that the above-captioned action shall be
dismissed with prejudice, each party to bear its own costs.
____________________________
Xxxxxxx X. Xxxx
XXXXXXXX XXXX & XXXXXXX, XXX
Xxxxxxxx Xxxxx, Xxxxx 0000
000 00xx Xxxxxx
Xxxxxx, XX 00000-0000
(000) 000-0000
Attorneys for Lanxide Corporation
____________________________
X. Xxxxxx Banbury
I X. Xxxxxx
BERENBAUM, WEINSHIENK & XXXXX, PC
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
(000) 000-0000
Attorneys for Plaintiffs
DATED:
