EXHIBIT 10.72
ARBITRATION AWARD AGREEMENT
THIS ARBITRATION AWARD AGREEMENT (the "Agreement") is entered into as
of the 3rd day of February, 2003, by and between CLUNET ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), CLR
ENTERPRISES, INC., a Michigan corporation ("▇▇▇▇▇ Consulting Firm"), and VERSO
TECHNOLOGIES, INC., a Minnesota corporation ("Verso").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain arbitration
proceeding pending before the American Arbitration Association (Case No.
54-199-002862) (the "Proceeding"); and
WHEREAS, the parties hereto desire to structure the satisfaction and
payment of all amounts (of whatever character or nature) awarded to ▇▇▇▇▇ and
the ▇▇▇▇▇ Consulting Firm (collectively, the "Claimants") in the Proceeding (the
"Award") as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual terms and conditions
contained herein and other good and valuable consideration, the receipt and
adequacy of which the parties hereby acknowledge, the parties hereto agree as
follows:
SECTION 1. AWARD SATISFACTION AND PAYMENT. The satisfaction and
payment of any Award shall be based on the aggregate amount of the Award to the
Claimants as follows:
(a) Within three (3) business days of the execution of
this Agreement, Verso shall cause to be delivered to ▇▇▇▇▇ 275,000 unregistered
shares (the "Base Shares") of Verso's common stock, $.01 par value per share
(the "Common Stock"). If the aggregate amount of the Award to the Claimants is
less than or equal to $125,000, then the delivery of the Base Shares to ▇▇▇▇▇
shall be full and final satisfaction of the Award.
(b) If the amount of the Award to the Claimants is
greater than $125,000, then Verso shall satisfy and pay the Award by (i) the
delivery of the Base Shares to ▇▇▇▇▇; and (ii) entering into, and performing its
obligations under, a consulting agreement with ▇▇▇▇▇ in substantially the form
attached hereto as Exhibit A (the "▇▇▇▇▇ Consulting Agreement"). The number to
be inserted in Section 4.1 of the ▇▇▇▇▇ Consulting Agreement shall be calculated
in the manner set forth in Section 2 below.
(c) The Claimants agree that the amounts (and the form
thereof) to be paid to ▇▇▇▇▇ pursuant to this Agreement (and the ▇▇▇▇▇
Consulting Agreement, if applicable) in respect of the Award are in lieu, and in
complete satisfaction, of the Award, and each Claimant hereby irrevocably waives
its right to enforce the Award other than through the enforcement of this
Agreement and the Consulting Agreement (if applicable).
SECTION 2. ▇▇▇▇▇ CONSULTING AGREEMENT.
(a) As soon as the Award is finalized, Verso and ▇▇▇▇▇
shall calculate the numbers to be inserted into Section 4.1 of the ▇▇▇▇▇
Consulting Agreement, as set forth below,
shall insert those numbers, and shall execute and deliver the ▇▇▇▇▇ Consulting
Agreement. The numbers to be inserted in Section 4.1 of the ▇▇▇▇▇ Consulting
Agreement shall be calculated as follows:
(i) The number to be set forth in Section 4.1A of the
Consulting Agreement shall be equal to 140,000 multiplied by the Multiplier (as
determined below);
(ii) The number to be set forth in Section 4.1B of the
Consulting Agreement shall be equal to 140,000 multiplied by the Multiplier (as
determined below); and
(iii) The number to be set forth in Section 4.1C of the
Consulting Agreement shall be equal to 70,000 multiplied by the Multiplier (as
determined below).
(b) For the purposes of this Section 2, the Multiplier shall be
equal to (i) the quantity equal the Award minus $125,000, divided by (ii)
$275,000, but the Multiplier shall not be less than zero nor greater than one
(1). The following are examples of the calculation of the Multiplier:
(i) If the Award is $262,500, then the Multiplier is
equal to $262,500, minus $125,000 (which is $137,500), divided by $275,000
(which results in the Multiplier being equal to 0.5 in this example);
(ii) If the Award is $125,000, then the Multiplier is
equal to $125,000, minus $125,000 (which is zero), divided by $275,000 (which
results in the Multiplier being equal to zero in this example); and
(iii) If the Award is $525,000, then the Multiplier is
equal to $525,000, minus $125,000 (which is $400,000), divided by $275,000
(which results in the Multiplier being equal to 1.45, but the Multiplier cannot
be greater than one, and, therefore, the Multiplier equals one (1) in this
example).
(c) Notwithstanding anything herein to the contrary, with the
prior consent of ▇▇▇▇▇, Verso shall have the right to accelerate the payment of
any amounts due under the Consulting Agreements and any such payment shall be
reduced to the present value thereof based on a time value of money factor equal
to five percent (5%) per annum calculated by reference to the original due date
of the payment so accelerated.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF VERSO. Verso hereby represents and
warrants to the Claimants as follows:
(a) Verso is a corporation duly organized, validly existing and in
good standing under the laws of the State of Minnesota.
(b) Verso has the right, power and capacity to execute, deliver
and perform this Agreement and the ▇▇▇▇▇ Consulting Agreement (collectively, the
"Transaction Documents") and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Verso of the Transaction
Documents, and the
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consummation of the transactions contemplated thereby, have been duly and
validly authorized by all necessary corporate action on the part of Verso. This
Agreement has been, and the other Transaction Documents will be, duly and
validly executed and delivered by Verso and constitute Verso's legal, valid and
binding obligation, enforceable in accordance with its and their terms.
(c) The execution and delivery of this Agreement by Verso and the
other Transaction Documents, the consummation by Verso of the transactions
contemplated herein and therein, and the performance of the covenants and
agreements of Verso contained herein and therein will not, with or without the
giving of notice or the lapse of time, or both, (i) violate or conflict with any
of the provisions of the articles of incorporation or bylaws of Verso, (ii)
violate, conflict with or result in a breach or default under or cause
termination of any term or condition of any mortgage, indenture, contract,
license, permit, instrument or other agreement to which Verso is a party or by
which Verso or any of its assets may be bound, or (iii) violate any provision of
law, statute, rule, regulation, court order, judgment or decree, or ruling of
any governmental authority, to which Verso is a party or by which Verso or any
of its assets may be bound.
(d) Any shares of Common Stock issued to ▇▇▇▇▇ pursuant to the
terms and conditions of any of the Transaction Documents shall be, when issued,
duly and validly issued, fully-paid and non-assessable.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE CLAIMANTS. (a) Each Claimant
(as to itself or himself, as the case may be) hereby represents and warrants to
Verso as follows:
(i) If Claimant is corporation, it is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Each Claimant has the right, power and capacity to execute,
deliver and perform this Agreement and the other Transaction Documents to which
it is a party and to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance of this Agreement and the other
Transaction Documents to which such Claimant is a party, and the consummation of
the transactions contemplated hereby and thereby, have been duly and validly
authorized by all necessary action (corporate or otherwise, as the case may be)
on the part of such Claimant. This Agreement has been, and the other Transaction
Documents to which such Claimant is a party shall be, duly and validly executed
and delivered by such Claimant and constitute such Claimant's legal, valid and
binding obligation, enforceable in accordance with its and their terms.
(iii) The execution and delivery by such Claimant of this Agreement and the
other Transaction Documents to which such Claimant is a party, the consummation
of the transactions contemplated herein and therein by such Claimant, and the
performance of the covenants and agreements of the such Claimant will not, with
or without the giving of notice or the lapse of time, or both (i) violate or
conflict with, in the case of the ▇▇▇▇▇ Consulting Firm, any of the provisions
of its certificate of incorporation or bylaws, (ii) violate, conflict with or
result in a breach or default under or cause termination of any term or
condition of any mortgage, indenture, contract, license, permit, instrument or
other agreement to which such Claimant is a party or by which such Claimant or
any of its assets may be bound or (iii) violate any provision
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of law, statute, rule, regulation, court order, judgment or decree, or ruling of
any governmental authority, to which such Claimant is a party or by which such
Claimant or any of its assets may be bound.
(b) ▇▇▇▇▇ represents and warrants to Verso that he is acquiring
the shares of Common Stock hereunder or under the ▇▇▇▇▇ Consulting Agreement
(collectively, the "Shares") for his own account as principal, for investment
purposes only, and not with a view to, or for, resale, distribution or
fractionalization thereof, in whole or in part.
(c) ▇▇▇▇▇ acknowledges its understanding that the offering and
sale of the Shares is intended to be exempt from registration under the
Securities Act of 1933, as amended (the "1933 Act"), by virtue of Section 4(2)
of the 1933 Act and the provisions of Regulation D thereunder, and in
furtherance thereof, such Claimant represents and warrants to, and agrees with,
Verso as follows:
(i) ▇▇▇▇▇ has the financial ability to bear the economic
risk of its investment, has adequate means for providing for its current needs
and has no need for liquidity with respect to its investment in Verso;
(ii) ▇▇▇▇▇ is an "accredited investor" (as that term is
defined in Rule 501(a) of Regulation D under the 1933 Act (17 C.F.R.
230.501(a));
(iii) ▇▇▇▇▇ has had access to Verso's files and records
(collectively, the "Documents"), understands and has evaluated the risks of a
purchase of the Shares, and has relied solely on the information contained in
the Documents;
(iv) ▇▇▇▇▇ has been provided an opportunity to obtain
additional information concerning Verso and has been given the opportunity to
ask questions of and receive answers from Verso concerning the items and
conditions of this investment, and has been given the opportunity to obtain such
additional information necessary to verify the accuracy of the information
contained in the Documents or that which was otherwise provided in order for
such Claimant to evaluate the merits and risks of purchase of the Shares, and
has not been furnished any other offering literature or prospectus except as
mentioned herein;
(v) ▇▇▇▇▇ has not relied on any oral representation or
oral information in connection with the offering of the Shares which is not
contained in this Agreement or in the Documents; and
(vi) ▇▇▇▇▇ has determined that the Shares are a suitable
investment and that such Claimant could bear a complete loss of its investment;
and
(vii) ▇▇▇▇▇ (A) will not sell or otherwise transfer the
Shares unless registered under the 1933 Act or in reliance upon an exemption
therefrom, and fully understands and agrees that it must bear the economic risk
of its purchase for an indefinite period of time because, among other reasons,
the Shares or underlying securities have not been registered under the 1933 Act
or under the securities laws of certain states and, therefore, cannot be resold,
pledged, assigned or otherwise disposed of other than pursuant to an exception
from registration under the 1933 Act and any other applicable securities laws;
and (B) acknowledges that a legend
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indicating that the Shares have not been registered under such laws and
referring to the restrictions on transferability and sale of the Shares may be
placed on the certificate or certificates delivered to the undersigned or any
substitute certificate therefor, and any transfer agent of Verso may be
instructed to require compliance therewith.
SECTION 5. MUTUAL RELEASE.
(a) Each Claimant, for itself or himself, as the case may be, and
on behalf of its or his agents, representatives, successors, heirs and assigns,
hereby releases, waives, acquits, withdraws, retracts, and forever discharges
any and all claims, manner of actions, causes of action, in law or in equity,
suits, judgments, debts, liens, contracts, agreements, promises, liabilities,
demands, damages, losses, costs, expenses or disputes, known or unknown, fixed
or contingent, which he now has or may hereafter have, directly or indirectly,
personally or in any capacity, against Verso and all and any of its present or
former affiliates, parents, subsidiaries, predecessors, successors and assigns,
as well as its present or former owners, shareholders, investors, lenders,
agents, independent contractors, directors, officers, partners, employees,
associates, representatives, consultants, attorneys and insurers, whatsoever,
from the beginning of time to, and including, the date of this Agreement,
including, without limitation, in any way relating to or arising out of the that
certain consulting agreement (as amended) which is the subject of the Proceeding
(the "Old Consulting Agreement"); provided, however, that nothing herein shall
release Verso from its obligations under (i) this Agreement; (ii) the ▇▇▇▇▇
Consulting Agreement; (iii) Section 9(a) of the Old Consulting Agreement; or
(iv) provided that the aggregate Award is greater than $125,000, those certain
stock options (including, without limitation, any stock option agreement
relating thereto) described on Exhibit B hereto (collectively, the "Options")
granted by Verso to ▇▇▇▇▇.
(b) Verso, for itself and on behalf of its agents,
representatives, successors and assigns, hereby releases, waives, acquits,
withdraws, retracts, and forever discharges any and all claims, manner of
actions, causes of action, in law or in equity, suits, judgments, debts, liens,
contracts, agreements, promises, liabilities, demands, damages, losses, costs,
expenses or disputes, known or unknown, fixed or contingent, which he now has or
may hereafter have, directly or indirectly, in any capacity, against any of the
Claimants and all and any of their respective present or former affiliates,
parents, subsidiaries, predecessors, successors and assigns, as well as their
present or former owners, shareholders, investors, lenders, agents, independent
contractors, directors, officers, partners, employees, associates,
representatives, consultants, attorneys and insurers, whatsoever, from the
beginning of time to, and including, the date of this Agreement, including,
without limitation, in any way relating to or arising out of the Old Consulting
Agreements; provided, however, that nothing herein shall release the Claimants
from their respective obligations under (i) this Agreement; (ii) the Consulting
Agreements; or (iii) provided that the aggregate Award is greater than $125,000,
the Options.
SECTION 6. OPTIONS. If the aggregate Award is greater than $125,000,
then the Options shall remain in effect and ▇▇▇▇▇ shall be entitled to exercise
his rights thereunder in accordance with the terms thereof; it being understood
and agreed that, unless the applicable Option provides an earlier termination
date, ▇▇▇▇▇'▇ right to exercise the Options shall terminate 90 days following
the termination or expiration of the ▇▇▇▇▇ Consulting Agreement. If the
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aggregate Award is less than or equal to $125,000, then the Options shall be
terminated without any further action and shall be of no force or effect
whatsoever.
SECTION 7. PIGGYBACK RIGHTS AND RELATED MATTERS.
(a) Verso agrees to register for resale, at its expense, the
shares of Common Stock issued to ▇▇▇▇▇ pursuant to this Agreement and to be
issued pursuant to the ▇▇▇▇▇ Consulting Agreement (collectively, the "Shares")),
upon the filing of a registration statement under the 1933 Act for Verso's next
registered primary public offering, other than a registration relating solely to
employee benefit plans, a registration relating solely to a Rule 145 (as
promulgated by the Securities and Exchange Commission under the ▇▇▇▇ ▇▇▇)
transaction, or a registration on any registration form that does not permit
secondary sales, subject to customary underwriter cut-backs and the registration
rights of other holders of shares of Common Stock.
(b) Verso shall promptly cause unlegended certificates for the
Shares to be issued and delivered to ▇▇▇▇▇ upon receipt of an opinion of counsel
(which may be counsel to Verso), which opinion shall be in form and substance
reasonably satisfactory to Verso, to the effect that the shares represented by
such certificates may be lawfully disposed of in compliance with the 1933 Act
without registration, qualification or legend. In addition, Verso shall use its
reasonable best efforts to facilitate any sale by ▇▇▇▇▇ of shares of Common
Stock held by him in accordance with Rule 144 under the 1933 Act, including
issuing or causing to be issued any necessary instructions to the transfer agent
for the Common Stock. In the event that a legal opinion is required for any of
the foregoing, Verso shall arrange for its counsel to provide that legal
opinion, as long as ▇▇▇▇▇ provides all appropriate documentation requested by
counsel.
SECTION 8. MISCELLANEOUS.
(a) All notices and other communications required or permitted
under this Agreement shall be in writing and shall be deemed given when
delivered personally, mailed by certified mail (postage pre-paid and return
receipt requested), sent by overnight courier service or faxed (transmission
confirmed), or otherwise actually received. All such notices and other
communications shall be delivered, mailed, couriered or faxed (in each case,
together with an e-mail notification to the e-mail addresses set forth herein
(or otherwise designated in writing to the other party) of the sending of such
notice or communication), (i) if to a Claimant, at the address or facsimile
number set forth on the signature pages hereof, and (ii) if to Verso, at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Facsimile No.:
678-589-3750), Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (e-mail: Juliet.▇▇▇▇▇▇▇ @▇▇▇▇▇.▇▇▇),
or at such other address or facsimile number as such Claimant or Verso may
designate in writing to the other party.
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(b) This Agreement shall be governed and construed in accordance
with the laws of the State of Michigan (without giving effect to choice of law
principles thereof). Each of the parties hereto irrevocably agrees that any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in Southfield, Michigan in accordance
with the commercial arbitration rules of the American Arbitration Association
then in effect. If the arbitrator in the Proceeding is available and willing to
serve as arbitrator with respect to any such controversy or claim, then he shall
be the arbitrator for any such controversy or claim. If the arbitrator in the
Proceeding is unavailable or unwilling to so serve, then a single arbitrator
shall be selected in accordance with the commercial arbitration rules of the
American Arbitration Association. The decision of the arbitrator shall be final
and binding as to any matter submitted to him under this Agreement, and judgment
on any award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
(c) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument, and delivered by facsimile.
(d) This Agreement may be amended only by a written instrument
signed by the Claimants and Verso. No failure to exercise and no delay in
exercising, on the part of any party, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
(e) All rights, covenants and agreements of the parties contained
in this Agreement shall be binding upon and inure to the benefit of their
respective successors and assigns (including, without limitation, any trustees
or liquidators). This Agreement, and the rights and obligations hereunder, may
not be assigned by any party without the prior written consent of the other
parties.
(f) The Claimants, on the one hand, and Verso, on the other hand,
will each bear their respective legal and other fees and expenses in connection
with the transactions contemplated hereby.
(g) Each party hereto agrees to do all acts and to make, execute
and deliver such written instruments as shall from time to time be reasonably
necessary to carry out the terms and provisions of this Agreement.
(h) This Agreement and the other Transaction Documents constitute
the entire agreement among the parties hereto with respect to the subject matter
hereof and supersede and preempt any prior written or oral agreements between
the parties hereto which may have related to the subject matter hereof in any
way.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
VERSO TECHNOLOGIES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Executive Vice President and
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Chief Financial Officer
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/s/ Clunet ▇. ▇▇▇▇▇
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CLUNET ▇. ▇▇▇▇▇
CLR ENTERPRISES, INC.
By:/s/ Clunet ▇. ▇▇▇▇▇
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Its: President
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ADDRESS FOR NOTICE FOR ▇▇▇▇▇ AND ▇▇▇▇▇
CONSULTING FIRM:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇