SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("SETTLEMENT AGREEMENT") is entered into this
9th day of December, 1997, between HORIZON ACQUISITION CO., an Arizona
Corporation ("HAC"), ARIZONA INSTRUMENT CORPORATION, a Delaware Corporation
("AZI"), HORIZON ENGINEERING AND TESTING, INC., an Arizona Corporation
("Horizon") and Xxxxx Xxxxxxx, an individual ("Xxxxxxx").
R E C I T A L S
A. AZI, HAC, Horizon and Xxxxxxx are parties to an Agreement of Merger
and an Escrow Agreement, each of which are dated September 30, 1992; and HAC and
Xxxxxxx are parties to an Employment Agreement of the same date (collectively,
the "Acquisition Agreements").
B. Pursuant to the Agreement of Merger and Escrow Agreement, 49,030
(Forty-Nine Thousand and Thirty) shares of AZI's common stock in certificate
number AZI 7642 were placed into escrow (the "Escrowed Shares") with Xxxxxxx X.
Xxxxx (the "Escrow Agent").
C. AZI, HAC, Horizon and Xxxxxxx have agreed to settle, discharge and
release all claims and causes of action which they may have against each other
as hereinafter identified.
D. AZI, HAC, Horizon and Xxxxxxx have also agreed to disburse the
Escrowed Shares as described herein.
E. HAC is a wholly-owned subsidiary of AZI.
NOW, THEREFORE, for valuable consideration, it is acknowledged and
agreed as follows:
1. Tax Treatment. The parties agree that the disbursement of the
Escrowed Shares, as described in Paragraph 7, does not constitute wages or
compensation for services. To the parties' knowledge, the disbursement of the
Escrowed Shares does not constitute a taxable transaction for any party hereto.
2. Horizon and Xxxxxxx Release of HAC and AZI. In consideration of the
Escrowed Shares being disbursed as described in Paragraph 1, and for other good
and valuable considera tion, the receipt, validity and sufficiency of which is
hereby acknowledged, Horizon and Xxxxxxx on their own behalf, respectively, and
on behalf of their respective officers, directors, shareholders, principals,
heirs, successors and assigns, do hereby release and discharge, fully and
without any limitation whatsoever, HAC and AZI and their respective insurers,
subsidiaries, divisions, affiliates, partners, partnerships, principals,
directors, officers, agents, representatives,
employees, shareholders, successors and assigns (the "AZI Released Parties"), of
and from all liabilities, claims and of and from all manner of actions and
causes of action of every kind and nature whatsoever, both legal and equitable,
which Horizon or Xxxxxxx has, ever had or may hereafter have, both known and
unknown, arising out of or in any way pertaining to the Acquisition Agreements.
3. AZI release of Horizon and Xxxxxxx. In consideration of the Escrowed
Shares being disbursed as described in Paragraph 1, and for other good and
valuable consideration, the receipt, validity and sufficiency of which is hereby
acknowledged, AZI, on its own behalf and on behalf of its officers, directors,
successors and assigns, and on behalf of HAC, does hereby release and discharge,
fully and without any limitation whatsoever, Horizon and its insurers,
subsidiaries, divisions, affiliates, partners, partnerships, principals,
directors, officers, agents, representatives, employees, shareholders,
successors and assigns (the "Horizon Released Parties"), and Xxxxxxx, of and
from all liabilities, claims and of and from all manner of actions and causes of
action of every kind and nature whatsoever, both legal and equitable, which AZI
has, ever had or may hereafter have, both known and unknown, arising out of or
in any way pertaining to the Acquisition Agreements.
4. Limitation on AZI and HAC Actions. Except with respect to any
breaches of this SETTLEMENT AGREEMENT or any default hereunder, AZI and HAC
further covenant and agree to not file any complaint or claim against the
Horizon Released Parties and/or Xxxxxxx arising out of or in any way pertaining
to the Acquisition Agreements, and to indemnify the Horizon Released Parties
and/or Xxxxxxx from any and all loss, harm, damages and costs, including
attorneys' fees, that the Horizon Released Parties and/or Xxxxxxx may incur in
consequence of any complaint or claim filed by or on behalf of AZI or HAC in
contravention of this SETTLEMENT AGREEMENT.
5. Limitation of Horizon Actions. Except with respect to any breaches
of this SETTLEMENT AGREEMENT or any default hereunder, Horizon covenants and
agrees to not file any complaint or claim against the AZI Released Parties
arising out of or in any way pertaining to the Acquisition Agreements, and to
indemnify the AZI Released Parties from any and all loss, harm, damages and
costs, including attorneys' fees, that the AZI Released Parties may incur in
consequence of any complaint or claim filed by or on behalf of Horizon in contra
vention of this SETTLEMENT AGREEMENT.
6. Limitation on Xxxxxxx Actions. Except with respect to any breaches
of this SETTLEMENT AGREEMENT or any default hereunder, Xxxxxxx covenants and
agrees to not file any complaint or claim against the AZI Released Parties
arising out of or in any way pertaining to the Acquisition Agreements, and to
indemnify the AZI Released Parties from any and all loss, harm, damages and
costs, including attorneys' fees, that the AZI Released Parties may incur in
consequence of any complaint or claim filed by or on behalf of Xxxxxxx in
contraven tion of this SETTLEMENT AGREEMENT.
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7. Concurrent Signing of Escrow Instructions. The parties further
covenant and agree to sign escrow instructions concurrent with executing this
SETTLEMENT AGREEMENT, instructing the Escrow Agent to disburse immediately
12,331 (Twelve thousand, three hundred and thirty-one) of the Escrowed Shares to
AZI, and the remaining Escrowed Shares to Xxxxxxx as agent for the shareholders
of Horizon. AZI further agrees at its full cost and expense to cause any legends
which would restrict or inhibit the trading or sale of the Escrowed Shares to be
removed from the Escrowed Shares, provided that Xxxxxxx provides AZI with a
certificate indicating that any sale of such shares by Xxxxxxx will comply with
the applicable federal and state laws and regulations, including but not limited
to Rule 144.
8. Scope of this SETTLEMENT AGREEMENT. The execution of this SETTLEMENT
AGREEMENT is not an admission of any kind by the parties hereto, or any one of
them, but rather represents a compromise and settlement of disputed claims,
liability for which is expressly denied by the parties hereto. With the
exception of the Acquisition Agreements described herein, this SETTLEMENT
AGREEMENT does not impact the rights and obligations of the parties with regard
to any agreements between any of them, including but not limited to a
Confidentiality Agreement and a Non-Competition Agreement between Xxxxxxx and
HAC, each dated September 30, 1992.
9. Authorized Signers. Each signatory warrants that he is authorized by
his principal to sign this SETTLEMENT AGREEMENT on that principal's behalf.
10. Severability. If any provision of this SETTLEMENT AGREEMENT is
found to be unenforceable by a court of competent jurisdiction, such finding
shall not affect the enforce ability of any other provision(s).
11. Governing Law. This SETTLEMENT AGREEMENT shall be interpreted in
accordance with the laws of the State of Arizona.
12. Consideration. It is expressly understood and agreed that this
document sets forth the entire consideration for this SETTLEMENT AGREEMENT, and
that said consideration for this SETTLEMENT AGREEMENT is contractual and not a
mere recital.
13. Entire Agreement. This SETTLEMENT AGREEMENT embodies, merges and
integrates all prior and current agreements and understandings of the parties
hereto, and may not be modified, clarified, changed or amended, except in
writing signed by each and every one of the signatories hereto, or their
authorized representatives. There are no oral agreements between the parties.
14. Construction. This SETTLEMENT AGREEMENT is a negotiated agreement
and any documents delivered pursuant hereto shall be construed without regard to
the identity of the persons who drafted the various provisions thereof. Every
provision of this SETTLEMENT
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AGREEMENT and such other settlement documents shall be construed as though all
parties participated equally in the drafting thereof. Any legal rule of
construction that a document is to be construed against the drafting party shall
not be applicable and is expressly waived.
15. Contractual Terms. The terms of this SETTLEMENT AGREEMENT are
contractual and not mere recitals.
16. Captions. The captions used in this SETTLEMENT AGREEMENT are
inserted for convenience only and shall not affect the meaning or construction
of this SETTLEMENT AGREEMENT.
17. Counterparts. This SETTLEMENT 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 document.
DATED as of the date first written above.
ARIZONA INSTRUMENTS CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Title: President
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Printed Name: Xxxxxx X. Xxxx
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HORIZON ACQUISITION CO.
By: /s/ Xxxxxx X. Xxxx
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Title: President
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Printed Name: Xxxxxx X. Xxxx
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HORIZON ENGINEERING AND TESTING, INC.
By: Xxxxxx X. Xxxx
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Title: President
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Printed Name: Xxxxxx X. Xxxx
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XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXX
SPOUSE:
/s/ Xxxxxxxx Xxxxxxx
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XXXXXXXX XXXXXXX
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