Exhibit 10.1
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT dated as of July 2, 2001, by and among Return Assured,
Inc. ("Return"), and Eli E. Hertz ("Hertz").
WHEREAS, Hertz has commenced a law suit (the "Law Suit") against Return by
motion for summary judgment in the Supreme Court of New York (the "Court"),
Index Number 2602416 seeking the collection of the principal plus interest on
Return's $290,000 Note of October 16th, 2000 (the "Note") payable to the order
of Hertz; and
WHEREAS, the argument on the motion has been scheduled by the Court for
September 5, 2001; and
WHEREAS, parties have heretofore agreed to settle this matter on the terms
and conditions hereinafter set forth.
NOW THEREFORE, it is agreed as follows:
1. Acknowledgment of Debt. Return acknowledges its debt to Hertz on the
Note for $200,000 representing the principal of the Note (after deduction of
$90,000 paid in connection with the vacation of the premises of 75 Varick
Street) plus $10,000 representing interest at the rate of 10% per annum from
October 16, 2000 to April 17, 2001, its maturity date, plus interest from April
17, 2001 to the date of payment at the rate of 21% per annum (collectively the
"Settlement Sum").
2. Dismissal of Law Suit. The law suit shall be dismissed with prejudice
and counsel for the parties have executed a stipulation to this effect for
filing with the Court.
3. Payment of Debt. Return agrees to pay Hertz the Settlement Sum by
delivering to him a certified or cashier's check in that amount on or before the
close of business on October 8, 2001 (the "Closing Date").
4. Pledge of Hergo Stock. Return has agreed to secure the Settlement Sum
by pledging and delivering to the Escrow Agent as hereinafter provided, 200
shares of the Common Stock of Hergo Ergonomics Support Systems, Inc., its wholly
owned subsidiary ("Hergo"), representing all the issued and outstanding Hergo
Stock.
5. Return's Representations and Warrants. Return represents and warrants
that it has the authority to enter into and to perform this Settlement
Agreement, that the 200 shares of Hergo Common Stock which it is delivering to
the Escrow Agent, represents all the issued and outstanding stock of Hergo and
that Hertz upon acquiring the title to the Hergo stock, pursuant to this
Agreement, will own the stock, free and clear of any claims or encumbrances
whatsoever. This representation is based on the assumption that Hertz
Technology Group, Inc. owned all the outstanding shares of Hergo consisting of
200 shares at the time of its merger with Return under the Agreement and Plan of
Merger made as of July 13, 2000.
6. Return's Covenant.
Return covenants that:
(a) it will not suffer or take any action which will impair the
effectiveness and validity of this agreement or the right of Hertz to acquire
full and unfettered title to the outstanding stock of Hergo pursuant to the
terms of this Agreement and
that it will not issue any additional shares or rights to acquire any
additional shares of Hergo stock.
(b) it will from the date hereof through and including the date the
Hergo Stock is distributed by the Escrow Agent under either 8(a) or (b)
notify Hertz and the Escrow Agent immediately if any claim has been
asserted by any stockholder or creditor of Return or by any other party
making a claim directly or indirectly challenging the validity of the
collateral security arrangement provided herein or the right of Hertz upon
assuming possession of the Hergo Stock under Section 8(a) to own sole title
to all the issued and outstanding stock of Hergo free and clear of any
encumbrances, liens or assessments with a description of any such claims
(the "Return Notification")
7. Escrow Documents. To give effect to the understanding of the parties,
Return and/or Hertz has delivered the following documents (the "Escrow
Documents") to Morse, Zelnick, Rose & Lander, LLP (the "Escrow Agent") who has
agreed to act as escrow agent under the terms and conditions set forth herein:
(a) A duly executed affidavit for confession of judgment (the
"Confession of Judgment") by Return in the amount of $210,000 plus interest
at 21% per annum from April 17, 2001 to the date of payment;
(b) Certificates for 200 shares of Common Stock of Hergo, together
with duly executed Stock Powers endorsed in blank ("the Hergo Stock");
(c) General release of Hertz by Return (the "Return Release"); and
(d) General release of Return by Hertz (the "Hertz Release")
8. Disposition of Escrow Documents. The Escrow Agent shall dispose of the
documents held in escrow as follows:
(a) If the Settlement Sum is received by Hertz on or before the
Closing Date, the Escrow Agent shall return the Hergo Stock and the
Confession of Judgment to Return and shall deliver the Return Release to
Hertz and the Hertz Release to Return;
(b) If the Settlement Sum is not received by Hertz on or before the
Closing Date and Hertz so notifies the Escrow Agent, with copy to Return,
(the "Default Notice"):
(i) the Escrow Agent shall within five (5) business days after the
receipt of the Default Notice deliver the Hergo Stock to Hertz and, if
no Return Notification, as defined in Section 6(b) (or notice by Hertz
that a claim of the type described in Section 6(b) has been asserted
directly against him), shall have been received by the Escrow Agent,
or if not so received and Hertz does not make the election in Section
8(b)(ii) below, the Escrow Agent shall also deliver the Return Release
to Hertz and shall deliver the Confession of Judgment and Hertz
Release to Return. Return and Hertz acknowledge that the Hergo Stock
delivered to Hertz under this subsection shall be taken by Hertz in
full and complete satisfaction of the Settlement Sum and any and all
obligations covered by the Hertz Release; or
(ii) if a Return Notification, as defined in Section 6(b) (or a notice
by Hertz that a claim of the type described in Section 6(b) has been
asserted
directly against him), is received by the Escrow Agent prior to the
return of the Hergo Stock, under Section 8(b) and Hertz by notice to
Return and the Escrow Agent elects to retain the Confession of
Judgment and to take possession of the Hergo Stock not in satisfaction
of Return's obligation but as collateral security for the payment of
the Confession of Judgment, the Escrow Agent shall also deliver to
Hertz the Confession of Judgment and in this case destroy the Hertz
Release and the Return Release. The Hergo Stock when delivered to
Hertz shall be held by him as a Secured Party, as defined under the
New York Uniform Commercial Code, securing the payment of the
Confession of Judgment.
9. General Terms and Standards Regarding the Escrow Agent. Notwithstanding
any terms of this Agreement to the contrary, each term of this Agreement,
including without limitation each of the stated duties and responsibilities of
the Escrow Agent set forth herein, shall be subject to the following terms and
conditions:
(a) The duties, responsibilities and obligations of the Escrow Agent
shall be limited to those expressly set forth in this Agreement (and the duty
to exercise reasonable care in the physical safekeeping of the Escrow
Documents), and no implied duties, responsibilities or obligations shall be
read into this Agreement against the Escrow Agent. Without limiting the
generality of the foregoing, the Escrow Agent shall have no duty to take action
to preserve or exercise rights in any property held by it hereunder (including
without limitation against prior parties or otherwise).
(b) The Escrow Agent shall not be subject to, bound by, charged with
notice of or be required to comply with or interpret any agreement or document
between
or among the parties (whether or not reference to any such other agreement or
documents expressed herein) other than this Agreement.
(c) The Escrow Agent shall in no instance be under any duty to give any
property held by it hereunder any greater degree of care than it gives its own
similar property.
(d) The Escrow Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction, statement,
request, waiver, order, judgment, certification, consent, receipt or other
paper or document furnished to it (not only as to genuineness, but also as to
its due execution and validity, the genuineness of signatures appearing thereon
and as to the truth and accuracy of any information therein contained), which it
in good faith believes to be genuine and signed or presented by the proper
person.
(e) Neither the Escrow Agent nor any of its partners or employees shall be
liable to anyone for any error of judgment, or for any act done or step taken
or omitted to be taken by it or any of its partners or employees, or for any
mistake of fact or law, or for anything which it, or any of its partners or
employees, may do or refrain from doing in connection with or in the
administration of this Agreement, unless and except, to the extent the same
constitutes gross negligence, or willful misconduct on the part of the Escrow
Agent. In no event shall the Escrow Agent be liable for any indirect, punitive,
special or consequential damages.
(f) The Escrow Agent may consult with, and obtain advice from, legal
counsel with respect to any question as to any of the provisions hereof or its
duties hereunder, or any matter relating hereto, and the opinion of such counsel
shall be full and
complete authorization and protection in respect of any action reasonably
taken, suffered or omitted by the Escrow Agent in good faith in accordance with
the opinion and directions of such counsel.
(g) The Escrow Agent shall not be deemed to have notice of any fact,
claim or demand with respect hereto unless actually known by a partner charged
with responsibility for administering this Agreement or unless in writing
received by the Escrow Agent and making specific reference to this Agreement.
(h) No provision of this Agreement shall require the Escrow Agent to
expend or risk its own funds, or to take any legal or other action hereunder
which might in its judgment involve it in, or require it to incur in connection
with the performance of its duties hereunder, any expense or any financial
liability unless it shall be furnished with indemnification acceptable to it.
(i) Any permissive right of the Escrow Agent to take any action hereunder
shall not be construed as duty.
(j) All indemnifications contained in this Agreement shall survive the
resignation or removal of the Escrow Agent, and shall survive the termination
of this Agreement.
(k) In no event shall the Escrow Agent have any liability for any failure
or inability of any of the parties to perform or observe its duties under the
Agreement, or by reason of a breach of this Agreement by either of the parties.
In no event shall the Escrow Agent be obligated to take any action against
either of the Parties to compel performance hereunder.
(l) The Escrow Agent shall in on instance be obligated to commence,
prosecute or defend any legal proceedings in connection herewith. The Escrow
Agent shall be authorized and entitled, however, in any instance to commence,
prosecute or defend any legal proceedings in connection herewith, including
without limitation any proceeding it may deem necessary to resolve any matter or
dispute, to obtain a necessary declaration of rights, or to appoint a successor
upon resignation (and after failure by the Parties to appoint a successor, as
provided in Section 7).
(m) In the event of any ambiguity or uncertainty under this
Agreement, or in any notice, instruction or other communication received by the
Escrow Agent hereunder, the Escrow Agent may, in its reasonable discretion,
refrain from taking action, and may retain any of the documents held in escrow,
until and unless it receives written instruction signed by all parties, or a
decision by a court of competent jurisdiction which eliminates such uncertainty
or ambiguity.
(n) If at any time the Escrow Agent is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial
administrative process which in any way relates to or affects the Escrow
Documents (including but not limited to orders of attachment or garnishment or
other forms of levies or injunctions or stays relating to the Escrow Document),
the Escrow Agent is authorized to comply therewith in any manner as it or its
legal counsel reasonably deems appropriate; and if the Escrow Agent complies
with any such judicial or administrative order, judgment, decree, writ or other
form of judicial or administrative process, the Escrow Agent shall not be liable
to any of the parties hereto or to any other person or entity notwithstanding
that though such order, judgment, decree, writ or process may be subsequently
modified,
annulled, set aside, vacated, found to have been without proper jurisdiction,
or otherwise determined to have been without legal force or effect.
10. Indemnification. Each of Hertz and the Return, jointly and severally,
hereby covenants and agrees to indemnify the Escrow Agent for, and to defend and
hold harmless the Escrow Agent from and against, any and every loss, liability,
damage, claim, cost and expense of any nature incurred or suffered by the Escrow
Agent and arising out of or in connection with this Agreement or the
administration of this Agreement or the performance or observance by the Escrow
Agent of its responsibilities or services under this Agreement (including but
not limited to attorneys fees and other costs and expenses of defending or
preparing to defend against any claim or liability or of advising the Escrow
Agent as to its duties hereunder), unless and except to the extent such loss,
liability, damage, cost or expense shall be caused by the Escrow Agent's own
willful misconduct, bad faith or gross negligence.
11. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly delivered on the
first business day after it is sent (as evidenced by its postmark) by registered
or certified mail, return receipt requested, postage prepaid, or on the first
business, day after it is sent (as evidenced by the courier's receipt) via a
reputable overnight courier service, in each case to the intended recipient as
set forth below:
If to Return Assured:
Matt Sebal, President
Return Assured, Inc.
885 West Georgia
Suite 2240
Vancouver, BC V6C 3E8
Canada
With Copy to:
Kaplan Gottbetter & Levinson, LLP
630 Third Avenue
New York, NY 10017-6705
Attn: Steven M. Kaplan, Esq.
If to Hertz:
Eli E. Hertz
24 Greenway South
Forest Hills, N.Y. 11375
With copy to
Morse, Zelnick, Rose & Lander, LLP
450 Park Avenue
New York, NY 10022
Attn: Howard L. Weinreich, Esq.
Fax: (212) 838-9190
If to Escrow Agent
Morse, Zelnick, Rose & Lander
450 Park Avenue
New York, NY 10022
Attn: Howard L. Weinreich
Fax: (212) 838-9190
Any party may give any notice, request, demand, claim or other
communication hereunder by personal delivery or telecopy, but no such notice,
request, demand, claim or
other communication shall be deemed to have been duly given unless and until it
actually is received by the party for whom it is intended.
Any party may change the address to which notices, requests, demands,
claims and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth. Copies of any notice,
request, demand, claim or other communication hereunder by personal delivery or
telecopy given to the Escrow Agent by either party, shall be delivered to the
other party as soon thereafter as practicable.
13. Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow Agent
may resign and be discharged from its duties or obligations hereunder by
delivering a resignation to the parties to this Agreement, not less than 60 days
prior to the date when such resignation shall take effect. Hertz may appoint a
successor Escrow Agent with the consent of Return, which shall not be
unreasonably withheld. If, within such notice period, Hertz provides to the
Escrow Agent written instructions with respect to the appointment of a successor
Escrow Agent and directions for the transfer of the Escrow Documents then held
by the Escrow Agent to such successor, the Escrow Agent shall act in accordance
with such instructions and promptly transfer the Escrow Property to such
designated successor. If no successor is so appointed, the Escrow Agent may
apply to a court of competent jurisdiction for such appointment.
14. General.
(a) Governing Law, Assigns. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York of the United States without regard to conflict-of-law principles and
shall be binding upon, and
inure to the benefit of, the parties hereto and their respective heirs,
successors and assigns.
(b) Counterparts. 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.
(c) Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties with respect to the subject matter
of this Agreement and supersedes all prior agreements or understandings,
written or oral, between the parties with respect to the subject matter hereof.
(d) Waivers. No waiver by any party hereto of any condition or of
any breach of any provision of this Escrow Agreement shall be effective unless
in writing. No waiver by any party of any such condition or breach, in any one
instance, shall be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
(e) Amendment. This Agreement may be amended only with the written
consent of the parties and the Escrow Agent.
(f) Cooperation. The parties hereto shall cooperate with each other
in the matters covered by this Agreement and shall execute and exchange such
documents as may be necessary or desirable to give effect to transactions
contemplated hereunder.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
/s/ Eli E. Hertz
___________________________
ELI E. HERTZ
RETURN ASSURED, INC.
By:________________________
Escrow Terms Agreed to and Accepted:
Morse, Zelnick, Rose & Lander, LLP, Escrow Agent
By: /s/ Howard L. Weinreich
_______________________________
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
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ELI E. HERTZ
RETURN ASSURED, INC.
By: /s/ Matt Sebal
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Escrow Terms Agreed to and Accepted:
Morse, Zelnick, Rose & Lander, LLP, Escrow Agent
By:
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