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Exhibit B
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (this "Agreement") is made of the
21st day of June, 1999, by and between RBB Bank, AG ("RBB"), a bank formed under
the laws of Austria having its address at Xxxxxxx 00, 0000 Xxxx, Xxxxxxx, and
Lasergate Systems, Inc. ("LSI"), a Florida corporation having its address at
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, RBB has commenced an action (the "Action") against Lasergate,
which action is now pending as Case No. 99-1435, CI Section 88B in the Circuit
Court of Pinellas County, Florida;
WHEREAS, LSI has interposed certain defenses and counterclaims in the
Action;
WHEREAS, subject to the terms and conditions set forth below, the
parties now desire to provide for the settlement and discontinuance of the
Action and all other disputes between them; and;
WHEREAS, the parties contemplate that LSI will enter into a agreement
and plan of merger (the "Merger Agreement"), with Xxxxxxx.xxx, Inc.
("Xxxxxxx.xxx"), a Delaware corporation, and Advantix Acquisition Corp.
("AAC"), a Delaware corporation;
NOW, THEREFORE, in consideration of the mutual premises set forth below
and other good and valuable consideration in hand received, the undersigned
hereby agree as follows:
1. The Inducement Letters and Mutual Releases. As a condition precedent
to the Bank's obligations under this Agreement, LSI will deliver (i) the
inducement letter in the form of Exhibit A annexed to this Agreement
countersigned by Xxxxxxxxxx Xxxxxxxx; (ii) the inducement letter in the form of
Exhibit B annexed to this Agreement countersigned by Xxxxxxxx Xxxxxxxx; (iii)
the inducement letter in the form of Exhibit C annexed to this Agreement
countersigned by Xxxx Xxxxxxx; and (iv) the inducement letter in the form of
Exhibit D annexed to this Agreement
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countersigned by Xxxxx Xxxxxxx. Each of the inducement letters referred to in
this Section (the "Inducement Letters") includes mutual releases pursuant to
which each of RBB, LSI and Xxxxxxx.xxx releases the persons named above in this
section, and each of such persons releases each of RBB, LSI and Xxxxxxx.xxx.
2. The Action. Upon the execution of the Merger Agreement by all
parties thereto, the Action will be dismissed with prejudice.
3. Reformation of Board. It is a material condition to the obligations
of RBB set forth in this Agreement and the releases provided for in favor of LSI
that, immediately after approving the transactions set forth in the Merger
Agreement, the board of directors of Lasergate fill two existing vacancies with
Xxxxx Xxxxx and Xxxxxx Xxxxx, and that Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx
resign from LSI's Board of Directors immediately after so filling such vacancies
and electing Xxxxx Xxxxx as the President of LSI. Any failure by LSI's Board of
Directors to comply with this provision will result in the possible revival of
the Action. LSI will provide RBB with all information required for inclusion in
any filings to be made by RBB or LSI with the SEC, to the extent the same relate
to LSI, its officers or directors.
4. Releases. RBB and LSI are executing and delivering to each other
executed counterparts of the Agreement and General Release substantially in the
form of Exhibit E annexed hereto. Both RBB and LSI acknowledge that such
Agreement and General Release is not effective until the execution of the Merger
Agreement by Xxxxxxx.xxx, AAC and LSI.
5. Miscellaneous. Except as set forth in a separate letter, dated the
date of this Agreement, from RBB to Xxxxxxxxxx Xxxxxxxx (the "Xxxxxxxx Letter")
and in the Inducement Letters, this Agreement constitutes a single, integrated
written contract expressing the entire agreement of the parties to this
Agreement. Except as set forth in the Soechtig Letter or in the Inducement
Letters, no representation, promise or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by or
be liable for any alleged representation, promise or inducement not so set
forth. This Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of the parties to this Agreement, and each of them.
No modification, amendment or waiver of any of the provisions contained in
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this Agreement, or any future representation promise, or condition in connection
with the subject matter of this Agreement, shall be binding upon any party to
this Agreement unless made in writing and signed by such party. If any term,
provision or covenant in this Agreement the Soechtig Letter or in any Inducement
Letter is held to be invalid, void or unenforceable, (i) the remainder of the
terms, provisions and covenants in this Agreement, the Soechtig Letter and the
Inducement Letters shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and (ii) to the fullest extent possible, the
provisions of this Agreement, the Soechtig Letter and the Inducement Letters
(including, without limitation, all portions of any Section of this Agreement
containing any such provision held to be invalid, void or unenforceable that are
not themselves invalid, void or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, void or
unenforceable. This Agreement and any of the other Transactional Documents may
be executed in one or more counterparts, each of which shall be deemed an
original and, when taken together, shall constitute one and the same agreement
which shall be binding and effective as to the parties to this Agreement.
6. Governing Law. This Agreement, the Soechtig Letter and the
Inducement Letters (collectively, the "Transactional Documents") shall be
governed by and construed and enforced in accordance with the laws of the State
of Florida applicable to agreements made and to be performed entirely in
Florida.
7. Jurisdiction. Each of the parties hereto hereby irrevocably and
unconditionally consents and submits to the exclusive jurisdiction of any state
or federal court located within the County of Pinellas, State of Florida, in
connection with any, actions, suits or proceedings arising out of or relating to
any of the Transactional Documents or the transactions contemplated hereby or
thereby, waives any objection to venue in such jurisdiction, and agrees that
service of any summons, complaint, notice or other process relating to such
proceeding may be effected (x) as provided by Section 8, or (y) to their
respective attorneys at their respective addresses set forth in Section 8 by
U.S. certified mail, or (z) if not so permitted by applicable law, as otherwise
may be permitted by applicable law.
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8. Notices. Any notice pertaining to any of the Transactional
Documents and any summons, complaint, answer, notice or other process relating
to any controversy arising out of such documents, shall be in writing and shall
be served by delivering said notice (i) by hand, (ii) by overnight mail by a
internationally recognized carrier such as Federal Express or Airborne, (iii)
(except in the case of RBB Bank) by sending it by certified mail, postage
prepaid, return receipt requested, or (iv) by confirmed telefax, with notice
confirmed, to the party at the address set forth in the first paragraph of this
Agreement with copies to counsel as follows:
in the case of RBB Bank:
Xxxxxxxxx Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Fax: (000)000-0000
and in the case of Lasergate Systems, Inc.
Xxxxxx X. Xxxxx, Esq.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Fax: (000)000-0000
The addresses for notice may be changed by notice given to the other party
pursuant to this Section.
IN WITNESS WHEREOF, the undersigned have executed this Agreement, on
the date first written above.
RBB Bank, AG
By: /s/Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Manager, U.S. Equities
Lasergate Systems, Inc.
By: /s/ X.X. Xxxxx
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X. X. Xxxxx
Vice President
