Exhibit 10.49
AGREEMENT
AGREEMENT made this 17th day of February, 2000, among TTR Technologies,
Inc., a Delaware company with offices at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx ("TTR
Inc.") and TTR Technologies Ltd., an Israeli company with offices at 0 XxXxxxx
Xxxxxx, Xxxx Xxxx, Xxxxxx ("TTR Ltd." together with "TTR Inc." the "Companies"),
K & D Equities, Inc., with offices at 0000 X. Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
XX 00000-0000 ("K&D") Xxxxx Winehouse, with an address at ____________
("Winehouse") and Wall & Broad Equities, Inc. with an address at
_____________("W&B").
W I T N E S S E T H
WHEREAS, a dispute has arisen amongst the Parties in connection with the
provision by K&D to TTR Inc. of certain services, which dispute resulted in
certain claims brought by K&D (hereinafter, the "Complaint"), against the
remaining Parties for, inter-alia, breach of contract; K&D's claims are fully
set forth in Xxxxx Xxxx Xx. XX-00000 filed on January 21, 2000, with the United
States District Court for the Eastern District of New York (hereinafter, the
"Complaint");
WHEREAS, each of TTR Inc., W&B and Winehouse, the named defendants in the
Complaint, deny each and every claim and allegation set forth in the Complaint;
WHEREAS, the parties desire to resolve all disputes amongst them on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions hereafter set
forth, the parties agree hereafter as follows:
1. Exercise of Warrants issued to K&D. Reference is hereby made to the Warrant
issued by TTR Inc. to K&D on July 29, 1999, to purchase up to an aggregate of
400,000 shares of TTR Inc. Common Stock, par value $0.01 (the "Common Stock"),
on the terms and conditions set forth therein, including, without limitation, at
an exercise price per share of $2.75 (hereinafter, the "Warrant"). Subject to
the terms and conditions set forth herein and in consideration of the releases
contained herein, without acknowledging any admittance of liability, TTR Inc.
agrees that K&D shall be entitled to exercise the Warrants, on the terms and
conditions set forth herein, including, without limitation, the payment of
exercise price per share set forth in the Warrant, for 200,000 shares of Common
Stock (as issued, the "Warrant Shares"). K&D agrees that, except as provided
hereunder, K&D hereby waives any and all rights it may have under the Warrant,
or any other agreement with the Company, relating to the exercise of the Warrant
with respect to the remaining 200,000 shares of Common Stock. Except as
otherwise expressly amended hereunder, the terms and conditions set forth in the
Warrant shall continue to apply in full force and effect. All capitalized terms
used herein shall, unless otherwise defined, have the meanings ascribed thereto
in the Warrant.
2. Issuance of Stock Certificates. TTR Inc. and K&D agree that K&D' right under
Section 1 above of this Agreement to exercise the Warrant Shares for an
aggregate of 200,000 Warrant Shares shall be exercised by the issuance to K&D on
the Closing (as hereinafter defined) of two
(2) stock certificates containing standard restrictive legends, each certificate
representing 100,000 Warrant Shares (each stock certificate shall hereinafter be
referred to as a "Stock Certificate" and collectively the "Stock Certificates").
One Stock Certificate shall be deposited with Xxxx X. Xxxxxxxxx, of Xxxxxx &
Xxxxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx Xxx Xxxx 00000 (the
"Xxxxxxxxx Escrow Agent") in escrow pursuant to Section 8 hereunder pending
exercise of the Warrant for the Warrant Shares represented thereby and one stock
certificate shall be deposited with Xxxxxxxxxx Xxxxxx Trustees Ltd., of 0 Xxxxxx
Xxxxxx, X'Xxx Xxxx, Xxxxxx ("B&A Escrow Agent") in escrow pursuant to Section 8
hereunder pending exercise of the Warrant for the Warrant Shares represented
thereby.
3. Exercise of the Stock Certificate held by Xxxxxxxxx Escrow Agent. Subject to
the terms and conditions set forth herein, K&D shall be entitled to exercise the
Warrant for the Warrant Shares represented by the Stock Certificate deposited
with the Xxxxxxxxx Escrow Agent at any time immediately following Closing upon
receipt by the Company and the Company's counsel, from Xxxx Xxxxxxxxx, Esq., of
written confirmation (furnished by facsimile with an original to follow by
overnight courier) that the amount of $275,000 (the "First Warrant Exercise
Installment") has been wire-transferred to TTR Inc.'s bank account designated by
the Company, together with the wiring bank's trace number (ftk) reference for
such wire-transfer. Upon delivery of such confirmation and ftk number reference
as provided above, the Xxxxxxxxx Escrow Agent shall be entitled to release to
K&D the Stock Certificate deposited with the Xxxxxxxxx Escrow Agent. Under no
circumstance may the Xxxxxxxxx Escrow Agent release the Stock Certificate held
by him to K&D prior to delivery of the confirmation and the stk number reference
as provided above.
4. Exercise of the Stock Certificate held by the B&A Escrow Agent. Subject to
the terms and conditions set forth herein, K&D shall be entitled to exercise the
Warrant for the Warrant Shares represented by the Stock Certificate deposited
with the B&A Escrow Agent at any time immediately following Closing upon receipt
by the Company of $275,000 (the "Second Warrant Exercise Installment") AND the
satisfaction of the Release Conditions. For the purposes of this Agreement, the
term "Release Conditions" shall mean , (i) completion by K&D of coverage of TTR
Inc. on the Website xxxxxxxxxxx.xxx, which coverage shall continue for not less
than a consecutive ninety (90) days but the condition shall be satisfied upon
such coverage continuing for a consecutive 30 day period and (ii) the
confirmation in writing by the Xxxxxxxxx Escrow Agent to the B&A Escrow Agent of
the payment by K&D to xxxxxxxxxxxxx.xxx of an aggregate of $108,000, provided,
however, that, K&D's obligation to make such payment is subject to the condition
that for a period of consecutive ten (10) business days following the
effectiveness of TTR Inc.'s registration statement filed on Form S-1 relating to
certain shares held by stockholders (including the Warrant Shares) through the
30th day following such effectiveness the per share sale price at which TTR
Inc.'s publicly traded Common Stock trades in the over-the-counter market (OTC)
shall equal or exceed $5.50,. If the per share sale price does not close at or
exceed the price designated above for the period specified above, then K&D shall
have no obligation to make such payment to xxxxxxxxxxxxx.xxx. Under no
circumstance shall the B&A Escrow Agent be required to transfer to K&D the Stock
Certificate deposited with it until the receipt by B&A of the Second Warrant
Exercise Installment and the satisfaction of the Release Conditions.
5. Registration Rights
K&D understands that the Company is in the process of filing with the
Securities and Exchange Commission a registration statement under the Securities
Act relating to certain Company securities held by certain Company shareholders
or the holders of certain rights in
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Company securities, (the "Registration Statement"). That Registration Statement
is being filed pursuant to the terms of registration rights granted to certain
investors (the "Investors"). The Company shall include the Warrant Shares in the
Registration Statement filed on behalf of such Investors. The Company Shall
notify Xxxx Xxxxxxxxx, Esq., on behalf of K&D, of the effectiveness of such
registration statement, if any, within 24 of the commencement of such
effectiveness; the Company understands that that the provision of such notice to
Xxxx Xxxxxxxxx, Esq., on behalf of K&D, is a material term for K&D.
6. Closing. The Closing shall take place on February 17, 2000 or such other
subsequent date acceptable to the parties (the "Closing"). At the Closing, TTR
Inc. shall deliver by facsimile a signed copy of this Agreement. K&D shall
deliver by facsimile a (i) signed copy of this Agreement, (ii) the Warrant
instrument with the notation "VOID" written across the face thereof and (iii) a
Notice of Dismissal with prejudice and without costs in accordance with the
Federal Rules of Civil Procedure dismissing the Complaint properly executed by
K&D, with the originally signed notice being forwarded by messenger or courier
on the Closing date to an address forwarded to the Escrow Agent.. TTR Inc. shall
instruct its stock transfer agent to forward to each of the Xxxxxxxxx Escrow
Agent and the B&A Escrow Agent a Stock Certificate.
7. Release.
(a) Upon the due execution of this Agreement by all of the parties hereto and
the issuance by TTR Inc. of the two Stock Certificates, K&D (and its officers,
directors, employees, shareholders, attorneys for this matter, agents,
successors, personal representatives and assigns) hereby absolutely and
unconditionally waive, release and forever discharge each of the Companies, W&B
and Winehouse, and their respective affiliates, officers, directors,
shareholders, employees, agents, attorneys, insurers, successors, heirs and
assigns, from any claims, demands, obligations, liabilities, rights, causes of
action and damages, whether liquidated or unliquidated, absolute or contingent,
known or unknown, arising prior to or concurrent with the date hereof including
specifically, but without limiting the generality of the foregoing, claims
relating to or arising as a result of any allegation set forth in the Complaint
and any and all claims that K&D could have asserted against any of the
Companies, W&B or Winehouse.
(b) In consideration of the releases in Section 7 (a) above, each of Companies,
W&B and Winehouse (and each of their respective officers, directors, employees,
shareholders, attorneys, agents, heirs, successors, executors, personal
representatives and assigns) does hereby absolutely and unconditionally waive,
release and forever discharge K&D and its affiliates, officers, directors,
shareholders, employees, agents, attorneys in this matter, insurers, successors
and assigns, from any claims, demands, obligations, liabilities, rights, causes
of action and damages, whether liquidated or unliquidated, absolute or
contingent, known or unknown, arising prior to or concurrent with the date
hereof.
8. Stipulation of Dismissal
Concurrently with the due execution of this Agreement by all the parties
hereto, K&D shall take all action necessary to dismiss the Complaint with
Prejudice and without costs. The delivery to TTR Inc. of a Notice of Dismissal
with prejudice and without costs dismissing the Complaint shall be a condition
precedent to K&D's exercise of any of its rights under the Warrant. This
Agreement shall not be filed with the Court.
9. Provision relating to each of the Xxxxxxxxx Escrow Agent and the B&A Escrow
Agent
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(a) The Escrow Agents herein, in their actions pursuant to this Agreement, shall
be fully protected in every reasonable exercise of its discretion and shall have
no obligation hereunder either to any of the other Parties herein, except as
expressly set forth herein. The Escrow Agents may rely upon any instrument or
writing believed by them to be genuine and sufficient and properly and shall not
be liable or responsible for any action taken or omitted in accordance with the
provisions hereof. The Escrow Agents shall not be liable or responsible for any
act they may do or omit to do in the exercise of reasonable care.
(b) The Escrow Agents shall hold the Stock Certificates without compensation as
a stakeholder only. The Escrow Agents are not and shall not be deemed to be a
trustee for any party for any purpose and are merely acting as depository and in
a ministerial capacity hereunder with the limited duties herein described. The
Escrow Agents shall have no obligation to anyone to invest any of the deposited
shares.
(c) The duties and obligations of the Escrow Agents shall be determined solely
by the express provisions of this Agreement and the Escrow Agents shall not be
responsible except for the performance of such duties and obligations as are
specifically set out in this Agreement.
(d) The Escrow Agents shall not be responsible in any manner whatsoever for any
failure or inability of TTR Inc. to deliver Stock Certificates to the Escrow
Agents or otherwise to honor any of the provisions of this Agreement.
(e) Each of the Companies, K&D, Winehouse and W&B, jointly and severally, agrees
to indemnify the Escrow Agents and to hold them harmless against any loss,
liability or expense incurred on its part arising out of or in connection with
its acting as Escrow Agents under this Agreement, as well as the cost and
expense of defending against any claim of liability. The Escrow Agents shall be
entitled to consult with counsel of its choice and shall have full and complete
authorization and protection for any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
10. Confidentiality. The Parties hereby undertakes (i) to keep confidential and
(ii) not to disclose to any party any and all matters relating to this
Agreement, unless required by applicable law or relevant regulations. K&D
acknowledges that TTR Inc. will file an executed copy of this Agreement and the
dismissal order of the Court with the Securities and Exchange Commission in
accordance with the requirements of the Securities Act of 1933, as amended
and/or the Securities and Exchange Act of 1934.
11. Reliance and Complete Agreement. The parties acknowledge and agree that in
the execution of this Agreement, neither has relied upon any representation by
any party or attorney, except as expressly stated herein. Moreover, this
Agreement shall represent the complete and entire agreement between the parties,
to the exclusion of any and all other prior or concurrent terms, written or
oral. No supplement, modification or waiver or termination of this Agreement or
any provision hereof shall be binding unless executed in writing by the parties
to be bound thereby.
12. Headings. Section and subsection headings are not to be considered part of
this Agreement and are included solely for convenience and are not intended to
be full or accurate descriptions of the content thereof.
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13. Successors and Assigns. Except as otherwise provided in this Agreement, all
the terms and provisions of this Agreement shall be upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, personal
representatives, successors and assigns.
14. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
15. Governing Law; Forum
15.1 This Agreement, its validity, construction and effect shall be
governed by and construed under the laws of the State of New York. All disputes,
controversies, differences or questions arising out of or relating to this
Agreement, or to the validity, interpretation, breach, violation or term
thereof, will be finally and solely determined and settled by an arbitrator in
New York, mutually agreed upon or appointed by the Parties.
15.2 Such arbitrator shall not be bound by the rules of evidence or civil
procedure but shall give written reasons for any decision. The signing of this
Agreement constitutes a an agreement to arbitrate under Article 75 of the New
York Civil Practice Law and Rules.
15.3 The arbitrator shall be authorized to render interim decisions and
partial verdicts and shall have the right to issue verdicts whether of law or
compromise.
15.4 In the absence of agreement between the Parties either shall have the
right to apply to American Arbitration Association, New York Office to appoint
an arbitrator to act in accordance with the provisions set out in this section
15.
16. Representation. Each Party acknowledges that they have had the opportunity
to consult with legal counsel respecting this Agreement. Each person executing
this Agreement on behalf of a corporation hereby represents and warrants that he
has been authorized to do so by all necessary corporate action.
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17. Non-Disparagement. None of the Parties(and their representatives,
successors, agents or respective officers, directors, employees, agents,
attorneys, insurers, successors and assigns) shall disparage the other Parties
hereto or their businesses.
IN WITNESS WHEREOF, each of the parties has set forth its/ his signature
as of the date first written above.
K&D Equities Inc. . TTR Technologies, Inc.
By: /s/ Xxxxxx XxXxxx By: /s/ Xxxx X. Xxxxxxx
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Title: President Title: President
/s/ Xxxxx Winehouse
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Xxxxx Winehouse
TTR Technologies Ltd.
By: /s/ Xxxx X. Xxxxxxx
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Title: President
Wall & Broad Equities Inc. Xxxxxxxxxx Xxxxxx Trustees Ltd.
By: /s/ Xxxxx Winehouse By: /s/ Xxxxx Xxxxxx
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Title: President
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, as Escrow Agent
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