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Exhibit 10.23
ANTI-DILUTION
SETTLEMENT AGREEMENT
This Anti-Dilution Settlement Agreement (the "Agreement") is entered
into this 8 day of December, 2000, by HIGH SPEED NET SOLUTIONS, INC. ("HSNS"),
a Florida corporation, and ▇▇▇▇▇ ▇▇▇▇▇▇, an individual resident of New Jersey.
HSNS and ▇▇. ▇▇▇▇▇▇ are referred to herein collectively as the "Parties" and
either individually as a Party.
RECITALS
A. On or about March 1,1999, HSNS and ▇▇. ▇▇▇▇▇▇ executed an Employment
and Stock Option Agreement (the "Employment Agreement") which contemplated that
▇▇. ▇▇▇▇▇▇ serve as an executive of HSNS and ▇▇. ▇▇▇▇▇▇ served as President of
HSNS from March 15, 1999, until April 20, 1999.
B. On or about April 27, 1999, HSNS filed a lawsuit against ▇▇. ▇▇▇▇▇▇
in the United States District Court, Middle District of Florida, Orlando
Division, Case No. 99-CIV ORL-19A for breach of the Employment Agreement and
damages (the "Lawsuit"). In connection with the Lawsuit, ▇▇. ▇▇▇▇▇▇ was prepared
to assert certain claims against HSNS and certain individuals who, at various
times were, or still are, officers, directors or shareholders of HSNS.
C. The Parties entered into a Settlement Agreement, dated as of
September 22, 1999 (the "Settlement Agreement") which resolved the matters at
issue in the Lawsuit. The Parties acknowledge that each Party has performed its
obligations under the Settlement Agreement except that (i) the Parties have not
agreed concerning the interpretation and implementation of Paragraph 8 of the
Settlement Agreement and (ii) the Parties have not delivered releases as
provided in Paragraphs 5 and 6 of the Settlement Agreement.
D. Commencing in February 2000 a variety of interpretation and
implementation issues arose with respect to Paragraph 8 of the Settlement
Agreement. Therefore, the Parties desire to finally settle and resolve any and
all disputes, claims, causes of action or rights that either of the Parties may
have against the other in connection with Paragraph 8 of the Settlement
Agreement. The Parties further desire to grant the mutual releases contained in
this Agreement in fulfillment of the provisions of Paragraphs 5 and 6 of the
Settlement Agreement.
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E. The primary issue disputed by the Parties with respect to Paragraph
8 of the Settlement Agreement is whether certain specific anti-dilution
provisions incorporated from the Employment Agreement into the Settlement
Agreement give ▇▇. ▇▇▇▇▇▇ the right to have anti-dilution protection apply for
the option for 200,000 shares of HSNS common stock provided for under Paragraph
8 of the Settlement Agreement (the "Original Large Options") during the time
period of March 1, 1999 through September 22, 1999 (the "Disputed Dilution Time
Period"). Paragraph 8 of the Settlement Agreement also provided for an option
for ▇▇. ▇▇▇▇▇▇ to purchase 40,000 shares of HSNS common stock (the "Original
Small Options") about which the Parties are not in dispute.
F. The Parties have negotiated terms which eliminate the anti-dilution
protection from the Original Large Options and such terms: (i) provide ▇▇.
▇▇▇▇▇▇ the benefit of a grant of additional option shares in lieu of a disputed
and uncertain claim for dilution protection during the Disputed Dilution Time
Period on the Original Large Options; (ii) provide ▇▇. ▇▇▇▇▇▇ the benefit of
certain registration rights for certain option shares; and (iii) provide HSNS
the benefit of less dilution potential to its fully diluted share-base which is
of benefit to HSNS in its financing activities.
TERMS AND CONDITIONS
For the mutual promises, representations, covenants and agreements, and
on the conditions set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties respectively represent, covenant and agree as follows:
1. Pursuant to the terms of the Settlement Agreement, HSNS previously
has paid ▇▇. ▇▇▇▇▇▇ the sum of $110,000.00 and ▇▇. ▇▇▇▇▇▇ acknowledges receipt
of such payment. The Parties agree and acknowledge that, with the exception of
Paragraphs 5, 6 and 8 of the Settlement Agreement as described in the foregoing
recitals, the Parties' performance has been adequate under the Settlement
Agreement.
2. In consideration of ▇▇. ▇▇▇▇▇▇ forever releasing all rights and
claims to anti-dilution protection for the Original Large Options, HSNS hereby
grants to ▇▇. ▇▇▇▇▇▇ an option to purchase 35,000 shares of HSNS common stock
(the "New Options"). HSNS explicitly agrees that the New Options are for
additional shares beyond the option shares available for ▇▇. ▇▇▇▇▇▇ to purchase
under the Original Large Options and the Original Small Options. The Parties
agree that the terms and provisions of Paragraph 8 of the Settlement Agreement
are supplemented, and as applicable, replaced with the terms and provisions set
forth in this Agreement and in the attached Option Award Agreement and any
contrary terms in the
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Settlement Agreement, the Employment Agreement or otherwise shall have no
effect. The Parties further agree that all determination of, characterization
of, and agreements pertaining to the (A) Original Large Options and (B) Original
Small Options, as well as for (C) the New Options, shall be governed by Exhibit
A to this Agreement and by the Option Award Agreement (as defined below in
Section 3) included as Exhibit B. The Original Large Options, the Original Small
Options and the New Options (which allow ▇▇. ▇▇▇▇▇▇ in aggregate to purchase up
to 275,000 shares of HSNS common stock) are referred to collectively as the
"Options" and the HSNS shares that may be or are purchased pursuant to the
Options are referred to as the "Option Shares." HSNS shall reserve sufficient
shares for issuance upon exercise of the Options. All Options are granted with
an exercise price of $0.01 per share and are fully vested and irrevocable as of
the issuance date set forth in Exhibit A.
3. The grant of the Options by HSNS to ▇▇. ▇▇▇▇▇▇ are evidenced by a
Nonqualified Stock Option Agreement attached hereto as Exhibit B (the "Option
Award Agreement") and such Option Award Agreement contains additional terms and
provisions relating to the Options. The terms and provisions of the Options
shall be exclusively as set forth in this Agreement and in the attached Option
Award Agreement and any contrary terms in the Settlement Agreement, the
Employment Agreement or otherwise shall have no effect. Without limitation of
the foregoing, ▇▇. ▇▇▇▇▇▇ acknowledges that the Options do not include
anti-dilution rights for prior or future periods.
4. For greater clarity with respect to tax and securities issues that
may relate to the Options, the Parties agree that: (i) 200,000 of the Options
are a replacement of and successor to the Original Large Option fully-vested and
irrevocable stock options that were granted to ▇▇. ▇▇▇▇▇▇ pursuant to his
Employment Agreement; (ii) the New Options (35,000 of the Options) represent a
compromise settlement relating to whether ▇▇. ▇▇▇▇▇▇'▇ anti-dilution rights for
the Original Large Options provide him anti-dilution protection for HSNS
dilutive stock events that occurred between March 1, 1999 and September 22 1999;
and (iii) the Original Small Options (40,000 of the Options) represent a
compromise settlement relating to ▇▇. ▇▇▇▇▇▇'▇ rights under the Employment
Agreement including rights to additional stock option grants and additional
compensation.
5. HSNS agrees to use its best efforts from the date of this Agreement
to include the Option Shares in the first and any subsequent registration of
HSNS securities that HSNS may undertake on its behalf or on behalf of any other
person or entity for resale in a public market pursuant to the Securities Act of
1933. Without limiting the foregoing sentence, HSNS agrees that, if it could
reasonably be
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expected to result in registration sooner than pursuant to any such
registration, to register the Option Shares on Form S-8 as soon as use of that
form is available to HSNS under the federal securities laws and regulations. In
any event, regardless of the form used for registration: (i) if the registration
is underwritten, ▇▇. ▇▇▇▇▇▇'▇ shares shall be subject to customary underwriter's
cutbacks; and (ii) once such registration has become effective with respect to
the Option Shares, HSNS shall not be obligated to keep such registration
statement effective beyond the one year anniversary of the effectiveness date.
6. (a) If HSNS reasonably determines at any time upon or after ▇▇.
▇▇▇▇▇▇ exercises any of the Options that HSNS has a tax-withholding obligation
related to the Options for any of the Options, ▇▇. ▇▇▇▇▇▇ agrees that he shall
be obligated to indemnify and repay HSNS for any such amount withheld and paid
on ▇▇. ▇▇▇▇▇▇'▇ account, including any interest and penalty assessed by any
taxing authority relating to any failure to withhold (but excluding the
employer's share of FICA). HSNS agrees to accept a short-term secured note,
secured by a pledge of Option Shares or Option Share proceeds, with a term as
follows: (i) if any registration statement covering the Option Shares has gone
effective, three (3) months; or (ii) if such registration statement has not gone
effective, the time period beginning on the execution of the note and ending on
the date three (3) months after such registration statement goes effective. The
note shall be interest free until such registration statement covering the
Option Shares has gone effective. Such note shall constitute repayment of such
amount withheld and paid on ▇▇. ▇▇▇▇▇▇'▇ account, or, the Parties shall accept a
similar arrangement mutually agreed upon by the Parties to allow ▇▇. ▇▇▇▇▇▇
reasonable time to sell an allotment of Option Shares to fund the tax
obligation.
(b) In the event of a tax-withholding obligation for any of the Options
and to the extent necessary to pledge some portion of the Option Shares for such
secured note, ▇▇. ▇▇▇▇▇▇ shall: (i) if he has exercised any of the Options, have
the option to elect one of either the provisions of paragraph 6(c) or 6(d) below
to effect such pledge; or (ii) if ▇▇. ▇▇▇▇▇▇ has not exercised any of the
Options, he shall effect the pledge obligation according to the provisions of
paragraph 6(e) below. If HSNS reasonably determines at any time that it does not
have a tax-withholding obligation for any of the Options and if any taxing
jurisdiction later determines that a tax liability exists then ▇▇. ▇▇▇▇▇▇ shall
be obligated to indemnify and repay HSNS for any such tax liability that such
taxing jurisdiction demands HSNS to pay; if such a repayment obligation occurs,
then HSNS shall accept a short-term note under the same terms as the short-term
note described in this Section 6. Upon the triggering of the need for a secured
note under this Section 6, the Parties agree to use their respective best
efforts to execute or enter into, as applicable, the following documents in
substantially the form as given in the exhibits: (i) Exhibit C,
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Promissory Note; (ii) Exhibit D, Stock Pledge and Security Agreement; (iii)
Exhibit E, Stock Power; and (iv) Exhibit F, Account Control Agreement.
(c) In the case where ▇▇. ▇▇▇▇▇▇ has exercised any of the Options and
is required to make a pledge for the secured note, ▇▇. ▇▇▇▇▇▇ may effect the
pledge of Option Shares to secure the note by delivering to HSNS a sufficient
quantity of Option Shares such that, based on the fair market value of the
Option Shares at the time the parties enter into the secured note, the Option
Shares pledged are of a value that equals one and one quarter (1 1/4) times the
value of the note (the "Pledged Quantity").
(d) In the case where ▇▇. ▇▇▇▇▇▇ has exercised any of the Options and
is required to make a pledge for the secured note, ▇▇. ▇▇▇▇▇▇ may effect the
pledge of Option Shares to secure the note by entering into an Account Control
Agreement with ▇▇. ▇▇▇▇▇▇ and a broker reasonably acceptable to HSNS, in a form
substantially similar to that included in Exhibit F, covering the Pledged
Quantity of Option Shares. This arrangement contemplates that, under the Account
Control Agreement, ▇▇. ▇▇▇▇▇▇ would issue entitlement orders (as that term is
defined in the Account Control Agreement) only to sell shares in the pledged
account, and all proceeds of such sales would remain in the pledged account
until the note is repaid. If ▇▇. ▇▇▇▇▇▇ determines to pay the note from the
proceeds of the pledged account, the parties agree to the following provisions:
(i) within five (5) business days following receipt of a written request by ▇▇.
▇▇▇▇▇▇ (which request may be delivered by fax), HSNS will fax to the Broker (as
defined in the Account Control Agreement) a statement of the full amount owed by
▇▇. ▇▇▇▇▇▇ to HSNS with a statement that Broker is authorized to allow ▇▇.
▇▇▇▇▇▇ to make unrestricted withdrawals from the pledged account immediately
following Broker's delivery of the stated amount to HSNS; (ii) delivery shall be
deemed to occur upon the receipt of a wire transfer of funds from Broker to HSNS
or the receipt and clearance of Broker's check to HSNS for the stated amount;
and (iii) this procedure shall only apply if the full obligation under the note
is met by the payout from the pledged account.
(e) In the case where ▇▇. ▇▇▇▇▇▇ has not exercised any of the Options
and is required to make a pledge for the secured note, ▇▇. ▇▇▇▇▇▇'▇ right to
exercise the Options shall be conditioned upon ▇▇. ▇▇▇▇▇▇ exercising a
sufficient quantity of the Options to provide for the Pledged Quantity. If ▇▇.
▇▇▇▇▇▇ seeks to exercise the Options for less than the Pledged Quantity of
Option Shares, which shall be applied as set forth in paragraph 6(c) or 6(d) (in
addition to whatever quantity of Options ▇▇. ▇▇▇▇▇▇ seeks to exercise for his
own use), then HSNS shall have the unequivocal right to refuse such attempted
exercise. Upon an exercise by ▇▇. ▇▇▇▇▇▇ meeting the requirements of this
paragraph 6(e), ▇▇. ▇▇▇▇▇▇ shall then elect
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one of either the provisions of paragraph 6(c) or 6(d) with respect the Pledged
Quantity of Option Shares.
7. As consideration for the promises made by ▇▇. ▇▇▇▇▇▇ to HSNS
pursuant to this Agreement and ▇▇. ▇▇▇▇▇▇'▇ other agreements hereunder, HSNS
hereby releases and forever discharges ▇▇. ▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇'▇ heirs,
executors, administrators and assigns, from, and waives any and all rights with
respect to, all manner of claims, actions, causes of action, suits, judgments,
rights, demands, debts, damages, or accountings of whatever nature, legal,
equitable or administrative, whether the same are now known or unknown, which
HSNS ever had, now has or may claim to have, upon or by reason of the occurrence
of any matter, cause or thing whatsoever up to the date of this Agreement,
including, without limitation, any claim whatsoever arising from or relating to
▇▇. ▇▇▇▇▇▇'▇ employment or changes in ▇▇. ▇▇▇▇▇▇'▇ employment relationship with
HSNS or anti-dilution protection for the Original Large Options. Provided,
however, this release shall not (i) include any claims relating to ▇▇. ▇▇▇▇▇▇'▇
obligations under this Agreement, or (ii) affect any rights or claims that may
arise out of events occurring after the date this Agreement is signed. HSNS
acknowledges that the Lawsuit has been dismissed. ▇▇. ▇▇▇▇▇▇ acknowledges that
he never filed an answer or any counter-claims in any jurisdiction in response
to the Lawsuit. The foregoing release satisfies the obligations of HSNS under
Paragraph 5 of the Settlement Agreement and HSNS is hereby deemed to have timely
satisfied all of its obligations under the Settlement Agreement.
8. As consideration for the New Options granted by HSNS to ▇▇. ▇▇▇▇▇▇
and for the promises made by HSNS to ▇▇. ▇▇▇▇▇▇ pursuant to this Agreement and
HSNS's other agreements hereunder, ▇▇. ▇▇▇▇▇▇ for himself and for his heirs,
executors, administrators and assigns, hereby releases and forever discharges
HSNS, together with each of its respective agents, officers, employees,
affiliates, subscribers and directors, from, and waives any and all rights with
respect to, all manner of claims, actions, causes of action, suits, judgments,
rights, demands, debts, damages, or accountings of whatever nature, legal,
equitable or administrative, whether the same are now known or unknown, which
▇▇. ▇▇▇▇▇▇ ever had, now has or may claim to have, upon or by reason of the
occurrence of any matter, cause or thing whatsoever up to the date of this
Agreement including, without limitation, any claim whatsoever arising from or
relating to ▇▇. ▇▇▇▇▇▇'▇ employment or changes in ▇▇. ▇▇▇▇▇▇'▇ employment
relationship with HSNS or anti-dilution protection for the Original Large
Options. Provided, however, this release shall not (i) include any claims
relating to the obligations of HSNS under this Agreement, (ii) affect ▇▇.
▇▇▇▇▇▇'▇ rights arising under the Option Award Agreement, or (iii) affect any
rights or claims that may arise out of events occurring
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after the date this Agreement is signed. The foregoing release satisfies the
obligations of ▇▇. ▇▇▇▇▇▇ to HSNS under Paragraph 6 of the Settlement Agreement
and ▇▇. ▇▇▇▇▇▇ is hereby deemed to have timely satisfied all of its obligations
under the Settlement Agreement.
9. Each Party agrees that it shall not publish false or defamatory
statements about any other Party to this Agreement or about the directors,
officers, employees, goods or services of the Parties.
10. Each Party warrants and represents that it has not assigned or
otherwise transferred any of the claims or rights being released herein to any
person or entity not a Party hereto.
11. Each individual executing this Agreement on behalf of a corporation
warrants that he has authority to act on behalf of such corporation.
12. This Agreement, in conjunction with the Option Award Agreement,
constitutes the entire agreement between the Parties concerning the subject
matter hereof and may not be amended except by a writing signed by each Party
hereto.
13. This Agreement shall be binding upon the Parties hereto and their
successors and assigns.
14. This Agreement shall be governed by and construed pursuant to the
laws of the State of North Carolina.
15. This Agreement may be executed in counterparts. If it is so
executed, it shall be fully effective as if all Parties had signed the same
document.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first above written.
HIGH SPEED NET SOLUTIONS, INC.
By: /s/ ▇▇▇▇ ▇▇▇
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Name:
Title: President & CEO
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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