EXHIBIT 10.1
FINAL
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SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASES
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This Settlement Agreement and Mutual General Releases (the "Agreement") is
made as of March 18, 2005, by and between (a) Xxxxxxx X. Xxxxxxx, a Michigan
resident ("KFR"), Xxxxx Xxxxxxx ("SR"), RFK Investments, LLC ("LLC"), a Michigan
limited liability company, ("LLC", KFR and SR, collectively, jointly and
severally, "Raznick"), (b) BICO, Inc., a Pennsylvania corporation, ("BICO"), (c)
Xxxxxxx X. Xxxxxxxxx ("Xxxxxxxxx"), Xxxx XxXxxxxxx ("XxXxxxxxx"), Xxxxxxx
Xxxxxxx ("Xxxxxxx") and Xxxx X. Xxxxxxxxx ("Xxxxxxxxx") (each of which is an
officer of BICO and are referred to herein collectively, jointly and severally
as "Management"), (d) Xxxxxx, Holden & Xxxxxxxxx Capital Corp., a New York
corporation ("PHD"), Xxxx Xxxxxxxx ("Xxxxxxxx"), and Xxxxxx Xxxxx ("Braff").
Each of the foregoing persons and entities is hereinafter referred to as a
"Party" and all of them collectively as the "Parties."
RECITALS
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This Agreement is made with reference to the following facts and
circumstances:
A. On or about November 4, 2004, cXc Services, Inc. ("cXc") merged with and
into BICO (the "Merger") in exchange for 125,470,031.1 shares of Series M
Preferred Shares of BICO ("Series M Stock");
B. One of the assets of cXc at the time of the Merger was an Exclusivity
Agreement between cXc and Amstrad, plc, a British manufacturer of the model E3
video webphone, which agreement required cXc to post a letter of credit in the
approximate amount of $3 million US in order to maintain cXc as Amstrad's
exclusive distributor of the E3 in the United States and Canada;
C. Disputes have arisen between the parties to this Agreement concerning,
among other things, the obligations, if any, of KFR to make an additional equity
investment in or loan to BICO and the parties are entering into this Agreement
for the purpose of settling and compromising those disputes; and
D. This Agreement is entered into solely for the purpose of settlement and
compromise, and each Party hereto expressly acknowledges and agrees that the
Parties hereto have not admitted, and by execution and performance of this
Agreement, do not admit, and in fact expressly deny, any and all liability or
obligation to the other Party, except for those rights and obligations
specifically provided in this Agreement.
TERMS OF AGREEMENT
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NOW, THEREFORE, for and in consideration of the mutual covenants and
representations contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1. Incorporation of Recitals. The Recitals set forth above are incorporated
into and made part of this Agreement, by this reference.
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2. Effective Date of This Agreement. This Agreement shall become effective
upon completion of the following acts: (a) execution of this Agreement by all
Parties hereto and its delivery in accordance with Section 16; (b) the execution
and delivery into escrow by Raznick of consents to amend and restate the
Certificate of Designation of BICO's Series M Stock, in accordance with Sections
5 and 20 herein; (c) the execution and delivery into escrow of the general
releases as provided in Sections 6 and 20 herein; (d) the delivery of $110,000
by KFR into escrow in accordance with Sections 3 and 20 herein; (e) the
execution of an agreement by X.X. Xxxxx Investment Banking Corp. ("Xxxxx"), BICO
and KFR to settle Xxxxx'x claims against Raznick, BICO and cXc substantially in
accordance with the terms specified in Section 21 herein; and (f) the delivery
to KFR of a legal opinion of counsel in accordance with Section 29 herein. The
date on which the last of the foregoing acts has been completed shall be
referenced herein as the "Effective Date of this Agreement." If the events
specified in this Section 2 as necessary for this Agreement to become effective
do not occur by March 31, 2005 (unless such date is extended one or more times,
or one or more of the necessary conditions for effectiveness waived, in writing
(i) by BICO, or its counsel, for all acts under this Agreement to be performed
or fulfilled by Raznick or (ii) by KFR, or his counsel, for all acts under this
Agreement to be performed or fulfilled by persons other than Raznick), then (x)
this Agreement shall be null and void ab initio and all Parties restored to
their positions as they existed on the date first written above; (y) all money,
documents and/or other things held in escrow pursuant to this Agreement shall be
returned to the respective Party that deposited each into escrow; and (z) this
Agreement shall not be cited or referred to for any purpose. If BICO and/or KFR,
as the case may be, elects to waive a condition otherwise necessary for this
Agreement to become effective, such waiver will only apply to such act being a
condition precedent to the effectiveness of this Agreement and shall not relieve
any Party of its contractual obligation under this Agreement actually to perform
such act.
3. The Payment. Concurrently with delivery of executed copies of this
Agreement and the release and consent by Raznick described in Section 2(b), KFR
shall deliver to Xxxxxxx Xxxxxxxxx, PLC ("Xxxxxxx"), as escrow agent, the total
sum of one hundred ten thousand dollars ($110,000.00), in good funds, to be held
in escrow by Xxxxxxx pursuant to Section 20 of this Agreement. After the
Effective Date of this Agreement, Xxxxxxx, as escrow agent, shall wire transfer
the $110,000.00 to BICO, in accordance with the terms of Section 20 herein.
4. Resignation as Director, Officer and Employee. Immediately upon his
execution of this Agreement, KFR shall submit his unconditional resignation from
his position as a director of BICO, its Chairman and employee pursuant to the
terms of the resignation in the form attached hereto as Exhibit "A", which
resignation shall be effective as of the Effective Date of this Agreement and
shall be null and void ab initio if this Agreement does not become effective.
5. Series M Stock Amendment. Each of the Parties hereto that is a holder of
Series M Stock agrees to execute, simultaneously upon signing this Agreement, a
consent (the "Consent"), substantially in the form attached hereto as Exhibit
"B," to amend and restate the Certificate of Designation for the Series M Stock.
Each such Consent shall be promptly delivered by the party signing it to
Xxxxxxx, as escrow agent, to be held in escrow pursuant to Section 20 herein and
delivered by Xxxxxxx, as escrow agent, to BICO after the Effective Date of this
Agreement in accordance with Section 20 herein. Prior to the Effective Date of
this Agreement, BICO shall issue and deliver to each holder of Series M Stock
the original Certificate of Designation for such Series M Stock. Promptly after
the Effective Date of this Agreement, BICO shall issue and deliver to each
holder of Series M Stock the amended and restated Certificate of Designation for
such Series M Stock.
6. Mutual and General Releases. Except for their respective rights to
enforce the obligations and other terms of this Agreement, and/or to a seek
judicial interpretation of this Agreement:
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(a) Simultaneously upon executing this Agreement, BICO shall execute and
deliver to Xxxxxxx, as escrow agent, a general release in favor of Raznick, PHD,
Xxxxxxxx, Braff and each of their respective Representatives (as defined below),
substantially in the form attached hereto as Exhibit "C," excluding from such
release, in addition to the rights and obligations of this Agreement, any rights
or claims BICO may have in respect of claims asserted by any non-party to this
Agreement (other than Xxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxxx, Xxxxxxx X. Xxxx
(except that this exception to the exclusion with respect to Xxxxxxx X. Xxxx
shall not apply to any claims respecting enforceable agreements or promises, if
any, made to Xxxxxxx X. Xxxx by KFR on behalf of or in the name of cXc and/or
BICO to sell or transfer to him any BICO or cXc securities), IPEC Solutions,
Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xx Xxxxxxx, MPAD Technical Group, Inc., and X.X.
Xxxxx Investment Banking Corp.) that KRF or LLC, prior to the date first written
above, made any enforceable written or oral agreement, assurance, promise or
commitment in the name or on behalf of cXc or BICO with regard to rights to
purchase, sell or represent BICO products or services, be employed by or
compensated by cXc or BICO, or receive cXc or BICO securities of any kind.
(b) Simultaneously upon executing this Agreement, XxXxxxxxx, Xxxxxxx and
Xxxxxxxxx shall each separately execute and deliver to Xxxxxxx, as escrow agent,
a general release in favor of Raznick and Raznick's Representatives,
substantially in the form attached hereto as Exhibit "C."
(c) Simultaneously upon executing this Agreement, PHD, Braff and
Xxxxxxxx, shall each separately execute and deliver to Xxxxxxx, as escrow agent,
a general release in favor of Raznick and Raznick's Representatives,
substantially in the form attached hereto as Exhibit "C."
(d) PHD agrees to obtain and to deliver to Xxxxxxx, as escrow agent,
within twenty days after the date first written above, a separate general
release in favor of Raznick, BICO and each of their respective Representatives
substantially in the form attached hereto as Exhibit "C," but without any
carve-outs or exclusions, signed by each of the following persons: (i) Xxxxx
Xxxxxxxx ("Xxxxxxxx") (ii) Xxxxxx Xxxxxxx ("Xxxxxxx"); (iii) Xxxx Xxxx ("Xxxx");
(iv) Ramshead Holding Limited ("Ramshead"); and (v) Xxxxx Xxxxx ("Xxxxx").
(e) BICO agrees to obtain and to deliver to Xxxxxxx, as escrow agent,
within twenty days after the date first written above a general release signed
by Xxxxx Xxxxxxx ("Xxxxxxx") substantially in the form attached hereto as
Exhibit "C" (excluding from such release only the obligations of KFR to Xxxxxxx
arising from the separate promissory notes executed by KFR in the principal
amount each of $100,000, plus interest as stated therein) in favor of Raznick
and Raznick's Representatives.
(f) Simultaneously upon executing this Agreement, KFR, SR and LLC shall
each separately execute and deliver to Xxxxxxx, as escrow agent, a general
release in favor of BICO, DiCamillo, Rundles, Hannesson, PHD, Braff, Eisenman,
Sugarman, Pastore, Kahn, Ramshead and Xxxxx, and each of their respective
Representatives, substantially in the form attached hereto as Exhibit "C,"
excluding from such release, in addition to the rights and obligations of this
Agreement, (i) any rights and claims KFR has or may have as a present or former
director, officer and/or employee of BICO and/or cXc to indemnification under
BICO's and/or cXc's articles of incorporation, by-laws and/or applicable law in
respect of any claims, liabilities, losses or expenses (other than claims by the
Parties to this Agreement that are being released pursuant to this Agreement)
asserted against or incurred by KFR respecting acts or omissions committed while
KFR was a director, officer and/or employee of BICO and/or cXc, and (ii) and
rights or claims Raznick may have against Greenwood.
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(g) Raznick agrees to obtain and deliver to Xxxxxxx as escrow agent,
within twenty days after the date first written above, a general release signed
by or on behalf of Xxxxxxxx Xxxxxxx substantially in the form attached hereto as
Exhibit "C" (but without any carve-outs or exclusions) in favor of PHD, Braff,
Eisenman, BICO and BICO's Representatives and a Consent signed by or on behalf
of Xxxxxxxx Xxxxxxx, but excluding from such release any rights or claims
Raznick and/or Xxxxxxxx Xxxxxxx may have against Greenwood.
(h) The term "Representatives", as used in this Section 6, and elsewhere
in this Agreement, refers to and means, as applicable, all agents, servants,
officers, directors, shareholders, partners, members, employees, contractors,
insurers, guarantors, sureties, affiliates, predecessors, successors, assigns,
attorneys, accountants, spouse, children, heirs, representatives and all other
persons and entities acting with authority of or otherwise on behalf of the
particular Party.
7. Termination of Employment. Upon the Effective Date of this Agreement,
the employment of KFR by BICO shall cease, KFR shall not have any right to any
compensation or reimbursement of expenses due by reason of his having provided
services to cXc or BICO or having incurred or advanced expenses for cXc or BICO
at any time prior to the Effective Date of this Agreement, and his employment by
BICO shall be terminated, cancelled, and of no further force or effect without
any further notice or action by any Party. As of the Effective Date of this
Agreement all rights granted to KFR as a BICO employee will be terminated and
all executory performances to be rendered thereunder will be waived, discharged
and excused, except that KFR's rights to indemnification under the BICO articles
of incorporation, bylaws, applicable law or otherwise shall be preserved and
continue in full force and effect. KFR shall return to BICO, within three (3)
business days after the Effective Date of this Agreement, all BICO web phones
within Raznick's possession, custody or control, except that Raznick may retain,
solely for their personal and family use, four (4) E3 web phones.
8. Authority to Contract. Each Party hereby respectively represents and
warrants to the others that such Party has the full power, capacity, and
authority to enter into this Agreement; that such Party has not sold, assigned,
or in any manner transferred or relinquished any claims that such Party ever had
against the others to any third party; that this Agreement does not constitute
or create a breach or default under any contract, order or other obligation by
which such Party is bound; and that no other consents, approvals, releases or
settlements are necessary from any other person or entity to make this Agreement
effective, or to release and discharge the other Parties from any of the claims,
except as provided in Section 2 above.
9. Advice of Counsel. The Parties each declare and represent that, in
executing this Agreement, each has received legal advice as to their respective
legal rights and obligations, and each hereby certifies that its authorized
Representative signing below has read this entire Agreement and fully
understands all of the provisions that are set forth herein and their binding
legal effect.
10. Investigation. The Parties have each made such investigation of the
facts pertaining to this settlement, this Agreement, and of all the matters
pertaining thereto as they deem necessary.
11. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Parties and each of their respective Representatives, including
assigns and successors.
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12. Integration. This document contains the entire agreement and
understanding between the Parties hereto concerning the subject matter hereof
and supersedes and replaces any prior negotiations, representations, covenants,
warranties and agreements between the Parties hereto, whether written or oral,
except as may otherwise be expressly provided herein. Each of the Parties
acknowledges that no Party, or any other person, has made any promise,
representation, or warranty, express or implied, not contained in this Agreement
to induce any other Party to execute this Agreement.
13. Governing Law and Venue. This Agreement shall be interpreted in
accordance with and governed in all respects exclusively by the laws of the
State of New York, without regard to any conflict of law principles. Venue for
any action or proceeding arising from or relating to this Agreement shall be
exclusively in the Federal or State Courts located in New York, New York, and
all Parties hereby consent to the exclusive jurisdiction of and venue in such
courts.
14. Attorneys' Fees and Costs. Each Party agrees to bear his, her or its
own respective costs, expenses, attorneys' fees (except as provided in Section
28 below) and other disbursements arising out of and/or connected with the
negotiation, drafting, and execution of this Agreement.
15. Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, or neuter, singular or plural, as the identity
of the Parties may require.
16. Counterparts and Facsimiles. Three duplicate originals of this
Agreement will be executed by the Parties so that Raznick, PHD and BICO will
each receive a fully executed original. This Agreement may be executed in one or
more duplicates or counterparts, each of which shall be deemed an original, and
all of which taken together shall constitute a single instrument. A facsimile
signature to this Agreement shall be considered for all purposes an original
signature.
17. Interpretation. The language in all parts of this Agreement shall in
all cases be construed according to its fair meaning and any question of
ambiguity or doubtful interpretation shall not be resolved against the Party who
causes the ambiguity or the uncertainty to exist, or against the drafter of the
Agreement. This Agreement shall be deemed to have been jointly drafted in its
entirety by all Parties hereto.
18. Titles and Captions. The Parties have inserted the underlined section
titles in this Agreement only as a matter of convenience and for ease of
reference. These section titles shall not be referred to in any interpretation
of this Agreement, and they shall not define, limit, extend, or describe the
scope of this Agreement, or the intent of the Parties.
19. Time for Performance. Time is of the essence with respect to any act or
performance hereunder.
20. Escrow Provisions. The following terms and conditions apply wherever
this Agreement refers to delivering or holding any document, money, or other
thing in escrow.
(a) All documents, money or other things delivered or placed into
escrow shall be delivered by hand or sent for overnight delivery by Federal
Express to Xxxxxxx Xxxxxxxxx, PLC, Suite 200, 00000 Xxxxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq.. For the
purposes of notice only, pursuant to Subsection (f) below, notices sent by
facsimile to Xxxxxxx shall be sent to both facsimile numbers (000) 000-0000 and
(000) 000-0000.
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(b) Any money held in escrow under this Agreement shall be held in
Xxxxxxx'x Michigan IOLTA escrow account with any interest earned on such funds
payable, pursuant to the law governing such IOLTA accounts, to the State of
Michigan IOLTA Fund and not to any Party to this Agreement.
(c) Upon the Effective Date of this Agreement, Xxxxxxx shall send
written notice by fax only (notwithstanding anything to the contrary in
Subsection (f) below pertaining to the means for sending other notices) that the
Effective Date has occurred to:
(i) Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxx, Xxxxx X-000
Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
Fax Number: (000) 000-0000
(ii) BICO, Inc.
x/x Xxxx X. Xxxxxxxxx
00000 Xxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Fax No.: 000-000-0000
(iii) Xxxxxx, Holden and Xxxxxxxxx Capital Corp.
0 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Fax No.: 000-000-0000
(d) Within one (1) business day after the Effective Date of this
Agreement, Xxxxxxx shall release from escrow (and with respect to documents,
deliver by Federal Express to the respective addresses specified Subsection (c)
above (unless such person or entity previously has given Xxxxxxx notice of a
change of address for that person or entity)), as follows:
(i) To BICO, a wire transfer in the amount $110,000 in good funds,
sent to:
Commercial Capital Bank
0000 Xxxxxx Xxxxxx Xx.
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Vice President (000) 000-0000
Routing Number: 000000000
BICO Inc. Operating Account 141446531
(ii) To BICO, the Consents executed pursuant to Section 5 herein;
(iii) To BICO, all of the general releases executed by KFR, SR and LLC;
and
(iv) To KFR, all of the general releases in favor of Raznick.
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(e) If the Effective Date of this Agreement does not occur by March 31,
2005 (or such later date as may be extended pursuant to Section 2(i) or 2(ii)
herein), then Xxxxxxx will promptly thereafter return to each respective Party
any money, documents or other things deposited by such Party into escrow under
this Agreement.
(f) All notices permitted or required by this Agreement shall be sent
either (i) by hand or (ii) by facsimile with a confirmation copy sent by
certified mail, return receipt requested, to the addresses (and if by facsimile,
to the fax numbers) specified in this Section 20. Any Party may change its
address and/or fax number by serving a written notice to Xxxxxxx and the other
Parties as provided in this Section 20. All notices sent pursuant to this
Section 20 shall be deemed delivered on the date hand delivered or faxed.
(g) All Parties acknowledge and agree that Xxxxxxx has served, and may
continue to serve, as attorneys for Raznick (as well as persons or entities
affiliated with or related to Raznick). Xxxxxxx serving as escrow agent under
this Agreement, and any and all acts or omissions taken by Xxxxxxx as escrow
agent, shall not provide any basis or grounds to disqualify Xxxxxxx from serving
as attorneys for Raznick and any persons or affiliated with or related to
Raznick. No Party shall make any application to disqualify or limit Xxxxxxx from
acting as attorneys for Raznick or any persons or entity affiliated with or
related to Raznick.
(h) Xxxxxxx shall be exculpated and relieved from any and all
liability, and shall have no liability whatsoever, for any act or omission taken
by it in good faith as escrow agent under this Agreement. Each of the Parties on
their own behalf and on behalf of their Representatives release and waive any
claims they may have in the future against Xxxxxxx for any loss, liability,
damages, claims or expenses, including, without limitation, reasonable
attorney's fees, arising from or relating to any act or omission taken by
Xxxxxxx in good faith as escrow agent under this Agreement, including, without
limitation, Xxxxxxx relying on notices or instructions sent or apparently sent
by any Party pursuant to this Agreement. In the event of any dispute between the
Parties respecting any money, document or other thing in escrow, the Parties
shall not join Xxxxxxx as a party to any action or proceeding commenced by any
of them (except for a claim against Xxxxxxx that it acted or failed to act in
bad faith), but shall instead merely provide Xxxxxxx with notice of the pendency
of such action or proceeding and copies of any orders, decrees or judgments
entered in such action or proceeding. In consideration of Xxxxxxx not being
joined as a party to any such action or proceeding, Xxxxxxx agrees to abide by
any orders, decrees or judgments rendered by any court of competent jurisdiction
with respect to matters relating to any of the escrow provisions under this
Agreement.
(i) In the event of any dispute between the Parties concerning any
money, document or other thing deposited into escrow under this Agreement,
Xxxxxxx shall have the right, in its sole discretion, but not the obligation, to
retain custody over such money, document or other thing until it receives joint
written instructions or an order, decree or judgment as provided in this Section
20 or, alternatively, (b) to deposit such money, document or other thing that is
the subject of the dispute into the possession of a court of competent
jurisdiction. If Xxxxxxx elects to deposit any money, document or other thing
that is the subject of a dispute into the possession of a court competent
jurisdiction, then all obligations of Xxxxxxx under this Agreement shall cease
with respect to any money, document or other thing so deposited into the
possession of a court of competent jurisdiction.
21. Xxxxx Settlement. As a condition precedent to the effectiveness of this
Agreement, BICO and KFR shall enter into a written agreement with Xxxxx to
settle any and all claims that Xxxxx may have against BICO and/or Raznick,
substantially in accordance with the following terms and conditions:
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(a) Raznick shall transfer to Xxxxx 14,178,114 shares of Series M Stock
currently held by Raznick, which stock shall be subject to the contemplated
amendment and restatement of the Certificate of Designation for the Series M
Stock, as provided by Section 5 and Exhibit "B" of this Agreement, and BICO
shall represent and warrant to Xxxxx that said 14,178,114 shares of Series M
Stock represents 11.3% of the BICO securities issued to the cXc shareholders in
the merger of cXc into BICO.
(b) KFR shall repay to Xxxxx all principal and interest owed on the
Convertible Promissory Note dated July 13, 2004 in the principal amount of
$50,000 and the Convertible Promissory Note dated June 8, 2004 in the principal
amount of $100,000 (collectively the "Notes").
(c) Xxxxx, XXXX and Xxxxxxx shall exchange general releases
substantially in the form of Exhibit "C" hereto, except that the releases given
by Xxxxx shall not have any exclusion for any rights or obligations under this
Agreement because Xxxxx has, and will have, no rights whatsoever under this
Agreement.
(d) The foregoing terms and conditions shall be in full release,
satisfaction and discharge of all rights and obligations of Xxxxx, KFR and BICO
(as the successor to cXc) under the Agreement dated June 2, 2004 between Xxxxx,
KFR and cXc and the Notes. Xxxxx shall return the original Notes to KFR.
22. Press Releases and Security Filings. KFR shall have the right to review
and approve prior to issuance and/or filing, which approval shall not be
unreasonably withheld, any press releases issued by any Party and any Form 8-K
filed by BICO with the Securities and Exchange Commission (the "SEC") relating
to this Agreement. Raznick shall provide BICO with any comments he may have on
any draft Form 8-K within one (1) business day after he receives such a draft
from BICO. All subsequent filings by BICO with the SEC describing or relating to
this Agreement shall be substantially in the form of the Form 8-K as reasonably
approved by KFR.
23. No Restrictions on Competition. Notwithstanding anything to the
contrary in any agreement, document or other thing existing as of the date first
written above or pursuant to any applicable law, Raznick, after the Effective
Date of this Agreement, shall have the right, and shall be completely free, to
pursue, directly or indirectly, business ventures in competition with BICO,
including, without limitation, soliciting or dealing with any and all actual or
potential customers or suppliers of BICO, including those introduced to BICO by
Raznick or acquired by BICO in connection with its merger with cXc. Raznick,
however, shall not (a) use any confidential business plans or PowerPoint
presentations of BICO in connection with any such competition by Raznick or (b)
do any act that would cause BICO to violate the Confidentiality and Non-Use
Agreement dated October 25, 2001 between cXc and Amserve Limited of Brentwood
House.
24. Representations of Parties.
(a) BICO represents, warrants and covenants to Raznick that:
(i) All material facts relating to the business, operations,
prospects and/or finances of BICO, or any of the transactions
contemplated by this Agreement, have been disclosed to Raznick
as of the date first written above.
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(ii) The amendment and restatement of the Certificate Designation
for the Series M Stock is in compliance with, and shall be
done in compliance with, all applicable law and all material
facts relating thereto have been disclosed or shall be
disclosed to each holder of Series M Stock.
(iii) The following persons and entities constitute all of the
holders, and their respective holdings, of Series M Stock as
of the date first written above:
Name Number of Shares of Series M Stock
---- ----------------------------------
Xxxxxxx & Xxxxx Xxxxxxx 52,426,398
RFK Investments, LLC 7,528,202
Xxxxxxxx Xxxxxxx 7,528,202
Xxxxxxx X. Xxxxxxxxx 10,037,602
Xxxx XxXxxxxxx 7,528,202
Rundles Family Trust 5,018,801
Xxxx Xxxxxxxxx 2,509,401
Xxxx X. Xxxxxxx 2,509,401
Xxxx Xxxxxxx Xxxxxxx 3,764,101
Xxxx Xxxxxx 2,509,401
Xxxxx Xxxxxxx 12,170,593
Xxxxx X. Xxxxxx 3,764,101
Merrax Investments, LLC 3,764,101
Xxxxx X. & Seglaida Xxxxx Xxxxxxxxx 3,764,101
Xxx Xxxxxx 647,425
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TOTAL 125,470,031
(iv) After the amendment and restatement of the Certificate of
Designation for the Series M Stock as contemplated by this
Agreement, Raznick will hold BICO securities that, when
combined with the securities held by Xxxxxxxx Xxxxxxx and
converted into common stock, will represent approximately
2.69% of the issued and outstanding equity interests in BICO,
with said 2.69% (i) taking into account the 4.5 billion BICO
shares reserved for future issuance to persons and entities in
payment of services rendered to BICO, but (ii) not taking into
account the transfers of Series M Stock by Raznick to Xxxxx,
Bologna and Giaier as contemplated by this Agreement.
(v) Sugarman, Pastore, Xxxx and Ramshead are the only persons or
entities who purchased securities directly in private
placement transactions from BICO during the time period from
July 1, 2004 through and including the date first written
above and the only persons or entities introduced by PHD to
BICO that actually invested in BICO during that time period.
(b) PHD represents, warrants and covenants to Raznick that Sugarman,
Pastore, Xxxx and Ramshead are the only persons or entities that PHD introduced
as investors to BICO during the time period from July 1, 2004 through and
including the date first written above.
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(c) Raznick represents, warrants and covenants to BICO that:
(i) neither KFR nor LLC has engaged in any web phone business in
competition with BICO during the period after the merger of
cXc into BICO and prior to the date first written above.
(ii) neither KFR nor LLC has made any enforceable written or oral
agreements, assurances, promises or commitments in the name or
on behalf of cXc or BICO to MPAD Technical Group, Inc. during
the time period from February 1, 2005 through March 18, 2005.
25. Survival and Indemnity. The representations, warranties and covenants
set forth in this Agreement shall survive and continue after the Effective Date
of this Agreement and the closing of any transaction contemplated herein. Each
Party (the "Breaching Party") shall indemnify and hold harmless every other
Party from any loss, liability, damages, claim and/or expenses (including
reasonable attorney's fees incurred in connection therewith) arising from or
relating to any breach by the Breaching Party of any of the representations,
warranties or covenants made by the Breaching Party in this Agreement.
26. Settlement with Bologna and Giaier. KFR and BICO shall use their
respective best efforts to enter into one or more agreements with Xxxx X.
Xxxxxxx ("Bologna") and Xxxx Xxxxxx ("Giaier") to settle any and all claims
Bologna and Giaier may have against Raznick and/or BICO, substantially in
accordance with the following terms and conditions:
(a) Bologna and Giaier shall each separately execute and deliver to KFR
general releases in favor of Raznick, BICO and each of their respective
Representatives.
(b) KFR and BICO shall execute and deliver to Bologna and Giaier,
general releases in favor of Bologna and Giaier and each of their
Representatives.
(c) Raznick shall transfer (i) to Bologna 1,882,050 shares of Series M
Stock currently held by Raznick and (ii) to Giaier 1,882,050 shares of Series M
Stock currently held by Raznick, which stock shall be subject to the
contemplated amendment and restatement of the Certificate of Designation for the
Series M Stock, as provided by Section 5 and Exhibit "B" of this Agreement.
27. No Third-Party Beneficiaries. No person or entity that is not a
signatory to this Agreement shall have any rights hereunder. There are no
third-party beneficiaries of this Agreement, intended or otherwise, except to
the extent that the general releases that will be exchanged pursuant to this
Agreement will release the Representatives of each respective Party hereto.
28. Legal Opinion. On or before the Effective Date of this Agreement, BICO
shall obtain and deliver to KFR a legal opinion of counsel by Xxxxxx Xxxxxxx,
Esq., 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx (or such other attorney or law firm
selected by BICO, if Xx. Xxxxxxx is unable to render this legal opinion by the
Effective Date of this Agreement, provided that such other attorney or law firm
is reasonably acceptable to KFR), advising Raznick, in a form and substance
reasonably acceptable to Raznick, that the amendment and restatement of the
Series M Stock as contemplated herein is in compliance with all applicable law.
KFR shall promptly reimburse BICO for 50% of the attorney's fees and
disbursements incurred for obtaining the aforesaid legal opinion, up to a
maximum reimbursement of $7,500.00.
- Page 10 -
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first written above.
THIS AGREEMENT CONTAINS RELEASES OF
-----------------------------------
CLAIMS. READ THIS AGREEMENT CAREFULLY
-------------------------------------
BEFORE SIGNING IT.
------------------
SIGNATURES APPEAR ON THE FOLLOWING
PAGE
- Page 11 -
BICO, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx,
President and CEO individually
/s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx, individually
RFK Investments, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx
Xxxxxx, Xxxxxx & Xxxxxxxxx Capital
Corp.
By: /s/ Xxxx Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------- -----------------------------------
Xxxx Xxxxxxxx Xxxxxxx X. Xxxxxxxxx,
individually
By: /s/ Xxxxxx Braf /s/ Xxxx XxXxxxxxx
------------------------------- -----------------------------------
Xxxxxx Xxxxx Xxxx XxXxxxxxx, individually
/s/ Xxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxx
----------------------------------- --------------------------------
Xxxx Xxxxxxxx, individually Xxxxxxx Xxxxxxx, individually
/s/ Xxxxxx Xxxxx /s/ Xxxx X. Xxxxxxxxx
----------------------------------- --------------------------------
Xxxxxx Xxxxx, individually Xxxx X. Xxxxxxxxx, individually
WITH RESPECT TO SECTION 20 ONLY
AND ONLY AS ESCROW AGENT:
XXXXXXX XXXXXXXXX, PLC
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Xxxxx X. Xxxxxxx, a partner
- Page 12 -
EXHIBIT "A"
-----------
Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxx 00, 0000
XXXX, Inc.
1 Wakonda
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Gentlemen,
This letter is my unconditional resignation from all positions which I hold as
an employee, director, chairman and officer of BICO, Inc. This resignation shall
automatically be effective immediately upon the Effective Date of the Settlement
Agreement and Mutual General Releases entered into between BICO, me and others
dated as of March 18, 2005 (the "Settlement Agreement"). If the Settlement
Agreement does not become effective in accordance with its terms, then this
resignation shall be null and void ab initio and shall not be cited, quoted,
relied upon and/or referred to for any purpose.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
- Page 13 -
EXHIBIT "B"
-----------
WRITTEN CONSENT
OF A MAJORITY OF THE HOLDERS
OF SERIES M PREFERRED SHARES OF
BICO, INC.
March 17, 2005
The undersigned, being the holders of Series M Preferred Shares (the
"Series M Shareholders") of BICO, Inc., a Pennsylvania corporation (the
"Corporation"), which represent a majority of the issued and outstanding Series
M Preferred Shares, pursuant to ss.1766 of the Pennsylvania Business Corporation
Law, do hereby consent in writing to the actions set forth in the following
resolutions and direct that this consent be filed with the minutes of the
Corporation:
WHEREAS, the Board of Directors and the Series M Shareholders have deemed
it advisable and in the best interest of the Corporation in connection with the
settlement agreement dated the date hereof by and among Xxxxxxx X. Xxxxxxx, RFK
Investments, LLC, Xxxxxx Xxxxxx & Xxxxxxxxx Capital Corp., the Corporation and
others, for the Certificate of Designation of Series M Preferred Shares ("Series
M") to be amended and restated to modify the exchange ratio of Series M shares
into the Common Stock of the Corporation; and change the conversion to a fixed
date.
NOW, THEREFORE, BE IT RESOLVED, that the Certificate of Designation of
Series M Preferred Shares of BICO, Inc., as attached hereto as Exhibit 1,
("Restated Certificate") and incorporated herein by this reference as though set
forth in full, be, and it hereby is, approved and adopted as the Certificate of
Designation of Series M Preferred Shares of BICO, Inc., and be it further;
RESOLVED, that the President and CEO of the Corporation, be and he hereby
is, authorized and empowered, on behalf of and in the name of the Corporation,
to execute, the Restated Certificate and, and be it further;
RESOLVED, that the appropriate officers of the Corporation, and each of
them acting singly, be and hereby is, authorized and empowered, on behalf of and
in the name of the Corporation, to take any and all further action necessary,
appropriate or desirable in connection with each of the Restated Certificate,
and to certify, deliver, file and record with the appropriate judicial, public
and governmental authorities or such other persons or entities, such additional
documents and instruments as such officer of the Corporation may deem necessary,
convenient, appropriate, desirable or proper, as the case may be, to implement
the provisions of the foregoing resolutions and to consummate the transactions
contemplated thereby, the execution, certification, delivery, filing and
recording of such agreements, documents and instruments and the taking of such
action to be the conclusive evidence of the authority therefor.
This written consent of the Holders Series M of the Corporation may be
delivered by facsimile and executed in one or more counterparts, each of which
shall constitute an original and all of which taken together shall constitute
one and the same consent.
IN WITNESS WHEREOF, the foregoing resolutions were duly adopted by holders
of the Series M which represent a majority of the issued and outstanding shares
of Series M as of the date first above written.
B-1
SIGNATURES APPEAR ON THE FOLLOWING PAGES
B-2
Series M Shareholders:
----------------------
--------------------------------------------------------------------------------
Xxxxxxx and Xxxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------- -----------------------------------
Xxxxxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
RFK Investments, LLC Xxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxx Xxxxxx
------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxx Xxx Xxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
Xxxxxxxx Xxxxxxx Xxxx XxXxxxxxx
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxx XxXxxxxxx
---------------------------------- -----------------------------------
Xxxxxxxx Xxxxxxx Xxxx XxXxxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
Rundles Family Trust Xxxx X. Xxxxxxxxx, trustee of the
Xxxxxxxxx Family Trust
By: /s/ Xxxxxxx Xxxxxxx, trustee By: /s/ Xxxx X. Xxxxxxxxx, trustee
------------------------------- --------------------------------
Xxxxxxx Xxxxxxx, trustee Xxxx X. Xxxxxxxxx, trustee
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
Merrax Investments, LLC Xxxx X. Xxxxxxx
By: /s/ Xxxx Xxxxxx /s/ Xxxx X. Xxxxxxx
------------------------------- -----------------------------------
Xxxx Xxxxxx Xxxx X. Xxxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
B-3
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Xxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxx
/s/ Xxxx Xxxxxxx Xxxxxxx /s/ Xxxx Xxxxxx
---------------------------------- -----------------------------------
Xxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
Xxxxx Xxxxxxx Xxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxxx
---------------------------------- -----------------------------------
Xxxxx Xxxxxxx Xxxxx X. Xxxxxx
Dated this 30 day of March, 2005 Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
Xxxxx X. & Seglinda Xxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxx
/s/ Seglinda Xxxxx Xxxxxxxxx
-----------------------------------
Seglinda Xxxxx Xxxxxxxxx
Dated this 30 day of March, 2005
--------------------------------------------------------------------------------
B-4
EXHIBIT 1
---------
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION
OF SERIES M PREFERRED SHARES
OF BICO, INC.
----------------------------------------------------------------
Pursuant to Section 00.Xx. C. S ss.1522 of the State of
Pennsylvania
----------------------------------------------------------------
The holders of the Series M Preferred Shares par value $0.0001 (the
"Preferred Shares") of BICO, INC. (the "Company") shall have the following
rights and preferences:
1. Designation and Amount. The number of shares constituting the series of
Preferred Shares shall be 125,470,031 which number may be increased (but not
above the total number of authorized shares of Preferred Shares) or decreased
(but not below the number of shares of Preferred Shares then outstanding) by
resolution of the Board of Directors.
2. Voting.
(a) Each issued and outstanding Preference Shares shall be entitled to
the number of votes equal to the number of shares of Common Shares into which
each such Preference Share is convertible, at each meeting of shareholders of
the Company with respect to any and all matters presented to the shareholders of
the Company for their action or consideration, including the election of
directors. Except as provided by law, holders of Preference Shares shall vote
together with the holders of Common Shares as a single class.
(b) The Company shall not amend, alter or repeal the preferences,
special rights or other powers of the Preference Shares so as to affect
adversely the Preference Shares, without the written consent or affirmative vote
of the holders of at least a majority of the then outstanding aggregate number
of shares of such adversely affected Preference Shares, given in writing or by
vote at a meeting, consenting or voting (as the case may be) separately as a
class.
3. Mandatory Conversion.
(a) Each Preferred Share shall automatically be converted into thirteen
and fifteen one-hundredths (13.15) shares of common stock of the Company
("Common Share"), twenty five percent (25%) of the Preferred Shares shall
convert on November 30, 2007, and an additional twenty-five percent shall
convert on each of January 31, 2008, March 31, 2008 and May 31, 2008. On or
before the date fixed for conversion, each holder of Preferred Shares shall
surrender his or its certificate or certificates for all such shares to the
Company at the place designated in such notice, and shall thereafter receive
certificates for the number of Common Shares to which such holder is entitled
B-5
pursuant to this Section 3. On the date fixed for conversion, all rights with
respect to the Preferred Shares so converted will terminate, except only the
rights of the holders thereof, upon surrender of their certificate or
certificates therefore, to receive certificates for the number of Common Shares
into which such Preferred Shares has been converted. If so required by the
Company, certificates surrendered for conversion shall be endorsed or
accompanied by written instrument or instruments of transfer, in form
satisfactory to the Company, duly executed by the registered holder or by his
attorneys duly authorized in writing. All certificates evidencing Preferred
Shares which are required to be surrendered for conversion in accordance with
the provisions hereof shall, from and after the date such certificates are so
required to be surrendered, be deemed to have been retired and cancelled and the
Preferred Shares represented thereby converted into Common Shares for all
purposes, notwithstanding the failure of the holder or holders thereof to
surrender such certificates on or prior to such date. As soon as practicable
after the date of such mandatory conversion and the surrender of the certificate
or certificates for Preferred Shares as aforesaid, the Company shall cause to be
issued and delivered to such holder, or on his or its written order, a
certificate or certificates for the number of full Common Shares issuable on
such conversion in accordance with the provisions hereof.
IN WITNESS WHEREOF, BICO, INC. has caused this Certificate of
Designation of the Preferred Shares to be signed and attested to by its duly
authorized officers as of the 30 day of March, 2005.
BICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
ATTEST:
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
B-6
EXHIBIT "C"
-----------
GENERAL RELEASE
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, __________________ (the "Releasor") hereby,
releases and forever discharges _______________________ (the "Releasee"), and
each of the Releasee's past and present officers, directors, shareholders,
partners, members, employees, attorneys, accountants, agents, servants,
contractors, insurers, guarantors, sureties, affiliates, predecessors,
successors, assigns, spouse, children, heirs, representatives and all other
persons and entities acting with authority or on behalf of the Releasee (the
group so defined being hereafter collectively referred to as the "Released
Persons") from any and all actions, causes of action, suits, debts, dues, sums
of money, accounts, costs, expenses, liabilities, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises,
variances, trespasses, damages, judgments, extents, executions, claims, charges,
complaints and demands whatsoever (each a "Claim"), in law or equity, that
Releasor ever had, now has or hereafter may have against the Released Persons
arising from or relating to any matter, cause or thing whatsoever from the
beginning of time through the Effective Date (as defined below) (all such
matters being released hereunder are hereinafter referred to as "Released
Claims"); except that Released Claims shall not include, and this Release shall
not release, (a) any rights and obligations arising under the Settlement
Agreement and Mutual General Releases dated March 18, 2005 by and between
Xxxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx , RFK Investments, LLC, BICO, Inc., Xxxxxxx X.
Xxxxxxxxx, Xxxx XxXxxxxxx , Xxxxxxx Xxxxxxx, Xxxx X. Hannesson, Perrin, Holden &
Xxxxxxxxx Capital Corp., Xxxx Xxxxxxxx and Xxxxxx Xxxxx (the "Settlement
Agreement"); and (b)_________________________.
As used herein, the "Effective Date" shall be the same date as the
"Effective Date of this Agreement," as defined in Section 2 of the Settlement
Agreement.
C-1
Releasor represents and warrants that the Releasor has not assigned or
otherwise transferred the Released Claims, or any portion thereof.
Releasor affirms that no statements, representations or promises have
been made to the Releasor by the Released Persons to influence it to enter into
this Release, other than the Settlement Agreement.
Releasor expressly waives any and all rights and benefits which may be
conferred by the provisions of California Civil Code Section 1542 (or by similar
legal provisions in other states), which provides as follows:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at
the time of executing the release, which if known by him
must have materially affected his settlement with the
debtor."
By executing this Release, Releasor is intentionally releasing not
only Released Claims known to Releasor, but also Released Claims not currently
known to Releasor. A material part of the consideration bargained for and to be
received by the Released Persons is the end with finality of all actual or
threatened litigation, proceedings and disputes with the Releasor respecting the
Released Claims. Releasor covenants and agrees not to institute, maintain or
prosecute against any of the Released Persons any Claim, lawsuit or other
proceeding with respect to any of the Released Claims. If Releasor breaches this
covenant not to xxx, the Released Persons may recover as part of their damages
arising from such breach, their attorneys' fees and other expenses and losses
incurred as a result of such breach.
This Release may not be changed orally. This Release and all matters
arising from or relating to it shall be governed by and construed in accordance
with New York law as would be applied to instruments wholly made and performed
within the State of New York, and Releasor hereby consents to the exclusive
jurisdiction and venue of the Federal and State Courts located in New York
County, New York, for any dispute or Claims arising out of or relating to this
Release and expressly waives any right to arbitration, or litigation in any
other forum, of such a dispute or Claims.
C-2
THIS IS A BROAD RELEASE AFFECTING AND RELINQUISHING THE RIGHTS OF
RELEASOR AND RELEASOR HAS OBTAINED THE ADVICE OF RELEASOR'S LEGAL COUNSEL PRIOR
TO AGREEING TO THIS RELEASE.
Releasor has agreed to this Release voluntarily and of Releasor's own
free will, without any coercion or duress of any kind.
In witness whereof, Releasor has hereunto set Releasor's hand and seal
on the _______ day of _________________ 2005.
[Name of Releasor]
By:________________________________
Name:
Title:
[STATE OF ___________ )
: ss.:
COUNTY OF ___________ )
On ______________, 2005, before me personally came
____________________ ________________, to me known, who, being by me duly sworn,
did depose and say that he resides at
_____________________________________________________________________; that he
is the _________________________ of the corporation described in and that
executed the above General Release that he is authorized to execute the
foregoing General Release on behalf of said corporation; and that he signed his
name thereto by authority of the board of directors of said corporation.
-----------------------------------
Notary Public
[STATE OF ___________ )
: ss.:
COUNTY OF ___________ )
On _________, 2005, before me came _____________, to me known, who,
being by me sworn, did depose and say that he resides at ______________________,
and that he executed the foregoing General Release, and duly acknowledged to me
that he executed the same on his own behalf.
----------------------------------]
Notary Public
C-3
