EXHIBIT 4.4
SETTLEMENT AND RELEASE
This SETTLEMENT AND RELEASE AGREEMENT (the "Agreement"), executed this 10/th/
day of September, 2001, is entered into by and among Constellation 3D, Inc., a
Delaware corporation (the "Company"), and G.L.A.S. Trading, Ltd. ("Releasor").
WHEREAS, Releasor has provided services for the Company of which $ 300,000
remains unpaid for by the Company;
WHEREAS, the Company and Releasor desire to settle fully and finally any and all
matters between them as of the date hereof, including, but not limited to, any
issues or claims that may arise out of the services performed by Releasor on
behalf of the Company;
WHEREAS, the Company desires and Releasor agrees to accept full payment for the
services rendered in shares of the Company's common stock and in exchange for a
full release by Releasor in favor of the Company;
NOW, THEREFORE, in consideration of the mutual agreements and understandings set
forth herein, intending to be legally bound, the parties hereto hereby agree as
follows:
A. Payment for Services. Releasor hereby accepts a warrant with piggyback
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registration rights (the form of which is annexed hereto) for 302,000 shares of
the Company's common stock in full and complete satisfaction of any and all
obligations and/or debt owed to Releasor by the Company. In addition, Releasor
grants the Company a full and general release as set forth in paragraph B.
B. The Release. Releasor knowingly and voluntarily does hereby release and
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forever discharges CONSTELLATION 3D, INC. and its subsidiaries and affiliates,
together with all of their respective past and present directors, managers,
officers, partners, employees and attorneys, and each of their predecessors,
successors and assigns, and any of the foregoing in their capacity as a
shareholder or agent of Constellation 3D, Inc. (collectively, "Releasees") from
any and all claims, charges, complaints, promises, agreements, controversies,
liens, demands, causes of action, obligations, damages and liabilities of any
nature whatsoever, known or unknown, suspected or unsuspected, which against
them the Releasor or subsidiaries and affiliates, together with all of their
respective past and present directors, managers, officers, partners, employees
and attorneys, and each of their predecessors, successors and assigns, and any
of the foregoing in their capacity as a shareholder or agent of the Company ever
had, now have, or may hereafter claim to have against any of the Releasees by
reason of any matter, cause or thing whatsoever arising on or before the date
hereof and whether or not previously asserted before any state or federal court
or before any state or federal agency or governmental entity (the "Release").
The Release includes, without limitation, any rights or claims relating in any
way to debts due to Releasor for services rendered or any other federal, state
or local law, regulation, ordinance or common law, or under any policy,
agreement, understanding or promise, whether written or oral, formal or
informal, between any of the Releasees, and Releasor.
C. Miscellaneous.
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(i) Enforcement; Governing Law; Jurisdiction. This Agreement shall be
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governed by and construed in accordance with the laws of the State of New York
without regard to its conflicts of law principles. The parties irrevocably
consent to the exclusive jurisidiction of the state and federal courts located
in New York, New York for any disputes which may arise hereunder.
(ii) Headings. The section and paragraph headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(iii) Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(iv) Entire Agreement. This Agreement constitutes the entire agreement,
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and supersedes any and all prior agreements, and understandings, both written
and oral, between the parties hereto with respect to the subject matter hereof
except as otherwise provided herein.
(v) Severability. If any term or other provision of this Agreement is
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invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect.
(vi) Successors. This Agreement shall be binding upon and shall inure
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to the benefit of each of the parties hereto, and their respective heirs,
legatees, executors, administrators, legal representatives, successors and
assigns. The provisions of Section B hereof are intended to be for the benefit
of, and shall be enforceable by, each Releasee and his, her or its, heirs and
representatives.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
CONSTELLATION 3D, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name:
Title: Officer and Director
G.L.A.S. Trading, Ltd. (RELEASOR)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title: Officer
EXHIBIT A
FORM OF WARRANT CERTIFICATE
THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER REGULATION D PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR OTHERWISE. THIS WARRANT SHALL NOT
CONSTITUTE AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY THE SECURITIES
IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION WOULD BE UNLAWFUL. THE
SECURITIES ARE "RESTRICTED" AND MAY NOT BE RESOLD OR TRANSFERRED EXCEPT AS
PERMITTED UNDER THE ACT PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
COMMON STOCK PURCHASE WARRANT
Number of Shares: 302,000
CONSTELLATION 3D, INC.
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Void after December 1, 2004
1. Issuance. This Warrant is issued to G.L.A.S. Trading Ltd. by Constellation
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3D, Inc., a Delaware corporation (hereinafter with its successors called the
"Company").
2. Purchase Price; Number of Shares. Subject to the terms and conditions
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hereinafter set forth, the registered holder of this Warrant (the "Holder"), is
entitled upon surrender of this Warrant with the subscription form annexed
hereto duly executed, at the office of the Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇/
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other office as the Company shall notify the
Holder of in writing, to purchase from the Company at a price per share (the
"Purchase Price") of $0.0001, of up to ____________ fully paid and
nonassessable shares of Common Stock, $ .00001 par value, of the Company (the
"Common Stock").
3. Exercisability. This Warrant will become exercisable upon the execution
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hereof by the Company.
4. Payment of Purchase Price; Cashless Exercise. Payment of the Purchase
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Price of the shares shall be by certified check or cashier's check or by wire
transfer (of same day funds) to an account designated by the Company in an
amount equal to the Exercise Price multiplied by the number of shares being
purchased. Notwithstanding anything to the contrary contained in this Warrant,
this Warrant may be exercised at any time during the Exercise Period by
presentation and surrender of this Warrant to the Company at its principal
executive offices with a written notice of the holder's intention to effect a
cashless exercise (a "Cashless Exercise"). In the event of a Cashless Exercise,
in lieu of
paying the Exercise Price in cash, the holder shall surrender this Warrant for
that number of shares of Common Stock determined by the Company in good faith by
multiplying the number of Warrant Shares to which it would otherwise be entitled
by a fraction, the numerator of which shall be the difference, but not less than
zero between the then current Market Price per share of the Common Stock and the
Exercise Price, and the denominator of which shall be the then current Market
Price per share of Common Stock. "Market Price," as of any date, (i) means the
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average of the closing bid prices for the shares of Common Stock as reported on
the Nasdaq National Market by Bloomberg Financial Markets ("Bloomberg") for the
five (5) consecutive trading days immediately preceding such date, or (ii) if
the Nasdaq National Market is not the principal trading market for the shares of
Common Stock, the average of the closing bid prices reported by Bloomberg on the
principal trading market for the Common Stock during the same period, or, if
there is no bid price for such period, the last reported price reported by
Bloomberg for such period, or (iii) if the foregoing do not apply, the last
closing bid price of such security in the over-the-counter market on the pink
sheets or bulletin board for such security as reported by Bloomberg, or if no
closing bid price is so reported for such security, the last closing trade price
of such security as reported by Bloomberg, or (iv) if market value cannot be
calculated as of such date on any of the foregoing bases, the Market Price shall
be the average fair market value as reasonably determined by an investment
banking firm selected by the Company and reasonably acceptable to the holder,
with the costs of the appraisal to be borne by the Company. The manner of
determining the Market Price of the Common Stock set forth in the foregoing
definition shall apply with respect to any other security in respect of which a
determination as to market value must be made hereunder.
5. Partial Exercise. This Warrant may not be exercised in part.
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6. Issuance Date. The person or persons in whose name or names any certificate
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representing shares of Common Stock is issued hereunder shall be deemed to have
become the holder of record of the shares represented thereby as at the close of
business on the date this Warrant is exercised with respect to such shares,
whether or not the transfer books of the Company shall be closed. Until such
time as this Warrant is exercised in whole or in part, the Holder hereof shall
have no rights as a shareholder of the Company.
7. Expiration Date. This Warrant shall expire at the close of business on
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December 1, 2004, and shall be void thereafter.
8. Reserved Shares; Valid Issuance. The Company covenants that it will at
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all times from and after the date hereof reserve and keep available such number
of its authorized shares of Common Stock, free from all preemptive or similar
rights therein, as will be sufficient to permit the exercise of this Warrant in
full. The Company further covenants that such shares as may be issued pursuant
to the exercise of this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issuance thereof.
9. Dividends. If after September 10, 2001 (the "Original Issue Date") the
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Company shall subdivide the Common Stock, by split-up or otherwise, or combine
the Common Stock, or issue additional shares of Common Stock in payment of a
stock dividend on the Common Stock, the number of shares issuable on the
exercise of this Warrant shall forthwith be proportionately increased in the
case of a subdivision or stock dividend, or proportionately decreased in the
case of a combination, and the Purchase Price shall forthwith be proportionately
decreased in the case of a subdivision or stock dividend, or proportionately
increased in the case of a combination.
10. Fractional Shares. In no event shall any fractional share of Common Stock
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be issued upon any exercise of this Warrant. If, upon exercise of this Warrant,
the Holder would, except as provided in this Section 12, be entitled to receive
a fractional share of Common Stock, then the Company shall make a cash payment
to the Holder equal to the quotient of (a) such fraction multiplied by (b) the
fair market value of a share of Common Stock as determined by the Company's
Board of Directors, in its sole discretion.
11. Notices of Record Date, Etc. In the event of:
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a. any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right,
b. any reclassification of the capital stock of the Company, capital
reorganization of the Company, consolidation or merger involving the
Company, or sale or conveyance of all or substantially all of its assets,
or
c. any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
then and in each such event the Company will mail or cause to be mailed to the
Holder a notice specifying (i) the date on which any such record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the date on which
any such reclassification, reorganization, consolidation, merger, sale or
conveyance, dissolution, liquidation or winding-up is to take place, and the
time, if any, is to be fixed, as of which the holders of record in respect of
such event are to be determined. Such notice shall be mailed at least 20 days
prior to the date specified in such notice on which any such action is to be
taken. Failure to give such notice, or any defect therein, shall not affect the
legality or validity of any dividend or distribution, or of any such
transaction.
12. Amendment. The terms of this Warrant may be amended, modified or waived
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only with the written consent of the Company and the holders of Warrants
representing at least two-thirds of the number of shares of Common Stock then
issuable upon the exercise of the Warrants. No such amendment, modification or
waiver shall be effective
as to this Warrant unless the terms of such amendment, modification or waiver
shall apply with the same force and effect to all of the other Warrants then
outstanding.
13. Warrant Register; Transfers, Etc.
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a. The Company will maintain a register containing the names and
addresses of the registered holders of the Warrants. The Holder may change
its address as shown on the warrant register by written notice to the
Company requesting such change. Any notice or written communication
required or permitted to be given to the Holder may be given by certified
mail or delivered to the Holder at its address as shown on the warrant
register.
b. This Warrant may not be transferred or assigned in whole or in part
without the prior written consent of the Company, and without compliance
with all applicable federal and state securities laws by the transferor and
the transferee. Subject to all of the restrictions of the prior sentence,
title to this Warrant may be transferred by endorsement (by the Holder
executing the Assignment form annexed hereto) and delivery in the same
manner as a negotiable instrument transferable by endorsement and delivery.
Upon surrender of this Warrant to the Company, together with the assignment
hereof properly endorsed, for a permitted transfer of this Warrant as an
entirety by the Holder, the Company shall issue a new warrant of the same
denomination to the assignee. Upon surrender of this Warrant to the
Company, together with the assignment hereof properly endorsed, by the
Holder for transfer with respect to a portion of the shares of Common Stock
purchasable hereunder, the Company shall issue a new warrant to the
assignee, in such denomination as shall be requested by the Holder hereof,
and shall issue to such Holder a new warrant covering the number of shares
in respect of which this Warrant shall not have been transferred.
c. In case this Warrant shall be mutilated, lost, stolen or destroyed, the
Company shall issue a new warrant of like tenor and denomination and
deliver the same (i) in exchange and substitution for and upon surrender
and cancellation of any mutilated Warrant, or (ii) in lieu of any Warrant
lost, stolen or destroyed, upon receipt of evidence reasonably satisfactory
to the Company of the loss, theft or destruction of such Warrant (including
a reasonably detailed affidavit with respect to the circumstances of any
loss, theft or destruction) and of indemnity reasonably satisfactory to the
Company, provided, however, that so long as the original holder of this
Warrant is the registered holder of this Warrant, no indemnity shall be
required other than its written agreement to indemnify the Company against
any loss arising from the issuance of such new warrant.
14. No Impairment. The Company will not, by amendment of its Articles of
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Incorporation or through any reclassification, capital reorganization,
consolidation, merger, sale or conveyance of assets, dissolution, liquidation,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any
of the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder.
15. Governing Law. The provisions and terms of this Warrant shall be governed
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by and construed in accordance with the internal laws of the State of New York.
16. Successors and Assigns. This Warrant shall be binding upon the Company's
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successors and assigns and shall inure to the benefit of the Holder's
successors, legal representatives and permitted assigns.
17. Business Days. If the last or appointed day for the taking of any action
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required or the expiration of any right granted herein shall be a Saturday or
Sunday or a legal holiday in the State of Delaware, then such action may be
taken or right may be exercised on the next succeeding day which is not a
Saturday or Sunday or such a legal holiday.
18. Consolidation or Merger. In case of any consolidation of the Company with,
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or merger of the Company into, any other corporation, or in case of any sale or
conveyance of all or substantially all of the assets of the Company at any time
during the Exercise Period, then as a condition of such consolidation, merger or
sale or conveyance, adequate provision will be made whereby the holder of this
Warrant will have the right to acquire and receive upon exercise of this Warrant
in lieu of the shares of Common Stock immediately theretofore acquirable upon
the exercise of this Warrant, such shares of stock, securities, cash or assets
as may be issued or payable with respect to or in exchange for the number of
shares of Common Stock immediately theretofore acquirable and receivable upon
exercise of this Warrant had such consolidation, merger, sale or conveyance not
taken place. In any such case, the Company will make appropriate provision to
insure that the provisions of this Section 19 hereof will thereafter be
applicable as nearly as may be in relation to any shares of stock or securities
thereafter deliverable upon the exercise of this Warrant.
19. Registration. If lawful, the Company shall include the Warrant shares on
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its next filed registration statement.
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by
its officers thereunto duly authorized:
Issued: New York, New York Constellation 3D, Inc.
September 10, 2001
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: Officer and Director
ASSIGNMENT
For value received __________________ hereby sells, assigns and transfers unto
_____ ___________________ assigns and transfers unto
____________________________________
_____________________________________________________________________________
[Please print or typewrite name and address of Assignee]
_____________________________________________________________________________
the within Warrant, and does hereby irrevocably constitute and appoint
_________________
its attorney to transfer the within Warrant on the books of the within named
Company with full power of substitution on the premises.
Dated: __________________
In the presence of:
________________________
SUBSCRIPTION
To: ____________________ Date: ___________________
The undersigned hereby subscribes for _______ shares of Common Stock covered
by this Warrant. The certificate(s) for such shares shall be issued in the name
of the undersigned or as otherwise indicated below:
________________________
Signature
________________________
Name for Registration
________________________
Mailing Address