STATE OF SOUTH CAROLINA
)
CITY OF CHARLESTON )
MUTUAL RELEASE
THIS MUTUAL RELEASE is entered into and delivered as of this 24th day of
December, 1996, by and among ENWIROMETRtCS, INC., a corporation organized and
existing under the laws of the State of Delaware (the "Company"'), THE UNITED
STATES COMPANY, a corporation organized and existing under the laws of the
Commonwealth of Vixginia ("USC"), XXXXXXX X. XXXXXXXX, an individual resident of
the Commonwealth of Virginia ("Gui[ford"), MAUt~ITIO X. XXXXXXX, an individual
resident of the State of Georgia CGiabbai'), and XXXXX X. XXXX, and individual
resident of the Commonwealth of Virginia ("Rose") (USC, Guilford, Giabbai and
Rose being collectively referred to hereinafter as the "USC Group", and anyone
of them individually as a "USC Member").
WITNESSETH:
WHEREAS, the parties hereto have entered into an Agreement, dated as of the
date hereof (the '"Agreement"), whereby certain claims of the USC Group against
the Company, its subsidiaries and affiliates, and certain other claims of the
Company against the USC Group and/or certain USC Members, have been finally
settled; and
WHEREAS, thc Company and the USC Group, in consideration of the benefits
and payments under the Agreement, lmve agreed to completely release each other
from claims, actions, causes of action and damages accruing prior to the date of
the Agreement, all as more particularly provided hereinbelow.
NOW, THEREFORE, for valuable consideration whose receipt and sufficiency
are hereby acknowledged, the parties agree as follows:
1. Release by the Company. The Company hereby and forever releases, holds
harmless and discharges the USC Group and each USC Member (individually and
collectively), together with each of their personal representatives, heirs,
successors and assigns (as applicable), from and against any and all claims,
demands, counterclaims, actions, costs, causes of action, damages, debts,
obligations, and liabilities of whatever nature (collectively, "USC
Liabilities"). This Release extends to ali USC Liabilities, known or unknown,
now existing or existing mdy in the future, matured or utunatured, foreseeable
or urfforeseeable, lo the extent that USC Liabilities result or arise, directly
or indirectly, frozn any relationship(s) of the USC Group or any' USC Member
with the Company through the date of this Release ("Relationships"), or froth
any act of the USC Group or any USC Member on or before the date of this Rel~se
("USC Acts"), as it relates to that certain Agreement dated July 11, 1995.
Relationships include, but are not limited to, ownership of shares, options
and/or warrants of the Company, services rendered under that certain Agreement
dated July 11, 1995, by and between the Comprely and USC, and service rendered
under any' and all other agreements between the USC Group or any USC Member and
the Company, whether oral or written, express or implied. USC Acts include
without limitation those that might give rise to liability in tort, in contract
or by statutory role.
2. Release by the USC Group. The USC Group and each USC Member, jointly and
severally, hereby and forever release, hold harmless and discharge the Company,
its past and present directors, officers, employees, agents, representative,
subsidiaries, '~liates, successors and assigns, from and against any all claims,
demands, counterclaims, actions, costs, causes of action, damages, debts,
obligations, and liabilities of whatever nature (collectively, "Company
Liabilities"). This Release extends to all matured or unmatured, foreseeable or
unforeseeable, to the extent that Company LiabiliQes result or arise, directly
or indirectly, from an>' Relationships, or from any act of the Company or any
agent, representative, subsidiary, affiliate, successor or assign of the Company
on or before the date of this Release ("Company Acts"), as it relates to that
certain Agreement dated July 11, 1995. Company Acts include without limitation
those that might give rise to liability in tort, in eontract or by statutory
rule.
IN WITNESS WHREOF, the parties hereto have executed this Mutual Release as
of the date and year first written above.
ENVIROMETRIC, S, INC.
By: Xxxxxx X. Xxxxxxx, III
Its'. President
THE UNITED STATES COMPANY
XXXXXXX X. XXXXXXXX
XXXXXXXX X. XXXXXXX
Individually
XXXXX X. XXXX
Individually
STATE OF SOUTH CAROLINA COUNTY OF CHARLESTON
MEMORANDUM OF AGREEMENT
THIS AGREEMENT is made as of this 24th day of December, 1996, by and among
ENVIROMETRICS, INC, a corporation organized and existing under the laws of the
State of Delaware, THE UNITED STATES COMPANY, a corporation organized and
existing under the laws of the Commonwealth of Virginia (USC), XXXXXXX X.
XXXXXXXX, an individual resident of the Commonwealth of Virginia ("Guilford"),
XXXXXXXX X. XXXXXXX, an individual resident of the State Of Georgia,
("Giabbai"), and XXXXX X. XXXX, an individual resident of the Commonwealth of
Virginia ("Rose") (Guilford, Giabbai, and Rose being referred to sometimes
herein as a "USC Principal" and collectively as the "USC Principals"), with
respect to all costs, fees, expenses or other compensation owed to USC or any
USC Principal by ENVIROMETRICS, INC. and/or any of its affiliates or
subsidiaries (the "Company").
The parties to this Agreement agree as follows:
1. No fees, expenses, or compensation whether in the form of cash, warrants
equity or other value, shall be due from this date forward by the Company to USC
or any USC Principal except (i) as expressly provided in this Agreement. (ii) as
previously agreed between the Company and USC as to compensation and expenses to
be paid to Rose for her activities as an employee of the Company, and (iii)
reasonable expenses incurred after the date of this Agreement to be reimbursed
by the Company to USC or any USC Principal provided, however, such expenses must
be agreed upon in advance between or among the Company and USC and/or the USC
Principals prior to the time such expenses are incurred by USC or any USC
Principal.
2. The parties hereto agree that those two (2) certain Company promissory notes
made payable to USC and dated on or about February 27, 1996, and August 12, I996
(collectively, the "First Notes"), on which the Company, on or about October 5,
1996, made a partial payment of One Hundred Twenty-Five Thousand Dollars
($125,000.00), are as of the date hereof fully paid and the collateral (as
defined therein) securing the First Notes fully released, and that no other sums
shall be due or payable on account of the First Notes or the documents executed
in connection therewith. Further, USC and the USC Principals agree to
immediately return all executed originals, proxies and/or instruments pertaining
to the First Notes and the collateral securing the First Notes to the Company
for cancellation and/or destruction by the Company, and to cooperate with all
reasonable requests of the Company, including but not limited to delivery and
execution of all necessary documents to cancel the First Notes and to release
the collateral.
3. The parties hereto agree that the sum of the remaining note payable and all
remaining expenses and compensation of any kind whatsoever owed by the Company
to USC or any USC Principal is One Hundred Seventy-one Thousand Dollars
($171,000.00US). The Company hereby agrees to pay to USC the said amount
pursuant to the promissory notes dated the date hereof, copies of which are
attached as Attachments B and C and expressly incorporated herein by reference,
in the amount of One Hundred Seventy-One Thousand Dollars ($171,000.00 US) (the,
"New Notes"). The sums due under the New Notes shall be payable as follows:
Principal of Thirty-Five Thousand Dollars ($35,000,00 US) shall be due and
payable at the time the Payor shall have received the cash proceeds from the Two
Hundred Fifty-Five Thousand Dollars ($255,000.00 US) second mortgage note held
by Envirometrics, Inc., that resulted from the sale of those certain real
properties described in Attachment A to this Note and expressly incorporated
herein by reference. Payor will pay interest monthly at the rate Payee is
charged by Regency Bank (the "Bank"). (Current rate charged by the Bank is
8.75%.)
Principal of One Hundred Thirty-Six Thousand Dollars ($136,000.00 US) shall be
due and payable in 60 equal monthly installments of $2,629.26 US including
accrued interest thereon, commeneing on January 15, 1997 and on each 15m day of
each month following until all Remaining Principal due under this Note is paid
in full; provided, in any event that all sums due hereunder shall be due and
payable on December 15, 2001 (the "Maturity Date"). The principal due under this
Note, shall bear interest at the rate of Six Percent (6%) per annum on the
Principal outstanding hereunder from time to time. This note shall be paid to
the Payee directly from the second mortgage note interest payments from Xxxxx
Xxxxxx M.D,, executed with the company on December 19, 1996. if such payment is
not received by the Company from Xxxxx Xxxxxx, M.D., or if Xxxxx Xxxxxx, M.D.
then interest only shall be due and payable under this note.
Any unpaid principal on the Notes above shall be due and payable in full with
accrued interest thereon on the settlement date of any sale by the Payor, public
or private, of its securities of any character, if the net proceeds to the Payor
from such sate, after the payment of fees and expenses incurred in connection
wkh the sale, equal or exceed the sum of $1,000,000.00 US.
To secure the repayment of all sums due under the New Notes, the Company hereby
grants to USC, pursuant to a security agreement dated as of the date hereof, a
copy of which is attached as Attachment D and expressly incorporated herein by
reference (the "Security Agreement"), a security interest in the Company's
right, title and interest in and to (i) that certain Promissory Note from Trico
Engineering Consultants, inc., formerly Trico Envirometrics, Inc., to
Envirometrics, Inc. dated as of July 26, 1996, as amended from time to time
thereafter in the amount of Six Hundred Thousand ($600,000.00 US), a copy of
which is atittached as Attachment E E_ and expressly incorporated herein by
reference (the "Trico Note"), and (1) that certain Pledge Agreement by and
between Envkometrics, Inc. and Xxxxxx X. Xxxxxxxx dated as of July 26, 1996, as
amended from time to time thereafter, pursuant to which Xxxxxxxx pledges to the
Company all of his interest in shares of Trico Envirometrics, Inc. stock and in
options to purchase shares of Company common stock, a copy of which is attached
as Attachment F and expressly incorporated herein by reference (the "Xxxxxxxx
Pledge Agreement").
5. The Company shall within a reasonable time following execution of this
Agreement, issue or cause to be issued to USC, pursuant to the reasonable
written instructions of USC actually received by the Company prior to issuance,
one hundred twenty-five thousand (125,000) shares of validly authorized and
previously unissued $. 001 par value Common Stock of the Company (the "USC
Shares"), which stock shall not on the date of issuance to USC be registered
under the, Securities Act of 1933 'or under any state securities or other "blue
sky" laws, but which shall have the Registration Rights in Paragraph 9 hereof.
The Company shall, in its sole discretion,determine its tax, securities,
accounting and other reporting treatment of this transfer of shares, whether as
(a) a conversion of a liability from USC and any USC Principal, (b) an exchange
of warrants, options, or other rights held or exercisable by or otherwise
belonging to USC or any USC Principal to Purchase or receive, shares of Company
stock or warrants therefor, or (c) any combination of (a) and (b), or any other
treatment acceptable to the Company's accountants (the "Treatment").
6. Except as expressly provided in this Agreement, and notwithstanding the
Treatment chosen by the Company pursuant to Paragraph 5 hereof, as of this date
hereof, any and all outstanding or unissued options, warrants or other rights
held or exercisable by or otherwise belonging to USC or any USC Principal to
purchase or receive shares or warrants of Company stock shall be null and 'void,
and any documents, proxies, or legal instruments providing for such rights shall
be immediately returned to the Company.
7'. In connection with the closing of the matters agreed herein, the Company,
USC and the USC Principals shall deliver to each other an executed mutual
release in the form attached as Attachment G expressly incorporated herein by
reference.
8. Nothing in this Agreement shall affect the employer/employee relationship
previously entered into by and between the Company and Rose. Rose agrees to
remain employed by the Company under the present terms and conditions of her
employment. The Company agrees to pay on a timely basis all of Rose's fees and
expenses reasonably relating to the business of the Company which are approved
by the Company prior to being incurred.
9. In the event that the Company at any time subsequent to the date the Exchange
Shares are issued to USC hereunder proposes to file a registration statement
(other than a registration statement on a Form S-8 of Form S-14, or forms
similar thereto in effect at the time of such filing) under the Securities Act
of 1933 (as then in effect or any similar statute then in effect), in connection
with a proposed public offering of securities, the Company agrees to immediately
notify USC in writing, at least thirty (30) days prior to such proposed filing
date of such registration statement. Within 30 days following delivery of such
notice, USC may request that the Company include in such contemplated
registration statement any shares of stock owned by USC (whether such ownership
is by virtue of issuance pursuant to this agreement or pursuant to the exercise
of USers rights under the New Note and related documents). Upon receipt of such
notice, the Company will cause the shares of stock made the subject of such
request to be covered by the Company.
In addition, and without limiting the foregoing, the Company agrees to register
at least Fifty Thousand (50,000) Exchange Shares of the Company stock owned by
USC or its designee, prior to June 30, 1997 (if so requested by USC), and to
register any remainder of the Exchange Shares so owned by USC on demand, at any
time after December 31, 1997, the registration to be effective within sixty (60)
days following such written demand.
The Company will pay all expenses reasonably incurred by it and USC (including
USC's attorney's fees, commissions and fees of underwriters or brokers with
respect to the shares of the stock to be registered and sold by USC) in
connection with the registration statement and any post-effective amendment
thereto and in connection with qualifying the securities covered by the
registration statement under the Blue Sky or other state securities' laws. USC
shall furnish the Company and the Company shall furnish USC, such documents,
including selling notices and opinions of counsel, as are typically and
reasonable requested and delivered by an issuer and selling shareholder in a
"piggy-back" or demand registration transaction of the type outlined above. USC
and the Company, respectively, agree to provide such documentation and
information on a timely basis to permit the registration statement covering the
Exchange Shares and other shares of stock owned by USC to become effective on a
prompt and orderly basis.
USC agrees to limit the number of registered shares it may sell following
registration to no more than Twelve Thousand Five Hundred (12,500) shares during
any calendar month for the first two (2) years following registration.
10. This Agreement shall bind and inure to the benefit of the parties hereto and
to their respective personal representatives, heirs, successors or assigns.
11. If any term or provision of this Agreement shall to any extent be held by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement, or the application of such invalid term or provision to other
persons or circumstances, shall not be affected thereby.
12. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of South Carolina. Any disputes under this Agreement shall be
settled only and exclusively in the Courts of the State of South Carolina and
each of the parties hereto consent to the exclusive jurisdiction and venue of
such Courts.
13. This Agreement may be modified only by an agreement in writing and signed
by the party against whom enforcement of any waiver, charge, modification, or
discharge is sought.
14. All representations and warranties, covenants and amendments contained in
this Agreement and in all documents and agreements incorporated herein shall
survive the execution of this Agreement.
15. The individuals actually executing this Agreement personally represent and
warrant that they have the necessary power and authority to execute this
Agreement in behalf of thc party they represent, and that their signatures are
sufficient to make this Agreement the binding and enforceable obligation of such
party.
16. This document may be executed in any number of counterparts with the same
effect as if the signatures hereto and thereto are upon the same instrument,
17. This Agreement has been negotiated by the Parties hereto. The Parties
represent and warrant to one another that each has actively participated in the
finalization of this Agreement, have been represented by and consulted with
counsel of their choice, and, in the event of a dispute concerning the
interpretation of this Agreement, each Party hereby waives the doctrine that an
ambiguity should be interpreted against the Party which has drafted the
document.
18. This Agreement contains the entire agreement between the Parties hereto and
supersedes and emilnates any and all prior agreements and understandings, oral
or written, between the Parties hereto with respect to the matters set forth
herein.
19. The Parties hereto understand and agree that that certain contract between
Envirometrics, Inc..and The United States Company, dated as of July 11, 1995, as
the same may have been amended from time to time thereafter (the "Contract") is
null and void, and that this Agreement supersedes and replaces the Contract in
every respect.
IN WITNESS WHEREOF, the Parties hereto have executed, or caused their duly
authorized agents to execute, this Agreement the day and year first written
above.
COMPANY: ENVIROMETRICS, INC.
Xxxxxx X. Xxxxxxx, III President
USC: THE UNITED STATES COMPANY
President
GUILFORD: XXXXXXX
XXXXXXX: XXXXXXXX X. XXXXXXX
Individually ROSE: XXXXX X. XXXX Individually
