Exhibit 10.8
SETTLEMENT AGREEMENT AND RELEASES
This Settlement Agreement and Releases ("Settlement Agreement") is made as
of June 30, 2005, by and among Michael L. Kovens, on the one side, and Universal
Security Instruments, Inc., a Maryland corporation, the Estate of Stephen C.
Knepper, Harvey B. Grossblatt, Ronald A. Seff, M.D., Howard Silverman, Ph.D.,
and Cary Luskin, on the other side. The parties to this Settlement Agreement are
sometimes referred to herein as the "Parties," and separately from time to time
as a "Party."
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by each Party, the aforesaid Parties hereby covenant and
agree as follows:
1. The "Effective Date of Release" shall be June 30, 2005.
2. For purposes of this Settlement Agreement, the following definitions
shall apply:
(a) "Kovens" shall mean Michael L. Kovens.
(i) "Kovens Group" shall mean Kovens and his heirs,
executors, administrators, trustees, attorneys-in-fact, personal
representatives, successors, assigns and any and all persons or entities
claiming by, through or on behalf of Kovens.
(b) "USI" shall mean Universal Security Instruments, Inc., a
Maryland corporation.
(i) "USI Group" shall mean USI and its past, present and
future parents, subsidiaries, divisions, affiliates, predecessors, successors,
trustees and assigns, and the past, present and future officers, directors,
stockholders, agents, attorneys, representatives and employees (for matters
relating in any way to their capacities as officers, directors, stockholders,
agents, attorneys, representatives or employees) of USI and the other
before-mentioned entities, and the heirs, executors, personal representatives,
administrators, successors and assigns of the before-mentioned individuals.
(c) "Knepper Estate" shall mean the Estate of Stephen C. Knepper,
which is presently being probated in Baltimore County, Case No. 131444.
(i) "Knepper Estate Group" shall mean the Knepper Estate and
Stephen C. Knepper's heirs, executors, administrators, trustees,
attorneys-in-fact, personal representatives, successors and assigns.
(d) "Grossblatt" shall mean Harvey B. Grossblatt.
(i) "Grossblatt Group" shall mean Grossblatt and his heirs,
executors, administrators, trustees, attorneys-in-fact, personal
representatives, successors and assigns.
(e) "Seff" shall mean Ronald A. Seff, M.D.
(i) "Seff Group" shall mean Seff and his heirs, executors,
administrators, trustees, attorneys-in-fact, personal representatives,
successors and assigns.
(f) "Silverman" shall mean Howard Silverman, Ph.D.
(i) "Silverman Group" shall mean Silverman and his heirs,
executors, administrators, trustees, attorneys-in-fact, personal
representatives, successors and assigns.
(g) "Luskin" shall mean Cary Luskin.
(i) "Luskin Group" shall mean Luskin and his heirs,
executors, administrators, trustees, attorneys-in-fact, personal
representatives, successors and assigns.
(h) As used in this Settlement Agreement, all references to
any "Group" as defined above shall include, individually, separately, jointly,
collectively and otherwise, the "Group" and each and every one of its members.
(i) "SEC" shall mean the United States Securities and
Exchange Commission.
(j) "Securities Act" shall mean the Securities Act of 1933,
15 U.S.C. ss.ss. 77a, et seq.
(k) "Registration Statement" shall have the meaning set
forth in paragraph 5 below.
(l) "Common Stock" shall mean the common stock of USI with
par value of $0.01 per share.
(m) "Registered Shares" shall mean those shares of USI's
Common Stock owned by Kovens, directly or indirectly, and registered pursuant to
the Registration Statement.
(n) The "Closing" of the transactions as set forth in this
Settlement Agreement shall take place at the offices of Venable LLP in Towson,
Maryland, on July 12, 2005, at 10:00 a.m. or at such other time or in such other
way as the Parties may agree.
(o) "Lawsuit" shall mean the litigation pending in the
Circuit Court for Baltimore County, Maryland, entitled Michael L. Kovens v.
Universal Security Instruments, Inc., Case No. 03-C-03-009639.
(p) "Claim" or "Claims" shall mean and include all and every
manner of action and actions, cause and causes of action, or any and all claims,
demands and liabilities whatsoever of every name and nature, whether in
contract, tort or otherwise or by statute, whether known or unknown, suspected
or unsuspected, accrued or unaccrued, in law, equity or otherwise. "Claim" and
"Claims" shall include, but not be limited to, any and all claims or causes of
action (i) asserted in or that could have been asserted in the Lawsuit, (ii)
arising out of or relating in any way to the facts, circumstances, damages or
occurrences alleged in and/or giving rise to the Lawsuit, or (iii) arising out
of or relating in any way to any stock or other interest in USI, including any
affiliates, subsidiaries or divisions of USI, owned directly or indirectly by
Kovens or the Kovens Group.
3. USI shall pay to Kovens at the Closing the sum of One Hundred Fifty
Thousand Dollars ($150,000.00), by check made payable to "Escrow Account of
Cooter, Mangold, Tompert & Karas, L.L.P."
4. At the Closing, and pursuant to Kovens' letter of June 6, 2002,
exercising the option under that certain Non-Qualified Stock Option Agreement
dated June 11, 1997 between USI and Kovens, Kovens shall deliver to USI a check,
made payable to "Universal Security Instruments, Inc.," in the amount of
Forty-Five Thousand Dollars ($45,000), and USI shall deliver to Kovens a stock
2
certificate representing Twenty Thousand (20,000) registered shares of USI's
Common Stock. As directed by Kovens, USI shall issue to Kovens a Form 1099 for
calendar year 2005 based on the adjusted post-stock split value of the stock as
of June 6, 2002 of $2.40 per share, the date on which Kovens gave notice of his
exercise of the said option. Kovens shall be solely responsible for any tax
consequences or liability arising out of or as a result of the exercise of this
option as provided in this paragraph 4, and he shall indemnify and hold USI and
the USI Group harmless from any tax consequences or liability.
5. Within seventeen (17) days after the Closing, and provided that
Kovens has supplied the information described in paragraph 7, below, on or
before July 8, 2005, USI shall file with the SEC a registration statement on
Form S-3 (the "Registration Statement") under and in accordance with the
provisions of the Securities Act, with respect to the offer and sale by Kovens
of all of the 332,719 shares, which amount includes all of the shares acquired
by Kovens under paragraph 4 above, of USI's Common Stock owned by Kovens,
directly or indirectly. USI shall exercise its reasonable efforts to cause the
Registration Statement to be declared effective as soon as practically possible
following the filing.
6. USI will use its reasonable efforts to cause the Registration
Statement to become and remain continuously effective until the earlier of (a)
all of the Registered Shares covered by the Registration Statement having been
sold in accordance with Kovens' intended method of disposition set forth in such
Registration Statement, or (b) one year after the Registration Statement has
been declared effective; provided, that if, at any time during such one-year
period, the closing price of the Common Stock, as reported by the American Stock
Exchange (or such other stock exchange or listing on which Common Shares of USI
may be listed at the time), is under Ten Dollars ($10.00) per share (as adjusted
for stock splits, stock dividends or similar corporate actions subsequent to the
date hereof) for ten (10) consecutive trading days, then such one-year
requirement for maintaining the effectiveness of the Registration Statement
shall be extended an additional year for a total of two years. Kovens shall use
all reasonable efforts to sell all of his shares of USI's Common Stock during
the effective period of the Registration Statement.
7. In connection with the filing by USI of the Registration Statement,
USI is required to provide the information set forth on Exhibit 1 with regard to
Kovens. Kovens hereby warrants and represents to USI, with the express
understanding that USI will rely on such representations and warranties, that
(i) all information required to be provided pursuant to Exhibit 1 will be
provided in writing by July 8, 2005, and all information set forth on and/or
provided pursuant to Exhibit 1 is accurate and complete in all material respects
and does not contain any untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) he is not a broker-dealer or any affiliate of a
broker-dealer; and (iii) at the time Kovens acquired the Registered Shares, he
did not have any agreements or understandings, directly or indirectly, with any
person or entity to distribute those Registered Shares. Kovens shall immediately
notify USI of any change or supplement to any of the information set forth
herein or on Exhibit 1.
8. In connection with the Registration Statement, USI shall be
responsible only for the SEC registration fees and USI's accounting and legal
fees and expenses. USI shall not be liable for any legal, accounting,
commission, transfer or any other fees or expenses of Kovens.
9. At the Closing, Kovens shall deliver to USI a signed letter
withdrawing his nomination for election as a Director at USI's 2005 Annual
Meeting in the form attached hereto as Exhibit 2. Within five (5) business days
of the Closing, Kovens shall file with the SEC an amendment to his Schedule 13D
filing reporting that he has withdrawn his nomination/ candidacy for the Board
of Directors. Kovens shall not in the future seek to be elected as a member of
USI's Board of Directors or to have any role in the management of USI. Kovens
shall not permit himself or consent to be nominated, nor shall he accept any
nomination, to be a member of USI's Board of Directors.
10. Kovens hereby expressly acknowledges that Seff, Silverman and Luskin
are qualified and competent to be Directors of USI, and that they qualify as
"independent" Directors.
3
11. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the USI Group, individually, separately, jointly, collectively and otherwise, of
and from any and all Claim or Claims which Kovens ever had, now has, or
hereafter can, shall or may have against the USI Group, individually,
separately, jointly, collectively and otherwise, for, upon, or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the
Effective Date of Release; provided, however, that nothing in this paragraph
shall affect any right that Kovens may have in the future under USI's Charter or
Bylaws to indemnity for any subsequent proceeding brought against Kovens by
reason of his service as an officer or director of USI. Kovens expressly
represents and warrants that, as of the Effective Date, he has no knowledge or
information about any claim or proceeding that would cause him to seek indemnity
from USI.
12. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Knepper Estate Group, individually, separately, jointly, collectively and
otherwise, of and from any and all Claim or Claims which Kovens ever had, now
has, or hereafter can, shall or may have against the Knepper Estate Group,
individually, separately, jointly, collectively and otherwise, for, upon, or by
reason of any matter, cause or thing whatsoever, from the beginning of the world
to the Effective Date of Release. In addition to the foregoing release, Kovens
shall deliver at the Closing an appropriate document dismissing with prejudice
and withdrawing any and all claims made by or on behalf of the Kovens Group in
the administration or probate of the Knepper Estate.
13. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Grossblatt Group, individually, separately, jointly, collectively and
otherwise, of and from any and all Claim or Claims which Kovens ever had, now
has, or hereafter can, shall or may have against the Grossblatt Group,
individually, separately, jointly, collectively and otherwise, for, upon, or by
reason of any matter, cause or thing whatsoever, from the beginning of the world
to the Effective Date of Release.
14. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Seff Group, individually, separately, jointly, collectively and otherwise,
of and from any and all Claim or Claims which Kovens ever had, now has, or
hereafter can, shall or may have against the Seff Group, individually,
separately, jointly, collectively and otherwise, for, upon, or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the
Effective Date of Release.
15. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Silverman Group, individually, separately, jointly, collectively and
otherwise, of and from any and all Claim or Claims which Kovens ever had, now
has, or hereafter can, shall or may have against the Silverman Group,
individually, separately, jointly, collectively and otherwise, for, upon, or by
reason of any matter, cause or thing whatsoever, from the beginning of the world
to the Effective Date of Release.
16. Kovens, for himself and for the Kovens Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Luskin Group, individually, separately, jointly, collectively and otherwise,
of and from any and all Claim or Claims which Kovens ever had, now has, or
hereafter can, shall or may have against the Luskin Group, individually,
separately, jointly, collectively and otherwise, for, upon, or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the
Effective Date of Release.
17. Kovens, for himself and the Kovens Group, hereby covenants and
agrees that except with respect to the enforcement of this Agreement, he will
not file, bring, continue, or initiate any lawsuit, claim, complaint, or
judicial, administrative or other proceeding, against any member of any of the
Groups, namely, the USI Group, the Knepper Estate Group, the Grossblatt Group,
4
the Seff Group, the Silverman Group or the Luskin Group, individually,
separately, jointly, collectively, in any capacity, including as an officer or
director of USI, making claims for either monetary damages or equitable relief
based upon any future actions of any member of any of the Groups alleging breach
of fiduciary duty, fraud, breach of contract, negligence or claims for dilution.
18. USI, for itself and for the USI Group, does hereby irrevocably and
unconditionally release, acquit, exonerate and forever discharge the Kovens
Group, individually, separately, jointly, collectively and otherwise, of and
from any and all Claim or Claims which USI ever had, now has, or hereafter can,
shall or may have against the Kovens Group, individually, separately, jointly,
collectively and otherwise, for, upon, or by reason of any matter, cause or
thing whatsoever, from the beginning of the world to the Effective Date of
Release.
19. Grossblatt, for himself and for the Grossblatt Group, does hereby
irrevocably and unconditionally release, acquit, exonerate and forever discharge
the Kovens Group, individually, separately, jointly, collectively and otherwise,
of and from any and all Claim or Claims which Grossblatt ever had, now has, or
hereafter can, shall or may have against the Kovens Group, individually,
separately, jointly, collectively and otherwise, for, upon, or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the
Effective Date of Release.
20. At the Closing, Kovens shall deliver to USI for filing in the
Lawsuit the original of a Stipulation of Dismissal with Prejudice in the form
attached hereto as Exhibit 3 signed on his behalf by his attorney of record.
21. At the Closing, Kovens shall also deliver to USI all originals and
copies of lists of shareholders of USI. Kovens expressly represents and confirms
that he has not retained in any form any copy of a USI shareholder list or any
part thereof, has not given a copy of a shareholder list to anyone else, and
agrees not to request in the future lists of USI shareholders.
22. The Parties enter into this Settlement Agreement as a settlement and
compromise of disputed Claims. It is expressly understood and agreed that
neither execution of this Settlement Agreement, nor the tender or receipt of any
payment, nor the performance of any obligations recited herein is intended or
shall be understood as an acknowledgment of responsibility, admission of
liability, or other expression reflecting upon the merits of any dispute or
Claim among the Parties.
23. The Parties agree that the existence and terms of this Settlement
Agreement are strictly confidential and shall not be disclosed to any other
person or entity, except to the extent necessary to carry out the terms and
conditions of this Settlement Agreement or as may be required by law, process,
stock exchange rules or financial reporting obligations, which shall include
disclosure to USI's outside professional advisors.
24. The terms of this Settlement Agreement are contractual and not a
mere recital, and the Parties hereto expressly represent and warrant to each
other that each possesses the full and complete authority to covenant and agree
as herein provided, and further represent and warrant to each other that each
has the full and complete authority to execute this Settlement Agreement.
25. This Settlement Agreement shall in all respects be governed by, and
be construed in accordance with, the internal laws of the State of Maryland,
including, without limitation, in relation to all matters of formation,
interpretation, construction, validity, performance, and enforcement. The
drafting of this Settlement Agreement was the product of negotiations by all
Parties, and the language of all parts of the Settlement Agreement shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against any of the Parties. The use herein of the words "and" or "or"
shall mean "and/or" and the use herein of the singular shall include the plural
and vice versa.
5
26. This Settlement Agreement shall be construed without regard to any
presumption or other rule requiring construction against the Party who caused it
to have been drafted. No Party shall be considered the drafter of this
Settlement Agreement.
27. This Settlement Agreement constitutes the sole and entire agreement
between the Parties in relation to the subject matter, and shall supersede and
extinguish any and all prior agreements, whether in writing or oral, in relation
to the subject matter of this Settlement Agreement. No term or provision of this
Settlement Agreement may be varied, changed, modified, waived, or terminated
orally but only by an instrument in writing signed by the Party against whom the
enforcement of the variation, change, modification, waiver, or termination is
sought. The waiver by any Party hereto of any breach of any provision of this
Settlement Agreement shall not constitute or operate as a waiver of any other
breach of any such provision or of any other provision hereof, nor shall any
failure to enforce any provision hereof operate as a waiver at such time or at
any future time of such provision or of any other provision hereof.
28. Each Party represents, agrees and acknowledges that such Party has
been advised of and has discussed all aspects of this Settlement Agreement
thoroughly with such Party's attorneys, that such Party has had a reasonable
amount of time in which to review and consider this Settlement Agreement, that
such Party has read and understands all of the provisions herein, that such
Party is competent to enter into this Settlement Agreement, and that such Party
is entering into this Settlement Agreement knowingly and voluntarily of such
Party's own free will. Each Party further represents that in executing this
Settlement Agreement, such Party does not rely on inducements, promises or
representations made by anyone other than those embodied in this Settlement
Agreement.
28. No determination by any court, governmental or administrative body
or otherwise that any provision of this Settlement Agreement or any amendment
hereof is illegal, invalid or unenforceable in any instance shall affect the
validity or enforceability of (i) such provision in any circumstance not
controlled by such determination or (ii) any other provision of this Settlement
Agreement. Each provision shall be valid and enforceable to the fullest extent
allowed by, and shall be construed whenever possible as being consistent with,
applicable law. In the event that any provision hereof is declared illegal,
invalid or unenforceable, such provision shall be deleted from the Settlement
Agreement, the remainder of the Settlement Agreement shall continue in full
force and effect, and the Parties hereto shall promptly agree to a similar
provision having, to the extent allowed by law, an effect as close as possible
to the provision rendered illegal, invalid or unenforceable.
30. The Parties agree that any dispute arising out of or relating to
this Settlement Agreement, or the breach thereof, or any other dispute between
or among any member of the USI Group and any member of the Kovens Group
regarding any matter involving or relating in any way to USI or its business,
shall be settled by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, with any hearing(s) to be
conducted in Baltimore, Maryland. Notwithstanding the Commercial Arbitration
Rules, the Parties agree that discovery will be conducted pursuant to the
Federal Rules of Civil Procedure. In the event that either party submits a
dispute to arbitration, the losing party will be responsible for paying the
prevailing party's attorneys' fees and costs. Judgment on the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction thereof.
31. This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement shall become effective
when each party hereto shall have received counterparts hereof signed by all
Parties hereto. Delivery of the fully executed Settlement Agreement to all
Parties shall be made at the Closing.
6
IN WITNESS WHEREOF, Michael L. Kovens, Harvey B. Grossblatt, Ronald A.
Seff, M.D., Howard Silverman, Ph.D, and Cary Luskin have each executed this
Settlement Agreement under seal, and the Estate of Stephen C. Knepper and
Universal Security Instruments, Inc. have each caused this Settlement Agreement
to be executed under seal by its duly authorized representative.
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Michael L. Kovens
Date: June 30, 2005
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Harvey B. Grossblatt
Date: June 30, 2005
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Ronald A. Seff, M.D.
Date: July ___, 2005
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Howard Silverman, Ph.D.
Date: July ___, 2005
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Cary Luskin
Date: July ___, 2005
ESTATE OF STEPHEN C. KNEPPER
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Witness Title: Personal Representative
Date: July ___, 2005
ATTEST: UNIVERSAL SECURITY INSTRUMENTS, INC.
/s/ /s/
- --------------------------- ---------------------------(SEAL)
Harvey B. Grossblatt
Title: President
Date: June 30, 2005
7
EXHIBIT 1
Information with respect to Kovens to be included in the
Registration Statement pursuant to paragraph 7 of the Settlement Agreement:
Name Michael L. Kovens
Nature of any position, Director until September 2003;
office, or other material Stockholder; Transactions described
relationship which Kovens has in this Agreement
had within the past three
years with USI or any of its
predecessors or affiliates
Nature of acquisitions of All Registered Shares were acquired
Registered Shares by Kovens directly from USI by
original subscriptions, by gifts
from his father prior to 1988,
pursuant to the exercise of options
under USI's Stock Option Plan,
through stock dividends, or open
market purchases. Kovens shall
provide the Company with details,
including dates of purchase and
amounts, of all open market stock
purchases.
Number of shares of USI's 332,719
Common Stock owned by Kovens
prior to the offering
Number of shares of USI's 332,719
Common Stock to be offered
for Kovens' account
Number of shares of USI's 0
Common Stock to be owned by
Kovens after the completion
of the offering
If the securities are to be offered through the selling efforts of brokers or
dealers, Kovens shall also provide the following information: description of the
plan of distribution and the terms of any agreement, arrangement, or
understanding entered into with broker(s) or dealer(s) prior to the effective
date of the registration statement, including volume limitations on sales,
parties to the agreement and the conditions under which the agreement may be
terminated. If known, identify the broker(s) or dealer(s) which will participate
in the offering and state the amount to be offered through each. Kovens shall
also describe any other planned distribution.
EXHIBIT 2
Michael L. Kovens
6 Regency Court
Baltimore, Maryland 21208
Dated: July 1, 2005
Universal Security Instruments, Inc.
7-A Gwynns Mill Court
Owings Mills, Maryland 21117
Attention: Harvey B. Grossblatt
Dear Mr. Grossblatt:
I hereby withdraw my nomination for election as a Director of Universal
Security Instruments, Inc. ("USI") at USI's 2005 annual meeting.
Sincerely,
Michael L. Kovens
EXHIBIT 3
MICHAEL L. KOVENS, : IN THE
Plaintiff, : CIRCUIT COURT
v. : FOR
UNIVERSAL SECURITY : BALTIMORE COUNTY
INSTRUMENTS, INC., et al., :
Defendants. : Case No: 03-C-03-009639
:
STIPULATION OF DISMISSAL WITH PREJUDICE
Plaintiff Michael L. Kovens and Defendants Universal Security Instruments,
Inc., Estate of Stephen C. Knepper, and Harvey B. Grossblatt, by and through
their undersigned attorneys, hereby stipulate and agree that the above-captioned
civil action and all claims asserted or that could have been asserted herein,
including all claims asserted against any party in the Complaint, the Amended
Complaint, the First Amended Complaint, the Second Amended Complaint or the
Third Amended Complaint, shall be, and are hereby, dismissed with prejudice,
with each party to bear his/its own costs.
Respectfully submitted,
- ---------------------------------- -----------------------------------
Dale A. Cooter C. Carey Deeley, Jr.
James E. Tompert VENABLE LLP
COOTER, MANGOLD, TOMPERT & KARAS, 210 Allegheny Avenue, P.O. Box 5517
L.L.P. Towson, MD 21204
5301 Wisconsin Avenue, N.W. (410) 494-6200
Suite 500
Washington, D.C. 20015 G. Stewart Webb, Jr.
(202) 537-0700 Christopher R. Mellott
VENABLE LLP
Attorneys for Plaintiff 2 Hopkins Plaza, Suite 1800
Baltimore, MD 21201
(410) 244-7400
Attorneys for Defendants
SO ORDERED this___ day of _______, 2005.
- ---------------------------------------
Judge Susan Souder