Exhibit 10.5
SETTLEMENT AGREEMENT
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This Settlement Agreement ("Agreement") is made and effective the 2nd day
of February, 1996, by and among Lightbridge, Inc., f/k/a Credit Technologies,
Inc., BEB, Inc., BEB Limited Partnership I, BEB Limited Partnership II, BEB
Limited Partnership III, and BEB Limited Partnership IV, and all of their
predecessors, successors and assigns (collectively, the "Plaintiffs"),
Entrepreneurial, Inc., Entrepreneurial Limited Partnership VI (together with the
Plaintiffs, the "Plaintiffs and Related Parties"), Torrence C. Harder
("Harder"), Brian E. Boyle and all of his representatives, assigns, heirs,
executors and administrators and Boyle Corp. and all of its predecessors,
successors and assigns (together, "Boyle" and, together with the Plaintiffs,
Related Parties and Harder, the "Settlement Agreement Parties").
W I T N E S S E T H
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WHEREAS, there is pending in the Middlesex Superior Court in the
Commonwealth of Massachusetts a civil action in which the Plaintiffs and Brian
E. Boyle (together, the "Litigants") assert claims against each other entitled
Credit Technologies, Inc., BEB, Inc., BEB Limited Partnership I, BEB Limited
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Partnership II, BEB Limited Partnership III, and BEB Limited Partnership IV v.
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Brian E. Boyle, Civil Action No. 94-2983 (the "Civil Action"); and
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WHEREAS, the Litigants entered into a letter agreement on December 28,
1995, as subsequently amended by a letter agreement between the Litigants dated
January 19, 1996, to settle and forever dismiss the Civil Action; and
WHEREAS, the Settlement Agreement Parties have also agreed to resolve all
claims and disputes between them, including but in no way limited to any and all
claims that were, or could have been, asserted in the Civil Action;
NOW, therefore, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Settlement Agreement Parties agree as follows:
1. The closing (the "Closing") of the transactions contemplated hereby
shall occur at the offices of Foley, Hoag & Eliot at 5:00 p.m. on February 29,
1996, which time may be extended by the Plaintiffs and Related Parties to 5:00
p.m. on March 8, 1996 by providing Boyle with written notice of such extension
prior to 5:00 p.m. on February 26, 1996, and which time may be further extended
by mutual agreement among the Settlement Agreement Parties (such time, as it may
be extended as set forth above, is hereinafter referred to as the "Termination
Date") . Receipt of the requisite approval (the "Approval") by (i) the
partners, as set forth in each of Exhibits A-1, B-1, C-1, D-1 and E-1, of BEB
Limited Partnership I, BEB Limited Partnership II, BEB Limited Partnership III,
BEB Limited Partnership IV and Entrepreneurial Limited Partnership VI of the
amendments to the Limited Partnership Agreements and limited partnership
certificates of such limited partnerships attached hereto as Exhibits A-1 and
A-2,
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Exhibits B-1 and B-2, Exhibits C-1 and C-2, Exhibits D-1 and D-2, and Exhibits
E-1 and E-2, respectively, (ii) the parties to those certain Agreements Among
Partners among Entrepreneurial, Inc., Torrence C. Harder, D. Quinn Mills, James
I. Cash and Brian E. Boyle, dated July 24, 1989 and January 31, 1991 and that
certain Agreement Among Partners among Entrepreneurial, Inc., Torrence C.
Harder, D. Quinn Mills, James I. Cash and Boyle Corp. dated December 2, 1993 of
the amendments to such Agreements Among Partners attached hereto as Exhibit C-3,
Exhibit D-3 and Exhibit E-3, respectively, and (iii) the parties to that certain
Stock Restiction Agreement dated as of February 11, 1991, as amended on December
19, 1991 and June 9, 1993 by and among CTI (as hereinafter defined), Brian E.
Boyle and certain other parties (the "Stock Restriction Agreement") of the
termination (or amendment so as to have the effect of termination as to Boyle)
of the Stock Restriction Agreement as it pertains to Brian E. Boyle, his
successors and assigns, shall be the only conditions to the obligation of the
Settlement Agreement Parties to consummate the transactions contemplated hereby
at the Closing. At the Closing, the applicable parties shall execute and
deliver the foregoing documents which are the subject of the Approval, together
with such powers of attorney, signature pages or other similar evidence of due
execution by the limited partners of the partnerships listed above. If the
Approval is not received by the Termination Date, then the Settlement Agreement
Parties shall have no obligation to consummate the transactions contemplated
hereby, and all rights and obligations of the Settlement Agreement Parties
hereunder shall terminate.
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2. At the Closing, counsel for the Litigants shall execute and deliver a
Stipulation of Dismissal in the form attached hereto as Exhibit F. The fully
executed Stipulation of Dismissal shall be filed, not later than the first
business day following the date of the Closing, in the Middlesex Superior Court
by counsel for the Plaintiffs. Prior to the Closing, Litigants shall cooperate
to defer and extend until after the Termination Date any motions, discovery or
hearings with respect to the Civil Action.
3. At the Closing, the Settlement Agreement Parties, Pamela D.A. Reeve,
William G. Brown, III, RentGrow, Inc., Trade Credit Corp., Dent-A-Med Northeast,
Inc., GWA Information Systems, Inc. and Entrepreneurial Limited Partnership VII
shall execute and deliver a Mutual General Release in the form attached hereto
as Exhibit G (the "Mutual General Release").
4. At the Closing, BEB, Inc. shall issue and deliver to Boyle a promissory
note in the principal amount of $169,050 in the form attached hereto as Exhibit
H (the "Note").
5. At the Closing, Boyle shall execute a stock power in blank sufficient
to permit transfer of all of the common stock, par value $.01 per share, of BEB,
Inc. held by Boyle, and shall deliver such stock power to BEB, Inc. together
with the stock certificate(s) to which such stock power relates.
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6. At the Closing, Boyle shall execute an Assignment of Note in the form
attached hereto as Exhibit I and deliver such Assignment of Note along with the
Note to BEB Limited Partnership I.
7. At the Closing, BEB Limited Partnership I shall deliver to Boyle the
securities listed in Exhibit J hereto under the name of BEB Limited Partnership
I, together with stock powers sufficient to permit transfer attached thereto.
8. At the Closing, BEB Limited Partnership II shall deliver to Boyle the
securities listed in Exhibit J hereto under the name of BEB Limited Partnership
II, together with stock powers sufficient to permit transfer attached thereto.
9. At the Closing, Boyle shall execute a stock power in blank sufficient
to permit transfer of all of the common stock, par value $.01 per share, of
Entrepreneurial, Inc. held by Boyle, and shall deliver such stock power to
Entrepreneurial, Inc. together with the stock certificate(s) to which such stock
power relates.
10. At the Closing, Boyle shall execute and deliver resignations in the
form attached hereto as Exhibit K, which shall effect the removal of Boyle from
the boards of directors and all positions as officer or employee of certain
corporations. Brian E. Boyle acknowledges that he has already been removed from
the board of directors of Dent-A-Med Northeast, Inc. Brian E. Boyle will not
seek legal recourse for any actions which were taken to effectuate his removal
from the position of Chairman of Boyle Leasing Technologies, Inc. The
Plaintiffs and Related Parties
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acknowledge that Boyle is not hereby removed from the Board of Directors of
Boyle Leasing Technologies, Inc., and Boyle acknowledges that he is no longer
Chairman of such corporation. The Settlement Agreement Parties hereby agree
that Boyle holds no interests, as shareholder, optionholder, or otherwise, in
Trade Credit Corp. and GWA Information Systems, Inc. The Settlement Agreement
Parties hereby further acknowledge that Boyle holds no position, as director,
officer, employee or other similar position in, Dent-A-Med Northeast, Inc.,
RentGrow, Inc., Trade Credit Corp. or GWA Information Systems, Inc.
11. At the Closing, Brian E. Boyle and Boyle Corp. shall execute and
deliver a resignation in the form attached hereto as Exhibit L which shall
effect their withdrawal, as applicable, to the extent they have not already
withdrawn, as a General Partner of BEB Limited Partnership II, BEB Limited
Partnership III, BEB Limited Partnership IV and Entrepreneurial Limited
Partnership VI.
12. At the Closing, Boyle shall execute and deliver the Agreements of
Assignment and Assumption relating to his interest in Entrepreneurial Limited
Partnership VI in the form attached hereto as Exhibits M-1 and M-2 and such
Agreements of Assignment and Assumption shall be submitted within twenty days
after the Closing to Amherst College and Cornell University, respectively, for
acceptance on or before December 31, 1996; provided, however, that nothing in
this paragraph shall be construed to prevent Torrence C. Harder from recovering
from Entrepreneurial Limited Partnership VI amounts previously contributed to
the capital
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of Entrepreneurial Limited Partnership VI on behalf of Boyle; and provided,
further, that failure by Amherst College or Cornell University to accepts its
assignment shall result in such interest reverting back to the benefit of
Entrepreneurial Limited Partnership VI and its partners at that time.
13. Each Settlement Agreement Party warrants and represents to the other
Settlement Agreement Parties that his or its execution, delivery and performance
of this Settlement Agreement have been duly authorized and that the individual
executing this Settlement Agreement on behalf of such Settlement Agreement Party
is fully authorized to do so. BEB, Inc., Entrepreneurial, Inc. and Boyle Corp.
shall each deliver at the Closing an officer's certificate certifying such due
authorization and including (i) votes approving the Settlement Agreement and the
transactions contemplated thereby, and (ii) in the case of BEB, Inc., and
Entrepreneurial, Inc., copies of the agreements of limited partnership of BEB
Limited Partnership I, BEB Limited Partnership II, BEB Limited Partnership III,
BEB Limited Partnership IV and Entrepreneurial Limited Partnership VI and all
amendments thereto.
14. This Settlement Agreement and all the terms thereof are, and shall be
treated as, confidential and shall not be disclosed or revealed at any time in
whole or in part to any person or entity except that (i) any Settlement
Agreement Party may disclose this Settlement Agreement or the terms thereof to
any shareholder, officer, director or partner of any entity that signs this
Settlement Agreement or the Mutual General Release, or to any individual who was
deposed in any capacity in the Civil
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Action; (ii) any Settlement Agreement Party may disclose this Settlement
Agreement or the terms thereof under a lawful order of any court or governmental
agency, or as otherwise specifically required by law, regulation or other
controlling legal requirement; (iii) any Settlement Agreement Party may disclose
this Settlement Agreement or the terms thereof to the extent necessary to
enforce such terms; (iv) any Settlement Agreement Party may disclose this
Settlement Agreement or the terms thereof to specific persons or entities with
the prior written consent of the other Settlement Agreement Parties; (v) any
Settlement Agreement Party may disclose this Settlement Agreement or the terms
thereof in connection with and to the extent ordinarily called for in the
preparation of financial statements (and may deliver such financial statements
to any party to which it is legally or contractually bound to do so); and (vi)
any Settlement Agreement Party may disclose this Settlement Agreement or the
terms thereof as may be reasonably required in connection with a due diligence
request relating to an initial public offering or financing. In any instance in
which disclosure of this Settlement Agreement or any terms thereof is believed
to be necessary in order to effect any of clauses (i) through (vi) above, or to
be required under a lawful order of any court or governmental agency, or
otherwise specifically required by law, regulation or other controlling legal
requirement, the Settlement Agreement Party wishing to make such disclosure
shall provide reasonable advance notice to each other Settlement Agreement Party
of its intention to disclose in order to enable the other Settlement Agreement
Parties, if they so desire, to seek to prevent
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such disclosure by appropriate legal means. Such notice need not be given to
each individual entity or individual that is a member of any of the Settlement
Agreement Parties, but will be sufficient if given by first class mail or
overnight delivery service, postage or cost prepaid (as follows):
If to the Plaintiffs or Related Parties:
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Lightbridge, Inc.
281 Winter Street
Waltham, MA 02154
Attention: Chief Executive Officer
BEB, Inc.
281 Winter Street
Waltham, MA 02154
Attention: Chief Executive Officer
Entrepreneurial, Inc.
281 Winter Street
Waltham, MA 02154
Attention: Chief Executive Officer
BEB Limited Partnership I
281 Winter Street
Waltham, MA 02154
Attention: General Partner
BEB Limited Partnership II
281 Winter Street
Waltham, MA 02154
Attention: General Partner
BEB Limited Partnership III
281 Winter Street
Waltham, MA 02154
Attention: General Partner
BEB Limited Partnership IV
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281 Winter Street
Waltham, MA 02154
Attention: General Partner
Entrepreneurial Limited Partnership VI
281 Winter Street
Waltham, MA 02154
Attention: General Partner
With a copy to: Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109
Attention: John D. Patterson, Jr., Esq.
If to Boyle or Boyle Corp.:
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Brian E. Boyle
31 Hallett Hill Road
Weston, MA 02193
With a copy to: Hale and Dorr
60 State Street
Boston, MA 02109
Attention: Thomas L. Barrette, Jr., Esq.
No Settlement Agreement Party shall be deemed to be in violation of this
paragraph to the extent that he or it re-discloses information previously
disclosed by any other Settlement Agreement Party pursuant to said paragraph.
15. In connection with the execution of this Settlement Agreement and
any attachments hereto, including without limitation the Mutual General Release,
and in connection with the options sold by Boyle to the Plaintiffs as set forth
in Section 18 hereof, Boyle specifically acknowledges that Lightbridge, Inc. is
continuing to communicate with investment banks, investors, underwriters and
advisors the result of
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which may be a private placement, or initial public offering, of equity
securities of Lightbridge, Inc. at a price per share that may or may not exceed
the exercise price of the options sold pursuant to the said letter agreement.
Prior to December 28, 1995, Lightbridge, Inc. received and provided to Boyle a
term sheet from Trident Capital, L.L.C. with respect to a private placement of
equity securities and anticipates receiving other such term sheets from venture
capital, corporate or individual investors or other sources of equity financing.
16. From and after the Closing, Boyle on the one hand and the
Plaintiffs, Entrepreneurial, Inc., Entrepreneurial Limited Partnership VI,
Torrence C. Harder, Pamela D.A. Reeve, William G. Brown, III, RentGrow, Inc.,
Trade Credit Corp., Dent-A-Med Northeast, Inc. and GWA Information Systems, Inc.
on the other hand hereby agree to indemnify each other and to hold each other
harmless of and from any cost or liability because of any suit, proceeding, or
litigation brought by Boyle or by the Plaintiffs, Entrepreneurial, Inc.,
Entrepreneurial Limited Partnership VI, Torrence C. Harder, RentGrow, Inc.,
Trade Credit Corp., Dent-A-Med Northeast, Inc. and GWA Information Systems, Inc.
for, or based on, any claim released by the Mutual General Release. In the
event of such suit, proceeding or litigation for, or based on, any claim
released by the Mutual General Release, the prevailing party shall be entitled
to recover from the other Settlement Agreement Party its reasonable attorney's
fees and costs incurred in defending such suit, proceeding or litigation.
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17. The letter agreement of December 28, 1995 is merged into this
Settlement Agreement, which, together with all transactions contemplated hereby
and all agreements, instruments and other documents delivered herewith or at the
Closing (collectively, the "Settlement Documents") constitute the complete and
exclusive agreement among the Settlement Agreement Parties with respect to the
subject matter thereof, and supersede all prior and contemporaneous agreements
and understandings, oral or written, between the Settlement Agreement Parties,
with respect to such subject matter. No representation, promise, proposal,
warranty, covenant, condition, inducement, statement of intention, or other
statement or communication, express or implied, has been made by any Settlement
Agreement Party with respect to such subject matter that has not been set forth
in the Settlement Documents, and no Settlement Agreement Party shall be bound by
any purported representation, promise, proposal, warranty, covenant, condition,
inducement, statement of intention, or other statement or communication, express
or implied, with respect to such subject matter that is not set forth in the
Settlement Documents, and in entering into the Settlement Documents no
Settlement Agreement Party is relying on any representation, promise, proposal,
warranty, covenant, condition, inducement, statement of intention, or other
statement or communication, express or implied, made by any other Settlement
Agreement Party except as expressly set forth in the Settlement Documents.
18. At the Closing, Brian E. Boyle shall sell the Options to the
Plaintiffs other than BEB, Inc. in the denominations and otherwise as set forth
in
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Exhibits N-1 through N-15 hereto upon tender of payment by check in the amount
of $51,000 in the aggregate, plus interest from January 19, 1996 through the
Closing at 8% per annum.
19. Lightbridge, Inc. hereby agrees that after the Closing and in the
event that Brian E. Boyle first delivers to Lightbridge, Inc. an Affidavit of
Lost, Stolen, Mutilated or Destroyed Certificate in form and substance
reasonably satisfactory to Lightbridge, Inc., it shall, consistent with its by-
laws, use its best efforts to issue a new stock certificate to Brian E. Boyle of
like tenor and denomination.
20. Except for those agreements entered into in connection with this
Settlement Agreement, and except for the indemnification provisions set forth in
the partnership agreements of the partnerships that are Settlement Agreement
Parties and in the by-laws of Lightbridge, Inc. with respect to claims arising
before the Closing, from and after the Closing all prior contracts, agreements,
covenants, undertakings, promises, plans and understandings, whether oral or in
writing, between Boyle and any other party to the Mutual General Release are
hereby terminated with no further rights, duties, obligations or liabilities
thereunder, including without limitation (i) the letter from Boyle to Pamela
D.A. Reeve, dated December 16, 1993 and signed by Reeve as President and Chief
Executive Officer of Credit Technologies, Inc. on December 12, 1993; (ii) the
so-called "Amended and Restated Employment and Compensation Agreement" between
Credit Technologies, Inc. ("CTI") and Brian E.
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Boyle dated February 8, 1991; (iii) the Voting Agreement among Brian E. Boyle,
Torrence C. Harder and CTI dated December 31, 1990 (the "Voting Agreement");
(iv) the Incentive and Nonqualified Stock Option and Confidentiality Agreement
dated November 27, 1990 between CTI and Brian E. Boyle; and (v) any agreement
with respect to BEB, Inc.; provided, that Boyle shall promptly return
securities, if any, held pursuant to the Voting Agreement, which agreement shall
be terminated with no further rights, duties, obligations or liabilities
thereunder upon such return. All such contracts, agreements, covenants,
undertakings, promises, plans and understandings that include parties other than
the Settlement Agreement Parties, including without limitation x) the Stock
Restriction Agreement as it pertains to Brian E. Boyle, his successors and
assigns, shall be terminated (or amended so as to have the effect of termination
as to Boyle) from and after the Closing and after agreement to so terminate
among all such other parties that are required to so agree in order to
effectuate such termination. The Settlement Agreement Parties covenant to
execute at the Closing such agreements to terminate and further covenant to use
their best efforts to obtain such agreements to terminate from other relevant
parties, which further covenant shall continue after the Closing if such
agreements are not obtained before the Closing. Upon termination of any such
agreements, Lightbridge, Inc. shall deliver stock certificates without legends
relating to agreements terminated as set forth above in substitution for
certificates having such legends, which certificates shall be delivered by Brian
E. Boyle. The Plaintiffs and Related Parties hereby agree that a)
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BEB Limited Partnership I, BEB Limited Partnership II, BEB Limited Partnership
III, BEB Limited Partnership IV and Entrepreneurial Limited Partnership VII
shall provide annual audited financial statements relating to such entity to
Brian E. Boyle so long as he is a partner in, or creditor of, such partnership
and with respect to any year for which he was a partner or creditor for any part
of the year, b) Lightbridge, Inc., Dent-A-Med, Inc., Dent-A-Med Northeast, Inc.,
GWA Information Systems, Inc., RentGrow, Inc. and Trade Credit Corp. shall
provide annual audited financial statements and quarterly reports relating to
such entities to Brian E. Boyle to the extent that such statements and reports
are distributed to other stockholders or creditors generally and with respect to
any particular corporation if he is and for so long as he shall remain a
stockholder or ceditor of such corporation, and c) BEB, Inc. and
Entrepreneurial, Inc. shall provide Brian E. Boyle with Forms K-1 and all other
information relating to such entities necessary for him to prepare his federal
and state income tax returns.
21. Notwithstanding the generality of the foregoing, nothing herein
shall be construed to have any effect on (i) Boyle's rights, if any, to
indemnification from the Plaintiffs for any claims made against Boyle arising
out of conduct prior to the execution of this Settlement Agreement; or (ii) any
invoices from D. Quinn Mills to Boyle for services rendered as a mediator in the
Civil Action, or on the obligations, if any, of Boyle to make any payment with
respect to the same, or on Boyle's rights,
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if any, to object to or challenge any such invoices or any amounts claimed for
such services.
22. The business, professional, employment and investment activities
of the Settlement Agreement Parties will be unrestricted by this Settlement
Agreement, the Options, or any other agreement, understanding, expectation or
commitment between the Settlement Agreement Parties, except for the limitations
imposed by Paragraph 23 below. The conduct of the Settlement Agreement Parties
hereto will continue to be subject to the laws of this Commonwealth.
23. After the Closing, the Settlement Agreement Parties will return
to each other all materials acquired from each other in the discovery process in
the Civil Action, and will not at any time use, or cause or permit any other
person to use, such materials or any of the information contained therein for
any purpose. Counsel for the respective Settlement Agreement Parties will cause
such materials to be delivered to opposing counsel (identified in paragraph 14
above) within ten (10) days of the Closing.
24. The Settlement Agreement Parties state that they have been
represented by counsel of their choice throughout the negotiation of this
Settlement Agreement, that they fully discussed its terms and conditions with
counsel, and that they fully understood its terms and conditions.
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25. This Settlement Agreement shall be binding upon and inure to the
benefit of the Settlement Agreement Parties and their respective successors in
interest, transferees, heirs and assigns.
26. The Settlement Agreement Parties agree that the terms and
conditions of this Settlement Agreement are valid and enforceable under the laws
of the Commonwealth of Massachusetts and that the Settlement Agreement shall be
governed by and construed in accordance with the substantive law of The
Commonwealth of Massachusetts.
27. This Settlement Agreement may be executed in one or more
counterparts, each of which, when so executed, shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Settlement Agreement Parties have caused this
Settlement Agreement to be executed by their duly authorized officers or agents
as of the date set forth immediately below their respective signatures.
LIGHTBRIDGE, INC. BEB, INC.
By: /s/ William G. Brown By: /s/ Torrence C. Harder
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Title: Chief Financial Officer Title: President
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Date: February 1, 1996 Date: 1 February 1996
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Witness: /s/ Georgia Diamond Witness: /s/ Georgia E. Diamond
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BEB LIMITED PARTNERSHIP I BEB LIMITED PARTNERSHIP II
By: BEB, Inc. By: BEB, Inc.
Its: General Partner Its: General Partner
By: /s/ Torrence C. Harder By: /s/ Torrence C. Harder
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Title: President Title: President
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Date: 1 February 96 Date: 1 February 96
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Witness: /s/ Georgia E. Diamond Witness: /s/ Georgia Diamond
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BEB LIMITED PARTNERSHIP III BEB LIMITED PARTNERSHIP IV
By: BEB, Inc. By: Entrepreneurial, Inc.
Its: General Partner Its: General Partner
By: /s/ Torrence C. Harder By: /s/ Torrence C. Harder
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Title: President Title: President
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Date: 1 February 96 Date: 1 February 96
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Witness: /s/ Georgia Diamond Witness: /s/ Georgia Diamond
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BRIAN E. BOYLE ENTREPRENEURIAL, INC.
By: /s/ Brian Boyle By: /s/ Torrence C. Harder
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Date: 2/3/96 Title: President
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Witness: /s/ Polly Marmaduke Date: 1 February 96
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Witness: /s/ Georgia E. Diamond
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ENTREPRENEURIAL LIMITED TORRENCE C. HARDER
PARTNERSHIP, VI
By: Entrepreneurial, Inc. /s/ Torrence C. Harder
----------------------------------------
Its: General Partner
Date: 1 February 96
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By: /s/ Torrence C. Harder Witness: /s/ Georgia Diamond
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Title: President
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Date: 1 February 96
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Witness: /s/ Georgia Diamond
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BOYLE CORP.
By: /s/ Brian Boyle
--------------------------
Title: President
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Date: 2/3/96
-------------------------
Witness: /s/ Polly Marmaduke
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